Chandigarh

StateCommission

A/10/2018

Dell International Services India Pvt. Ltd. - Complainant(s)

Versus

St. Kabir Public School - Opp.Party(s)

Amit Jhanji, Adv.

25 Jun 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Appeal No.	:	10 of 2018
Date of Institution	:	18.01.2018
Date of Decision	:	25.06.2018

 

Dell International Services India Pvt. Ltd., Divyasree Greens, No.12/1, 12/2A, 13/1A, Challaghatta Village, Varthur Hobli, Bangalore, Karnataka.

……Appellant/Complainant/Decree Holder

 

V e r s u s

 

1. St. Kabir Public School, Sector 26, Chandigarh through its Administrator.
2. M/s Beyond Computers, SCO 371-372, First Floor, Sector 35-B, Chandigarh.
3. Mr. I.P. Singh, Proprietor, M/s Beyond Computers, SCO 371-372, First Floor, Sector 35-B, Chandigarh.
4. M/s Ingram Micro India Ltd., SCO 60, IInd Floor, Sector 47C, Chandigarh (Given up vide order dated 09.02.2018)
5. M/s Ingram Micro India Ltd., Godrej IT Park, B-Block, 5^th Floor, Pirojshanagar, Vikhroli (West), Mumbai-400079. (Given up vide order dated 09.02.2018)

….Opposite parties/Judgment Debtors

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:-       Sh.Amit Jhanji and Sh.Salil Sabhlok, Advocates for the appellant.

                         Sh.Pankaj Chandgothia, Advocate for respondent no.1.

                         Sh.Sehaj Bir Singh, Advocate for respondents no.2 and 3.

                         Respondents no.4 and 5 given up.

PER PADMA PANDEY, MEMBER

                This appeal has been filed by the appellant/opposite party no.3 against the order dated 28.11.2017, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’), vide which, consumer complaint bearing No.4 of 2016 filed by respondent no.1 was partly allowed and the appellant and respondents no.2 to 5 were directed as under:_:-

“13. In view of the above discussion, the present consumer complaint deserves to succeed and the same is accordingly partly allowed. OPs are directed as under:-

1. To immediately refund the invoice value of the machines in question i.e. Rs.6,84,600/- to the complainant with interest @ 6% per annum w.e.f 26.8.2013 (date of purchase) till realization.  However, the complainant shall handover all the machines, including those provided as standby, to the OPs.
2. To pay Rs.40,000/- to the complainant as compensation for the harassment caused to it;
3. To pay to the complainant Rs.10,000/- as costs of litigation.

14.  This order be complied with by OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 9% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.”

2.       The facts, in brief, are that for the purpose of enhancing education of its students, respondent no.1 bought 40 sets of WYSE thin client T 50 (in short the machine/system) from the appellant and respondents no.2 to 5 on making payment of Rs.6,84,600/- but it started malfunctioning within a short period as THIN CLIENT’s started hanging-up during login and also during working on the applications, due to which, the students were unable to perform any work. The said hardware problem was brought to the notice of the appellant and respondents no.2 to 5, upon which, their officials/engineers visited the school several times. Commitment was made to replace the defective hardware, vide email dated 17.2.2014. The appellant and respondents no.2 to 5 also promised to supply the standby machines, so that education of the students does not suffer, but, all their promises turned out to be false.  Respondent no.1 vide email dated 1.5.2014, requested the appellant and respondents no.2 to 5 to refund the amount paid towards the said machine/system. When nothing came positive, legal notice dated 17.6.2014 was also served by respondent no.1 but to no avail. It was further stated that the aforesaid acts of the appellant and respondents no.2 to 5 amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of respondent no.1, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed before the Forum seeking various reliefs.
3.         Respondents No.2 and 3 did not appear despite due service and as such, they were proceeded against ex-parte by the Forum vide order dated 30.3.2016.    
4.         The appellant, in its written statement, admitted that respondent no.1 purchased 40 sets of T50 from respondent no.2. It was stated that respondent no.1 did not consult for setup/recommendation i.e. which product would be advisable, keeping in view that the lab was already working and servers, CRTs etc. were already installed. It was further stated that thin client is a user end device of what is operating on the server and the servers used by respondent no.1 were of HP. It was further stated that all consultation and recommendations were made by respondent no.2. It was denied that there was any manufacturing defect in the machine/system and, therefore, the question of its replacement did not arise. It was further stated that neither there was any deficiency, in rendering service, on the part of the appellant, nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
5.         Respondents no.4 & 5, in their joint written statement, denied that they sold any product to the appellant or installed the same.  It was stated that they were not connected with the sale or after sale services of the alleged computers. It was denied that any engineer of the appellant and respondents no.2 to 5 inspected the computer lab of the school and gave assurance with regard to usability and suitability of the products. It was also denied that any commitment was made by the appellant and respondents no.2 to 5 for any kind of replacement of the machine/system. It was stated that neither there was any deficiency, in rendering service, on the part of respondents No.4 & 5, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
6.         The contesting parties led evidence in support of their case.
7.         The Forum after hearing the contesting parties and also after going through the evidence on record, accepted the complaint, in the manner, referred to, in opening para of this order. Hence this appeal.
8.         Notice of this appeal was served upon the respondents. Sh.Pankaj Chandgothia, Advocate put in appearance on behalf of respondent no.1. Initially, Sh.Inder Pal Singh, respondent no.3 in person put in appearance. He also appeared on behalf of respondent no.2, as its Proprietor and, thereafter, Sh.Sehaj Bir Singh, Advocate put in appearance on their behalf. None put in appearance on behalf of respondents no.4 and 5, as a result whereof, they were proceeded against exparte.  
9.         We have heard the contesting parties and have also gone through the evidence and record of the case, carefully.
10.         The Forum while allowing the complaint filed by respondent no.1 observed as under:-

“A perusal of the documents on record, especially the emails between the complainant and OP-1/OP-3 reveal that the machines in question were not giving appropriate results, as desired by the complainant, for the students and, therefore, the matter was immediately conveyed to the OPs for the necessary steps to be followed, but, as per the complainant, till date, the machines in question are faulty and a few standby machines were also provided for the redressal of the grievance of the complainant.  However, since the machines purchased were not giving desired results, therefore, the complainant purchased new machines to give latest education to the students of its school. 

A perusal of the email (Annexure C-3) makes it crystal clear that the complainant wrote on 17.12.2014 after getting harassed at the hands of the OPs for the replacement of the machines at the earliest and on the same day OP-1 replied to the complainant that the company has agreed to replace the same and is sending more standby machines for the time being.    At page 22 OP-3 also wrote to the complainant after making visit of its engineers and apologized for the delay in writing the summary of its observation.  At page 23, there is detailed mention of the problem description and steps that OP-3 tried.  Even feedback by the customer i.e. complainant has been mentioned in this email depicting the hanging problem while working on the machines.  Through this email OP-3 apprised the complainant that it is working to resolve the issue and as an immediate resolution, it is arranging couple of more S10 devices.  Again on page 25 OP-3 gave the observation after inspecting the machines that the lab server of the complainant was infected with lots of virus and it was taking steps to detect the problem after scanning the server, meaning thereby OP-3, being the manufacturer of the machines in question, was well versed with the problem faced by the students at the school of the complainant, but, no specific/authentic solution was provided to resolve/redress the grievance of the complainant.  Rather, the process of email communication kept on continuing for a long time without any fruitful results. We are of the opinion that school is an organization not only to impart education to the students/children, but, also make effort for their harmonious development.  In the present scenario, when the competition is so high amongst the students to achieve the best to meet their goals, the complainant invested a hefty amount of Rs.6,84,600/- for the purchase of the machines for a noble cause for enhancing the education of the students, but, the whole purpose of purchasing the machines got defeated and even after investing such a huge amount, the complainant school had to face failure of its effort as the machines in question did not work properly.  The complainant despite spending a lot of time and energy had to suffer harassment at the hands of the OPs as they failed to redress the grievance of the complainant.  The act and conduct of the OPs amounts to deficiency in service and indulgence in unfair trade practice.”

11.         The findings given by the Forum appears to be perfectly justified. Record reveals that respondent no.1 had been running behind the appellant and respondents no.2 to 5 with a request to rectify the defect in the said machine/system, but they failed to do so. However, it appears that when the appellant and respondents no.2 to 5 were unable to rectify the defect in the said system, upto the satisfaction of respondent no.1, they took a plea to the effect that the defect occurred, on account of virus in the server. At the time of arguments also, it was contended with vehemence by Counsel for the appellant that it was only on account of virus in the server, that the said defect occurred, and in no way the appellant can be held responsible for that. The plea taken by the appellant does not appear to be correct. Record reveals that the technical team of the appellant, visited the premises of respondent no.1 in January 2014, and checked the machine/system in dispute. Thereafter, an email dated 03.02.2014 was sent by the appellant to respondent no.1, wherein, the defects pointed out and what actions were taken by the engineers of the appellant, were discussed in detail. In the said email, we did not find anything, which suggests that virus has attacked the server in question, which was installed at the premises of respondent no.1. In the said email, it was never brought to the notice of respondent no.1 that defects in the machine/system arose, on account of virus in the server.  Whereas, on the other hand, it was clearly stated in the said email that the team of the appellant is working on to resolve the issue. Had there been any issue of virus attack in the said server, when the first complaint was attended in January 2014, the appellant would have clearly stated in the said email in regard to that, but it is no so in the present case. It is therefore held that defective machine/system was supplied to respondent no.1.    

                No doubt, after the re-visit made in April 2014 for defect rectification, thereafter the appellant vide email dated 24.04.2014 informed respondent no.1 that the said server was found infected with lot of virus. Even if, for the sake of arguments (though not admitting)  that for the first time, in April 2014, virus was found in the said server (especially when the machine/system was still not made operational), the same had no nexus with the defect arose in the said machine/system, as far as back in January 2014, when it suffered defects and no such virus was ever reported by the appellant therein, at that time. As such, the plea taken by the appellant, in this regard, being devoid of merit, must fail and the same stands rejected. 

12.         As far as the objection taken with regard to limitation to file the complaint is concerned, it may be stated here that record reveals that vide email dated 30.06.2014, the appellant has informed respondent no.1 to send some details of the machine/system, so that they are able to the take the matter forward, accordingly. However, the fact remained that the appellant and respondents no.2 to 5 were unable to rectify defects in the said machine/system, despite making several efforts. As such, if two years is taken from 30.06.2014, the complaint having been filed before the Forum on 31.12.2015 was well within its limitation. Objection taken in this regard, being devoid of merit, stands rejected.    

                No ground, whatsoever has been made out, by the appellant, to reverse the findings of the Forum, given vide the order impugned.

13.         No other point, was urged, by the parties concerned.
14.         In view of the above discussion, it is held that the order passed by the Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
15.         For the reasons recorded above, the appeal being devoid of merit, must fail, and the same is dismissed with no order as to costs. The order of the Forum is upheld.
16.         Certified copies of this order, be sent to the parties, free of charge.
17.         The file be consigned to Record Room, after completion.

Pronounced.

25.06.2018

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 (DEV RAJ)

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

Rg