Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that for his personal use complainant purchased one branded computer of HCL from the OP1 manufactured by OPs2 and 3 and branded name is HCL Model No.EZEEBE Max 4991 PDP on payment of cash Rs.24,000/- only the price quoted OP1 vide Tax Invoice No.HIMI/2008-09 00245 Dated 23-05-2008 and that PC was covered under paid extended warranty for two years payment made against proper money receipt Tax Invoice No.HIMI/2008-09 00245 Dated 23-05-2008, so complainant availed of HCL original warranty for one year and of the same was extended for another two years i.e. total three years from the date of purchase of 22-05-2011. 

          Said warranty extension was for two years with No.000751 and with code No.408 DEX 000751 and that warranty was taken on payment on Rs.2,000/- in addition to the net price of the computer for Rs.24,000/-.  That PC in question was delivered and installed on 23-05-2008 at night but after 6 or 7 months i.e. from 29-01-2009 the said PC started mal-functioning and OP2 was informed about the same and the service engineer of OP5 attended the same and checked and found system problem and put the machine in working conditions and after 29-01-2009 again PC started mal-functioning on and from 21-03-2009 and the OP2 intimated about the same and the 2^nd engineer Mr. Suman Das, from Service Provider OP4 inspected on 21-03-2009 found PC problem, checked and put the machine in working condition temporarily and claimed Rs.850/- for permanent rectification of defect.  Again in the middle of December, 2009 the total systems of the said PC started mal functioning in various ways and the matter was brought to the notice OP1 twice in writing with the request for rectification of the defect and sent by Speed Post to their Sales and Branch Office on 06-03-2010 and 23-04-2010 but no reply was received from their end.  Further OP5 also did not take action to put the PC in right working state even after receiving the letter dated 06-06-2010 and sat tight lipped without responding to the call of the complainant but complainant also brought to the notice of OP5 about the said fact in writing on 06-06-2010 but even then complainant has been suffering continuous problem to run the PC and has also failed to get any service from the engineers of the HCL who inspected the machine (PC) on several occasions.

          Complainant wrote to OPs1 and 2 by speed post on 13-05-2004 calling them upon to take back the PC in question within 15 days from the date of receipt of the letter and to refund the price along with cost and extended warranty excluding the VAT and taxes and pay the compensation of Rs.50,000/-

          Most interesting factor is that after gap of one year i.e. on 30-01-2010 one of the engineer of OP5 found and said that PC with some non HCL components installed in the CPU of the same and in observation of the conduct of OPs 1 to 5 complainant contacted on 01-10-2010 and 30-03-2011 to Consumer Affairs and Fair Business Practices, Directorate, and prayed for redressal of his grievances in respect of huge monetary loss suffering from and, in fact, for deficiency and for adopting unfair trade practice of the OPs complainant suffered financial loss and harassment and in view of the foregoing it is submitted that OPs1,2 and 3 sold a defective PC to the complainant and in the present day the computer is integral part of life and due to non functioning of the PC purchased from the OP1 complainant totally shattered in respect of communication with the different persons and different site also and it is proved from the documents that OPs1 to 3 adopted unfair trade practice by putting non-HCL products in the CPU of the branded computer of HCL while it was manufactured but taking the same dealer of the said computer and the OPs2 and 3 manufacturer of the same did not take any remedial positive step to make the said computer in perfect working condition of complainant’s full satisfaction.  As such it is proved that on the part of HCL Infosystems, HCL  Seller and Manufacturer of the same did not take any remedial step to put an end of the trouble in respect of the computer and for perfect working condition and secure satisfaction of the complainant and in the above circumstances complainant has prayed for redressal before this Forum.

          On the other hand OPs 2 and 3 by filing written version submitted that complainant no doubt purchased a branded HCL computer along with other machineries from the OP1 with a valid invoice no doubt and no doubt some internal system problems have been cropped up with regard to the said computer and as a course of procedure complainant visited to the authorized service centre of the OP1 for the purpose of necessary repair and/or service of the said computer and no doubt OPs 2 and 3 are the only manufacturer of the branded computer along with their other equipments and the OP1 is the dealer used to purchase the said branded computer for sale towards the intending consumers and OPs 2 and 3 have the only responsibility to some extent to preliminary sell of the computer to its dealer and it is the duty of the dealer to look into the service of the intending consumers within the warranty period as prescribed in the warranty card.

          It is specifically mentioned that the warranty covers only the replacement of defective spare parts and labour only.  The warranty does not cover consumables and accessories such as batteries, plastic/rubber parts, printer heads, AC adaptor, printer, speaker, headphone, ink cartridge/ribbons/toner and other consumables etc. and HCL’s sole obligation under this warranty shall be, at its option, to repair or replace the field replaceable unit hereinafter called FRU with new or qualified used FRU at its option in the event of any failure or defect covered by the warranty arising during the warranty period and any FRU repaired or replaced under the warranty shall be subject to the balance of the original warranty period applying to the product and any FRU replaced under warranty shall become HCL’s property and in no event shall HCL be liable to refund the price money.  Further warranty is provided for qualified devices.  Products not supplied or not qualified by HCL and products for which customer does not allow HCL service point or the HCL  SP to incorporate engineering improvements will be considered non-qualified devices, HCL Service Point of the HCL SP will charge customer for the increased efforts at standard rates and as per warranty, warranty will be null and void such as any correction/alterations made in the printed configuration of original warranty card, any defect in the payment of full price of the product supplied by HCL or its authorized reseller and if the product or FRU label or serial number has been altered or obscured and unauthorized modifications, tampering, abuse or misuse of the product, repair in those cases where the product is being or has been serviced by a third party other than HCL or HCL Service Centre and use of non HCL media, supplies and consumables or such items not designed for use with the products serviced under this warranty.

          Further it is submitted from the terms and condition of the warranty it is clear that allegation as made by the complainant against the OPs1, 4 and 5 are not responsible for the dispute and/or differences as has been complained of in the complaint and OPs 2 and 3 are not responsible for the fraudulent act or replacement of non HCL 250 GB SATA HDD & 1 GB X 2 DDR II RAM and non installation of XP Genuine Microsoft Software in the said computer and it has been admitted by the complainant in his letter dated 01-10-2010 issued to the Assistant Director, CA&FBP, Government of West Bengal. 

          Most interesting factor is that before preferring of this complaint the complainant never issued any letter and/or representation to the OPs 2 and 3 since the complainant well aware of the fact that OPs 2 and 3 have nothing to do in respect to the dispute as cropped up by and between the OPs 1,4,5 and complainant and in the light of the above observations the present complaint should be dismissed against the Ops 2 and 3.

          Further OP1 Hi Micro Infotech Pvt. Ltd. by filing this complaint has submitted the present compliant is hopelessly barred by limitation because the computer was purchased by the complainant on  30-01-2010 whereas the present complaint was ultimately filed on 07-05-2013 i.e. long after three years.  It is specifically mentioned by the OP1 that OP1 is the showroom and sell components of different makes and the customer buys products according to his choice of make and the company thus acts only as an agent of the different disclosed principal brands and the components were purchased by the complainant from the OP1 and successfully installed at the site of the complainant and no grievance had been made in this regard and once the purchase is made and such installation done successfully, the service and/or quality of the product is ensured and/or maintained by the respected brand in the regular course of business and there was no deviation of such established practice even in case of the complainant.  it is further submitted that HCL system was purchased by the complainant has KIT UBUNTU LINUS DT 32-BIT PRLD as its operating system and there cannot be any question of having preloaded Windows XP and same will be evident from a bare perusal of the configuration details of the said system.  In respect of the model no.EZEEBE Max 4991 PDP and complainant admittedly, tried to run Windows XP from the same and so it is apparent that the complainant has himself tinkered with the system at his peril and cannot hold anyone else liable for any such fault.  It is further alleged that the company has always tried to accommodate the complainant as a matter of good gesture and there was no change of any parts from the said HCL computer by the OP1 and practically Company is not aware of such dealing of such complainant and practically all discussions and repairing had been done by the OP Service Centre were not liable for maintaining the system of installation in the house of the complainant but denied all other allegations in their written version and alleged that entire allegation of the complainant is false and fabricated so the complaint should be dismissed.

Decision with Reasons

On proper evaluation of the argument as advanced by the Ld. Lawyers of the OPs and also the complainant and further considering the complaint it is clear that complainant purchased the said HCL model branded computer being Model No. EZEEBE Max 4991 PDP on payment of Rs.24,000/- on 23-05-2008 from OP1 that PC was covered warranty under one year and further warranty for two years was extended as it was extended on payment of Rs.2,000/- by the complainant.  So, first warranty was for one year with effect from 23-05-2008 and that warranty period expired on 23-05-2009.  But before that complainant extended two years warranty and that is up to 22-05-2011.  So, considering that fact it is clear that complainant up to 22-05-2009 got proper service in respect of the said computer and during that period practically no such vital problem in respect of operating and running the said machine was detected but mal functioning was detected on 21-03-2009 first on 29-01-2009 that was cured.  Thereafter, further problem was cropped up in the month of December, 2009 but that was not properly entertained and no such service was provided by the service provider OP5.  Truth is that from the date of purchase of the said PC complainant also paid Rs.2,000.- as warranty extension pack for two years which is mark as Exhibit B.  From warranty card i.e. HCL warranty extension pack for two years for EZEEBE it is found that the warranty of the said PC was up to 22-05-2011 starting from 23-05-2008.  From customer call service report dated 29-01-2009 it is found that there was some sound problem and said problem was cured and Rupali Sarkar received on behalf of the customer care and the same was repaired by the customers Care HCL Infosys Ltd. i.e. by OPs M/s. Sonali Infonet(Annexure-D).  Similarly, from another service centre report dated 21-03-2009 it is found that same system problem was detected and it was reported that XP software is not installed properly and also antivirus was not working properly so it was properly repaired without any service charge and on call from Rishi Infosys the engineer attended.  Considering those documents it is clear that up to 21-03-2009 there was complaint on behalf of the complainant and that was properly attended by the OP Service Centre.  But after 21-03-2009 complainant did not lodged any complaint about the defect of any system to the OPs but lastly on 06-12-2010 complainant reported to OP1 for replacement or install new HCL SATA of HDD installed genuine software and defect-free UPS.  Thereafter, a reminder also sent to the OP1 vide exhibit F on 23-04-2010.  But it is evident from the complainant’s letter to Sonali Infotech dated 06-06-2010 Exhibit G and his query was that while his engineer wanted Rs.10,000/- to 12,000/- for XP software original installation.  Thereafter, vide annexure H complainant sent a demand justice letter to OP1 and OP3 and lastly from the customer call cum service report annexure I dated 30-01-2010 it is clear that the said engineer came to a conclusion that he was not able to provide support of the reasons that he found 250 GB SATA HDD & 1 GB X 2 DDR II RAM non-HCL and for which the system was not working and the engineer found that the system got infected so required license software, UPS got problem with flickering so it is also fault otherwise system was running.  Whatever it maybe it is clear that complainant purchased the said PC on 23-05-2008 and warranty period was valid up to 22-05-2011 and all these problems were detected within the said warranty period lastly on 30-01-2010 but the service centre already reported the certain complication and problem of the UPS and complainant subsequently by sending demand justice letter prayed for refund of the said price of the said PC and for directing the OPs 1 and 3 to take back the same and for compensation.

          In the present case the Ld. Lawyer for the OP submitted that the warranty(for 3 years) expired on 22-05-2011 whereas the present complaint was filed on 07-05-2013 and before that complainant did not file the complaint when cause of action finally arose on 30-01-2010 when UPS got problem with flickering and it was followed and system got infected so required licensed                     software otherwise system was running so it is clear that on 30-01-2010 the problem was detected but it was quite running as usual.  Now, we shall have to consider whether as per warranty clause complainant is entitled to get what type of benefit in this regard but it is clear that no doubt complainant on the last date of warranty within two years filed this complaint and no doubt it is not time barred at all but such a plea has been taken by the OP to avoid their responsibility to repair the said machine.

          Fact remains, as per warranty clause HCL sold the system under warranty for to fill replaceable unit which are quite FRU with new and qualified FRU of its option for any failure and defect cover any warranty period and fact remains defects were detected by engineer of the service centre of the HCL.  SO, it is the duty of the HCL to remove those defects in respect of which warranty covers but most interesting factor is that complainant did not produce the terms and condition of the warranty.  Invariably for some reasons whatsoever, but considering the entire facts and circumstances it is clear that the defects in respect of UPS and affecting of the said PC from virus so HCL Company shall have to take such step to make it viable to run and truth is that in the meantime complainant did not extend the warranty and warranty actually expired on 22-05-2011 but all the defects were detected by the service engineer of the company through service centre on 30-01-2010 that was reported to the service centre and also to the OP1 but they did not take any step but it is the duty of them i.e. report to the HCL for giving proper relief but we have gathered that there is some hands back behind whole game and for which complainant in between 30-01-2010 to 07-05-2013 was sitting idle and invariably he run the computer with some minor defects and properly but he in the meantime took help of consumer service centre and run the same whatever it may be it is clear that service centre during the period of warranty did not give such proper service and service centre did not report the fact to the HCL authority and it is also fact that HCL authority was kept under darkness and OP1 also as seller did not report and so in the above circumstances we are convinced to hold that no doubt OP1 the seller and OP2 and 3 manufacturers did not discharge their duties properly and no such relief was given as per warranty clause when the defects were detected during the warranty period i.e. on 30-01-2010 when warranty expired on 22-05-2011 in this context it is to be mentioned that for long two years from 30-01-2010 to 07-05-2013 complainant run the said PC invariably by other parts and for which some new item was found by the engineer and that was reported but complainant is claiming that he purchased HCL PC and how non-HCL articles were found in the same but we have failed to understand why the said matter was not reported to the service centre of the HCL at the relevant time on 30-01-2010 but whatever it may be it is clear that as per warranty the complainant was entitled to get replacement but that was refused by the OPs but that should be given to the complainant when there was warranty but that has not been given by the service centre of the HCL that is no doubt negligent and deficiency on the part of the OP so in the above circumstances we are directing the OPs1,2 and 3 to take all such steps to make the said HCL PC of the complainant free from all defects, so that he may run it and after repair when the matter shall be handed over to the complainant on proper receipt of the complainant, but after repairing and handing over the article to the complainant, complainant shall not get any benefit if warranty period is not extended but complainant shall have to get warranty from the OPs 2 and 3 if warranty is further renewed.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest against the OPs1,2 and 3 with a cost of Rs.10,000/- which shall be paid by the OPs jointly and severally.

          OPs 1, 2 and 3 are hereby directed to repair the said computer of the complainant within 45 days from the date of this order and make it usable and handover to the complainant on proper receipt and same shall be collected by OPs1,2 and 3 from the house of the complainant at OPs cost and after repairing and making it serviceable shall hand over it and for non compliance of the Forum’s order OPs 1,2 and 3 shall have to pay punitive damages @Rs.100/- each per day till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.

          OPs1,2 and 3 are directed to comply the order very strictly within stipulated period  failing which penal action shall be started against OPs1,2 and 3 and violation of the Forum’s order further penalty and fine may be imposed against OPs1,2 and 3. 

          But the case against other OPs is hereby dismissed without any cost.