THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C. 103/2017

Dated this the 11^th day of September 2018.

                     (Smt. Rose Jose, B.Sc, LLB.    Hon’ble      :  President)

                          Smt.Beena Joseph, M.A                         : Member

                          Sri. Joseph Mathew, MA, LLB              : Member   

ORDER

Present: Joseph Mathew, Hon’ble Member:

            This petition is filed Under Section 12 of the Consumer Protection Act.1986.

            The petitioner is a journalist by profession holding Master’s Degree in literature and a post graduate Diploma in journalism and has been working as a journalist for the past 25 years.  She had regularly contributed to the periodicals labour file, Equal Times published from New Delhi and Brussels respectively.  She has also special assignments from International Labour organization New Delhi and International Trade Union Centre London. She has been working from her house at Beach Palms, West Hill Kozhikode for the last few years.

            Her case is that, since most of her assignments are being done on the computer, she was looking for a new computer/word processer with the latest features.  At this time she was impressed by the online claim and advertisement of the opposite party company that” they are the global giant in computer technology and the most consumer friendly Company manufacturing the best computers in its class with excellent and prompt after sale service”, and so she had purchased an all-in-one computer of the said company bearing No.DELL A103039/6G-13/4GB/500GB/WIN10/19.5”/BLK/IYR from the 1^st opposite party’s Show Room at Kozhikode on 19.08.2016. She took 2 years extended warranty after paying an additional amount of Rs.2500/-.  The basic softwares were installed by DELL Sales/Service staff of the 1^st opposite party from there itself.  She took the computer to her home and when operated, to her dismay, multiple folders with individual names appeared on the monitor.  She could not recognize any of the folders. Immediately she made a complaint to the 1^st opposite party and their staff told her that, they will get back to her after talking to their manager.  The next day the screen started going blank quite often.  When again complaint, they asked to bring back the system to their shop and collect a new one and as such the system was replaced with another alleged new one.  The petitioner stated that, this clearly shows that the computer first supplied was either a used one or a defective one.

            It is stated by the petitioner that, the new one supplied worked perfectly for one week and then the screen started going blank again.  When complaint, the technicians of the 1^st opposite party came to her home and after checking the system informed her that the issue is resolved but the moment the technician left, the system showed the same complaint again.  This time also she was forced to make a complaint before the 1^st opposite party and this time the staff of the 1^st opposite party told her to lodge a complaint with the 2^nd opposite party at their customer care number.  After much attempts, however she contacted in that number but she had to explain the problem at least to 4 different persons because after listening the complaint each of them said that, it is not their department and transferred the phone to another person and any how she did not get any satisfactory answer from their customer care Centre.  On 7^th   November 2016 the computer while doing its automatic updates, got hung and had to be force shutdown.  When tried to restart the computer, a blank blue screen appeared with the curser arrow on it.  Dell technical support was again sought and she was advised to do a computer diagnostic test by pressing F2 and after the system showed no error, the technician told that there is no hardware issue with the system and it is a software problem with Microsoft Window 10.  Thereafter she was told by the technician that a link will be mailed to her which should be downloaded to another system and to save the documents on a pen drive and to keep the same ready the next day and so she carried out the instructions as informed.

            It is further stated that, the next day another technician of the 2^nd opposite party enquired her whether a backup of the files in the computer had been taken.  Since the technician who attended the call earlier has not asked to take a copy of all the data’s in the computer, she has not taken any copy of datas and so she answered ‘No’ and then the technician told her to seek the help of a local technician to take a backup of the system. It is alleged that since it is the responsibility of the opposite parties to ensure the computer supplied is working to the satisfaction of the customer, that too within the warranty period, the instruction to seek the help of a Local Technician is gross deficiency in service on the part of the opposite parties.  Anyhow, the technician from the 1^st opposite party            after inspecting the system told her that, he cannot save any of the files in the C drive.  He worked on the system and restored it into the factory mode.  With this process, all documents, files, and datas saved in the C drive of the system was deleted along with all softwares installed including anti-virus protection software.  It is further stated that, even after repeated repairs the same complaints persisted and therefore the Dell technicians changed the LCD screen and Mother Board of the system.  But even after all these processes, the defects still persisted but to her dismay on 28^th November 2016 she got a mail from Dell saying that, since the problems are solved they are closing the complaint and to that she sent a mail objecting the said decision.  Since even after repeated checkups and repairs by the opposite party, they could not even find out what was the exact complaint with the system or to rectify the defects and so she lost her patience and so sent a notice to the Dell officials demanding refund of the purchase price of the system but to that notice she received a mail from one Mr.Sujay Jadhav saying that, Dell cannot refund the amount but can only repair the system.  The replacement of the 1^st computer with a new one and the repeated complaints with the replaced one shows that the 1^st one sold to her by the 1^st opposite party was either a used one or a refurbished or a defective one and the 2^nd one sold was also a defective one and the defects could not be cured.  The petitioner alleged that, the sale of a defective product is unfair trade practice and the negligent and indifferent attitude of the opposite parties in attending the complaints of a customer timely and properly amounts to deficiency in service on the part of the opposite parties. Due to the said act of the opposite parties she had suffered both professionally and financially by not being able to meet up dead-lines and loss of valuable datas stored in the system apart from the mental agony and other hardships suffered.  Hence this petition is filed to direct the opposite parties to refund the purchase price of the computer including the amount paid for extending the warranty and in addition a total amount of Rs.10,00,000/- with 18% interest as compensation for the loss of backup datas and documents pertaining to interviews, photographs, research materials, articles drafted etc.  and for the loss of business due to delay in sending articles to the periodicals like Equal Times, Labour File etc., loss of reputation, mental agony and other hardships suffered and also cost of the proceedings.

            The 1^st opposite party received the notice issued from this Forum but did not appear or filed version.  Hence the 1^st opposite party set ex-parte.

            The opposite parties No.2 to 6 filed a combined version with the following contentions.  This petition is not maintainable either in Law or on facts of the case and is filed with ulterior motive to extract undue gain from them.  It is contended that they are unaware of the educational qualification, profession or working pattern of the petitioner and so the petitioner is put to strict proof thereof.  The 1^st opposite party has not in any way misrepresented any fact with regard to the computer in dispute as alleged in the petition.  The opposite parties admitted the purchase of the computer from the 1^st opposite party but contended that, they are unaware of the alleged assurance given by the 1^st opposite party to the petitioner as stated in the petition and hence denied. The allegation that the basic software was installed in the computer by the sales staff of the 1^st opposite party was denied as false.  The allegation that the computer 1^st sold to the petitioner was replaced with another one due to the defect with the first one sold by the 1^st opposite party was also denied as want of knowledge.  The other allegation that the replaced computer after perfect working of one week started complaints and it was reported to the 1^st opposite party and that their technician came and resolved the issue but the moment the technician left, the system again started the same complaint etc. was denied as not within the knowledge of them.

            The allegation that after much effort the petitioner could contact with the customer care of the 2^nd opposite party etc. was denied as not true and stated that, at times the customer care department lines may be busy because of customer enquiries, but once the call got answered, the same might have been transferred to the right department for better explanation and troubleshooting.  The opposite parties further contended that, the opposite party No.2 for the 1st time got a complaint from the petitioner on 08.11.2016 for a no boot issue. Immediately their representative duly assisted the petitioner over phone and all troubleshooting was done.  As no hardware issue was found with the system, they informed the petitioner that operating system (Windows 10) needs to be re-installed.  During the operating system re-installation process datas saved on the computer can be lost and so the opposite party informed the petitioner to take data backup so that the same will not be lost.  The allegation that the genuine windows 10 operating system was not having any software issue was denied as false. The other allegation that the Dell technician worked on the system and restored it into the factory mode and during these process all documents, files and datas saved in the C drive of the system was deleted along with all softwares installed including anti-virus protection software and even after doing the diagnostic check as instructed by the technician, the problems persists etc. were denied as they were not aware of the said facts.

            It is further contended that on 21.11.2016 the petitioner reported issues with the computer to the 2^nd opposite party and accordingly the LCD and Mother board of the computer was replaced on 25.11.2016. Thereafter no communication from the petitioner was received and hence the complaint was closed on the conclusion that all the problems are resolved and an email was send to the petitioner regarding closure of the case.  But again during the month December 2016 the petitioner contacted the 2^nd opposite party and reported issues with the computer but since their service personnel’s could not identify the issue over phone, the petitioner was asked to visit a Dell service Centre but the petitioner denied the request and demanded refund.  But the said demand was untenable because any replacement or refund can be processed only after identifying the issues with the system.  All the complaints reported were attended either via email or over phone and all possible measures to resolve the issues were taken and defects were duly rectified  by them and also assured to the petitioner  to rectify the defects as per the warranty terms and conditions in future.  All other allegations of the petitioner were denied as false and frivolous.  They have not committed any unfair trade practice as alleged and there is no deficiency in service on their side also.  The computer is having no manufacturing defect and they are always ready and willing to honour the warranty terms and conditions and are ready to rectify the issues of the computer if any.  They even offered a replacement or refund to the petitioner but both options have been denied by the petitioner.  The amount of Rs.10,00,000/- demanded as compensation is highly exorbitant and exaggerated without any basis and only with the intend to extract undue gain.  No loss or injury has been occurred to the petitioner due to any of their acts and so they are not liable to compensate the petitioner in any manner.  The petitio0ner is not entitled to get any of the reliefs sought for in the petition and hence prayed to dismiss the petition with compensatory cost.

The matters for determinations are:-

1. Whether there is any unfair trade practice or deficiency in service on the part of the opposite parties?
2. Reliefs and costs if any?

Evidence consists of the affidavit filed by the petitioner, Exts.A1 to A10(i) and deposition of PW1, the petitioner.

Point No.1:- There is no dispute with regard to the purchase of the computer or its price.  The specific case of the petitioner is that, the Dell Company Computer purchased from the 1^st opposite party showed complaints of multiple folders with individual names appearing on the monitor and the screen going blank quite often and when complaint they replaced the system with another one but the substituted computer also  after one week of proper functioning started many complaints and as instructions given by the technicians of the company via e-mails and over phone she herself had tried to repair the problems but since the tasks asked for by the technicians can be done only by a technical hand, she could not resolve the problems and so the technicians came to her home and repaired the system by replacing its LCD and Mother Board but even after all these the problems persisted and from this it is revealed that the system is having manufacturing defects which cannot be cured by repairs and so she demanded refund of its purchase price with compensation for the losses and sufferings but the opposite 0

parties was not ready for the same.  This allegations was denied by the opposite parties No.2 to 6 on the ground that the petitioner had produced the details of the 1^st computer purchased from the 1^st opposite party and not produced any proof of the so called second computer in which the alleged problems developed and on its behalf the 2^nd to 6^th opposite parties has been arrayed in the complaint.  So according to the 2^nd to 6^th opposite parties it cannot be arrived to the conclusion that the so called defects are related to a computer manufactured by DELL Company.  But in their version the opposite parties No.2 to 6 had stated that they are not aware of the transactions between the petitioner and the 1^st opposite party.  If so, how the 2^nd to 6^th opposite parties can deny the said statement of the petitioner for which they have no knowledge?  Here the party to admit or to deny these facts is the 1^st opposite party but they didn’t appear or filed version denying or admitting the said allegations of the petitioner.  More over the opposite parties No.2 to 6 also had admitted that their technicians had given instructions to the petitioner via e-mail and over phone to repair the system and even went directly to her home for repairing the system.  It is to be noted here that on all these times they have no case that, the computer against which the petitioner had alleged complaints was not manufactured by the DELL Company.  So the said contentions of the opposite parties No.2 to 6 is not sustainable.

            Ext.A2 is the copy of e-mail message sent to the petitioner by DELL Technical support and Ext.A6 & A7 are the copies of e-mail messages sent to the petitioner from Dell Customer communication in connection with the complaints of the computer. Ext.A3 is the copy of Repair Order Form which proves that the technicians of the opposite parties had directly repaired the system on 25.11.2016.  Ext.A5 is the copy of notice issued by the petitioner to the opposite parties dated 20.12.2016 narrating all the facts with regard to the complaints of the computer and demanding refund of its purchase price along with compensation. Ext.A8 is the copy of e-mail sent to the petitioner from Dell customer communication denying the demand for refund and offering their help for resolving the technical issues with regard to the computer in future.

            Admittedly the LCD and motherboard of the computer was replaced on 25.11.2016.  Thus the documents mentioned above and the replacement of the LCD and Mother Board proved that the allegations of the petitioner that the substituted computer also was defective and was not working properly as true and correct.  More over the opposite parties also admitted that they have offered replacement or refund to the petitioner but both these options have been denied by the petitioner.  It is pertinent to note here that, the opposite parties has not stated in their version that they offered replacement/refund as a gesture of good will.  This also shows that the opposite parties are also aware that, the computer was defective and the defects are not curable permanently by repairs.  The other contention of the opposite parties that, the inexperience of the petitioner in computer operation would have led for the operation corruption is not acceptable,  since the petitioner herself had stated that she knows the basics of computer operation and she has been using computer for her professional works for about 15 years.  So the repeated repairs done on the computer and replacement of LCD and motherboard within a short span of its purchase shows that the system is having some inherent manufacturing defect which could not be cured by repairs.  Though the opposite parties had attended the complaints and service requests without delay and tried to resolve the problems and even offered replacement/refund, but according to the petitioner the service provided by the opposite parties was not world class by any standard as assured.  Here instead of rectifying the defects directly, the opposite parties have resorted to give instructions to the petitioner via e-mails and over phone to carry out the repairs and this caused much hardships to the petitioner also.  The said act of the opposite parties itself is deficiency in service on their part.

            According to the petitioner, the opposite parties offered replacement/refund only after filing of this complaint before the forum. The opposite party has not denied the said statement also. Since she had suffered much mental agony and other hardships and sustained huge financial loss professionally due to the defects of the computer, the opposite parties are bound to make good her losses but they are not ready to pay any compensation.  Considering the facts of the case it is clear that as a journalist, the petitioner had sustained financial loss and suffered hardships due to the defects of the computer.  So we are also of the view that the opposite parties are bound to compensate the petitioner reasonably. If they offered replacement/refund with reasonable compensation, then filing of this complaint would have been avoided.  The indifferent attitude of the opposite parties in this regard forced the petitioner to come before this Forum for redressal of her grievances after spending much time and efforts.  The said attitude of the opposite parties also amounts to deficiency in service on their part. Point No.1 found accordingly.

Point No.2:- In view of the finding in point No.1, this petition is to be allowed and the petitioner is entitled to get reasonable reliefs.  Ext.A9 is the copy of P.G. Diploma in journalism issued to the petitioner by the Bharatiya vidya Bhavan.  Exts.A10 to A10 (e) are the copies of articles contributed to various National and International Journals like Equal  times, Labour file etc. by the petitioner and Exts.A10(f) to A10(i) are the copies of consultancy Agreement entered into between the petitioner and Centre for Education and communications Society having its registered office in India.  These documents proved that the petitioner is a journalist by profession and she is contributing articles to the said journals after conducting enquiries, taking interviews and photos on various subjects.  The petitioner prayed for Rs.10,00,000/- as compensation for her professional financial loss in not being able to meet up dead lines and for loss of valuable data’s stored in the computer and also for the mental agony and other hardships suffered due to the defects of the computer.  But according to the opposite parties if the petitioner would have stored the backup data’s in external devise, then the issue of loss of data on account of  which the so called financial loss could have been avoided.

            The petitioner is examined as PW1.  In cross the petitioner stated that “ I am well aware of taking back up data of the computer.  I can copy it in an external hard disc devise and also very much aware of storing the data in google space.  I have not taking the backup data from the computer as stated both ways as stated above”.  It is of common knowledge that the datas stored in a computer can be lost or deleted at any time due to many reasons like accidently falling on the floor, water entry, stealing the set by some body, unexpected virus attach or even an improper shut down or a wrong press in a button or during the process of service etc.etc.  So it is the duty of a prudent user of computer to store the datas in any external devise for the safety of the data’s.  Now a days many modern devises are there also for the same.  So the petitioner ought to have taken the back up in any such devises for the protection of the datas.  She herself had stated that she has been using the computer for many years and all her works are doing in the computer.  From this it is clear that the petitioner is well aware of the working of the system and its merits as well as its demerits.  It is also stated by the petitioner that she knows well how to store datas in external devises.  So her statement that she has not taken any back up since the technician has not told her to do so is not acceptable or even believable.  It is also stated that she had sustained a huge financial loss by not being able to meet up dead lines.  If it is so, then she can very well purchase another new computer and can carry on the works without disruption and can avoid continuing financial loss and thereafter can file this complaint against the opposite parties for their unfair trade practice or deficiency in service in connection with the defective computer.  It seems strange why she has not done so.  So the excuses put forth by the petitioner in not taking the back up in other devises is not convincing or acceptable and can only be considered as negligence on her side.  Hence the prayer for Rs.10,00,000/- as compensation is not acceptable or allowable as such.

            Evidence proved that the petitioner is a journalist by profession.  So it goes without say that a computer is an inevitable part of her profession and the defects with the same will cause much mental pain, other hardships and also financial loss to her.  So she is entitled to get a reasonable amount as compensation for the losses and sufferings.  Considering the facts stated, we are of the view that allowing an amount of Rs.1,00,000/- as compensation is just and proper in this case. The dispute is with regard to the defects of the computer and so as the manufacturers, the opposite parties No. 2 to 6 are responsible for the same. As a dealer the 1^st opposite party has nothing do in this matter and hence he is absolved from the liability of paying any compensation to the petitioner.

In the result, the following order is passed.

The opposite parties No. 2 to 6 are ordered to refund Rs.41,500/- (Rupees forty one thousand five hundred only) (which includes the price of the computer and the amount spent for taking extended warranty) to the petitioner along with Rs1,00,000/- (Rupees one lakh only) as compensation for her sufferings and Rs.5,000/- (Rupees five thousand only) as cost of the proceedings within 30 days from the date of receipt of this order. Failing which, the whole amount will carry 9% interest from the date of default till payment. The opposite parties can take back the defective computer on compliance of this order.

Dated this 11^th day of September, 2018.

Date of filing: 16.03.2017.

SD/-MEMBER                                    SD/-PRESIDENT                         SD/-MEMBER.

APPENDIX

Documents exhibited for the complainant:

A1.Cash receipt for Rs.39,000/- dtd.19.08.2016.

A2.True copy of Dell Technical support to resolve the  system.

A3. Repair Order Form.

A4. True copy of Technical support.

A5. True copy of the notice dtd.20.12.2016.

A6. True copy of the reply received by e-mail dtd.12.01.2017.

A7. True copy of the mail dated 13.01.2017

A8. True copy of the e-mail dtd.16.01.2017

A9. Copy of P.G. Diploma in Journalism issued to the petitioner

       By the Bharatiya vidya Bhavan.

A10. Copies of articles contributed to various National and International Journals.

Documents exhibited for the opposite party:

Nil

Witness examined for the complainant:

PW1.Sindhu Menon (Complainant)

Witness examined for the opposite party:

None

                                                                                                                                                   Sd/-President

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT