BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P. No: 201/2001 Dated: 30..06..2009 Complainant: Raveendran Nair. P., Proprietor, Letter Crafts DTP Centre, Behind Olympic Association, Vanross Junction, Thiruvananthapuram (By Adv. S.S. Balu Anayara)
Opposite parties: The Vice President, Wipro Limited, Infotech Group, Trinity 10th Floor, PMG Road, Bangalore. (By Adv. Joseph Markos) Vettooran Computers, The Grace, 892, Sasthamangalam, Thiruvananthapuram.
(By Adv. Pachalloor B. Rajaraman Nair)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 31..12..2004, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 30..05..2009, the Forum on 30..06..2009 delivered the following: ORDER
SMT. S.K.SREELA, MEMBER:
Brief facts of the case are that, the complainant who is a Retired Government Employee had started a DTP Centre exclusively for his livelihood and for that he had purchased a Wipro Super Genius 7000 Computer, H.P Scanjet 5100 C, ISM GIST Malayalam Software, HP Laser Jet 6 MP Printer from the 2nd opposite party for a total amount of Rs.1,24,500/-. The same was installed on 16/1/1999. While the said HP Scanner was used by the complainant very cautiously, carefully and strictly as per the instructions of the opposite parties while so, the system showed some troubles in its performance. Immediately the complainant reported the same to the 2nd opposite party on 15/12/1999. Some authorised service Engineers stated that, the 2nd opposite party visited the complainant's DTP Centre on 23/12/1999 and after examining the system they detected that the scanner was defective and hence they remarked in their service report as “Installed Scanner Software, but scanner not initiating, arranged scanner-service-Engineer for looking after the matter”. Again on 30/12/1999 the service Engineers authorised by the 2nd opposite party had repaired the scanner but the very next day the system again failed, consequent to which it could not be put to use by the complainant further, thus unserving the purpose for which it was purchased. In spite of several repeated complaints and reminders, the opposite parties did not turn up and rectify the defects of the said scanner. The subsequent efforts of the complainant to get the scanner repaired and set right through the opposite parties proved a total failure due to the inaction, lack of prompt service and neglect on their part which amounts to gross deficiency of service on the part of opposite parties. Hence this complaint for redressal of his grievance.
2. The 1st opposite party in their version contend as follows: The complaint is not maintainable either in law or on facts. The complaint is bad for non-joinder and mis-joinder of necessary parties and hence it is liable to be dismissed. The computer in question is purchased for commercial purpose and the complainant is not entitled to file a complaint under the Consumer Protection Act as he is not a consumer falling under the scope of the Act. The 1st opposite party can in no way said to be a necessary party to the complaint and no cause of action is discernible from the complainant as against the opposite party. The only allegation of the complaint is as regards the HP scanner which is manufactured by Hewlett Packard. There is no allegation that the computer which is manufactured by the 1st opposite party suffers from any defect. In such circumstances the 1st opposite party cannot be said to be a necessary party to the complaint and the complainant should have impleaded the manufacturer of the scanner. The 2nd opposite party is not an agent, that the 2nd opposite party is a dealer of the 1st opposite party's products and the 2nd opposite party sells many other products of other manufacturers in addition to the 1st opposite party's products. The 1st opposite party is not concerned with the servicing of the scanner or the Laser Jet purchased by the complainant and no service for consideration was availed from the 1st opposite party. Defects if any with regard to the Scanner and Laser jet is not a matter to be looked into and rectified by the 1st opposite party but by the respective manufacturer.
3. The 2nd opposite party has filed their version contending as follows: The complaint lacks bonafides and is to be dismissed in limine. The complainant failed to implicate proper parties to the complaint and hence the complaint is defective due to non-joinder of necessary parties, that the complainant purchased a Wipro Super Genius Computer, HP Scanjet 5100 C ISM Malayalam Software, HP Laser Jet 6 MP printer manufactured by 1st opposite party, that the complainant had recorded his full satisfaction. At the time of purchase the complainant was informed about the authorised servicing agents M/s. N.S. Corporation Ltd. and that in case of any future service regarding the instrument it has to be rectified through them. Inspite of these facts the 2nd opposite party performed their part with due deligence. The 1st opposite party is the manufacturer of the Wipro Super Genius Computer, HP Scanjet 5100 C ISM Malayalam software, HP Laserjet 6 MP printer. The averments that the 2nd opposite party is the authorised dealer-cum-suppliers of the above mentioned products are true. But the averment that 2nd opposite party is the service franchisee is wrong and hence denied. The authorised servicing agents are M/s. N.S. Corporation who is authorised by M/s. Hewlett Packard India Ltd.which is known to the complainant. But they are not made a party to this proceedings. In any event the 2nd opposite party is not the servicing agent and is impleaded unnecessarily. The computer system which was purchased by the complainant was used carelessly and without complying with the instructions given by the 1st opposite party, 2nd opposite party and also N.S. Corporation. The 2nd opposite party has not deputed any servicing Engineer to the complainant either on 23/12/1999 or any other date. The 2nd opposite party even though not bound to communicate to the N.S. Corporation has done the same because of their commitment to the customer. The complainant is not entitled to get any compensation from the opposite parties since there is no deficiency of service on the part of the opposite parties. Hence prays for dismissal of the complaint with costs.
4. Complainant has filed affidavit and marked Exts.P1 to P11. Opposite parties have also filed affidavits in support of their contention.
From the contentions raised, the following issues arise for consideration: Whether there is any deficiency in service on the part of the opposite parties? Whether the complaint is bad for non-joinder & mis-joinder of necessary parties? Whether there is any deficiency in service on the part of the opposite parties? Reliefs and costs?
5. Points (i) to (iv): Both the opposite parties have contended that the complaint is not maintainable before this Forum. The 1st opposite party in their version has challenged the maintainability of the complaint before this Forum as the computer in question is purchased for commercial purpose and the complainant is not a consumer as per the Consumer Protection Act. The complainant alleges that the system became defective during the warranty period itself. It is a well settled position and has been confirmed in a catena of judgments of the Hon'ble National Commission that even though the machine/equipment is used for commercial/industrial purposes if any manufacturing defect occurs during the warranty period then the issue is covered under the Act and for that purpose purchaser of the equipment is entitled to file a complaint under the Act. Ext.P3 dated 24/12/1999 reveals that the alleged defects have been informed to the 2nd opposite party during the warranty period itself. In the above circumstance, the aspect to be looked into is whether the alleged defects have arisen within the period of warranty.
6. The complainant alleges that the scanner supplied by the 2nd opposite party has became during the warranty period itself. We have perused the records on file. Ext.P1 is the warranty card. As per it one wipro super GENIUS 7000 CELERON 266, 32 MB SD RAM, 4.0 GB HDD/1.44 MB FDD, 14” SVGA COLOUR MONITOR, 104 KEYS KEY BOARD, WINDOWS 98 only has been mentioned. Ext.P1 does not carry warranty for the HP Scanjet alleged to be defective. In the absence of any evidence for the same, we find that the complainant who is a Retd. Government employee cannot be considered as a consumer as per Consumer Protection Act, running a DTP Centre to earn his livelihood.
7. Besides this, though the 1st opposite party has specifically contended that the allegation of defect in the complaint is with regard to the HP scanner which is manufactured by Hewlett Packard hence the manufacturer of the scanner is a necessary party and though the 2nd opposite party has also contended that the authorised servicing agents M/s. N.S. Corporation who is authorised by M/s. Hewlett Packard India Ltd who is known to the complainant, has not been made a party to this proceedings and hence the complaint is defective due to non-joinder of necessary parties.
8. Evidently, the scanner is that of HP make and not that of wipro. Inspite of specific contentions by the opposite parties, the complainant has not taken steps to implead the manufacturer of the alleged defective scanner. The complainant has not mentioned the reason for having not impleaded the above referred parties. Hence we find that the complaint is bad for non-joinder of necessary parties. 9. Moreover, though the complainant has alleged that the scanner became defective, he has not initiated any proceedings to examine the scanner by an expert commission as stipulated in Sec 13 of the Consumer Protection Act for corroborating the pleadings in the complaint.
10. In the light of the above discussions we find that since the complainant has failed to prove that the Scanjet is defective and it became defective within the warranty period, the complaint is dismissed.
In the result complaint is dismissed.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 30th day of June, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER. ad.
O.P.No.201/2001 APPENDIX 1. Complainant's witness: : NIL II. Complainant's documents: P1 : Copy of warranty card with date of installation 16/01/99 P2 : Copy of invoice/bill dated 6/1/99 for Rs.61,750/-. P3 : Copy of letter dated 24/12/1999. P4 : Copy of registered letter dated 28/2/2000 P5 : Copy of postal receipts No.2885, 2886. P6 : Copy of advocate notice dated 6/6/2000. P7 : Copy of reply notice dated 28/06/2000 P8 : Copy of letter dated 10/8/2000 P9 : Copy of letter dated 18/10/2000 P10 Copy of letter dated 31/12/1998. P11 Copy of Invoice for services dated 1/9/2000
Opposite parties' witness: NIL
Opposite parties' documents: NIL
PRESIDENT ad. BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P. No: 201/2001 Dated: 30..06..2009 Complainant: Raveendran Nair. P., Proprietor, Letter Crafts DTP Centre, Behind Olympic Association, Vanross Junction, Thiruvananthapuram (By Adv. S.S. Balu Anayara)
Opposite parties: The Vice President, Wipro Limited, Infotech Group, Trinity 10th Floor, PMG Road, Bangalore. (By Adv. Joseph Markos) Vettooran Computers, The Grace, 892, Sasthamangalam, Thiruvananthapuram.
(By Adv. Pachalloor B. Rajaraman Nair)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 31..12..2004, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 30..05..2009, the Forum on 30..06..2009 delivered the following: ORDER
SMT. S.K.SREELA, MEMBER:
Brief facts of the case are that, the complainant who is a Retired Government Employee had started a DTP Centre exclusively for his livelihood and for that he had purchased a Wipro Super Genius 7000 Computer, H.P Scanjet 5100 C, ISM GIST Malayalam Software, HP Laser Jet 6 MP Printer from the 2nd opposite party for a total amount of Rs.1,24,500/-. The same was installed on 16/1/1999. While the said HP Scanner was used by the complainant very cautiously, carefully and strictly as per the instructions of the opposite parties while so, the system showed some troubles in its performance. Immediately the complainant reported the same to the 2nd opposite party on 15/12/1999. Some authorised service Engineers stated that, the 2nd opposite party visited the complainant's DTP Centre on 23/12/1999 and after examining the system they detected that the scanner was defective and hence they remarked in their service report as “Installed Scanner Software, but scanner not initiating, arranged scanner-service-Engineer for looking after the matter”. Again on 30/12/1999 the service Engineers authorised by the 2nd opposite party had repaired the scanner but the very next day the system again failed, consequent to which it could not be put to use by the complainant further, thus unserving the purpose for which it was purchased. In spite of several repeated complaints and reminders, the opposite parties did not turn up and rectify the defects of the said scanner. The subsequent efforts of the complainant to get the scanner repaired and set right through the opposite parties proved a total failure due to the inaction, lack of prompt service and neglect on their part which amounts to gross deficiency of service on the part of opposite parties. Hence this complaint for redressal of his grievance.
2. The 1st opposite party in their version contend as follows: The complaint is not maintainable either in law or on facts. The complaint is bad for non-joinder and mis-joinder of necessary parties and hence it is liable to be dismissed. The computer in question is purchased for commercial purpose and the complainant is not entitled to file a complaint under the Consumer Protection Act as he is not a consumer falling under the scope of the Act. The 1st opposite party can in no way said to be a necessary party to the complaint and no cause of action is discernible from the complainant as against the opposite party. The only allegation of the complaint is as regards the HP scanner which is manufactured by Hewlett Packard. There is no allegation that the computer which is manufactured by the 1st opposite party suffers from any defect. In such circumstances the 1st opposite party cannot be said to be a necessary party to the complaint and the complainant should have impleaded the manufacturer of the scanner. The 2nd opposite party is not an agent, that the 2nd opposite party is a dealer of the 1st opposite party's products and the 2nd opposite party sells many other products of other manufacturers in addition to the 1st opposite party's products. The 1st opposite party is not concerned with the servicing of the scanner or the Laser Jet purchased by the complainant and no service for consideration was availed from the 1st opposite party. Defects if any with regard to the Scanner and Laser jet is not a matter to be looked into and rectified by the 1st opposite party but by the respective manufacturer.
3. The 2nd opposite party has filed their version contending as follows: The complaint lacks bonafides and is to be dismissed in limine. The complainant failed to implicate proper parties to the complaint and hence the complaint is defective due to non-joinder of necessary parties, that the complainant purchased a Wipro Super Genius Computer, HP Scanjet 5100 C ISM Malayalam Software, HP Laser Jet 6 MP printer manufactured by 1st opposite party, that the complainant had recorded his full satisfaction. At the time of purchase the complainant was informed about the authorised servicing agents M/s. N.S. Corporation Ltd. and that in case of any future service regarding the instrument it has to be rectified through them. Inspite of these facts the 2nd opposite party performed their part with due deligence. The 1st opposite party is the manufacturer of the Wipro Super Genius Computer, HP Scanjet 5100 C ISM Malayalam software, HP Laserjet 6 MP printer. The averments that the 2nd opposite party is the authorised dealer-cum-suppliers of the above mentioned products are true. But the averment that 2nd opposite party is the service franchisee is wrong and hence denied. The authorised servicing agents are M/s. N.S. Corporation who is authorised by M/s. Hewlett Packard India Ltd.which is known to the complainant. But they are not made a party to this proceedings. In any event the 2nd opposite party is not the servicing agent and is impleaded unnecessarily. The computer system which was purchased by the complainant was used carelessly and without complying with the instructions given by the 1st opposite party, 2nd opposite party and also N.S. Corporation. The 2nd opposite party has not deputed any servicing Engineer to the complainant either on 23/12/1999 or any other date. The 2nd opposite party even though not bound to communicate to the N.S. Corporation has done the same because of their commitment to the customer. The complainant is not entitled to get any compensation from the opposite parties since there is no deficiency of service on the part of the opposite parties. Hence prays for dismissal of the complaint with costs.
4. Complainant has filed affidavit and marked Exts.P1 to P11. Opposite parties have also filed affidavits in support of their contention.
From the contentions raised, the following issues arise for consideration: Whether there is any deficiency in service on the part of the opposite parties? Whether the complaint is bad for non-joinder & mis-joinder of necessary parties? Whether there is any deficiency in service on the part of the opposite parties? Reliefs and costs?
5. Points (i) to (iv): Both the opposite parties have contended that the complaint is not maintainable before this Forum. The 1st opposite party in their version has challenged the maintainability of the complaint before this Forum as the computer in question is purchased for commercial purpose and the complainant is not a consumer as per the Consumer Protection Act. The complainant alleges that the system became defective during the warranty period itself. It is a well settled position and has been confirmed in a catena of judgments of the Hon'ble National Commission that even though the machine/equipment is used for commercial/industrial purposes if any manufacturing defect occurs during the warranty period then the issue is covered under the Act and for that purpose purchaser of the equipment is entitled to file a complaint under the Act. Ext.P3 dated 24/12/1999 reveals that the alleged defects have been informed to the 2nd opposite party during the warranty period itself. In the above circumstance, the aspect to be looked into is whether the alleged defects have arisen within the period of warranty.
6. The complainant alleges that the scanner supplied by the 2nd opposite party has became during the warranty period itself. We have perused the records on file. Ext.P1 is the warranty card. As per it one wipro super GENIUS 7000 CELERON 266, 32 MB SD RAM, 4.0 GB HDD/1.44 MB FDD, 14” SVGA COLOUR MONITOR, 104 KEYS KEY BOARD, WINDOWS 98 only has been mentioned. Ext.P1 does not carry warranty for the HP Scanjet alleged to be defective. In the absence of any evidence for the same, we find that the complainant who is a Retd. Government employee cannot be considered as a consumer as per Consumer Protection Act, running a DTP Centre to earn his livelihood.
7. Besides this, though the 1st opposite party has specifically contended that the allegation of defect in the complaint is with regard to the HP scanner which is manufactured by Hewlett Packard hence the manufacturer of the scanner is a necessary party and though the 2nd opposite party has also contended that the authorised servicing agents M/s. N.S. Corporation who is authorised by M/s. Hewlett Packard India Ltd who is known to the complainant, has not been made a party to this proceedings and hence the complaint is defective due to non-joinder of necessary parties.
8. Evidently, the scanner is that of HP make and not that of wipro. Inspite of specific contentions by the opposite parties, the complainant has not taken steps to implead the manufacturer of the alleged defective scanner. The complainant has not mentioned the reason for having not impleaded the above referred parties. Hence we find that the complaint is bad for non-joinder of necessary parties. 9. Moreover, though the complainant has alleged that the scanner became defective, he has not initiated any proceedings to examine the scanner by an expert commission as stipulated in Sec 13 of the Consumer Protection Act for corroborating the pleadings in the complaint.
10. In the light of the above discussions we find that since the complainant has failed to prove that the Scanjet is defective and it became defective within the warranty period, the complaint is dismissed.
In the result complaint is dismissed.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 30th day of June, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER. ad.
O.P.No.201/2001 APPENDIX 1. Complainant's witness: : NIL II. Complainant's documents: P1 : Copy of warranty card with date of installation 16/01/99 P2 : Copy of invoice/bill dated 6/1/99 for Rs.61,750/-. P3 : Copy of letter dated 24/12/1999. P4 : Copy of registered letter dated 28/2/2000 P5 : Copy of postal receipts No.2885, 2886. P6 : Copy of advocate notice dated 6/6/2000. P7 : Copy of reply notice dated 28/06/2000 P8 : Copy of letter dated 10/8/2000 P9 : Copy of letter dated 18/10/2000 P10 Copy of letter dated 31/12/1998. P11 Copy of Invoice for services dated 1/9/2000
Opposite parties' witness: NIL
Opposite parties' documents: NIL
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
