K.V. Sridharan,
Advocate S/o. K.V.Vidyapoornachari, Complainant
Residing at Old No.9, Avadanam Road,
Choolai, Chennai – 600 112.

Vs

1. M/s. IBM Global Services India (Pvt) Ltd.,
IBM Towers, No.222, T.T.K. Road,
Alwarpet, Chennai – 600 018.

2. The Warranty Coordinator, opposite parties
IBM Global Services India (Pvt) Ltd.,
8th Floor, Golden Tower,
Airport Road, Bangalore -560 017.

Date of Complaint 19.09.2005

M/s.Jayasri Baskar,S. Samuel & T.R.Sivaram : Advocate for the complainant

M/s.C.Saravanan, S.Thenmozhi, : Counsel for the opposite parties
M. Rajdenidran and N.D. Jaya Kumar

O R D E R

THIRU. P. ROSIAH, PRESIDENT

Complaint filed under section 12 of the Consumer Protection Act, 1986.

1. The case of the complainant is briefly as follows:

The complainant had purchased personal computer from the dealer of the Opposite parties, Prakruthi Marketing Services (P) Ltd., on 23.08.2002 for Rs.51,300/-. The opposite parties are the manufacturers of the computer. Immediately after the installation, the complainant noticed some defects in functioning of the computer. He made a complaint on 02.09.2002 and it was rectified. The complaint of system hanging and automatic scrolling in the screen during the use of computer are the main defects and the opposite parties were informed of the defects. The complainant had also given three years warranty for the computer. The defects were attended to and again the system was slow and hanging frequently and it was reported to the opposite parties. Subsequently, the CD drive was not working and the mouse replaced for three times. Despite all the defects, the service provided by the opposite parties to rectify the defects is not satisfactory and the problems of scrolling and system slow have not been completely rectified. The system was giving trouble within warranty period. Hence, it is manufacturing defect. The complainant requested the opposite party to replace the computer with a new one. But, that was not done. Hence, the complainant has filed this complainant for return of the sale consideration with interest and compensation of Rs.1 lakhs.
2. The opposite party filed version and contended inter alia that the complaint is not maintainable and the complainant is not a consumer so far as the opposite parties are concerned. The complainant purchased the computer from the dealer party and the opposite parties have neither sold nor received any consideration from the complainant. The complaint is barred by limitation. The complaint is bad for non-joinder of necessary parties. The complainant purchased computer with three years warranty from Prakruthi Marketing Services (P) Ltd., Chennai who is re-seller of computers manufactured by the 1st opposite party. The complaint made a complaint with regard to the problem in the computer on 02.09.2002 which was rectified subsequently. The complainant had purchased computer with basic model and he was advised to upgrade the said computer with additional RAM of 256 to avoid the problems of system hanging. But it was not done by the complainant. The complainant kept the computer in a place full of dust hence mouse was replaced for three times. There is no manufacturing defect in the computer and prayed for the dismissal of the complaint.
3. Proof affidavits have been filed by both the complainant and the opposite parties. Exhibits A1 to A30 were marked on the side of the complainant. Exhibits B1 and B2 were marked on the side of the opposite parties.
4. The points that arise for consideration are;-
1) Whether the complaint is a consumer as defined under the
Consumer protection Act ?
2) Whether the complaint is barred by limitation?
3) Whether there is any deficiency in service on the part of the
opposite party?
4) To what relief the complainant is entitled to?
5.) Point Nos.1 to 3: The complainant purchased an IBM computer from the dealer M/s. Prakruthi Marketing Service (P) Ltd., on 23.08.2002. From the date of installation, the computer developed defects and the complainant approached the authorized service provider of the 1st opposite party but the defects continued till 14.02.2005. In support of the case, the complainant has filed Exs A1 to A30. Ex A1 is the advertisement issued by IBM with regard to the quality of the computer. Ex A3 is the purchase bill. Ex A4 customer warranty form issued. Ex A5 is the service call report. Admittedly, the computer was purchased on 23.08.2002 and the defects were noticed on 02.09.2002 within short period of purchase. Exs A5 to A26 are the call reports which show that the computer was attended to by the Opposite parties for repairs.
6. The opposite party would submit that the complainant is not a consumer as defined under section 2(1)(d) of the Consumer Protection Act 1986. Admittedly, the opposite parties are manufacturers of the system purchased by the complainant from their re-seller from M/s. Prakruthi Marketing Services (P) Ltd. The complainant is an advocate and the service is provided by the opposite parties. Hence, the complainant is a consumer.
7. The cause of action is continuing one till the computer was given for rectification on 14.06.2005. The complaint was filed on 18.08.2005 which is well within the limitation period. The contention of the opposite parties that the system was kept in dust environment and the complainant had installed applications with greater memory, the opposite parties have not filed any record. The opposite parties contended that the dealer and the authorized service provider were not joined as parties. Since the opposite parties are manufacturers and service providers, they are necessary parties and non joinder of dealer is not fatal to the case of the complainant. Exs A5 to A26 would show that the computer purchased by the complainant is not free from defects. Ever since the purchase of the computer, the complainant had to inform the opposite party to rectify the defects and that the Opposite parties have rectified the defects on many occasions. On consideration of the above documents, we are of the considered opinion that there is deficiency in service on the part of the opposite parties.
8. Point No.4: In the result, the complaint is allowed as against the opposite party No.1. The opposite party No.1 is directed to replace the computer of the complainant with a new one free from defects within six weeks from the date of receipt of copy of this order, failing which the opposite party No.1 is directed to pay the price of the computer at Rs.51,300/- to the complainant together with interest at 9% per annum from the date of purchase till the date of payment. The opposite party No.1 is further directed to pay a sum of Rs.10,000/- as compensation for mental agony and Rs.3000/- as cost of the complaint to the complainant within six weeks from the date of receipt of copy of this order, failing which the amount shall carry interest at the rate of 9% per annum till the date of payment. Since no relief is prayed for as against the opposite party No.2, the complaint as against the opposite party No.2 is dismissed without costs.