Gopalan Enterprises,
Represented by its Partner,
Sri.C.Pramod S/o Sri.C.Goplan,
No.5, Richmond Road, Bangalore-25.

…. Complainant.

V/s

Zonal Manager,
HCL Info Systems Ltd.,
Frontline Division,
No.128/1. VidhyaDeepBuilding,
Behind Manipal Centre,
Bangalore – 560 008.

…. Opposite Party

-: ORDER:-

This complaint is for a direction to the Opposite Party to return POS machines (LCD Monitors, Computer Systems and Printers) and to pay damages of Rs.50,000/- towards deficiency in service, compensation of Rs.50,000/- towards loss of work and mental agony.
2. The case of the complainant is as under:-
The complainant purchased 15 Computer Systems from the Opposite Party at the rate of Rs.36,000/- Per Computer costing Rs.5,61,600/- and has paid full amount towards purchase of the Computes. On 07/02/2007, the Opposite Party informed the complainant that they required three numbers of POS machines supplied by them for the integration of the machines with software as per the requirement of the complainant and requested to hand over the machines to their employee. The Opposite Party had promised to return the machines after software integration within two or three days. On the same day, the complainant handed over the three LCD monitors, Computer Systems, cash drawers, printers and obtained acknowledgement of the receipt of the materials on the gate pass dated:07/02/2007. Though the Opposite Party had promised to return the material within two or three days, they failed to return the same till today. The complainant sent ‘e’ mail letters on 08/02/2008, 04/03/2008 & 25/03/2008 to the Opposite Party. Only on 15/04/2008, the Opposite Party sent ‘e’ mail reply requesting the complainant to grant some more time as clearance has to be taken from the Management. On 25/03/2008, the Opposite Party sent three cash drawers under delivery challan No.3572, but the remaining materials are still with the Opposite Party. On 27/05/2008, the complainant again wrote a letter to the Opposite Party to return the three numbers of machines immediately after software integration. Even thereafter the Opposite Party did not return the material. On 29/12/2008 the complainant issued legal notice to the Opposite Party demanding to return the POS machines immediately. In spite of it, the Opposite Party failed to return the POS machines. Hence the complaint.
3. In the version, the contention of the Opposite Party is as under:-
The complaint filed in the present form is not maintainable as there was no privity of contract between the Zonal Manager and the complainant. M/s HCL Info System Limited is a Company incorporated under the Companies Act having their place of business and registered office elsewhere and therefore no part of the cause of action arose in Bangalore. The Zonal Manager as described in the cause title is only an official of the Company which is managed by the Board of Directors. Non impleading of the Company and its Director amounts to non-joinder of parties and therefore the complaint is liable to be rejected. No order had been placed with the Opposite Party by the complainant for supply of 15 Computer Systems for a sum of Rs.5,61,600/-. There was neither authorization nor any request by the complainant to integrate the machines with the requirements of the complainant. As per the terms and conditions of sale with regard to the work of integration or upgrading any unit to suit the needs of a Customer, the request will be made to the Company directly who in turn will intimate the concerned officials in-charge to do the needful with a specific authorization based on the requirement and in-turn the concerned engineer or employee are deputed to carry on the work. On every such installation notice made is prepared by the concerned engineers with due concurrence from the officer in-charge and the signature of the customer is obtained for confirmation and invoices are raised in the name of the Company. Every transaction is reflected as per the requirements namely the purchase orders followed by payments after due installation. The complainant has not disclosed when the work orders was placed and on what date the Company has sought for requisition of its employee to install the system and the authority under which machines are delivered by the Company to the officials. Therefore, the Opposite Party is no where concerned with the instructions and request made by the complainant to the official whose name has not been disclosed as to when and how the orders were received by the so-called employee. M/s HCL Info System Limited has never been a party to any arrangements regarding transaction alleged to have taken place without the knowledge and consent of the Company. Therefore, the Opposite Party has nothing to do with the transaction. On these grounds, the Opposite Party has prayed for dismissal of the complaint.
4.In support of the respective contentions, both the parties have filed affidavits. The complainant has produced copies of documents. The learned counsel on both side have filed written arguments.
5. The points for consideration are:-
1.Whether the complainant is a Consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act?
2.Whether the complainant has proved deficiency in service on the part of the Opposite Party?
3.Whether the complainant entitled to the relief prayed for in the complaint?
6. Our findings are:-
Point No.1 : In the Negative
Point No.2 & 3 : Does not survive,

-:REASONS:-

7. From the very description of the complainant as given in the cause title, it is evident that the complainant is a partnership firm engaged in commercial transaction. The very fact that the complainant placed orders for supply of 15 computers with Opposite Party further makes it clear that the complainant proposed to purchase the computers for the purpose of business. In that event, if at all the complainant had availed any services of the Opposite Party, the same being for commercial purpose, the complainant cannot be construed as a Consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act because a person who purchases goods or avails services for commercial purpose is excluded from the definition of Consumer. Though the complainant claims that he placed orders with the Opposite Party for supply of 15 computers and paid a sum of Rs.5,61,600/- towards the value thereof at the rate of 36,000/- per computer, this very transaction is denied by the Opposite Party. The statements in Para-3 of the complaint, make it clear that the complainant parted with three POS machines with Opposite Party as per request made by them for the purpose of integration of the machines with software as per requirement of the complainant. Therefore, it is neither a case of purchasing the POS machines nor a case of availing the services for a consideration. In that case also the complainant cannot be construed as a Consumer because the complainant has not availed the services of the Opposite Party for consideration. In that case the complainant is not entitled to invoke the provisions of the Consumer Protection Act to seek return of the machines parted with. Accordingly, we answer point No.1 in the NEGATIVE.
Point Nos.(2) & (3):-
8. In view of our finding on point No.1, these two points will not survive for consideration. Even otherwise, the Opposite Party has denied the very transaction of handing over the POS machines by the complainant to the Opposite Party. Therefore, the disputed facts cannot be the subject matter of dispute before a Consumer Forum. As such the disputed facts need to be decided in a Civil Suit filed before a Competent Civil Court. Thus, we hold that the complainant is not entitled to the relief prayed for. In the result, we pass the following:-

-:ORDER:-

1.The complaint is DISMISSED. No order as to costs.

1. Mr.Seetharam,

Prop: Keystrokes Incorporated,

2nd Floor, Regal Tower,

KSRTC, Bejai,

Mangalore – 575 004.






2. Mr.Nemiraj,

C/o. HCL Service Point,

Shree Arcade, bendorewell,

Kankanady Road,

Mangalore – 575 002. ……. OPPOSITE PARTIES



1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging defect in goods against the Opposite Parties claiming certain reliefs.

The Complainant submits that Opposite Party No.1 is the authorized dealer of HCL personal computer product and Opposite Party No.2 is the authorized service point.

It is submitted that Complainant had purchased a HCL personal computer on 23.12.2006 for Rs.29,850/- from the Opposite Party No.1. The product was covered with 36 months warranty from the date of installation or 37 months from the date of delivery whichever is earlier and issued warranty card. The Complainant submits that the above computer was not functioning within four months of the purchase due to the defect in the mother board. Immediately the matter was reported to Opposite Party No.1 and Opposite Party No.1 directed the Complainant to approach Opposite Party No.2.


The Opposite Party No.2 repaired the defect and subsequently within three months the mother board has become faulty and it was again repaired at the cost of the Complainant. It is submitted that the Opposite Party No.1 has provided defective product and they have collected repair charges during the period of warranty and submitted that on August 2007 the computer was again faced the same problem but the Opposite Party No.2 has not attended the complaint and refused to rectify the defect stating that the product is not covered under warranty.


It is submitted that because of the Opposite Party No.1 and 2 the Complainant was forced to purchase one more personal computer by spending a sum of Rs.25,000/- for the purchase of new computer. It is submitted that the goods sold by the Opposite Parties is defective and filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to replace the above said computer and also pay compensation and cost of the proceedings in total claimed Rs.1,05,350/-.



2. Version notice served to the Opposite Parties by RPAD.

The notice sent to the Opposite Party No.1 returned as “addressee left”. Thereafter the Complainant taken steps by paper publication in “Vijaya Karnataka”. Despite of serving notice the Opposite Party No.1 neither appeared nor contested the case till this date and hence proceeded exparte as against this Opposite Party. The acknowledgement and the paper publication placed before the FORA marked as court document No.1 and 2.

Opposite Party No.2 appeared through their counsel submitted that there is no contractual relationship between the Complainant and this Opposite Party. This Opposite Party is only a service provider to rectify the defect and the same was got done immediately and no payment was made to this Opposite Party and contended that there is no deficiency on the part of this Opposite Party and prayed for dismissal of the complaint.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the computer purchased from the Opposite Party suffers from defects?



(ii) Whether the Complainant proves that the Opposite Parties committed deficiency in service?



(iii) If so, whether the Complainant is entitled for the reliefs claimed?





(iv) What order?



4. In support of the complaint, Sri.Bharath Shetty (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C6 were marked for the Complainant as listed in the annexure. One Sri.Nemiriaj (RW1) – Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him.

We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Negative.

Point No.(ii) to (iv): As per the final order.
Reasons

5. Point No. (i) to (iv):

In the present case, the facts which are not in dispute is that the Complainant purchased the HCL computer product on 23.12.2006 for Rs.29,850/- (as per Ex C1 Tax Invoice/Credit bill) from the Opposite Party No.1 who is the dealer of the said product and Opposite Party No.2 is the authorized service center. It is also not in dispute that the above said product was covered with 36 months warranty from the date of installation or from the date of delivery whichever is earlier.

Now the grievances of the Complainant is that the computer purchased by him suffers from defect. In the present case, no doubt the Complainant pleaded that the computer supplied by the Opposite Party who is the dealer i.e., Opposite Party No.1 is a defective but the Opposite Party No.1 not appeared before the FORA inspite of serving notice. The Opposite Party No.2 service centre appeared before the FORA and contended that there is no contractual relationship between the Complainant and Opposite Party No.2 and submitted that the complaint is bad for non- joinder of necessary party.


However, we see that though the Complainant pleaded the defect in computer but not made the manufacturer as a party to the proceedings nor produced any documentary evidence before the FORA to show that his computer was attended by the Opposite Parties and the same was rectified once during the warranty period and now it is unused and defective.

In a case where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods. In this case, the Complainant ought to have produced the job cards or atleast the document to show that the Complainant approached the Opposite Parties and his mother board has been replaced once within three months and collected the repair charges during the period of warranty. No such documents are placed before the FORA in order to substantiate his complaint.


Except the oral assertion nothing has been available before the FORA to consider the complaint of the Complainant. It is the bounden duty of the Complainant to prove the defects by giving expert evidence or by producing the job card or repair bills. No such documents produced by the Complainant. Moreover, in a case of manufacturing defect the primary liability vests on the manufacturer of the product but the Complainant while filing a complaint the manufacturer not made as a party to the proceedings.


In our opinion the manufacturer also necessary party to this proceedings to agitate the matter in controversy. And further we find that the Complainant is miserably failed to prove the defect in his computer within the warranty period or otherwise. In view of the above discussion, we hold that the complaint has no merits deserves to be dismissed. No order as to costs.

U.Chandrashekar,

BDA Flats, MF 3/11,

Near Mica Police Station,

BTM 2nd Stage,

Bangalore.

…. Complainant

V/s



01. HCL INFOSYSTEMS LTD.,

Frontline Division,

C/o AFL PVT LTD, Logistics divison,

Survey No.204, Kadigodi Village,

Whitefield, Bangalore – 560 067.



02. HCL/Toshiba Desktop Service Center,

Opposite to Jain Hospital, Milar’s road,

Bangalore.



03. Toshiba/HCL laptop service Center,

Near Ahmed Bazaar, R.T.Nagar,

Bangalore.



…. Opposite Parties





-: ORDER:-



This complaint is for a direction to the Opposite Parties to supply a new laptop or to pay Rs.80,000/- on the following grounds:-



2. The complainant purchased Toshiba Satellite L 100 laptop for Rs.54,000/- in February-2006 from Toshiba which is having collaboration with HCL systems near Ulsoor Lake, Bangalore. At the time of purchase, he was informed that he will get warranty of one year for the laptop and has to pay extra Rs.3,000/- for further warranty of two years and if the extended warranty is taken later it will cost more. He did not take the extended warranty at the time of purchasing the laptop itself. However, in December-2006 he approached the same dealer and paid Rs.5,500/- for the warranty of next two years. The system was working fine till February-2009 and thereafter some issues started in the system and therefore he thought of using the warranty and went to the Toshiba/HCL laptop service center situate in R.T.Nagar. After seeing the invoice slip, the complainant was informed that it is not a genuine warranty and therefore they cannot do the service.

However, after enquiry with the other center in Millar’s road, it was confirmed that the warranty exist from July-2007 to July 2009. Thereafter the laptop was given to the service center as it had the issues like system heating up, system hanging and other issues. Mr.Kabir, the technical person took the system and checked for two days in the last week of February-2009 and informed that the system needs to be replaced with few components and he would have requested his higher authorities to ship the components and that it would take maximum 15-20 days. When called after 15 days he informed that it will take another 15 days. Therefore, the complainant called service center again in the last week of March-2009 when Mr.Kabir, the technical person started grumble that the components are not sent so far and also gave Website url where he can go and contact the main person with the ‘e’ mail ID. Mr.Kabir also told that he had mailed to that person twice, but he was not responding to the mails.

When the complainant visited the Website, wherein it never gave any of the persons actual email ID, but all the email ID’s were support email ID’s. After waiting for one more week, the complainant started calling Mr.Kabir once in two days to get updates as he could not use the system and had problems working with it every one hour as the system used to hang. Between 15-17th April-2009 Mr.Kabir started scolding the receptionist for transferring the calls of the complainant to him and gave clear notion that he was no more ready to service the system before the expiry of the warranty, though he had told that it will be considered within the warranty. Thus, the Opposite Parties failed to provide the service as promised. Hence, the complaint.



3. In the first instance in spite of service of notice, the Opposite Parties remained absent right from 01/09/2009. However, on 24/09/2009 the Opposite Party Nos. 1 & 2 filed the version contending as under:-

The complaint is liable to be dismissed as the complainant neither provided the copy of the invoice nor submitted the warranty card or the extended warranty card in order to ascertain whether the complaint is a genuine consumer. There is no deficiency in service on the part of Opposite Parties. After the purchase of the laptop on February-2006, the complainant raised a service concern for the first time during April-2009.

The first complaint was received after a sustained usage of the laptop for over a period of three years. The Opposite Parties immediately raised a service concern as the mother board of the said laptop was found defective. This part was requisitioned from Noida office and when the said part arrived, the complainant did not turn up for repair. The complainant was intimated regarding arrival of the part, but he refused to bring the laptop to the service centre and has rushed to this Forum. After the arrival of the said part from Noida, telephonic intimation was given 3-4 times, but the complainant did not respond. There remains no cause of action for the complaint as the said part is ready but the complainant is not willing to get the laptop repaired. The relief for new laptop or Rs.80,000/- is inadmissible under the provisions of ILW issued by Opposite Party No.3 as extracted in Para-4 of the version. The sale of the laptop was strictly governed by the terms and conditions of warranty offered by Opposite Party No.3, the manufacturer.

The complainant has claimed the relief which violates the said terms and conditions and therefore is not permissible. As per the law laid down by the Hon’ble Apex Court in the decision reported in I(2006) CPJ 3 in the case of MARUTI UDYOG LIMITED V/S SUSHEEL KUMAR GABGOTRA AND ANOTHER, wherein the Supreme Court has held that an order for any relief outside the terms and conditions of the Manufacturers Warranty cannot be sustained. As per the terms and conditions of warranty offered by Opposite Party No.3, no replacement or refund is permissible. After the spare part was issued from Noida, the complainant has chosen to pursue the present complaint instead of getting the machine repaired. The complainant has not suffered any torture or harassment as claimed. The compensation claimed is grossly inflated and totally unsubstantiated. On these grounds, the Opposite Parties have prayed for dismissal of the complaint.

4. In support of the claim, the wife of the complainant as Power of Attorney Holder has filed her affidavit. The authorized signatory of the Opposite Parties has filed his affidavit. The complainant has filed written arguments. Heard the Opposite Parties.



5. The points for consideration are:-

1. Whether the complainant has proved deficiency in service on the part of Opposite Parties?



2. Whether the complainant entitled to the relief prayed for in the complaint?

6. Our findings are:-

Point No.(1) : In the Affirmative

Point No.(2) : As per final order,

for the following:-

-:REASONS:-

7. Though in the complaint it is stated that the complainant purchased laptop in February-2006, In the affidavit in lieu of evidence, the wife of the complainant has stated that the laptop was purchased in July-2006. From the documents produced by the complainant it is seen that in the first instance, the invoice for purchase of the laptop was raised on 28/06/2006 and the delivery challan was issued on 06/07/2006 which means the laptop was delivered to the complainant on 06/07/2006. Therefore, the contention in the complaint that the laptop was purchased in February-2006 appears to be incorrect. From what is stated in the affidavit filed in lieu of evidence and the documents produced along with the complaint, it is clear that the laptop was purchased in July-2006.



8. In the first instance, the warranty card was issued for a period of 12 months from the date of delivery. Therefore, the laptop was covered with the warranty for the period of one year from 06/07/2006 to 05/07/2007. Admittedly the complainant paid Rs.5,500/- for extending of the warranty for another two years and accordingly the warranty was extended for the period from 06/07/2007 to 05/07/2009. From the job card dated:25/02/2009 it is seen that the complainant took the laptop to the service center of the Opposite Parties on 25/02/2009 complaining the system heating, shutting instantly and hanging.

It appears after thorough checkup of the system, the Opposite Party issued the service report dated 26/02/2009 stating that there is problem with the PCB of the system and the same needs to be replaced. As per the Customer call cum service report dated 26/02/2009, the system was handed over to the customer on that day probably without effecting any repairs. It is alleged by the complainant that the technical person of the Opposite Party informed that certain components of the system need to be replaced and those components will have to be requisitioned from the main office. But the fact that the system was handed over to the Opposite Party for effecting repairs and that so far namely till the date of complaint no repairs were effected is also not denied. Alleging deficiency in service on the part of Opposite Parties in not attending to the defects, the complaint is filed on 24/06/2009 which clearly indicates that right from February-2009 till 24/06/2009 for nearly four months no repairs were effected to the laptop. In view of the fact that the warranty was extended up to 05/07/2009, the laptop was within the warranty period. In the version it is contended that the motherboard of the laptop was found defective; the said part was requisitioned from Noida office and after the arrival of the said part; in spite of intimation, the complainant failed to bring the laptop to the service center and get the same repaired.

But it is not specifically mentioned as to when the part required to be replaced arrived from Noida office of the Opposite Parties and when that fact was intimated to the complainant. Only a bald allegation is made in the version that after arrival of the part, telephonic intimation was given to the complainant 3-4 times, but the complainant did not respond. The allegations in the complaint make it appear that from April-2009 the concerned person in the service center did not even bother to respond to the calls made by the complainant. In the absence of material, it cannot be believed that within a reasonable time, the spare part required to be replaced was received from the Noida office and the complainant failed to take the laptop to the service center to get the same repaired in spite of intimation. If even after the lapse of four months, the Opposite Party failed to carry out necessary repairs as per the terms and conditions of the warranty, the same clearly amounts to deficiency in service. However, in our opinion, after usage of the laptop for more than three years, the complainant is not entitled to seek replacement of the same with a new laptop or to claim Rs.80,000/- from the Opposite Party as has been claimed in the complaint.

It is not as if, within a few days after the purchase, the laptop was found defective or was having manufacturing defects and in spite of repairs, the defects are not rectified. Admittedly the laptop developed some defects in February-2009 more than two and half years after the purchase. The only grievance made out in the complaint is that the Opposite Parties failed to effect repairs within the reasonable time. Now it is contended by the Opposite Parties that the required spare part is required from their Noida office and they are ready to effect proper repairs. Though by now the period of extended warranty is also expired, the complaint regarding the defects in the laptop was raised within the warranty period. Therefore, the Opposite Parties are liable to effect proper repairs to the laptop. For the delay in effecting proper repairs, it is necessary to award compensation to the complainant besides getting the laptop repaired. Considering the facts and circumstances of the case, in our opinion, it is just and proper to award compensation of Rs.5,000/-. In the result, we pass the following:-

-:ORDER:-



1. The complaint is ALLOWED.
2. The Opposite Parties are directed to effect proper repairs to the Laptop purchased by the complainant and to pay compensation of Rs.5,000/- (Rs.Five Thousand only).
3. Compliance of this order shall be made within 08 (eight) weeks from the date of communication.

Complaint Case No.86/2009

Date of Institution 19-3-2009

Date of Decision 12-1-2010

Sukh Ram son of Sh. Banyali Ram resident of village and Post Office Gagal Tehsil Sadar, District Mandi, H.P.

…. Complainant
Vs

1. HCL Infosystems Ltd E 4,5,6 Sector XI Noida 201301

2. V.J. Enterprises , Village and Post Office Nagchala, District Mandi, H.P.

…. Opposite parties

For the complainant Sh. Noor Ahmad , Advocate

For the opposite parties

No.1.and 2 Sh. D.S. Katoch, Advocate



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

ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties The case of the complainant is that he is an unemployed person and he proposed to purchase a computer to earn his livelihood in the month of February 2008. The complainant contacted the opposite party No.2 for the purchase of HCL computer who is dealer of the opposite party No.1 and purchased a computer manufactured by the opposite party No.1 model CLPDC2 8HGZ 1GBRM 160GBHDD DVD/CDRW ,17 Inc CRT OPT Mouse MM Key board 800/VA UPS printer and speaker in the sum of Rs..29,800/- from the opposite party No.2 on 18-8-2008. That the said computer system functioned properly for few months after its purchase and after some time some manufacturing defects developed in it and the same were notified to the opposite party and defects were rectified by the opposite party No.2. The computer again developed defects after repair and opposite party No.2 was again apprised and defects were rectified and opposite party No.2 demanded repair charges for which the complainant agitated on the ground that the same was within warranty period . The computer thereafter functioned properly up to December 2008 and in the month of December 2008 said defects again developed and the opposite party No.2 was reported the defect which was removed but at that time the opposite party No.2 refused to deliver the system without paying repair charges which demand of the opposite party No.2 was illegal and unlawful . The complainant averred that the opposite party No.2 assured that the if the said defects again developed in the system then the system would be replaced with new one . Upon this , the complainant in compelling circumstances paid the repair charges to the opposite party No.2 and took back the system . After few days of its last repair the defects again developed in the said system and the complainant intimated the opposite party regarding development of the defects but the opposite party No.2 totally refused to replace the system as well as repair the same which act on the part of the opposite parties amounts to deficiency in service . The opposite parties were served with legal notice which was responded by giving vague reply. With these allegations the complainant had sought direction to the opposite parties to replace that part of the system which is defective with new one failing which to pay the value of the part .Apart from this, a sum of Rs.10,000/- had also been claimed as compensation besides Rs.10,000/- as costs of litigation .

2. The opposite party No. 1 resisted the complaint by raising preliminary objections that it is the dealing in manufacturing of HCL PDC @ 2.8 GHZ 1 GB RAM 160GBHDD, DVD R/W 17” CRT MONITOR and the opposite party No.2 is dealer and on receiving the summons from this Forum, the opposite party No.1 contacted the opposite party No.2 who told there was no defect in the articles of opposite party sold to the complainant whereas the defect was pertaining to UPS 800 VA which was not the product of the opposite party but of M/S Nevteach Co. Ltd and as such the complaint is bad for non joinder of necessary parties and mis- joinder and as such the complaint is required to be dismissed. On merits , the opposite party No.1 has denied the contents of the complaint in totality. It has been denied that the complainant had complained regarding the articles within the warranty period and as per the information supplied by the opposite party No.2 , the defect was in UPS-800 VA on account of some electrical defect. It has been averred that there was no defect in the articles supplied by the opposite party No.1. The opposite party No.1 has prayed for dismissal of the complaint qua it.

3 The opposite party No.2 contested the complaint by raising the preliminary objection on the ground that the complaint is bad for non joinder of necessary parties and mis-joinder of parties as the opposite party No.1 has no concern with the present dispute because the defect was only in UPS 800 VA which is supplied by M/S Navtech Co. ltd and not by the HCL. On merits , the opposite party No.2 pleaded that the computer had been purchased by the son of the complainant and it was purchased for study and the complainant had purchased the articles as mentioned in para no.2 on 18-2-2008. It has been denied that the computer functioned properly for few months and after some time some manufacturing defect has developed in the system . The opposite party No.2 further averred that the complainant is hailing from such area where there is fluctuation of electricity supply/ voltage and keeping in view that problem of electricity the complainant was advised to use the stabilizer otherwise there were chances of burning of any of the articles and in the warranty card also it was specifically mentioned that warranty does not cover the usage of wrong electric supply/ voltage but in spite of that the complainant had not applied the stabilizer which has resulted in the defect in item No.2 supplied by M/S Navtech Co and the son of the complainant came with defected UPS 800 VA to the opposite party No.2 in the month of September 2008 and as per the warranty card , the same was repaired and it was duly returned after full satisfaction of the customer on 30-9-2008 as per delivery challan Annexure O.P 2/A and no courier charges were taken by the opposite party No.2 from the complainant. Second time the son of the complainant again came with said article i.e. UPS and on check up it was found that there was breakage of the switch of UPS and the Logic card and IC was also burnt due to fluctuation of voltage and the complainant had not applied the stabilizer as advised to him by the opposite party No.2 The article was sent to service centre and at nominal rate, the article was replaced . The complainant again came to the opposite party No.2 in the month of March 2009 with same UPS after the expiry of the warranty and as a good will gesture the same was repaired at their own cost and handed over it to the complainant on 13-3-2009 with full satisfaction on 13-3-2009 as per delivery memo Annexure OP -2/B. Rest of the allegations have been denied being wrong . The opposite party No.2 had prayed for dismissal of the complaint qua it.

4. The complainant had filed rejoinder reiterating the contents of the complaint and denied those contrary to the complaint.

5. We have heard the ld. counsel for the parties and have also gone through the entire record. The case of the complainant is that he purchased a computer of HCL make from the opposite party No.2 who is dealer of the opposite party No.1 i.e. the manufacturer and after few months from its purchase , it started developing defects. The defects were duly reported to the opposite party No.2 who rectified the defects but thereafter the same defects again developed in the System time and again and ultimately the opposite party No.2 refused to repair the system as well as to replace the same which act on the part of the opposite parties amounts to deficiency in service. Conversely the case of the opposite party No.1 is that there is no defect in the articles of the opposite party No.1 which were supplied to the complainant by the opposite party No.2. From the perusal of the reply of opposite party No.2 it has become clear that the defects were developed in the UPS 800 VA supplied to the complainant by the opposite party No.2. However, the case of the opposite party no.2 is that UPS 800 VA is supplied by M/S Navtech Co. Ltd and not by the HCL company and the complaint is bad for non joinder of the necessary party as M/s Navtech company Ltd has not been made a party to the present complaint. However this contention of the opposite party no.2 deserves to be rejected because as per the photostat copies of cash memo /retail invoice annexure CA dated 18-2-2008 the entire computer system including UPS 800VA has been purchased by the complainant from the opposite party no.2 in the sum of 29,800/-. In our opinion, the complainant has no concern as to whether the UPS 800 VA has been purchased by the opposite party No.2 from M/S Navtech company Ltd or from some where else because it is a matter inter-se between the opposite party No.2 and M/S Navtech Company Ltd. The opposite party no.2 cannot escape its liability simply by saying that the UPS 800 VA is supplied by M/S Navtech Company Ltd . Moreover in the cash memo/ retail invoice Annexure CA issued to the complainant by the opposite party No.2 it has nowhere been mentioned that UPS 800 VA has been supplied by M/S Navtech Company Ltd.

6 Now adverting to the merits of the case ,it is not in dispute that the UPS system has developed defect during the warranty period as has been admitted by the opposite party no.2 in its reply. However according to the opposite party no.2 it developed defects due to fluctuation in electricity supply /voltage and the complainant was duly advised by the opposite party No.2 to use voltage stabilizer otherwise there were chances of burning of articles. Therefore, in this view of the matter the onus was upon the opposite party no.2 to establish that the UPS system had developed defects due to fluctuation of electricity supply / voltage . However there is no evidence on record to suggest that the UPS had developed defects due to the fluctuation of electricity /voltage. The opposite party no.2 had placed on record copies of bills dated 30-09-2008,4-2-2009 and 13-3-2009 regarding repair of UPS. However nothing has been mentioned in the aforesaid bills that the UPS developed defect due to fluctuation in electricity supply/ voltage and the complainant was ever advised to used voltage stabilizer . No job card to this effect has been placed on record by the opposite party No.2 . More over there is no expert opinion / technical report on record to establish that the UPS system developed defect due to fluctuation of electricity supply. The perusal of the warranty card Annexure C-D shows that the warranty has been provided by the opposite party No.2 for 12 months from the date of installation or 13 months from the date of delivery whichever is earlier . The date of delivery of the computer is 18-2-2008 as is evident from retail invoice Annexure C-A. Therefore , it is clear that the defect in the UPS system developed during the warranty period . It has been established that the UPS was repaired by the opposite party No.2 on various occasions as is evident from the repair bills dated 30-9-2008, 4-2-2009 and 13-3-2009 and despite that the defects still persisted and could not be rectified . Therefore , it can safely be held that there is inherent manufacturing defect in the UPS 800 VA sold by the opposite party No.2 to the complainant. Hence ,we hold that the opposite party no.2 had been deficient in providing service to the complainant because the defects in the UPS 800 VA could not be rectified by the opposite party no.2. Therefore, the opposite party no.2 is held liable to replace the defective UPS 800VA of the complainant with new one.

7 In view of what has been discussed herein above, the complaint is allowed only against the opposite party No.2 with the direction to replace the defective UPS 800VA with same make and model within 30 days from the receipt of copy of this order filing which to refund the price of UPS 800VA with interest @ 9% per annum from the date of filing of complaint i.e. 19-3-2009 till realization. The opposite party No.2 is further directed to pay to the complainant Rs.1000/- as compensation and Rs.500/- as costs of litigation.

8 Copy of this order be supplied to the parties free of costs as per Rules.

9. File, after due completion be consigned to the Record Room.