BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

Dated this the  31^st August 2009

COMPLAINT NO.43/2009

(Admitted on 16.2.2009)

PRESENT:              1. Smt. Asha Shetty, B.A. L.L.B., President                                                                                                                                                                                                                                                                                                                                   

                                                                                 2. Sri. K. Ramachandra, Member

BETWEEN:

Naveen Bangera,

Proprietor,

Ad Impress, V 1580,

Radhakrishna Building,

Puttur, D.K.                                       …….. COMPLAINANT

(Advocate for Complainant: Sri.Sanjay D.)

          VERSUS

1. Manager,

   Customer Care,

   HCL Info Systems Ltd.,

   E 4, 5,6 Sector   XI,

   Noida, U.P.

2. Prakash,

    Proprietor,

    Power Soft Technologies,

    Near Bolwar Circle,

    Puttur, D.K.              ……. OPPOSITE PARTIES

(Advocate for Opposite Parties: Sri.K.Balaraj Rai)

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

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

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

          It is submitted that the Complainant purchased a computer system HCL Ezeebee AZ 1058 SL No.5084 AZ 450900 with 17” TFT monitor along with broadband Modem and APC UPS from the 2^nd Opposite Party for total amount of Rs.31,514/- as per invoice dated 28.7.2008 and 4.9.2009 respectively.  The 1^st Opposite Party is the manufacturer of the above computer and the 2^nd Opposite Party has a dealer.

          It is submitted that the software installed were not working since it was not fit for Designing Work from the very beginning itself.  It is stated that the computer and the software never used to open and got it struck when an application is tried to be opened.  This problem was immediately brought to the notice of the 2^nd Opposite Party.  For that the 2^nd Opposite Party has promised to set right the problems, after that the 2^nd Opposite Party came to the Complainant to set right the problems.  But the problems persisted evenafter the visit of the 2^nd Opposite Party.  It is further submitted that the 2^nd Opposite Party did not give warranty card to the Complainant at the time of purchase and it is submitted that the computer and the software installed in the computer were defective and has problems.  Feeling aggrieved by the above, the Complainant issued legal notice dated 27.11.2008 to the Opposite Parties, the Opposite Parties did not comply the demand and hence the Complainant filed the above complaint 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 refund Rs.31,514/- alongwith interest at 12% per annum from 28.7.2008 till payment and further Rs.35,000/- claimed as compensation and cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 and 2 appeared through their counsel filed version denied the entire allegations alleged in the complaint. 

          That the Opposite Party No.1 admitted that, the computer system was purchased by the Complainant from Opposite Party No.2 which comprised of CPU + Monitor only. The 1^st Opposite Party not supplied modem as an internal part in the said machine and further submitted that UPS purchased by the Complainant also not supplied and manufactured by this Opposite Party.

          It is submitted that, the 1^st Opposite Party was never received any complaint.  That the software related problems mentioned by the Complainant occurs due to overflow of the data and mismanagement of software installed like opening of so many application window concurrently and due to constant fiddling with the software settings.  The above stated problems is not covered under the scope of warranty and the Complainant might have used (Unlicensed) pirated version of software’s as such problems are found in software setting. The Complainant not provided the bill to ascertain the genuinity of the software’s used.  It is submitted that the computer system was perfectly alright and there is no manufacturing defect and prayed for dismissal of the complaint.

          The Opposite Party No.2 stated that Complainant is not an expert in the field of computer nor he is having any knowledge.  On receipt of the complaint the Opposite Party No.2 sent his personnel, on examination it was found that the Complainant was not able to operate the computer but not because of any defect in computer.  And also submitted that the Complainant has been supplied with warranty terms and conditions while purchasing the computer, the computer has been sold in as is condition there is no deficiency/defect in the computer 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:

1. Whether the Complainant proves that the computer system purchased by him is proved to be defective?
2. Whether the Complainant proves that the Opposite Parties committed deficiency in service?
3. If so, whether the Complainant is entitled for the relief’s claimed?
4. What order?

4.         In support of the complaint Sri Naveen Bangera (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex.C1 to C5 were marked for the Complainant as listed in the annexure. One Mr.S.S.Jina, Working as Manager Administration of O.P. No.1 (RW-1) and one Mr.Prakash, Proprietor of Opposite Party No.2 (RW-2) filed counter affidavit and answered the interrogatories served on them. Both the parties have filed written notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and 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): Negative

          Point No.(iii) & (iv): As per the final order.

REASONS

5.  POINTS NO. (i) to (iv):

In the present case, the admitted facts are as under:  The Complainant purchased a computer system  HCL Ezeebee AZ 1058 SL No.5084 AZ 450900 with 17’’ TFT monitor along with broad band modem and APC UPS battery from the 2^nd Opposite Party for total amount of Rs.31,514/- as per invoice No.151 and 152 dated 28.7.2008 and 4.9.2008 respectively.  It is admitted that the 1^st Opposite Party is the manufacturer of the computer system. The 2^nd Opposite Party is the dealer.  UPS and modem purchased by the Complainant were not supplied and manufactured by the 1^st Opposite Party.

Now the point in dispute between the parties before the Fora is that the Complainant contended that he has purchased the above computer for Designing Work for eaking out of his lively hood.  It is submitted that, the computer and the software installed were not working since it was not fit for Designing Work from the very beginning itself.  It is submitted that, the computer and the software never used to open and got it struck when an application is tried to be opened.  This problem was brought to the notice of the 2^nd Opposite Party, but the Opposite Parties failed to repair and set right the problems, hence it is contended that they have sold a defective computer and came up with this Complaint.

The Opposite Parties interalia contended that, the computer system is not defective.  On receipt of the Complaint from the Complainant through technical personnel examined and found that there was no defect in the computer system and contended that the software related problem mentioned by the Complainant is not connected to this Opposite Parties and the software related problem not covered under the warranty, Complainant might have used unlicensed pirated version of software as such problems are found in software settings and further submitted that the computer is perfectly alright no Complaint was found regarding the hardware part.

We have noticed from the admission made between the parties as well as the evidence available on record,  the Ex.C1 reveals that the Complainant purchased the above computer system i.e.  HCL Ezeebee AZ 1058 SL No.5084 AZ 450900 with 17” TFT monitor purchased from the Opposite Party No.2 for Rs.28,024/- including vat manufactured by the Opposite Party No.1.  UPS and modem is not connected to Opposite Party No.1 because it was not supplied and manufactured by them. The main allegations made by the Complainant is that, the software installed not working since it was not fit for designing work from the very beginning and the computer and the software never used to open and got it struck when an application is tried to be open.  However, the Ex.C1 not consisting any mentioning of the software purchased for the purpose of designing work as intended by the Complainant.  In the absence of purchase of the software for designing work from the Opposite Parties, the Complainant cannot expect the software pre-loaded in the computer will suit for designing work.

However, our attention was drawn towards the evidence adduced before the Fora, wherein we have perused the cross-examination of the Complainant in question No.3, 4,5,6,7 and the reply given by the Opposite Parties, it has been reproduced here below:

“Q:3: Is it correct to say that the Ex.C1 gives the description of the goods?

Answer: The Ex C1 only shows the name of computer as HCL Ezeebee AZ1058 in short together with 17” TFT Monitor.  By this code I can give the actual configuration of the computer as given below:-

It is pertinent to mention here that the computer was pre-loaded with the operating system Ubuntu 8.10 32 Bit.  Other parts mentioned herein above are hardware parts except gaming pack.

Q:4: Can you show to the Hon’ble Forum the description of the software in the Ex.C1?

Answer:  Yes. The computer system was supplied with pre-loaded KIT PRLD UBUNTU 8.10 32-BIT OS (Operating system software)

Q:5: Is it correct to say that the software in pre-installed?

Answer: Yes, the Company provides only the operating system (Ubuntu) as pre-installed.  Other software apart from this has to be purchased from the market and get them installed as per the individuals work and his own requirement.

Q:6: What are the software which are pre-installed?

Answer: Only KIT PRLD UBUNTU 8.10 32-BIT OS (Operating system software) is pre-installed.

Q:7: Can you show the description of the pre-installed software in the Ex.C1?

Answer: Ubuntu is the pre-installed software – An operating system (commonly abbreviated to OS) is an interface between hardware and user; an OS is responsible for the management and coordination of activities and the sharing of the resources of the computer.  The operating system acts as a host for computing applications that are run on the machine.  As a host, one of the purposes of an operating system is to handle the details of the operation of the hardware.  This relieves application programs from having to manage these details and makes it easier to write applications.  Almost all computers use an operating system of some type.”

From the above evidence, it is significant to note that, the hardware/computer system was pre-loaded with the operating system UBUNTO 8.10 32-BIT OS (operating system software is Ubunto Linux).  And further made us clear that the configuration of the computer includes in other words it was pre-loaded with the operating system which provides only the operating system as pre-installed.  The Other software has to be purchased from the market and get them installed as per the individuals work and his own requirement.  From the above evidence it is proved beyond doubt that, an operating system is an interface between hardware and user, an operating system is responsible for the management and co-ordination of activities and sharing of the resources of the computer.  The operating system acts as host for computing applications that are run on the machine.  The hardware sold by the Opposite Parties no doubt was pre-loaded with operating system, in that one can operates the system and not otherwise.  If at all a person wants to do his Designing Work, he must purchased the licensed software from the market and got it installed.  But in the present case, the Complainant though intended to do designing work not purchased the separate software from the market and installed it.  In the absence of any proof to show that he had installed the software for designing work, he cannot expect the designing work to do in the preloaded software provided by the Opposite Parties in the computer system.  It is very clear that, the software installed by the Opposite Parties provided only the operating system and not otherwise. 

On over all considering the facts on hand and also the evidence available on record the Complainant is failed to prove before the Fora that the computer system purchased by him is defective and the preloaded software installed by the Opposite Parties also defective.  In the absence of any credible evidence the Complainant is not entitled for any reliefs as claimed in the complaint.  It is proved that the Opposite Parties not sold any designing work software to the Complainant.  In view of the above reasons, we are of the considered opinion that the Complaint has no merits deserves to be dismissed. No order as to cost.

6.       In the result, we pass the following:

ORDER

The complaint is dismissed. No order as to cost.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31^st day of August 2009.)

        PRESIDENT                            MEMBER

(SMT. ASHA SHETTY)            (SRI. K.RAMACHANDRA)

APPENDIX

Witnesses examined on behalf of the Complainant:

CW1 – Sri Naveen Bangera.

Documents marked on behalf of the Complainant:

Ex C1 – 28.7.2008: Original Invoice No.151 issued by the 2^nd Opposite Party.

Ex C2 – 4.9.2008: Original Invoice No.152 issue by the 2^nd Opposite Party.

Ex C3 – 27.11.2008: Office Copy of the registered Lawyer’s Notice.

Ex C4 – 3.12.2008: Reply issued by the 2^nd Opposite Party.

Ex C5 – 12-1.2009

            13.1.2009: Postal acknowledgement (2 in Nos).

Witnesses examined on behalf of the Opposite Parties:

RW-1: Mr.S.S.Jina, Working as Manager Administration of

          O.P. No.1

RW-2: Mr.Prakash, Proprietor of Opposite Party No.2.

Documents marked on behalf of the Opposite Parties:

- NIL -

Dated:31.08.2009                                      PRESIDENT