Karnataka

Bangalore 4th Additional

CC/15/2056

Sri. Nikhil Badrinath Rao, S/o Sri. K.V. Balachandra Rao, - Complainant(s)

Versus

M/s. Acer India Pvt.Ltd, Embassy Heights, 6th Floor, - Opp.Party(s)

Shobha S.G,

27 Jun 2018

ORDER

Complaint filed on: 18.12.2015

                                                      Disposed on: 27.06.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.2056/2015

DATED THIS THE 27^th JUNE OF 2018

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

	Complainant/s	V/s	Opposite party/s
	Nikhil Badrinath Rao, S/o K.V.Balachandra Rao, Aged about 37 years, R/at No.1132, 16th ‘B’ Cross, MIG, 2nd Stage, Yelahanka Satellite Town, Bangalore-64.   By.Adv.Shobha S.G.	1         2       3	M/s ACER INDIA (PVT.) Ltd., ‘Embassy Heights’, 6th Floor, No.13, Magrath Road (Next to Hosmat Hosptial), Bangalore-560 025.   M/s ACER INDIA (PVT.) Ltd., No.1314, 3rd Floor, Double Road, Indiranagar 2nd Stage, Bangalore-38.   M/s PARADISE COMPUTERS, No.99, ‘A’ Sector, Below Corporation Bank, Yelahanka New Town, Bangalore-560 106. Rep by its Proprietor   By.Adv.M.A.Fayaz Ahammed

 

PRESIDENT: SRI.S.L.PATIL

1.       This complaint has been filed by the complainant as against the Opposite Parties directing to forthwith exchange the new laptop in the lieu of the highly defective laptop in question, to pay a compensation of Rs.4,00,000/- for having lost business for more than one and half years, and having suffered mental and torture at the hands of the Opposite Parties and grant such other and further reliefs.

2.       The brief facts of the case of the complainant are that the Complainant is a software engineer and he purchased Acer VS-131 2GB 500 GB LNX Laptop (hereinafter referred as the said laptop) from the retailer the 3^rd Opposite Party and the same is the products of the Opposite Parties 1 and 2 for a total value of Rs.20,700/- vide tax invoice dt.5.12.2013. The Complainant submits that subsequent to the purchase of the laptop, he purchased Windows 7 Professional Microsoft for a total sum of Rs.8,400.09 Ps. from M/s LYD TECHNOLOGIES. Thereafter when the Complainant started loading the aforesaid 7 to the newly purchased laptop, several defects started erupting from the laptop and the laptop failed to load the software and it was found that there is a defect in the laptop and immediately, the Complainant approached the Opposite Parties and requested them to rectify the errors/defects in the laptop and it was handed over to Acer Customer Service Centre, at Langford Road, Bangalore-25 on 17.1.2014 and again on 11.2.2014. Even though in both these two occasions, though the laptop was received by the Opposite Parties for rectifying the defects, the Opposite Parties could not get the same repaired and rectified. When the Opposite Parties could not rectify the mal-functioning in the laptop and made the life of the Complainant miserable and his software work/job suffer huge jolt causing immense mental agony, torture and hardship to the Complainant, the Complainant sent a notice dt.5.4.2014 to the Opposite Parties 1 and 2 bringing to their notice that inspite of innumerable complaints, after solving a couple of problems only, the Opposite Parties 1 and 2 used to return the laptop to the custody of the Complainant which later came to be found that the problems were never solved, and the laptop continued to have the same defect inspite of the alleged repairs said to have done to the laptop. The major defects found in the laptop were: (a) Wi-Fi is not switching off while using launch manager (b) During boot, by pressing Fn key and F3 key, Bluetooth and radio device is not switching off (c) Blue screen was found on three occasions. Even though the above complaints were lodged, none of the problems of the Complainant were solved. System is slow and hanging up and windows OS are repeatedly happening. Even though the said complaints were lodged by the Complainant to the Opposite Parties including bringing to the notice of the Opposite Parties, the several other problems creeping from the laptop, no action was forthcoming from the Opposite Parties except making false promises that they would rectify the same at the earliest. But the Opposite Parties failed to do so and did not rectify the errors crept in the newly purchased laptop.  The Opposite Parties 1 and 2 have called the Complainant and informed him to attend to the defects in the laptop and rectify the same and they took the laptop for rectification and repair and accordingly, issued a job card cum customer slip dt.11.4.2014. The Complainant submits that under the e-mail letter dt.15.7.2014, the Complainant demanded the Opposite Parties (through their engineer Sri.Karthikeyan) to rectify the defects in the laptop and/or to refund the money and take back the laptop since the Opposite Parties did not exchange the mother board of the laptop. But inspite of the same and inspite of innumerable e-mail correspondences to the Opposite Parties, the Opposite Parties did not evince any interest to render justice to the Complainant. Thereafter, once again the Opposite Parties through their customer service centre kept taking the laptop for rectification and used to do nothing. The Complainant is a software Engineer and he ekes out his livelihood from his profession/business, the source of work could be done only either through laptop or a desktop. He purchased the laptop in question from the Opposite Parties to meet the demands from his clients. The sole intention to purchase the laptop is the improve his business and earn name, fame and livelihood. The Complainant submits that he gets repeated orders from his client to do various time bound jobs. The Complainant upon accepting the job, is duty bound to do the same to his foreign as well as local clients in time. If the Complainant fails to perform his duties and obligations not only his reputation gets marred, but also will be losing valuable clients to whom services have been rendered and earned both money and reputation. Subsequent to the purchase of the laptop in question, on account of persistent problem being faced by the Complainant, the Complainant was unable to deliver the job in time resulting in the losses of business, name and fame, money and reputation besides incurred huge amount of mental agony and torture. He was unable to carry out the software work and delivery the result in time. The amount of time lost on merely getting loading the software programmes to suit his business needs has not only causes severe mental torture and agony but also business from the software clients. The Complainant used to earn more than Rs.25K-45K per month form his profession, which he had lost from 30.11.2014 to till date. The Opposite Parties kept taking back the laptop in the guise of repairing or replacing the same, but used to return unrepaired forcing the Complainant to face the same problem time and again and has been made to run from post to pillar. The Opposite Parties being fully aware of the fact that the laptop is incapable of repairing and producing result, instead of replacing the same with the good ones, has kept wasting the time of the Complainant, in the process the Complainant lost time, energy and good income besides valuable clients, whom the Complainant served for a long time by producing good result and have been great source of inspiration and good amount of earnings. There is total deficiency of service on the part of the Opposite Parties and made the Complainant suffer for a period of more than 1½ years. Hence, this complaint.

3.       On issuance of the notice, the Opposite Parties 1 and 2 appeared. Amongst, the 1^st Opposite Party filed the version which is adopted by the 2^nd Opposite Party by way of filing the memo. The sum and substance of the contents of the version filed by the 1^st Opposite Party is that the Complainant has concealed the material facts and has not approached this forum with clean hands. There is no any kind of deficiency or unfair trade practice on the part of the Opposite Party in relation to the Complainant. Further submits that the Complainant has purchased the said Laptop on 5.12.2013.  The alleged defect said to have been found rectified by the Opposite Parties. In this context, it submits that the Complainant had used the said Laptop for 240 hrs (considering 8 working hours per day) or 30 working days till the date of first complaint without having any troubles. The Complainant reported that he was unable to switch off/on the WIFI and blue tooth. In this context, the Opposite Party submits that there are several things that can cause a    Wi-Fi to stop working and any computer literate can follow the following steps which can fix the problem. In this context, the Opposite Party has given list of steps in order of mist common to cause this problem.

1. Verifying whether the wireless connection is enabled

2. Verifying whether the SSID (service Set Identifier) and security key are correct

3. Ensuring whether the internet is working

4. It is not uncommon for network DSL and Cable Modem and network routers to encounter problems that prevent one or more devices from connecting to the network. Therefore resetting modem and router.

5. Disabling firewalls: Having more than one software firewall installed on the computer can cause a lot of issues with your network connection. To help verify this is not a problem it can be suggested temporarily disabling any firewall on the computer. Disable the windows firewall or any firewall that comes with security programs.

6. Restoring Windows to an earlier copy: If the user is using Microsoft Windows and the Wi-Fi has worked in the past, try restoring Windows to an earlier copy. In some cases, bad software or settings may have caused problems with the Wi-Fi adapter.

7. Reinstalling wireless device and drivers: Corrupt drivers or other issues with the wireless drivers is one of the most common causes for why the user may not be able to see any Wi-Fi networks or have problems detecting your wireless card.

8. Repositioning the wireless router or computer.

9. Operating system corruption: If the Wi-Fi is still not working, it may be a serious corruption with Windows or the installed operating system.   

The Opposite Party further submits that upon the receipt of the complaint, it has meticulously examined the Laptop. Although there were no issues as far as hardware of the Laptop is concerned, they have reinstalled the launch manager drivers. The said Laptop has been tested and found to be working fine. In this context, the Complainant himself has accepted that fact and collected the laptop in fine working condition on 2.1.2014. The Complainant had never indicated any sort of hardware issues in the entire set of complaint.

          4.       The Opposite Party has also submitted that the second complaint was lodged by the Complainant on 18.1.2014 via case identification No.592524l over phone after using it for 112 working hours. The Opposite Party understood that the problem caused to the impugned Laptop is on account of installation of operating system and nothing other than that. Hence, they have closed the call over phone only. However, the Complainant too understood that if the problems faced by him can be termed as “Hardware problem”, probably there may be chances for him to exploit the Opposite Parties monetarily. Again the Complainant lodged the third complaint via case identification No.627494l on 11.2.2014 stating that “Hardware/Networking Error/Battery backup varied etc., In this context, the Opposite Party observed the physical condition of the Laptop. There were huge number of scratches on LCD panel and the upper case. Therefore, the Opposite Party alleged that the Laptop has been misused or abused or used other than for its normal intended use or failure to use in accordance with the user guide and the negligently used by the Complainant. When such being the fact, after attending the Laptop, returned back to the Complainant in fine working condition. The Complainant also accepted it and signed the service slip and left his thanking feedback on it. After exactly 3 months or 736 working hours, the Complainant made up his mind to take replacement and started literally harassing to the Opposite Parties. Further, the Complainant has filed fourth complaint on 14.5.2014. In this context, they have changed the mother board (main board) which is supposed to be predominant component of any IT product as a gesture of goodwill. The said Laptop has been tested once again and found to be working fine. The said Laptop has been returned back to the Complainant in fine working condition. In this context, the Complainant reported “BIOS OF THE SYSTEM IS VIRUS INFECTED AND BECAME BAD BIOS” The Opposite Party submits that the Complainant has never clarified or confirmed what kind of anti-virus software used in the laptop. Most virus scanning software won’t detect as BIOS virus. Virus scanning software only goes over the operating system accessible areas of the hard drive. Many can scan the Master Boot Record sectors of a hard drive. The only way to detect a BIOS virus is by trial and error and deduction.  In this context, the Complainant has failed to substantiate his statement as to virus infection to BIOS. The Opposite Party further submits that as per the warranty policy, the Opposite Parties are subject to repair any defective products or replace the parts thereof and not to replace the entire Laptop when there is no manufacturing defect inherent in it. Further, the Complainant must strict proof to prove any manufacturing defect in the Laptop. The computer was used by the Complainant from the first day of purchase and was never defective since then. It had given services for a reasonable duration to the Complainant. Hence, there is ample of scope that the Complainant had misused the computer. The Complainant had not produced any expert evidence or test report of any other well-known computer company to show to the Forum that the computer had any defect. Hence, the Opposite Party submits that the complaint filed by the Complainant is not maintainable. The complaint against the 3^rd Opposite Party was dismissed on 22.5.2017.

          5.       The complainant to substantiate his case, filed affidavit evidence. The Opposite Parties 1 and 2 representatives have filed affidavit evidence. None of the documents got marked by both the parties. None of the parties have filed written arguments. Heard both sides.

          6. The points that arise for our consideration are:

       1) Whether the Complainants proves the deficiency in service on

            the part of the OPs, if so, whether he is entitled for the relief

            sought for?

        2) What Order?

                  

7.  Our answers to the above points are as under:

Point No.1 : In the negative

Point No.2 : As per the final order for the following

REASONS

8. POINT NO.1 :   We have briefly stated the contents of the complaint as well as version of the Opposite Parties. In the instant case, the Complainant has sought for the relief of to direct the Opposite Parties to exchange the new laptop in the lieu of the highly defective laptop in question, to direct the Opposite Parties to pay a compensation of Rs.4,00,000/- for having lost business for more than one and half years, and having suffered mental and torture at the hands of the Opposite Parties and grant such other reliefs.  It is not in dispute that the Complainant has purchased the said Laptop from the retailer the 3^rd Opposite Party and the same is the products of the Opposite Parties 1 and 2 for a total value of Rs.20,700/- vide tax invoice dt.5.12.2013 which can be seen ongoing through document No.1. According to the Complainant, when he started loading the said laptop, several defects started erupting from the laptop and the same failed to load the software and it was found that there is a defect in the laptop and immediately, he approached the Opposite Parties and requested them to rectify the errors/defects in the laptop and it was handed over to Acer Customer Service Centre on 17.1.2014 and again on 11.2.2014. But the Opposite Parties could not get the same repaired and rectified. Hence, the said problem found in the said laptop was continued.

9.       The 1^st Opposite Party’s version which is adopted by the 2^nd Opposite Party is quite different stating that the Complainant in his complaint nowhere stated that there is a manufacturing defect in the said laptop. Further submits that the said laptop has been meticulously examined. Although there were no issues as far as hardware of the Laptop is concerned, they have reinstalled the launch manager drivers. The said Laptop has been tested and found to be working fine. In this context, the Complainant himself has accepted that fact and collected the laptop in fine working condition on 2.1.2014. This fact is not specifically denied by the Complainant. It is also the specific case of the Opposite Party that the Complainant never indicated any sort of hardware issues in the entire set of complaint. The Opposite Party submits that the second complaint was lodged by the Complainant on 18.1.2014 over phone after using it for 112 working hours. The Opposite Party understood that the problem caused to the said Laptop is on account of installation of operating system and nothing other than that. According to the Opposite Parties, still they have reiterated that there were no problems found in the hardware and the same has been clarified to the Complainant. Again the Complainant has lodged third complaint on 11.1.2014 stating that “Hardware/Networking Error/Battery backup varied etc., In this context, the Opposite Party observed the physical condition of the Laptop. There were huge number of scratches on LCD panel and the upper case. Therefore, the Opposite Party alleged that the Laptop has been misused or abused or used other than for its normal intended use or failure to use in accordance with the user guide and the negligently used by the Complainant. These facts are also not denied by the Complainant. Therefore, there is no any deficiency of service on the part of the Opposite Parties.

10.     The Opposite Parties have specifically contended that since there is no any manufacturing defect, as per the policy the Opposite Parties are subject to repair any defective products or replace the parts thereof and not to replace the entire Laptop. In this context, Opposite Party further submits that the laptop was used by the Complainant from the first day of purchase and was never defective since then. It had given services for a reasonable duration to the Complainant. Hence, there is ample of scope that the Complainant had misused the laptop. To show the alleged defect if any inspite of attending the grievance of the Complainant, the Complainant has not produced any expert evidence or test report of any other well-known laptop company to show to this Forum that the said laptop had any defect. In this context, we found there is a considerable force in the contention taken by the Opposite Parties as the grievance of the Complainant has been specifically attended by the Opposite Parties and noticed that there was no any manufacturing defect, but it is the Complainant who has not properly used the guidelines for the issues of the said laptop. When the expert report is not placed before this Forum, it is unsafe to arrive at conclusion that the said laptop is suffering from manufacturing defect in the light of the decision reported in II (2017) CPJ 462 (NC) in the case of Bhagwan Singh Sekhawat V/s R.K.Photostate & Communication & Ors wherein it is held as under:

Consumer Protect Act, 1986-Sections 2 (1)(f), 14 (1)(d), 21(b)-Mobile set-Manufacturing defect-Warranty period- Inability to rectify- Deficiency in service alleged-District Forum dismissed complaint-State Commission dismissed appeal-Hence revision-Complainant has not impleaded manufacturer as OP-complaint not maintainable without impleading manufacturer-No expert opinion regarding defects in mobile set has been placed by Complainant on record-Problems can arise while regular use of mobile and as ringer problem arose after almost 11 months, it cannot be said that there was any manufacturing defect.

In the light of the decision cited supra, we come to the conclusion that there is no any deficiency of service on the part of the Opposite Parties. When such being the fact, the complaint filed by the Complainant is liable to be dismissed. Accordingly, this point is answered in the negative.

11.     POINT NO.2: In the result, we pass the following:

ORDER

The complaint filed by the Complainants is dismissed.

Looking to the circumstances of the case, we direct both the parties to bear their own cost.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open Forum on 27^th June 2018).

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

 

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

Nikhil Badarinath Rao., who being the Complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Tax invoice dt.5.12.2013
Ex-A2	Tax bill cum delivery challan dt.5.12.2013
Ex-A3	Job card cum customer call slip 2.1.2014
Ex-A5	Letter/notice dt.5.4.2014 along with the postal ack.
Ex-A5	Job card cum customer slip 11.4.2014
Ex-A6	e-mail letters
Ex-A7	Job card cum customer call slip 14.5.2014
Ex-A8	Screen shots error description
Ex-A9	Windows 7 system requirements.

 

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

 

B.K.Prakash, Head-Legal.,who being the Opposite Parties was examined.

Copies of Documents produced on behalf of Complainant/s:

 

Doc-1	Purchase invoice
Doc-2-5	Customer call slips
Doc-6	Mail correspondence
Doc-7	Unsigned letter from the Complainant

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT