National Consumer Disputes Redressal
Wipro Limited vs Toppers Multimedia (P) Limited on 10 February, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 372 OF 2004 (From the order dated 30.08.2004 in Complaint Case No. 31/1998 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai) Wipro Limited (Formerly known as Wipro Infotech Limited) Doddakanneli, Sarjapur Road Appellant Bangalore-560 035 versus 1. Toppers Multimedia (P) Limited No. 30, 3rd Main Road, Gandhi Nagar Adyar, Chennai-600 020 2. Apple Computers International Limited 5th Floor, Du Parc Trinity Respondents No. 17, M.G. Road Bangalore-560 001 3. M/s Sun Multimedia No. 267, Royapettah High Road Chennai-600 014 BEFORE: HONBLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HONBLE MR. ANUPAM DASGUPTA, MEMBER For the Appellant: Mr. K.T. Anantharaman, Advocate For Respondents No. 1 &3: Nemo For Respondent No. 2 Mr. Surender Mann, Advocate Dated: 10th February, 2010 ORDER
ANUPAM DASGUPTA This appeal has been filed against the order dated 30.08.2004 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (in short, the State Commission) by Wipro Limited (formerly known as Wipro Infotech Limited), which was one of the opposite parties in the complaint case/original petition no. 31/1998 before the State Commission. By this order, the State Commission held the appellant/opposite parties (OPs) no. 1 and 2 and OP no. 4 (M/s Sun Multimedia) guilty of supplying a defective package of computer hardware to the original complainant (respondent no.1 in this appeal) and directed them to take back the defective package of equipment and refund the sum of Rs.8,30,855/- with interest thereon @ 12 per cent per annum from 01.12.1998 till payment, and also pay a compensation of Rs.50,000/- for deficiency in service leading to loss and mental harassment and a cost of Rs.5,000/-, within two months from the date of the order.
2. The brief facts are that M/s Toppers Multimedia Private Limited, the original complainant, purchased in October, 1996 a set of computer hardware (consisting of 9 items, for a total cost of Rs.8, 30,855/-) from M/s Sun Multimedia (which was arrayed in the complaint as OP no. 4). The main hardware, brand-named Macintosh, was the product of M/s Apple Computers International Limited, which was OP no. 3 before the State Commission. The warranty card, displaying the business logos of both M/s Apple Computers International Limited and M/s Wipro Infotech Limited, was issued under the signature of an Engineer of M/s Wipro Infotech Limited and was valid up to 31.01.1998. The complainant purchased the hardware for a business purpose, i.e., running a training course on commercial basis in arrangement with M/s Aptech India Limited at the complainants centre at Bangalore. At the relevant time, the appellant was the marketing agent and after-sales service provider for the said brand of computer hardware, in accordance with the terms and conditions of the warranty mentioned above.
3. The complainant alleged that from the very first month of operation of the computer hardware supplied by OP no. 4 (respondent no. 3), there were several breakdowns, resulting in frequent disruptions in running the training course. This caused the complainant much financial loss due to loss of working hours as well as damage to its reputation, which caused its Directors and management/teaching personnel considerable mental agony. Thus alleging that OP no. 4 had supplied computer equipment with manufacturing defects and that the appellant (OPs no. 1 and 2) had repeatedly failed to rectify the said defects, the complainant claimed compensation/payment of Rs.14,27,797/- on various grounds with interest @ 18% per annum. The OPs contested the complaint denying all material allegations and urging, in particular, that the complaint was not maintainable ab initio because the equipment were purchased by the complainant for an admittedly commercial purpose and hence the complainant was not a consumer within the meaning of the term under section 2(1)(d)(i) of the Consumer Protection Act, 1986 (hereafter, the Act). After hearing the parties and considering the evidence and documents produced on record, the State Commission, however, passed the impugned order, as noticed above.
4. We have heard Mr. K. T. Anantharaman, learned counsel for the appellant (OPs no. 1 and 2), and Mr. Surender Mann, learned counsel for respondent no.2 (OP no. 3). However, at the time of hearing, none appeared on behalf of the original complainant (respondent no. 1) and M/s Sun Multimedia (respondent no. 3/OP no.
4). Mr. Anantharaman has also submitted a brief note of arguments in support of his case.
5. Mr. Anantharaman reiterated that respondent no. 1 (complainant) was not a consumer within the meaning of term under section 2(1)(d)(i) of the Act because it purchased the computer hardware for an admittedly commercial purpose, i.e., running training courses on payment of fees; secondly, there were no inherent/manufacturing defects in the computer hardware supplied by the manufacturer through its dealer (respondent no. 3/OP no. 4) and, thirdly, the appellant had promptly attended to the complaints of the complainant/respondent no. 1 from time to time and to its satisfaction and, therefore, there was no deficiency in service either on its part.
6. Mr. Mann also took the plea that the complainant was not a consumer under the Act in view of the reasons cited by the appellant and, secondly, that respondent no. 2/opposite party no. 3 had no privity of contract with the complainant. He further stated that only the basic computer hardware, like Macintosh Performa 5200/75/8/800/e-net/Mouse/Kbd, Apple 15 Display and Apple Color Stylewriter 2500 were supplied by respondent no. 2/OP no. 3 through its authorised dealer (respondent no. 3/OP no. 4) and the rest of the equipment in the invoice were all supplied by the appellant as computer accessories. At this stage, Mr. Anantharaman countered that the appellant was only responsible for providing after-sales service under the terms and conditions of the warranty and not of supplying any components, etc., and was, therefore, not answerable for inherent defect, if any, in any of the computer hardware supplied by the authorised dealer/respondent no. 3, which alone was the supplier of all the 9 items of hardware mentioned in the invoice. He further emphasised that the appellant promptly and satisfactorily attended to the complaints of the complainant regarding the functioning of the system as a whole whenever such complaints were registered with it and this was evident from the copies of the customer call feedback reports filed by the appellant before the State Commission.
7. We may notice the following points that emerge from the pleadings and the various documents brought on record, particularly the consumer feedback reports:
(i) The entire package of equipment was supplied by the dealer (respondent no. 3/OP no.
4) under an invoice dated 14.10.1996.
(ii) The first complaint made to the appellant was attended to on 28.10.1996 (i.e., within 10 days of installation of the hardware) and the customer feedback report showed System showing RAM error. The RAM was replaced and the machine was brought back to working condition.
(iii) There are three feedback reports dated 06.12.1996 which noted problems like, System is not sensing the scanner, Not switching to Ethernet, and FDD not working. On that day, the attending Engineers report stated, The driver reloaded for OMAX scanning; One cable segment found defective and FDD not working.
(iv) The next report is dated 18.12.1996 with the observation, FDD not working and the remarks, Found FDD head burnt and Replaced the FDD.
(v) The next report is dated 06.02.1997 with the attending Engineers remarks, Found battery is dead and 4.5 V Alkaline battery to be replaced.
(vi) The next report is dated 27.02.1997 with the remarks of the Wipro Engineer Battery replacement rechecked; Still problem exists, suspecting problem in motherboard; Motherboard has to be replaced.
(vii) The next report is dated 05.09.1997 with the Engineers remarks, Motherboard replaced and checked followed by Working fine. There is an additional remark in this report, by someone on behalf of the complainant, The system will be under observation for two weeks to test the motherboard and Network is working but very slowly.
(viii) The next report is dated 02.09.1997 with the problem Intermittently display colour changing.
(ix) The next report is dated 10.12.1997 with the problem, System not sensing mouse.
The Engineers remarks are, Standby mouse given and checked. Working fine.
(x) There are two more reports dated 16.12.1997 and 01.01.1998. While the report dated 16.12.1997 is mostly illegible, that dated 01.01.1998 records the problem, System not starting up. The following remarks are, Given a standby system. Loaded and checked. Working fine.
8. In its letter dated 19.12.1997 to respondent no. 2/OP no. 3, the complainant pointed out the problem with the hard disk of the system no. L060309B6SJ and requested a new system at the earliest. By a letter dated 05.01.1998, the Director, AppleAssist wrote to the General Manager of the complainant regarding the problem of sudden or intermittent changes in the monitors colour hue and stated, Apple has identified that the fault is caused by a defective internal RGB Cable (Coaxial), which is a multicoloured bunch of wires connecting the video board to analog board (emphasis supplied). The letter suggested that the complainant contact CADGRAPH, Chennai for verification of the diagnosis and added, On diagnosis of the fault, they will indent for the cable for replacement on your Performa. [Emphasis supplied]
9. This set of customer call feedback reports and correspondence is ample proof of repeated failures of various key components of some equipment or the other supplied by respondent no.3 to the complainant, almost immediately after the initial supply and installation. The frequent visits of the appellants engineers to rectify the defects or replace the defective components/sub-systems from time to time can lead to the only conclusion that if not the entire set of equipment supplied by the dealer/respondent no. 3, at least most of the basic components/sub-systems of the computer hardware was defective ab initio. This leads us to conclude, in agreement with the State Commission, that the hardware supplied to the complainant at the cost of Rs.8,30,855/- suffered from various manufacturing defects and several problems noticed from time to time persisted despite frequent change of components/sub-systems.
10. As regards the preliminary objection about the status of M/s Toppers Multimedia Pvt. Limited as a consumer within the meaning of section 2(1)(d)(i) of the Act, suffice it to observe that it has been the consistent view of this Commission that during the period of warranty an entity purchasing goods/products for a commercial purpose and availing of service under warranty would be entitled to seek redressal under the Act from an appropriate Consumer Forum. Accordingly, in further agreement with the State Commission, we hold that it was permissible for M/s Toppers Multimedia Pvt. Limited to agitate the matter by way of a consumer complaint before the State Commission. Further, it is unacceptable that M/s Apple Computers International Limited (respondent no. 2 in this appeal) had no direct role in this transaction it is clear from the letter dated 05.01.1998 that the said respondent cannot absolve itself of responsibility on the alleged ground, i.e., purported lack of privity of contract. There would have been no occasion for this respondent to write the letter in question if the entire responsibility lay with the dealer (respondent no. 3) or the appellant. In fact, it settled law that in case of manufacturing defects in goods, it is the manufacturer which is primarily responsible for the consequent liability of replacement/repair/refund of the cost. Moreover, it is not on record if any of the 9 items supplied to the complainant by respondent no. 3, the authorised dealer of respondent no. 2, was not manufactured by respondent no. 2 and was procured from some other manufacturer and supplied by respondent no. 3 itself. Finally, neither respondent no. 2 nor respondent no. 3 (the dealer) has filed any appeal against the impugned order of the State Commission and hence the said order (including the material findings therein in respect of maintainability of the complaint and existence of manufacturing defects in the computer hardware in question) has attained finality qua these respondents.
11. The next question that needs to be addressed is the reasonableness of the award handed down by the State Commission in its impugned order, both in terms of the total amount and its apportionment. In our view, while the direction to refund the entire cost of the package of computer hardware supplied to the complainant (with reasonable interest) cannot be faulted, it would not be in order to hold that the appellant was responsible for the defective hardware and hence for sharing any part of the refund amount. There is no document on record to show that any of the 9 items of the computer hardware supplied to the complainant under the invoice dated 14.10.1996 had anything to do with the appellant the appellant was not in the picture so far as the supply of the computer hardware by respondent no.3 was concerned. The customer call feedback reports also clearly show that the appellant did attend to the complainants frequent complaints regarding the system promptly and effected replacements whenever called for. As the repeated malfunctioning of the system was apparently because the components/sub-assemblies had manufacturing defects, the responsibility therefor cannot be pinned on the appellant since, in view of the undisputed documents on record, its sole responsibility was to provide after-sales service under the terms of the warranty. There is also no evidence/document on record to hold that in addition to providing after-sales service, the appellant was responsible for replacing any of the hardware accessories that was actually replaced. In these circumstances, it can only be concluded that the manufacturer (respondent no. 2) and the dealer (respondent no. 3) alone were jointly and severally responsible for replacement/refund of the cost of the entire range of equipment. Therefore, the liability to refund the full cost of the defective hardware package supplied under the invoice dated 14.10.1996 can be fastened only on respondents no. 2 and 3 and not the appellant. On the other hand, it is settled law that a corporate entity like the complainant cannot be entitled to compensation for mental agony/harassment; more so, when reasonable interest on the cost of the computer hardware package supplied to it is allowed, by way of overall compensation.
12. As a result, we uphold the findings of the State Commission on maintainability of the complaint and entitlement of the complainant to refund of the cost of the computer hardware sold to it, on return of the defective hardware package, along with reasonable interest. However, for the reasons discussed, we partly allow the appeal and direct that only respondents no. 2 and no. 3 would be jointly and severally liable to refund the cost of Rs.8,30,855/- of the said hardware package to the complainant, on return of the said package by the complainant to respondent no. 3, along with interest from 01.02.1998 till payment. However, the interest payable will be @ 9% per annum, as against 12% awarded by the State Commission which, in our view, is excessive. We also clarify that in this case there can be no award of compensation for mental agony/harassment. The parties shall bear their own costs.
..
(R.C. JAIN, J) ..
(ANUPAM DASGUPTA)