COMPAQ COMPUTERS I LTD vs ASHLEY SHANE

-THE first opposite party in O. P. No. 100 of 2001 on the file of the District Forum, Chennai (North) is the appellant herein.

THE case of the complainant was as follows : Impressed by the advertised features of the products of O. P. 1, the complainant purchased a computer from O. P. 2, dealer of O. P. 1 on 17. 9. 1999 for Rs. 90,610. O. P. 1 never stated in their advertisement that their computers were incompatible to other devices of other internationally renowed manufactures. The complainant had a warranty period of one year. The complainant on payment of a further sum of Rs. 8,500 had also taken the Carepaq scheme of O. P. 1 for extending and enhancing the said warranty for a further period of two years and the same was confirmed by O. P. 2 as per their letter dated 14. 12. 1999. However, the computer supplied to the complainant was substandard and full of very many defects from the very inception and installation thereof and contrary to the promises and advertisements made by the opposite parties. The said computer was replaced as also the DVD ROM which had to be sent to Bangalore for repairs and then replaced. The computer was not compatible to either HP CD writer or to any HP products and had endless other problems and defects, with the result the complainant could not use the computer most of the time and had to spend enormous amount in telephone calls to both the parties, conveyance charges, etc. to bring and take back the said computer from O. P. 2 after repairs. The complainant made telephone calls also to O. P. 1 at Delhi and spent huge amounts for the same. The complainant caused a notice to be issued to the opposite parties. There was no reply. The complaint came to be filed for a direction to the opposite parties to refund Rs. 90,610 being the invoice value of the computer, Rs. 19,934 being the interest on the said amount @ 24% per annum with further interest till date of final repayment, to pay a sum of Rs. 8,500 towards the carepaq scheme for extending the warranty, to pay a sum of Rs. 3,500 towards conveyance and telephone charges, Rs. 3,00,000 as compensation for mental agony, etc. O. P. 1 filed a version disputing the claim of the complainant and stating further as follows: The problems stated by the complainant were solely due to the complainant installing an HP CD writer on the computer without using proper drivers for installation. The opposite party was not responsible for the computer not being compatible with HP CD writer or other HP products for the following reasons-O. P. 1 was not dealing with the CD writer. The complainant himself purchased the HP CD writer plus 8100i. He had himself installed the CD writer. When the system refused to boot; it was ascertained that the problem was due to a clash between the drivers of the DVD ROM and CD writer. Though this problem was reported by the complainant to HP the rectification was in fact done by O. P. 1''s support functioning at Bangalore. The computer worked without any problem for more than 2 months, when on the request of the customer/complainant, DVD ROM was replaced. The complainant, thereafter, received an error message which was ascertained by O. P. 1 to be caused only because of the improper installation of HP CD writer. Still as a matter of gesture, this complaint was also attended to by O. P. 1. The complainant again represented that he was getting an error message when trying to record from the DVD ROM to the CD Writer. According to the complainant himself the computer worked well and the problem occurred only when attempts were made to record to the CD Writer. Thus the problem was only with HP CD Writer Driver and installation thereof. The problem arose only after the complainant installed the HP CD Writer through the software, Adapted Easy CD creator, which was again provided by HP. Subsequent analysis also proved that the root cause was the CD Writer Driver. The CD Writer was unable to copy from CD to CD but worked well while copying from the hard disk using the Adaptec Easy CD creator application supplied by HP. The engineer of O. P. 1 at the request of the complainant installed alternative software "just Burn" and found no problems which were previously encountered with the Adaptec Easy CD creator software supplied by HP. This was demonstrated to the complainant who was asked to use the "just Burn" software for overcoming his problems. However, the complainant for reasons best known to him was insistent and adamant and informed that he would only use the Adaptec Easy CD creator software supplied by HP. Under such circumstances, it was suggested to the complainant that he should seek assistance from HP technical expert/support. The computer manufactured by O. P. 1 was of good quality. The complaint should be dismissed for non-joinder of HP viz. , Hewlett Packard India Ltd. , from whom the complainant purchased the CD Writer. The complainant without giving reply to the various e-mails sent by O. P. 1, on 26. 6. 2000 had come forward with the present complaint. The complainant purchased the optional Carepaq on 15. 12. 1999 and only after three months from the date of purchase of computer the same had become defective. The warranty given for the computer was only for manufacturing defect, if any, in the parts and there was no warranty that the computer would work without proper driver. Even according to the complainant, due to the CD writer, the computer was not working perfectly. The other allegations were denied. There was no cause of action.

The second opposite party practically adopted the version of O. P. 1 and further stated that the CD Writer was purchased by the complainant himself from Saudi Arabia. The computer worked without any problem for more than two months and the DVD ROM was replaced. When O. P. 1''s engineer installed alternative software "just Burn" no problems were found. The entire problem was only due to HP CD Writer and installation thereof by the complainant himself. The warranty did not cover any improper use as had been done in the present case. The complaint was liable to be dismissed.

BEFORE the District Forum on the side of the complainant Ex. A1 to Ex. A9 were marked while no document was marked on the side of the opposite parties. The District Forum held that there was deficiency in service inasmuch as the computer that the complainant had purchased from the opposite party was incompatible to the products of other world renowed manufacturers and further there were enough material and record to prove that there were inherent defects in the computer. So holding by order dated 19. 7. 2002, the District Forum directed the opposite parties to refund Rs. 90,610 being the invoice value of the computer after taking the return of the computer to pay Rs. 8,500 towards ''carepaq'' scheme extending the warranty and to pay Rs. 10,000 as compensation for mental agony, etc. and Rs. 1,000 as cost.

IT is as against that the present appeal has been filed. During the course of hearing, at our direction, an offer was made by O. P. 1 to replace the computer with a brand new computer. Learned Counsel for the complainant though agreed before us that it could be done still after getting instructions from the complainant did not agree to the said course. The complainant also swore to an affidavit dated 6th February, 2007, to the following effect: the DVD ROM supplied as an original equipment with the system had failed and was replaced by the appellant and similarly even the original system had also failed and had been replaced by the appellant and even the replaced system had failed, and when this was unattended to, the complainant was constrained to file the complaint; that having suffered from the defective product of the appellant and now litigating for over 8 years, he could not be compelled, coerced, forced and asked to accept any other product of the appellant by way of compensatory replacement, or agree to any compatibility modification, alteration, repair, or otherwise by the appellant, as he has totally lost every faith and trust in any product of the appellant and he would only like the amount expended by him on the appellant''s product to be refunded to him, etc. , besides the fact that as has already purchased another system, he has no need for a second system; that in these circumstances, this Court should order payment to him of the amount awarded which had already been deposited before the Court. An undertaking affidavit on the 7th day of February, 2007 by Mr. Thomas Thoppil, Legal Counsel of M/s. Hewlet Packard India Sales (P) Ltd. to the following effect has been filed. "1. First respondent/complainant had raised a complaint before the District Forum that the Compaq System purchased from the second respondent in the year. . . . . . . . . . was not compatiable to a foreign hardware accessory which the complainant had admittedly attempted to fit into the System.

I hereby agree and undertake on behalf of the Appellant to effect necessary rectification of the Compaq System with the Foreign Hardware Accessory as and when the respondent hands it over and it shall be returned to him in functional order. "

WE heard arguments of the Counsel. Learned Counsel for the first opposite party and learned Counsel for the second opposite party submitted as follows : The complainant had himself purchased HP CD Writer plus 8100i from Dubai and installed it himself. When the system refused to boot, it was found that the problem was due to a clash between the drivers of the DVD ROM and the CD Writer. This had been categorically admitted by the complainant in his letter Ex. A7 dated 26. 6. 2000. He had admitted under Ex. A7 itself that this was rectified by Compaq Support at Bangalore. The system had worked without any problem for more than two months, when on his request, the DVD ROM was replaced. Thereafter the error message came and which was ascertained to be caused by the improper installation of the HP CD Writer by the complainant himself. This had been the undoing of the computer otherwise functioning alright. The complainant again represented that he was getting an error message when trying to record from the DVD ROM to the CD Writer. The computer had worked well till before the complainant installed the HP CD Writer through the software, Adopted CD creator, which was again of HP make. The root cause was the (sic) CD writer driver. The engineer of O. P. 1 had demonstrated to the complainant and even installed for him gratis, alternative software "just Burn" with which the problem had disappeared. But the complainant was adamant in that, he would not take to the solution and was fixed on his Adaptec Easy CD creator brought from outside. He ought to have checked up with the accessory manufacturer or O. P. 1 as to whether the accessory software would support and function with O. P. 1''s computer system, nor did he take the assistance of engineer of O. P. 1 or O. P. 2 for fitting the accessory hardware/software. The complainant without the knowledge of the opposite parties had opened the system by himself and fitted the accessory extraneous to the system. The service contract brooked no such tampering with a sensitive machine. The warranty of sale document of any electronic equipment implied that if the system was opened by someone other than the authorized service personnel, the warranty would cease and be void. This condition was absolute. The complainant could not seek to alter a system which functioned as one integrated unit by virtue of a carefully configured hardware and software. The complainant had also not filed the warranty document before the District Forum, which amounted to suppressio veri. When the problem was brought to the notice of O. P. 1 seeking help, O. P. 1 not only suggested the use of an alternative software known as "just Burn" but also installed the same for the complainant free of cost. The accessory of the third party manufacturer was able to record from the DVD ROM of O. Ps. installation of this software. But the complainant was too adamant for good sense to prevail and wanted to have use of the offending accessory only. The order of the District Forum was clearly erroneous. The District Forum was also in error and it was not sure whether it was Section 2 (1) (d) or 2 (1) (g) which was breached. The finding by the District Forum that there were inherent defects in the computer as per Section 2 (1) (f) of the Act was also unsubstantiated. So far as the ''carepaq'' scheme was concerned, the complainant had not filed the document of evidence nor did he give the details, but still the District Forum, without having had the opportunity to know what the scheme was and ascertaining what were the mutual obligations of the parties to it and sanctions under the scheme in case of default, had directed payment.

LEARNED Counsel for the second opposite party also supported the stand of O. P. 1. Learned Counsel particularly urged that all the problems in the said computer had arisen only when the complainant had installed a HP CD Writer using the Adaptec Easy CD creator software supplied by HP and since its installation only, the computer was not working properly and showed error reports. Except showing error report while the computer was used for recording from the CD ROM to the CD writer, for all other functions the computer had worked properly. The company from whom the complainant had purchased the HP CD Writer should have been made as a party. Only after installing their product, the computer had showed error report and had not worked properly. Learned Counsel for the complainant made the following submissions. Though it was the contention of the opposite parties that all the alleged problems were solely due to, and attributable to the complainant not using the appropriate drivers for installing the HP CD writer, this contention had been raised only as an afterthought, as this alleged problem about the drivers and the CD writer was attended to, and also rectified by O. P. 1 themselves at their Bangalore works and even the "just Burn" software supplied by O. P. 1 was of no avail and effect. No reason whatsoever had been given by O. P. 1 as to why even the DVD ROM supplied in the system had failed/crashed twice and had to be replaced. No reason had also been given by O. P. 1 as to why the system itself was changed/replaced as evidenced under Ex. A6 and that too without any information or intimation of this to this complainant. This had been done only to cover up the substandard, inherent manufacturing defects, deficiencies and laches in the earlier system supplied to the complainant, which could not be covered by the replaced system. When it was the emphatic contention of the opposite parties that the system manufactured was compatible to other renowned products including HP (Hewlett Packard), the need or necessity to have made them parties did not arise as the burden of proof shifted on to the opposite parties to substantiate this, as the contrary was evident from the various defects pointed out by the complainant and attended by the opposite parties. The District Forum had rightly allowed the complaint. Learned Counsel also relied on a number of decisions in support of his case, which will be referred to in due course.

We have gone through the materials on record. It is very unfortunate that the friendly hand extended by the opposite parties had not been accepted by the complainant. The complainant insists on his pound of flesh. It is a matter of record that the complainant installed CD Writer of HP on his own without reference to the opposite parties. The problem started only after this. The complainant has not filed the terms and conditions entered into between the parties. It is common knowledge if any system is tampered with by third parties, without reference to the suppliers during the warranty period, the supplier or manufacturer would be absolved. It is nowhere disputed by the complainant that he had himself installed the CD Writer HP brought by him from Dubai. On this solitary ground the complaint ought to have been thrown out. Though the opposite parties could very well have refused to attend to the complaints made by the complainant as a gesture of goodwill and good consumer relationship though had thought if fit to depute their engineer and make the system compatible by using "just Burn". Even after this, as rightly pointed out on behalf of the opposite parties, the complainant was adamant and insisted on his having that HP CD Writer in the system. It is also to be noted that the complainant has not established that the opposite parties had claimed that their system was compatible with any other manufactured by third parties. It is not open to the complainant to allege that they had not said that their system would not be compatible. It is in the negative. It is not the case of the complainant that the opposite parties had claimed that their system would be compatible with any other system.

BE that as it may, it is admitted on all hands that the problem arose because of the introduction of the HP CD Writer by the complainant. There is, therefore, justification on the part of the opposite parties to say that HP ought to have been made a party as it would have helped to find out as to whose system or whose product was defective or incompatible. This had not been done. Let us now refer to the decisions relied on by learned Counsel for the complainant. The first of the decisions is The Secretary, Consumer Guidance and Research Society of India v. M/s. B. P. L. India Limited, I (1992) CPJ 140 (NC)=iv (1992) CPR 564. It was a complaint for damages. The complainant had purchased one paper copier to eke out his livelihood by the process of self-employment. The copier supplied was malfunctioning from the very day on which it was first put to use. The dealer was unable to set right the defect. The complainant prayer for refund of price along with compensation was allowed by the National Commission. The next decision is A. N. Ramakrishna v. Anupama Electric Co. and Anr. , I (1994) CPJ 507. In that case, the complainant purchased a mixture grinder from the opposite parties with the guarantee for two years. The product began to give trouble. The coupling between motor and jar got burnt. It was replaced. There was trouble again; burnt again. The opposite party was prepared to replace the mixture grinder and was not willing to refund the sale price paid. The District Forum directed the opposite party to replace the mixture grinder jar. The question arose whether the complainant was entitled to return of the price paid by him. The Karnataka State Commission held that in the circumstances of the case, it would be just and proper to direct the opposite parties to return the complainant the price paid by him for the purchase of mixture grinder. The next decision is Satya Narayan Jhunjjunwala v. Batliboi and Co. Ltd. and Ors. , II (1996) CPJ 132. In that case, the West Bengal State Commission in a case where it was held that there was manufacturing defect and the product could not operate even after repairing, the State Commission directed refund of the price paid. The next decision is also from the Calcutta State Commission between Joseph Charian v. M/s. Gestetner (India) Ltd. , III (1992) CPJ 604=vii 1993 (2) CPR 468. It was a case where an electric plain paper copier was purchased by the complainant and was found to be defective. There was a warranty. The defect had to be attended to 16 times in a period of one year. In such circumstances, the price was directed to be refunded along with the interest. Compensation was also awarded.

WE are afraid that these decisions cannot apply to the facts of the present case. We have already given the reasons as to why the complainant would not be entitled to relief. He had introduced a CD Writer on his own without reference to the opposite parties. For reasons stated above, we hold that the appeal has to succeed. However, as already mentioned, O. P. 1 has given an undertaking to replace the computer with a brand new computer. In the above circumstances the order of the District Forum is modified as follows; there will be a direction as per the undertaking given by the first opposite party on 7. 2. 2007. It is upto the complainant to accept the offer notwithstanding the fact that he has said that he has purchased a new system. The claim for refund cannot at all be permitted. In case the complainant does not accept the offer of the opposite parties the appeal shall stand allowed and the complaint shall stand dismissed. No costs. Ordered accordingly.