KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO. 484/04 JUDGMENT DATED.01.02.08 PRESENT: SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRA MOHAN NAIR : MEMBER Hard ‘N’ Soft, 1st Floor, RajasBuildings, Cullen Road, : APPELLANT Mullackal, Alappuzha. (By Adv.S.Reghukumar) Vs 1. Dr.Abraham, Kureekkattil Vellakkainar, Alappuzha : RESPONDENTS (By Adv.V.K.Mohankumar) 2. Zenith Computers Ltd., Zenith House, 29, MIDC Central Road, Andheri (E), Mumbai – 400 093 JUDGMENT SRI.M.V.VISWANATHAN: JUDICIAL MEMBER The above appeal is preferred from the order dated.29.01.2004 passed by CDRF, Alappuzha in O.P.A.39/2003. The complaint in the said O.P.A.39/2003 was filed by the 1st respondent herein as complainant against the appellant (1st opposite party) and the second respondent (second opposite party) claiming refund of the price of the computer which was purchased by the complainant from the opposite parties. The case of the complaint was disputed by the second opposite party/manufacturer. The 1st opposite party/dealer remained absent, after entering appearance through advocate. The Lower Forum accepted the case of the complaint to some extent and passed the impugned order directing the 1st opposite party /dealer to pay a sum of Rs.41,100/- with 10% interest from the date of the complaint with cost of Rs.500/-. But, no order was passed against the second opposite party/manufacturer. The lower forum was of the view that the complainant suffered the loss only due to the deficiency of service on the part of the 1st opposite party/dealer and that the 1st opposite party/dealer failed to cure the defects reported by the complainant. Aggrieved by the said order the present appeal is filed by the 1st opposite party/dealer in the said O.P.A.39/2003. 2. When this appeal was taken up for hearing, there was no representation for the second respondent/second opposite party/manufacturer. The second respondent was absent through out the appeal proceedings. The counsel for the appellant/1st opposite party and the 1st respondent/complainant are present. We heard the counsel for the appellant and the 1st respondent. The learned counsel for the appellant/1st opposite party submitted his arguments vehemently on the basis of the grounds urged in the memorandum of the present appeal. He also relied on the decisions rendered by the National Commission reported in 1993 (1) CPR 171 – (NC), 1995 (3) CPR 602 (NC) and (1997) 5 CTJ 503 (CP) (NCDRC). He has also relied on the decision of this State Commission reported in 1998 CTJ 586(CP) and submitted that the lower forum can not be justified in ordering refund of the price of the computer without entering into finding regarding manufacturing defects. It is also submitted that the lower forum has not taken into consideration as to whether the defects in computer system can be rectified by replacement the defective parts or not. Thus, the appellant/1st opposite party dealer requested to set aside the impugned order passed by the lower forum. The appellant has also requested for remand of the matter for fresh disposal of the same by the lower forum on merits by giving an opportunity to the appellant/1st opposite party to file the written version and the substantiate contentions by adducing necessary evidence. 3. The learned counsel for the 1st respondent/complainant supported finding and the conclusion of the lower forum and requested for dismissal of the present appeal. 4. The points that arise for consideration are: 1. Is there occurred any deficiency in service on the part of the appellant/1st opposite party/dealer? 2. Whether the lower forum can be justified in directing the appellant/1st opposite party to refund the price of the goods(computer) purchased by the complainant without an order to return the defective computer to the dealer or manufacturer? 3. Whether the forum below can be justified in totally absolving or exonerating the second respondent/2nd opposite party/manufacturer of the goods (computer system)? 4. Is there any sustainable ground to interfere with the impugned order dated.29.1.04 passed by the CDRF, Alappuzha in O.P.A.39/2003? 5. Points 1 to 4:- For the sake of convenience we will refer the parties to this appeal according to their status before the lower forum in O.P.A.39/2003. 6. There can be no dispute or doubt about the fact that the complainant purchased computer system manufactured by the second opposite party and sold by the 1st opposite party/dealer and that the complainant paid total sum of Rs.41,100/- towards price of the aforesaid computer system covered by Ext.A3 credit bill. There is also no dispute regarding Ext.A1 warranty registration card and A2 Performa invoice dated.2.5.02 issued by the 1st opposite party/dealer. As per A1 warranty, the warranty was given for the personal computer with respect to the manufacturing defects only. It is also made clear that the second opposite party/manufacturer is shall not be responsible or held responsible for any data or software loss or any consequential loss raising due to such a loss. The A1 warranty would also make it clear that the warranty is given by the manufacturer. There is nothing in A1 warranty making the 1st opposite party/dealer liable or answerable for any of the defects in the computer. Ext.A3 credit bill would also make in clear that the warranty was given for the computer system by the manufacturer. The warranty stipulated in A3 credit bill is as follows “goods once sold will not be taken back and there will not be any warranty from us except the warranty from the manufacturer” This would make it clear that the complainant as the consumer was fully aware of the fact that the warranty is given for the manufacturer and no warranty is given by the 1st opposite party/dealer. Another important aspect to be noted is that the issuance of A4 registered notice by the complainant to the second opposite party/manufacturer with copy to the 1st opposite party/dealer. It would show that the complainant was fully aware of the fact that the manufacturer is answerable and responsible to rectify the defects in the computer. It was not proper for the lower forum to absolve the second opposite party/manufacturer. 7. The lower forum has upheld the contention taken by the second opposite party that the relation between the 1st opposite party/dealer and the 2nd opposite party/manufacturer is on principal to principal basis. It is to be noted that there is nothing on record to substantiate the aforesaid contention taken by the second opposite party. It is also to be noted that the second opposite party/manufacturer failed to produce any document to support the contentions adopted in the written version or to get the manufacturer absolved or exonerated from the liability. On the other hand, A1 to A4 documents would make it clear that the manufacturer is liable and answerable for the defects in the computer system and that it was the responsibility and liability of the second opposite party/manufacturer to see that the defects are rectified or cured. There is also nothing on record to show that the service or repairs to the computer system manufactured by the second opposite party/manufacturer are to be carried out on rectified by the 1st opposite party/dealer. The forum below has gone wrong in absolving the second opposite party/manufacturer from the liability to cure or rectify the defects developed and exhibited by the computer system which was purchased by the complainant. 8. On going through the averments in the complaint in O.P.A 39/03 it is not ascertainable as to whether the defects are manufacturing defects or not. There is also nothing on record to substantiate the case of the complainant that the computer purchased by him was having any manufacturing defects. It is to be noted that the complainant has not taken any steps to get the goods (computer system) examined or inspected by an expert. Only an expert can state about the nature of the defects in the computer. He can only say whether it is the manufacturing defect or not. He can only say whether the defects developed by the computer system can be rectified by replacement of the defective parts on that the system itself is to be replaced. In the absence of any such expert opinion or evidence the complainant is not entitled to get the entire price of the computer refunded. The impugned order is passed by the lower forum without considering the material aspects of the case. The lower forum has also failed to evaluate the facts, circumstances and the evidence on record in its correct perspective. The decisions rendered by the Hon. National Commission and this State Commission (cited by the learned counsel for the appellant) would justify in setting aside the impugned order passed by the lower forum. We are of the strong view that this is a fit case to be remitted back to the lower forum for fresh disposal in accordance with law. The parties should get one more opportunity to substantiate their respective case. The impugned order is set aside. These points are answered accordingly. In the result the appeal is allowed as indicated above. The impugned order dated.29.01.04 passed by the CDRF, Alappuzha in O.P.A.39/03 is set aside and the matter is remitted back to the lower forum for fresh disposal in accordance with law. It is made clear that the appellant 1st opposite party is to be given an opportunity to file written version and to adduce evidence in support of its case. The respondents 1 & 2 namely the complainant and the second opposite party will also be given an opportunity to adduce further evidence in support of their respective pleadings. Considering the facts and circumstances of the case, the parties are directed to suffer their respective costs. M.V.VISWANATHAN : JUDICIAL MEMBER S.CHANDRA MOHAN NAIR : MEMBER R.AV | 
