Date of Filing: 23.01.2008<br /> Date of Order: 28.05.2008<br /> BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 28th DAY OF MAY 2008<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri. Bajentri H.M, B.A, LL.B., President<br /> Smt.C.V. Rajamma, B.Sc., LL.B., PGDPR, Member<br /> Sri. M. Nagabhushana, B.Com, LL.B., Member<br /> <br /> COMPLAINT NO. 203 OF 2008<br /> SRI. SHEKAR. K, Proprietor,<br /> M/s. I CALL SOLUTIONS,<br /> No.9/1, Classic Court, <br /> Opp. Richmond Hotel,<br /> Richmond Road,<br /> BANGALORE-560 023. …. Complainant.<br /> <br /> -V/s-<br /> <br /> SRI. K. CHANDRASEKAR,<br /> Proprietor, M/s. DIAC Services,<br /> Dedicated Industrial Automation<br /> And Consultancy Services,<br /> No.53, Annaiyappa Layout,<br /> Sarakki, J.P. Nagar Post,<br /> BANGALORE-560 078. …. Opposite Party.<br /> ORDER<br /> This complaint is filed claiming Rs.8,25,000/- towards revenue loss from the opposite party on the following grounds:-<br /> The complainant is running a Human Resources Consultancy and has declared Rs.1.3 Crores in the income tax returns as turnover and thus his income per day is Rs.43,333/-. The complainant has purchased 7 KVA Delta online UPS of the value of Rs.55,000/- and UPLUS 7Ah SMF batteries of the value of Rs.10,000/- from the opposite party under invoice No.520 dated: 07.09.2006. Including the VAT he paid Rs.68,450/- to the opposite party under the said invoice. The opposite party installed the said UPS system in the business place of the complainant. About three months after purchase, the UPS and battery created lot of trouble. On his complaint the opposite party serviced the same on 23.01.2007, 15.02.2007, 24.02.2007, 17.03.2007, 22.03.2007, 30.04.2007, 12.06.2007 and 02.07.2007. On all those dates the efforts of the opposite party to rectify the defects went in vain. While booking the above items the complainant had informed the opposite party about the usage of 18 computers and 20 telephone lines in the course of the business. The opposite party supplied AMCO battery on 12.06.2007. When problem was noticed in January-2007 the opposite party advised to rectify the electrification system. Accordingly the electrical wire systems were repaired spending Rs.15,280/-. The opposite party also supplied a local stand by machine and the complainant incurred expenses of Rs.20,000/- for re-installation of electrical system, but the problem was not resolved. As a result the complainant sustained revenue loss of Rs.25,000/- per working day from 22.03.2007 to December-2007. Through the legal notice dated: 24.12.2007 he claimed Rs.8,00,000/- towards loss in 32 working days. The warranty period provided to the items is up to 07.09.2008. The problems in the UPS and battery cropped up within the warranty period and the same have not been rectified. The opposite party has not given reply to the legal notice. Hence the complaint.<br /> <br /> 2. In the version the contention of the opposite party is as under:-<br /> The complaint is filed on false allegations and self serving statements. No material is placed to show that the opposite party is guilty of deficiency in service. They had supplied UPS system and battery to M/s. I CALL SOLUTIONS which is a partnership firm. Therefore the complaint filed in the individual capacity is not maintainable as the partnership firm is not made a party. The UPS system supplied to the firm belongs to DELTA Company and the opposite party is only a registered dealer of the said Company. Without impleading Delta Company the complaint is not maintainable. No document has been produced to show the income of the complainant. The opposite party has supplied UPS system and battery to one M/s. I CALL SOLUTIONS the partnership firm. Three moths after purchasing the system the complainant intimated the problems in the same. But on inspection the UPS system and battery were found in good condition and no defects were noticed. Due to improper power supply and defective electrical connection the UPS system is not working properly. The complainant was advised to rectify the electrical wiring system and accordingly the complainant got the same rectified. The allegation that in spite of rectifying the electrical lines the UPS system is not working properly is false. They had addressed a letter dated: 05.10.2007 requesting the complainant to allow their Engineers to inspect the UPS system and to take back two standby machines provided to the complainant, but the complainant did not allow the Engineers to inspect the premises so also the UPS system and to take back the standby machines. After keeping quite for some time the complainant issued false notice suppressing material facts and making false allegations. As per conditions 8 & 9 of the invoice the opposite party is not responsible if the components failed due to accident, negligence, misuse, alterations, repairs and modifications not made by them. So also for data loss, corruption or any direct or indirect losses due to hardware failure. Due to fluctuations in power supply the UPS system is not working properly. The complainant has not stated that there is any defect in the UPS system. The only allegation is that, the opposite party has not attended the complaint and has not provided good service in rectifying the UPS system. The opposite party attended all the complaints as and when made and provided good service to the satisfaction of the complainant. This fact is clear from the service reports. They also provided replacement of UPS system on two occasions and the replaced machines also failed to work due to defective electrical power supply. On all the occasions no defects were found in the UPS system. Therefore there is no defect in the system provided and the problem is in the electrical power supply to the premises of the complainant. Two years warrantee was provided to the UPS system and one year warrantee was provided to the battery. The opposite party is not responsible for any defects found during defective supply of power. It is not the case of the complainant that the entire computer system works only on the basis of UPS system. The UPS system provided is only of the capacity of 5 to 10 minutes back-up in the event of power fluctuation. The capacity of the UPS system is when the power supply is in between 170 volts and 250 volts. If there is any fluctuation in the power supply the system will not work. In the letter dated: 05.10.2007 the complainant was requested to allow the Engineers to attend to the problems and to collect the machines which were replaced. The complainant did not allow the Engineers to inspect the system and to take back two standby machines. No material is produced to show that the complainant has suffered revenue loss of Rs.8,20,000/-. The opposite party is ready to replace the UPS system during the warranty period and also to rectify the defects if any found during warranty period. Therefore the allegations that no good service was provided are baseless. On these grounds the opposite party has prayed for dismissal of the complaint.<br /> <br /> 3. In support of the respective contentions, both the parties have filed affidavits and have also answered the interrogatories tendered by the respective parties. We have heard arguments on both sides. <br /> 4. The points for consideration are:-<br /> (1) Whether the complainant has proved deficiency in service on the part of the opposite party?<br /> <br /> (2) Whether the complainant entitled to the relief prayed for in the complaint?<br /> <br /> 5. Our findings on the above points are in the Negative for the following:-<br /> REASONS<br /> POINT Nos. 1 & 2:-<br /> 6. The complaint is filed by Mr. Shekar K as proprietor of M/s. I CALL Solutions. In the additional version it is contended by the opposite party that the UPS system and the battery were supplied to M/s. I CALL SOLUTIONS, a partnership firm and not to the complainant. It is also contended by the opposite party that the complaint itself is not maintainable since the same is not filed by the partnership firm. In reply to the interrogatories the complainant has admitted that M/s. I CALL SOLUTIONS was a partnership firm, when the UPS system was purchased and he (the complainant Mr. Shekar.K) was the authorized signatory to deal with the business. From this answer it is clear that at some point of time particularly at the time of purchasing the UPS system on 07.09.2006 M/s. I CALL SOLUTIONS was a partnership firm. In the complaint filed on 23.01.2008 the said firm is described as a proprietary concern. It was necessary for the complainant to produce material to show that subsequent to 07.09.2006 the date of purchasing the UPS system the partnership firm has been changed as a proprietary concern. No material is placed on record that the firm which was partnership firm in September-2006 has been changed as a property concern as on the date of the complaint. In the absence of such material we are left with no option but to observe that the complaint is not filed by a proper person.<br /> <br /> 7. In the answers to the interrogatories the complainant has also admitted that the UPS system purchased by him is manufactured by Delta Company. If the complainant alleges any manufacturing defects in the UPS system the remedy available to him is against the manufacturer of the system and not against the dealer alone. In spite of the contention in the additional version that the Delta Company is a necessary party the complainant has not chosen to implead that Company as a party to the proceedings. <br /> <br /> 8. Except contending through-out the complaint that the UPS system is not working properly and that resulted in loss of revenue the complainant has not stated that the UPS system suffers from any manufacturing defects. No evidence much less the evidence of an expert is produced to show that the UPS system supplied by the opposite party has any manufacturing defects. In the absence of such evidence it becomes difficult to believe that only on account of manufacturing defects the UPS system is not working properly. The complainant admits for having received the letter dated: 05.10.2007 from the opposite party. The copy of the letter is also produced by the complainant at Annexure-E. It is useful to extract the contents of the said letter which is as under:-<br /> “We would like to bring the following to your attention and good order sake.<br /> <br /> We supplied a 7 KVA DELTA UPS along with 7.2 AH x 20 nos SMF batteries suiting to your requirement & installed the same at your above officers on 8th September 2006.<br /> <br /> Later on when you complained a fault in the machine, we decided & replaced the same with another 7 KVA machine on 22nd March, 2007 & the entire system was made to work to your satisfaction (Pl refer to our service report dated: 22.03.2007 by our engineers Mr. Swamy & Vijay). At this point we have not collected the original machine, which we would like to bring now to our work-shop for further checking.<br /> <br /> Once again you reported a problem & our senior service engineer Mr. Shivaligappa visited your office on 30th April, 07, to check the machine. This time the UPS was very much working & it was found that there was a problem with your in-put supply in the DG mode. As such we had requested you to get the same rectified by your electrical engineer.<br /> <br /> Subsequently you reported that the UPS is not functioning properly. In order to resolve this problem & not to put you into inconvenience, we decided to offer you a standby machine, so that your work goes un-interrupted. As such your systems are now working on our standby machine.<br /> <br /> Meanwhile we reported your UPS problem to our Principal who requested us to get the original machine to their work-shop for a thorough check-up. With the result our engineers came to collect the machine in order to rectify the same for any possible faults at out principal’s end. Unfortunately we could not collect it because of your schedules at that time.<br /> <br /> Subsequently our engineers made several visits to collect the said machine which seems to be not working out. We are surprised when we heard that you practically did not allow them to collect our machine and instead threatened them to go away. With the result, seniors from our office along with DELTA representatives also visited you & it appears that you did not even given them an audition?| Under the circumstances you would appreciate that we are not able to rectify the machine that is lying at your end.<br /> <br /> May I now request you to allow us to collect the respective machine which can be sent to our principals for further investigation & doing the needful, so that we can put an end to this long drawn exercise. Incase you have any other suggestions please do write back to us & we have an open mind for any constructive suggestion.<br /> <br /> I am sure you would appreciate the situation & would like to thank you in advance for replying to this letter.”<br /> <br /> From this letter it is clear that the opposite party inspected the system whenever the complainant lodged complaint and on such inspection made on 30.04.2007 it was found that the UPS system was very much working but there was a problem in the input supply in the DG mode and the complainant was asked to get the same rectified through the electrical Engineer and when again the complaint was made subsequently the opposite party supplied a standby machine, but the complainant did not allow the Engineers of the opposite party to collect the machine for check up to rectify the defects if any so also to collect standby machines. If that is so, the complainant cannot find fault with the opposite party. It was necessary for the complainant to allow the service Engineers of the opposite party to take back the UPS system for the purpose of sending the same to the manufacturer to find out whether there are any manufacturing defects and to rectify the same. When the complainant himself did not allow the opposite party to examine and rectify the defects in the system he cannot be heard to allege deficiency in service on the part of the opposite party, especially when the opposite party has supplied standby machine to facilitate the complainant in his business. Thus we do not find any substance in the allegations made by the complainant that the opposite party is guilty of deficiency in service.<br /> <br /> 9. Besides the relief prayed for in the complaint is towards loss of business and not for compensation for deficiency in service on the part of the opposite party. A claim towards business loss cannot be agitated and decided before the Consumer Forum in summery proceedings. Such claims require recording of elaborate evidence and production of documents which can be done only in a competent Civil Court and not before the Consumer Forum. This view also finds support from the decision of State Consumer Disputes Redressal Commission, Union Territory Chandigarh, in the case of Ranadheer Garg -V/s- Inscol Tertiary Care Hospital & Another, reported in 2005 CTJ 936, wherein it is held that, “loss of income cannot be adjudicated and awarded in the summery jurisdiction of the Consumer Disputes Redressal Agencies”. In that case compensation was claimed alleging medical negligence on the part of the hospital. Besides compensation for medical negligence the complainant had also claimed loss of income and it is held that such claim towards loss of income cannot be adjudicated and awarded by Consumer Disputes Redressal Agencies. In the case on hand also the claim pertains to loss of income. The contention of the complainant is that, because the UPS system did not work properly he sustained business loss to the extent of Rs.25,000/- per day and has thus claimed Rs.8,20,000/- towards loss of revenue for the period from 22.03.2007 till December-2007. Since the claim towards loss of business does not constitute a consumer dispute, we hold that, the complainant is not entitled to the relief prayed for. The complainant is at liberty to approach competent Civil Court in that regard. In the result, we pass the following:-<br /> ORDER<br /> 10. The complaint is dismissed. No order as to costs.<br /> <br /> 11. Send a copy of this order to both the parties free of costs immediately.<br /> <br /> 12. Pronounced in the Open Forum on this 28th DAY OF MAY 2008.<br /> <br /> MEMBER MEMBER PRESIDENT<br />