This appeal is directed against the order dated 8.12.2008, passed by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter referred to as the District Forum) vide which, it allowed the complaint filed by the complainant/appellant and directed the   Opposite Party as follows:-    

“In view of these facts, it is the duty of the OP to repair/update the system so that it works properly.  The present complaint, therefore, succeeds.  The OP is directed to repair the system free of charge within 30 days from the date of receipt of copy of the order so that it works properly and also pay to the complainant Rs.1,100/- as litigation costs.  If the system is not repaired within the aforesaid period, the OP would be liable to pay compensation of Rs.10,000/- to the complainant so that she gets the system repaired at her own expenses.”

2.                                   Briefly stated, the facts of the case, are that the complainant purchased one unit of Eletec Make True Online UPS of 3 KVA capacity with back up of one hour and one unit of Eltec Make Sine Wave Home UPS of 2.5 KVA capacity (Inverter) with back up of 2.5, hours from the Opposite Party, alongwith batteries for the above systems, and paid an aggregate sum of Rs.77,600/-. It was stated that the two systems were installed, in the office premises of the complainant, in the month of October 2007, and carried warranty of one year.  It was further stated that, however, the said two systems started showing signs of malfunctioning from the very inception and the same were received by one Pradeep Kumar, for checking on behalf of the Opposite Party on 8.10.2007. It was further stated that the said systems thereafter did not function satisfactorily, and many telephonic complaints, were lodged with the Opposite Party, for rectifying the same. The complainant also wrote letter dated 7.5.2008 to the Opposite Party, but to no effect.  It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in service, and indulgence into unfair trade practice. Ultimately, the complainant filed a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) for replacement of the systems with fresh warranty and payment of compensation.

3.                                   The Opposite Party, in its reply, filed by way of affidavit of Shri Rajneesh Dhawal, a Partner of the Opposite Party, took up a preliminary objections that the complaint was misconceived, vexatious, untenable and devoid of any merit, as the complainant was using the said UPS and other instruments for commercial purpose.  It was stated that the said two systems were installed, in the office premises of the complainant on 10.9.2007 and not in October 2007.  It was further stated that the complainant made the last payment of Rs.16,600/- through cheque, in the month of December 2007, i.e. after using the said systems, nearly for three months, which showed that she was satisfied. However, as per quotation, 50% payment was to be made in advance and rest 50% payment was to be made on delivery.  All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was neither any deficiency, in service, on the part of the Opposite Party, nor it indulged into unfair trade practice.

4.                                   The parties led evidence, in support of their case.

5.                                   After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, allowed the complaint in the manner, referred to, in the opening para of the instant order.

6.                                   Dissatisfied with the order, passed by the learned District Forum, the appellant/complainant has filed the instant appeal for replacement of the systems, with fresh warranty and enhancement of litigation costs.

7.                                   The husband of the complainant submitted that the Online UPS and Sine Wave Home Inverter, purchased by the complainant from the Opposite Party were of substandard and under rated capacity. He further submitted that the said two systems did not work satisfactorily, from the very beginning, and he requested the Opposite Party, to take back the systems, in question, after deducting 10% of its price, but his request was not acceded to by it.

8.                                   The learned Counsel for the Opposite Party, submitted that since the complainant was using the said system for commercial purpose, hence, she did not fall within the definition of a consumer. It was further submitted that the said two systems, in question, were installed in the office premises of the complainant on 10.9.2007 and not in Oct, 2007 and in lieu of that she (complainant) made the last payment of Rs.16,600/- through cheque in the month of December, 2007 i.e. after using the said system nearly for three months, which showed that she was fully satisfied.

9.                                   We do not find any merit, in the submission made by the learned Counsel for the Opposite Party, that the complainant purchased the said two systems for commercial purpose. The complainant is an architect, who is running the consultancy business for earning her livelihood. Thus, she is a consumer, under Section 2(1)(d) of the Act. The submission of the Counsel for the Opposite Party, being devoid of merit, must fail, and the same stands rejected.

10.                               In order to ascertain, whether the aforesaid systems were of rated capacity or not, this Commission was of the opinion, that the same be sent to some Govt. approved Laboratory for testing. Accordingly, vide order dated 19.7.2011, followed by the order dated 29.7.2011, the said systems, were sent for testing to the Electronic Test and Development Centre, a project of Harton  (State Govt. undertaking G.T. Road, near Indian Oil Depot) Ambala Cantt., Haryana. On 20.10.2011, two test reports of the said Laboratory were received, by this Commission, which were opened. We have gone through these reports. In report No. 2180 dated 19.10.2011 pertaining to UPS and its batteries, which was duly signed by the Head of TP & C, it was mentioned that the capacity testing of UPS and batteries and marking of the batteries were not satisfactory. Report No.281 dated 19.10.2011 also reveals that the inverter, capacity testing of inverter, and batteries were not satisfactory. However, Brand, Voltage and AH of the Batteries were found to be satisfactory. Hence, from the reports aforesaid, it was found that the aforesaid systems were not working properly and the entire purpose of the complainant was defeated, for which she had purchased the same by making payment of hefty amount. Moreover, the fact, that the systems were not working properly, is corroborated from the affidavit of the complainant, wherein, it has been stated that as the systems were of substandard quality, the Opposite Party, could not rectify the defect. Hence the whole systems need replacement. Whereas, the Opposite Party  did not produce any documentary evidence, vide which it could be shown that the said systems were repaired and working properly.  Therefore, from these facts and circumstances, and the remarks given in the reports as well as from evidence, by way of affidavit, adduced by the complainant, it is clear that the Opposite Party failed to rectify the defect of the aforesaid systems, hence it can easily be concluded that the systems, in question have inherent manufacturing defects and the same are required to be replaced with new one.  The Opposite Party, by supplying the substandard and down rated capacity systems referred to above, to the complainant, indulged into unfair trade practice. The appellant/complainant was, thus, entitled to the replacement of the systems with fresh warranty.    

11.                              The respondent/Opposite Party, filed objections to the reports aforesaid. In the objections, the Opposite Party, stated that the capacity of the UPS and Inverter could not be checked because the batteries were in deep discharge state, as the same were kept idle for a long time and did not top up with water.  It was further stated that as the normal life of the batteries was  only 2 years, therefore, the same could not be charged despite charging for 16 hours. We have also gone through the objections, filed against the reports, aforesaid, by the respondent/Opposite Party. The reports of the Laboratory are required to be considered, in entirety, and not by tearing the same into pieces. Had the Laboratory been not able to properly test the aforesaid systems, it would not have given its conclusion, that the working thereof was not satisfactory. Under these circumstances, the objections filed by the respondent/Opposite Party, being without substance, are rejected.

12.                              The appellant/complainant also suffered a lot of physical harassment, and mental agony, right from the date of purchase of the systems aforesaid. Even, after making payment of hefty amount for the purchase of the systems aforesaid, the complainant was deprived of the use thereof. The complainant is, thus, entitled to compensation, in the sum of Rs.10,000/-

13.                              In view of the above discussion, we allow the appeal, with costs, and set aside the order passed by the District Forum, and direct the respondent/Opposite Party, as under;

(i)                 The respondent/Opposite Party, shall replace the above- said two systems of the complainant, with new, having the same model and configuration, without charging any amount, on return of the systems, purchased by the complainant.

(ii)              In case the respondent/Opposite Party, failed to replace the systems, with new one, as directed in clause (i) it shall refund the price of the same, already paid by the appellant/complainant.

(iii)            The respondent/Opposite Party, shall pay compensation to the appellant/complainant, to the tune of Rs.10,000/-

(iv)             The respondent/Opposite Party, shall pay costs, in the sum of Rs.5,000/-

              The aforesaid order, be complied with, by the respondent/Opposite Party, within 30 days, from the date of receipt of a certified copy of this order, failing which, penal interest @  12% P.A. shall be paid, on the awarded amount, from the date of filing of the complaint till its realization, besides costs.

Copies of this order be sent to the parties, free of charge.