Per Mr.P.N.Kashalkar-Hon’ble Presiding Judicial Member This is an appeal filed by the original O.P. against the judgement and award passed by District Consumer Forum, South Mumbai in consumer complaint no.60/2007 on 30/9/2009. Facts to the extent material may be stated as under:- Respondent Mr.Pankaj Jayantilal Jain had filed consumer complaint alleging deficiency in service on the part of the O.P./appellant herein. According to respondent/complainant, he is a proprietor of Mukesh Enterprise Co. dealing in spare parts of STD/PCO monitor and local call PCO since 1998 at Kalbadevi. O.P. is having its shop at 1st floor, Block no.2, Laxmi Building, Opp.Swastik Cinema, Lamington Road, Mumbai 400 004 and they are running business of repairing of computer hardware since last 15 years. O.P. assured the complainant to repair the mother board. Complainant had given Intel Original 865 GBF Motherboard for repairs to O.P. on 16/10/2006. Problem in the Mother Board was two coils were burnt and they needed to be removed, which was already informed to the complainant by Intel company and by one Technician. When complainant gave it for repairs, O.P./appellant herein had told him that it cannot be done on the same evening but he was asked to come on next day and again he was asked to come another next date and, finally, on 19/10/2006. He was given back mother board without rewinding the coil, saying that it was not repairable. According to complainant, when he checked the mother board thoroughly 13 components were replaced, which were clearly visible and there was doubt of three other components having been replaced and PC was tampered and damaged. Hence, on the following day i.e.20/10/2006 complainant told O.P. regarding the same. O.P. asked the complainant to give the names of components replaced and tried to ignore complainant’s problem. Before giving it for repairs, complainant shown the same to one technician. He had checked computer with one of the PCI card which indicated problem in the mother board was burnt coils. He told that he could not repair Intel original Mother board as it was in warranty period. Therefore, it was sent to Intel for replacement on 04/10/2006 before giving it for repairs to O.P. but Intel had sent back the Mother board informing him that the picture of the burnt coil could not be replaced as it was damaged and could not be repaired under warranty terms and conditions. According to complainant, after giving it for repairs to O.P. it is fully dead and only Motherboard, LED and cabinet LED were working. The complainant therefore, pleaded that he should be given award of Rs.1,12,650/- from O.P. as punishment so that the culprits of similar kind would be afraid to indulge in such criminal activities. He has given particulars as to how he has calculated amount of Rs.1,12,650/- in his prayer clause. O.P. filed written statement and contested the matter. O.P. pleaded in the written statement that complaint filed by the complainant is mischievous, malafide and is not maintainable. It pleaded that complainant is not their consumer, as O.P. had not received any charges for repairs from the complainant. O.P. pleaded that correct facts of the case is that on 16/10/2006, O.P. received mother board only for repairs in the name of Mukesh Enterprises Company. The repairing problem in the mother board was “No display” and not “Ferrite core burnt” as per the complaint. On 19/10/2006, opposite party returned back the mother board to the complainant and it was not under repairable condition. O.P. pleaded that there was no display and Ferrite core was also burnt and other components were not under repairable condition. The opposite party, therefore, had not charged any repairing charges, as Motherboard was already in damaged condition. It was simply returned back to the complainant as it was. O.P. pleaded that they are not guilty of deficiency in service of any kind and complaint should be dismissed with cost. Ld. District Consumer Forum on the basis of affidavits and documents placed on record, by its cryptic judgement allowed the complaint partly and directed O.P. to pay Rs.8000/- for replaced parts and Rs.1000/- towards cost of the proceedings and also directed to pay Rs.1000/- for mental harassment. Aggrieved by this order, original O.P. has filed this appeal. We heard submissions of Advocate Mr.M.M.Gohar for the appellant and respondent in person. We are finding that the forum below clearly erred in law in allowing the complaint, without there being any evidence to show that some parts were replaced by the O.P. when his motherboard was given for repairs on 16/10/2006 and when it was returned to the complainant by appellant on 19/10/2006. It is very lamentable to see that forum has passed orders like the one passed in this case without giving any finding against the original opponent herein. It is better to reproduce the reasons given by the forum below in allowing the complaint. The forum below mentioned that ,“O.P. has taken the motherboard of the complainant for repairs but without repairing it O.P. returned it back to the complainant. While returning the same, most of the parts were not there and this was brought to the notice of O.P. by the complainant, likewise on 26/9/2006 Intel company by its letter showed willingness to return the price of the Mother Board 78 US dollars, as such forum below is passing following order”. If we see the reasons given by the forum below in allowing the complaint, less said the better. There is no finding given at all by the forum below why it was holding O.P. guilty of deficiency in service. There is no evidence on record adduced by the complainant, which parts were replaced by the O.P. when it had kept motherboard of the complainant for repairs from 16/10/2006 to 19/10/2006. Complainant had given motherboard for repairs and O.P. had sent the same to its Engineer. Engineer reported that the motherboard is not serviceable or repairable. Hence, it was simply returned to the complainant on 19/10/2006. What is pertinent to note is the fact that before giving it for repairs, the complainant had made complaint with Intel company. Intel company by Email informed the complainant by letter dated 03/10/2006 that Intel warranty does not cover physical damage during shipping. Intel is not responsible for the product that has been physically damaged prior to or during shipping. By another letter dated 13/10/2006, Intel company informed the complainant that their Engineers had declared that faulty unit he sent had physically damaged and, therefore, they would be returning the same faulty unit back to him. He was told that physical damage of this kind is not covered by their warranty policy and policy will be considered void for replacement. This being so, it is clear that there was physical damage to the mother board complainant sent to the Intel company, after Intel company returned the product in question being not covered under terms and conditions of the warranty. Complainant then gave it for repairs to the O.P. company. O.P. company kept the same for three days and returned it to the complainant on 19/10/2006 with the report of service Engineer i.e. unrepairable. O.P. has not charged a single paisa to the complainant and, therefore, O.P. company cannot be held liable for damages caused. There is no relationship of ‘consumer’ and ‘service provider’ between complainant on one hand and appellant on the other. Services rendered were free of cost or service not at all rendered. Not charging anything will not be a matter of consumer dispute between complainant on one hand and O.P. on the other. For a consumer like complainant/respondent herein to file consumer complaint, he should have shown that he had paid something to the O.P. by way of consideration for the service rendered or availed of and there has been deficiency in service on the part of service provider. Nothing of this sort occurred in this case and, therefore, consumer complaint as filed by the respondent in the forum below was itself not maintainable in law and not entertainable by the forum below in the facts and circumstances of the case. What is to be further seen that the allegation of the complainant was that some parts were replaced by the O.P. when he kept his motherboard for repairs for three days, but no evidence has been adduced in that behalf about replacement of the parts. In prayer clause, it is simply mentioned that for small components 10 in numbers, 100 each has been mentioned as cost. So for small components he has claimed amount of Rs.1000/-,for big components, two in number, he has claimed three in number (150 for each component) and for bigger component allegedly replaced by O.P., he has claimed further amount of Rs.3000/-. He also charged Rs.200/- each for 13 components as service charges without any service charges were paid by the complainant to the O.P. There is no question of asking for service charges for 13 components. The whole complaint was figment of imagination and nothing more. Such complaint should have been dismissed at the threshold itself at the admission stage. But consumer complaint was taken cognizance of erroneously and it was allowed by passing perverse judgement. Though there is no evidence of any payment made to the appellant by the respondent, still this consumer complaint was entertained being a consumer dispute between consumer on one side and O.P. as service provider on the other. We are finding that there is absolutely no evidence worth the name before the District Consumer Forum for passing unjustifiable award against the appellant herein. So award as passed by the Forum below is absolutely bad in law. It is perverse and deserves to be quashed and set aside by allowing this appeal. Hence, we pass following order:- ORDER Appeal is allowed. Impugned order passed by the District Consumer Forum is quashed and set aside. Complaint stands dismissed. Complainant is directed to pay Rs.3000/- by way of exemplary cost for filing false and vexatious complaint against the appellant herein. Inform the parties accordingly. |
