R. VIJAYAKUMAR, MEMBER.

            The complaint is filed for the return of Rs.40,000/- taking back the items kept at complainant’s   house and for getting compensation Rs.20,000 +1,000 as cost.

The avernemtns  in the complaint can be briefly summarized as follows.

            The complainant approached opp.party to purchase one HCL Beanstalk computer and accessories and made an advance payment of Rs. 2,000/-.  The opposite parties issued order Form and promised delivery and installation of system with ordered accessories on 03/11/04 at the cost of Rs.4,7200/- complainant pointed out that some items were not included or correctly mentioned in the order Form. Opp.parties orally agreed to supply those minor items.

            On 3/11/04 in the night I and II opp.party brought the computer and accessories to the complainant’s house  Without Bombastic speaker, Power CD pack, HCL 600 VA UPS, Web Camera (HCL) and 41 CD packs and promised  that they would bring those items on the next day.  For temporary use, they brought an ordinary speaker/UPS and Camera.  During the installation itself some booting problems araised and because of this they did not install the computer fully.  Op1 and 2 collected Rs. 30,000/- more as  advance, promising that they would complete the installation of computer next day.  On the next day also, seeing the problems the complainant asked opposite party to replace the computer  with a new one.  They contacted to the III opp.party’s office over telephone and they informed the complainant that they would replace the computer on that day itself.  But the system was not replaced with a new one.  The complainant demanded replacement in writing vide his letter dated 4/11/04.  Opp.party assured replacement within 2-3 days.  Opp.parties I and II did not issued documents like purchase bill, warranty papers etc of the said computer.

            On 16/11/04 the system hanged again and I and II opp.party rectified the complaint, replaced the temporary UPS with the HCL UPS and also and taken back

temporary camera.  On enquiry by the complainant about the other items which were not delivered opp.parties said that they have placed special orders and on arrival, those would be delivered.  On 11/11/04 I and II opp.parties replaced temporary speaker with ordered Boombastic speaker.  The complainant always made enquiry about the replacement of the system but  I and II opp.parties used to say excuses.     

            On 19.11.04, the I and II opp.parties approached the complainant and requested for more advance. On sympathetic considerations complainant paid Rs.8,000/- more as advance.

            On 17.12.04 the complainant in writing demanded to the opp.parties I and II either to replace the system with a new one and to supply other accessories within 3

days or to treat the purchase dealing cancelled and to return the amount Rs.40,000/- . Opposite parties I and II contacted to the III opp.party over telephone and informed the complainant that the system will be replaced soon. The III opp.party also gave assurance of replacement immediately.

            In the mean time  the complainant came to know that I and II opposite parties wound up the business from 3^rd week of January 2005.  The complainant sent a letter under registered post but it was returned ‘undelivered’.  The complainant sent notice to the 4^th opp.party on 08.02.05 requesting to interfere the matter.  But 4^th opp.party neither replied nor took any action.

            On 26.02.05 the I opp.party came to the complainant’s house and informed him that he has started computer business as his own and sought for a compromise.  The complainant consented for amicable settlement on the condition that if system was replaced with a new one with one year warranty and if could deliver all accessories, due for delivery, within three days.  1^st opp.party agreed but he violated that agreement.

            The complainant has no other solution other than taking legal remedies against the opposite parties.  Complainant sent a letter to II opposite party requesting him to return the amount Rs.40,000/- and to take back the system kept in  his residence.  II opp.party replied to the notice enclosing a copy of dissolution agreement made between I and II opp.parties and as per dissolution conditions the responsibilities with respect of all damages and liabilities on business transaction were lie on the I opp.party.

            Based on the reply of II opp.party complainant again contacted by letter on 10.04.05 and I opp.party once again initiated compromise.  The complainant once again consented for an amicable settlement.  But he demanded that  the conditions should be in writing by the I opp.party.  Complainant prepared compromise letter and it was accepted by the I opp.party.  But opp.parties did not provide a good system, not supplied all ordered items and not even  issued purchase bill, warranty paper etc.  The complainant has taken all efforts to settle the matter. Even at the belated stage.  But the opp.party did not turned up.  The complainant was put into financial loss and mental hardships. Hence  filed the complaint for getting relief.

            Opposite parties 1 and 2 filed separate versions. The 1^st opp.party in his version admitted para 1 and 2 of the version.  He contended some points of para 3 and stated that there was no major problem to the computer system.  Minor booting problems are often appears and it can be easily rectified.  It was rectified in the next day itself.  The statement of complainant that the I and II opp.party were collected advance money Rs.30,000/- on 03/11/04 is not correct.  The complainant refused to sign and delivery paper and so HCL company could not take liability to effect repair on the system.  So far as warranty paper is held by the complainant, in the company will treat a system sold, as the stock of I and II opp.parties.

            The avernments in paras 4,5,6, 7,8 and 9 of the complaint are false and  hence denied.  The allegation that system shown problem on 4.11.04 is not true.  No complaint was lodged by the complainant of such a defect.  Exhibit P2 is a fabricated document.  The complainant has not paid the price of the system.  Warranty paper handed over to the complainant.  On 06.11.04, 1^st opp.party came there to replace the temporary UPS with HCL UPS.  Computer was functioning properly at that time.  The I opp.party has not approached the complainant or received Rs.8,000/- on 19.11.04.  The I opp.party received only Rs.2,000/- as advance on 30.10.2004.  The Media Infotech has not received the amount of Rs.38,000/-.  It is a subsequent collusive transaction between the complainant and II opp.party, after dissolution of Media Infotech.  Media Infotech is the necessary party to the proceedings and the complaint is bad for misjoinder.

The I opp.party has not received P3 letter dated 1.12.04, never convinced that system was defective, never contacted to III opp.party in the presence of complainant, never agreed to replace the system with a new one. 

After the dissolution of media Infotech I opp.party attended the complaints of complainant and assured him that if he pay the balance amount Rs. 45,200/- and signed the warranty papers, the mistakes can be rectified by the Engineers of HCL company.  Even though I opp.party tried his best to settle the matter amicably the complainant was not amenable for settlement.  His attempt was to escape from paying the balance amount Rs.45,200/-.  The complainant is using the said computer and other accessories and there is no deficiency in service on the part of opp.party.  Hence the complaint is liable to be dismissed.

II opp.party filed separate version.  The avernments in the compliant para 1 to 4 were not commented by the II opp.party.  In para 5 II opp.party stated that the documents like purchase Bill, warranty paper etc.  has not been given to the complainant on 03.11.04 because the system had shown some defects and some of the accessories were not supplied.  The HCL authorities promised to sent their Engineers and I and II opp.parties were waiting for his arrival.  The Firm had been wound up on 11/1/08.  The II opp.party is not liable to rectify any defect as per    Exhibit P7 agreement between opp.parties 1 and 2 in which clause 8 stated  that “ if any liability comes to the II opp.party in future in respect of the business jointly conducted, in that event the I party herein has agree to indemnify the 2^nd opp.party from those liabilities and damages.  The I opp.party alone has to discharge the liabilities.  Hence the II opp.party prayed that he may be  freed from the complaint.

III opp.party also filed version and in that version they have stated that there is no contractual liability between 3^rd opp.party and the complainant as the sale of system was not completed and the signed warranty paper not forwarded to the company.  The allegation that one of the Employees of 3^rd opp.party was contacted by the complainant is totally base less.  Hence  the case may be dismissed with cost.

Based on the contentions the points that would arise for consideration are:-

1.     Whether there is any deficiency in service on the part of opp.parties?

2.     Reliefs and cost.   

Complainant filed affidavit.  For the complainant PW.1 and 2 are examined.   Exts.P1 to P12 are marked..

Opposite parties 1,3,4 and 5 have no oral evidence. D1 and D2 are marked.

Point No. 1 and 2

It is an admitted fact that the complainant has given order form for the purchase of HCL Beanstalk computer and made a payment of Rs.2,000/- as advance amount and by this order that the computer was installed  in the complainant’s house.  Some of the items ordered were not supplied on that day.  There is no contention about the fact that some booting problem arised in the functioning of the said computer.  Opp.party I and 5 argued that it is a minor problem probably araising at the time of installation and it can be rectified easily.  Complainant’s grievance is that the booting problems were not rectified perfectly.  He has stated in his deposition that the problem arised 20 times.  I, II and III opp.parties have

admitted that the booting problem in the day of installation was not rectified on that day itself or on the next day.  So the problem arised in the functioning of computer cannot be denied by the opp.parties I, II and V.   Opp.party 1 has  stated that he never convinced that the system was defective.  But he admitted in his version that he attended the complaints after the dissolution agreement.

            From the beginning itself the complainant sent notice to the I, II and V opp.parties demanding rectification of computer or refund of advance money.  In the cross examination, Counsel for I oppo.party put the question to the complainant that the Exhibits P2, P3, P4, P7 and P8 were fabricated in collusion with II opp.party? Complainant answered for this question.  No Exhibit P2, P3, P7 and P8 were received and signed by the II opp.party.  But P4 was a document sent by the complainant by Reg:- with A/D.  This notice was sent on 24/01/05 which was before the dissolution agreement of 0/02/05 in which complainant demanded return of advance amount Rs.40,000/- we think that Ext.P4 is not a fabricated document.  In that letter there is reference about the previous letters Exhibit P2 and P3.  It proves that the complainant is not collusive with OP2.

            It is argued by the I opp.party that neither he himself nor Infotech received Rs.38,000/-.  The amount received by the II opp.party.  Neither it was  handed over to the I opp.party nor brought to the a/c of Media Infotech.  The pertinent question put by the II opp.party’s counsel that if the amount has not been credited  in to the a/c by II opp.party on 3/11/04 why the I opp.party has not claimed that amount from II opp.party till date?

            At the time of cross examination of I opp.party, Counsel for II opp.party put the question “>l]j fkd rHdlf\ffjsr cA>r\Pjv\v\ Ledger-H tRsfAdjhkA SgDse\emkf\fjuj}kNSml? @ KNm\; <lwgl]lA. Even though I opp.party answered so he has not presented any such document.   In continuation  he has stated that it was not entered in the a/c statement or in the Cash Book.

                                                  If the amount was not handed over to the I opp.party or not entered in the Cash Book I opp.party may have taken steps to realize that amount from II opp.party.  Even after receiving the Ext. P4 notice I OP has not taken legal steps to realize the amount Rs.38,000/-.  We could arrive at the conclusion that the amount was received from the complainant by II opp.party in favour of the 5^th opp.party firm.  The period of the receipt of amount as indicated in the complaint was before the dissolution of the partnership.  In the deposition and re –cross by II opp.party I opp.party stated that the amount were collected by I and II opp.parties in favour of the firm.  The admitted cash receipt by the II opp.party was not in favour of his personnel cash dealing with the complainant but the favour of V opp.party.  As per the admitted dissolution agreement by Opp.party 1 and 2, the 1^st opp. party cannot eluded from his liability. The dissolution agreement clause 8 stated that if ay liability comes to the 2^nd party in respect of the business jointly conducted   in that event – the I opp.party herein has agree to indemnify II opp.party for those liabilities and damages Op1 clearly stated in the cross examination that Exhibit P2 was prepared after correcting the amounts to be received or paid. 

1^st opp.party in his version stated that the computer was not purchased by the complainant.  No purchase bill, no warranty paper issued because only an advance amount of Rs.2,000/- was received.  Opp.parties 3 and 4 argued that  as complainant has not issued a warranty paper and installation note – it is treated as only a stock by the Franchise.   The complainant has stated that no warranty paper issued to him for putting signature and he demanded for warranty paper and other documents  in all his letters and notice issued.  No reply was given by any of the opp. party stating that he has committed default in presenting warranty paper after putting his signature.  We think that the warranty paper was not given to the complainant because  of the understanding between Op1,  2 and the complainant about the replacement of computer with a new one. Moreover all this I opp.party has stated that the partnership was dissolved only after filing the complaint.  As per records this statement is not correct. Exhibit shows that the dissolution of partnership agreements was on 10.02.05 and this case was filed on 31.05. 05.

            The I opp.party alleged that there is no averments in the complaint to rectify or replace the computer.  In this context the complainant would argue that the said computer which was supplied by the opp.party I and II is outdated now.  The cost of computer is diminished to 60% now.  It is difficult to get spare parts of that type of computer now.  Moreover all these he has purchased a new computer to satisfy his needs.  The I opp.party  argued that only the advance amount received by the opp.party. As there is no purchase bill or warranty card, the opp.parties are not liable to repair or replace the computer.  This argument cannot be accepted.  The question araised here is whether the complainant is a consumer?  As per section 2(1) (d) [I]of Consumer Protection Act, Consumer means any  person who buys any goods for consideration which has been paid or promised  or partly paid and partly promised.  The complainant will come within the meaning of consumer.  The complainant paid the amount partly and promised to pay the balance amount.  So that the complainant is a consumer.

For all that has been discussed above, we are of the view that the complainant is a consumer and there is deficiency in service on the part of the 1^st opp.party. 

Hence the complaint is allowed.  The  opp.party I is  directed to pay Rs.40,000/- which the complainant paid in advance to the opp.party 5 and pay Rs.4,000/- as compensation and cost Rs.1,000/-  taking back the computer and accessories kept in the complainant’s house, by the 1^st opp.party. 

The order is to be complied with within one month of the date of receipt of this order.

Dated this the 30^th day of December, 2008. 

INDEX

List of witness for the complainant

 Pw1            :   J.Jayadhar

Ext. P1        :   Photostat copy of the order form dated 3.10.04.

Ext. P2        :   Photostat copy of the letter dated 04.11.04.

Ext. P3        :   Photostat copy of the letter notice regarding the replacement of

              computer dated17.12.04.

Ext. P4        :   Photostat copy of the undelivered notice dated 24.01.05.

Ext. P5        :   Photostat copy of the registered letter

Ext. P6        :   Photostat copy of the notice dated 08.02.05.

Ext. P7        :   Photostat copy of the notice for return of advance amount collected

    for  the HCL Beanstalk computer and its accessories.

Ext. P8        :   Photostat copy of the letter dated 28.03.05 enclosing the copy of the

              partnership dissolution agreement.

Ext. P9        :   Photostat copy of the notice , dated 10.04.05

Ext. P10      :   Photostat copy of the letter dated 26.04.05

Ext. P11      :   Photostat copy of the complainant’s letter dated 01.05.05 to the 1^st

              opp.party.

Ext. P12      :   Photostat copy of the purchase bill dated 28.05.05.

List of witness for the opp.party

Dw1            :   Raju.J

Ext. D1        :  Order Form.

Ext. D2        :  Copy of the dissolution agreement.