(As per A.A.Jain, Hon´ble PRESIDENT)
Complainants filed this complaint against Opposite.Party for seeking various relief against Opposite Parties as per prayer clause :-
- Complainant’s case in short is that he is unemployed educated person and he has done some computer courses from private and Government institutions, Complainant planned to start the computer center for job work and mixing the C.D. which generally used at various ceremonies.
- The complainant approached to the O.P. and he has given order for the computer of following configuration for opening his computer shop which is as below :-
Intel Pentium iv 3.4, Intel 345 Mother Board, 2006 68HDD, RAM 1 G.B., Monitor 17” LG, ATX Cabinet, Speaker (1000 Watt) Mouse (Optical), Key Board (Multi Media), Dvd-Rw CLG), etc. the total amount of the above system comes to Rs.81400/- through A/c. Payee slip issued through Bank of India, Gondia Branch, as the loan was obtained from the Bank. Then after on dt.17-01-2007 the O.P. has delivered the system and other accessories but some accessories were not the same as described in the quotation of O.P. Due to non delivery of U.P.S. and speakers the complainant was not able to start his job works. Any how he arranged the same and inaugurated his computer shop on 09-02-2007.
3. From the first day complainant came to know that the computer is not working properly and some technical problems were arising. Even after requesting several times to the O.P., the O.P. failed to rectify or the problems etc. though the system was in warranty period, the O.P. always avoided the complainant for one pretext or other.
4. The Complainant purchased new system i.e. Computer which was also creating problem from the very first day and in spite of repairing it is not working properly and the O.P. is not bothering to replace the same . So Complainant prayed to replace the computer system with new system with all accessories or refund the purchased cost with interest to the complainant.(Ex.1)
5. In response to notice U/s. 13 of Consumer Protection Act., 1986 the Opposite Party appeared through his counsel and filed his reply.(Ex.11). The O.P. denied all allegations and submitted that the complainant has purchased computer for commercial purpose. Hence this forum has no jurisdiction to entertain the said case. The O.P. denied that he has delivered all accessories like 17” monitor. U.P.S. Speakers Etc. The O.P. specifically denied that due to inadvertence and carelessness the complainant sustained the huge financial loss. The O.P. admitted that complainant purchased the computer system and one year warranty was given but he denied that problem created in the system from first day it self and inspite of repeated repairing, it was not working properly and the O.P. is not bothering to replace the same and also not giving proper services to the complainant. The O.P. further submitted that he has delivered the materials as per order.
6. The O.P. specifically submitted that special training is required for the purpose of mixing of C.D. but it seems that the complainant is not well qualified and trained to operate the said softwares required for mixing for the C.D. Hence what ever the problem arosed due to lack of knowledge of complainant and he is not having the knowledge to handling the soft wares required for mixing of C.D. and to supresshis fault the complainant is making false allegation against the O.P.
Hence finally the O.P. prayed to dismiss the complaint with compensatory cost of Rs.5000/-.
7. On verifying all records thoroughly and hearing arguments from both side the only point arose for our consideration is whether the complainant is entitled for any relief as sought in prayer clause and our finding is “Affirmative” due to following reasons.
REASONS
8. That, the complainant is unemployed educated person and for earning his lively hood he has started the said computer Job Work cum C.D. Mixing Unit with the financial support (Loan) from Bank of India, Gondia Branch, Gondia fr Rs.81400/-. The Consumer Protection Act. 1986, Sec (2) (d) (ii) explains that “For the purpose of this clause “commercial Purpose” done not includes use by a person of goods bought and used by him exclusively for the purpose of earning of his livelihood by means of self employment”.Thus the preliminary objection taken by the O.P. is not admissible and our finding is that complainant is a consumer and this forum has jurisdiction to entertain this complaint.
9. Complainant has made payment of Rs.81400/- to the O.P. by the bankers cheque issued by Bank of India Gondia branch on date 10-01-2007 then the O.P. delivered the said computer system and other accessories according to the configu7ration which was not as per the list supplied to the complainant . Hence it seems that the O.P.had purchased all the instrument from any where and then he supplied it to the complainant on 17-01-2007. The complainant alleged that the monitor was given 15” in place of 17” size . The system always under repairing due to non availability of U.P.S. (Microtech) and speakers (1000 Watts) the delivery of the same has not given and called him on next day.
10. The O.P. has issued bill to the complainant as per (Ex.1 Doc.1) for Rs.81400/- in that bill there is no VAT Tax No. and it means that the O.P. has not registered himself with the department of Sales Tax i.e. Value Added Tax department but the O.P. has recovered the VAT Tax @4% from the complainant it means that the O.P. illegally recovered the Government Tax from the complainant which shows the mollified intension of the O.P.
11. That the complainant submitted that due to the defect of the system the complainant failed to achieve the goal in his success on the stage of C.D. mixing which is the earning part of his side but the O.P. submitted that the complainant is not having such proper knowledge of C.D. Mixing and due to lack knowledge he is unable to execute the work of C.D. Mixing and this is not the part of his side. Where as the complainant is having the Honours Diploma in Computer Programming and Applications a course of 1 year through the National Center for Electronics and information Technology, Bhopal which is sufficient to having the technical know how regarding the computer system. The O.P. failed to repair the said system after several complaints made by the complainant.
12. That the complainant in support of his argument filed the following Case Law
a) L.G.Electronics V/s. Jagrut Nagrik & others
IV (2005) CPJ 63
Defect could not be rectified by repeated replacement of compressor and repairs manufacturing defect proved – Refund of price with interest directed- compensation and cost awarded.
b) Thomson Multimedia India Pvt.Ltd. & A.N.R.
V/s.
Bharata Chandra Banarji
IV (2005) CPJ 157
Replacement – T.V. Set had inherent defects which were not rectifiable – defects notice during warranty, could not be rectified by O.P.’s service engineer-Replacement of set with a new one of same model directed. Compensation awarded-Order upheld in appeal.
c) Samsung India Electronics Ltd. V/s. Bindu & ANR
C.P.A.1986-Section 2 (1)(f)-Defective Goods-Replacement- Refrigerator sold with old compressor proved complaint allowed by Forum _ O.P. liable to replace refrigerator with new one-compensation for mental agony awarded-Order upheld in appeal.
13 That the O.P. in support of his argument filled the following rulings :-
a) I(2003)C.P.J.172(N.C.)
Suresh Kumar V/s. Manas
C.P.Act 1986-Section 2(b)-Goods-computer-alleged component and parts shown in quotation not installed, excess amount charged, service not satisfactory- allegation not proved complaint dismissed by lower forum- no interference required in revision.
b) II (2002) C.P.J.237
Vinod V/s. Appolo
C.P.Act. 1986-Section 2(1)(d) –Consuemr-commercial purpose-Computer purchased-defective-computer system being used for commercial purpose-complainant not a consumer-complaint filed before for not maintainable dismissed.
14 As to para 13 the rulings filed by the O.P. is not applicable as the amendment of definition commercial purpose came into effect from 15-03-2003.
Hence we proceed to pass following order.:
ORDER
- The Complaint is allowed.
2 The O.P. is directed to replace the whole computer system as per the configuration mentioned in the quotation in writing in presence of Independent witnesses with new one without any defect within one month from the receipt of this order. (U/s.14(b) of C.P.Act 1986).
3 The O.P.is also directed to pay the cost of the complaint Rs.1000/- (Rupees One thousand Only) to the complainant.
