Kerala

Thiruvananthapuram

426/2002

C.Kamala Bai - Complainant(s)

Versus

Sunil - Opp.Party(s)

M.Haridas

16 Feb 2009

ORDER


Thiruvananthapuram
Consumer Disputes Redressal Forum,Vazhuthacaud
consumer case(CC) No. 426/2002

C.Kamala Bai 		...........Appellant(s)

Vs.

Sunil 		...........Respondent(s)


BEFORE:
1. Smt. Beena Kumari. A 2. Smt. S.K.Sreela 3. Sri G. Sivaprasad

Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):




ORDER

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BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:


 

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER


 

O.P. No. 426/2002 Filed on 05..10..2002 Dated: 16..02..2009


 

Complainant:

            C. Kamala Bai, Proprietor, S.K. Typewriting Institute, Building No.NMC XV/568 K, 1st Floor, Near KSRTC Bus Stand, Neyyattinkara.

             

            (By Adv. M. Haridas)

             

Opposite party:

Sunil, Proprietor, Eye Fill Systems, RC Junction Paliyode, Kottackal – P.O., Pin: 695 124.


 

(By Adv. V.J. Jayakumar Abraham)


 

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 15..07..2004, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 15..12..2008, the Forum on 16..02..2009 delivered the following:


 

ORDER


 

SMT. S.K.SREELA, MEMBER:


 

The case of the complainant is as follows: The complainant is running a Typewriting Institute under the name and style S.K. Typewriting Institute and Commerce at Neyyattinkara, since 1984. The complainant had purchased one computer with printer and other accessories from the opposite party on 31/10/2001 for Rs.33,500/-. The installation of the computer was carried out by the opposite party at the said Typewriting Institute run by the complainant. The opposite party has assured the complainant one year warranty from the date of purchase of the computer besides assurance to provide free service to the computer during the warranty period. As per the negotiations and oral order the opposite party was to supply Pentiam-3 model computer with printer and other accessories, which is considered to be a standard one at a cost of Rs.33,500/- whereas in violation of the said negotiations and oral order, the opposite party has preferred to supply Celeron 733 Mhz which is a substandard computer costs comparatively lesser in the market, along with the Epson Stylus Colour 480 printer and other accessories. The opposite party did not supply two numbers black and one number colour Cartridges, which cost around Rs.3,000/- to be supplied along with the printer free of cost as seen printed on the cover of the printer. The printer developed complaints from the date of purchase/installation. Contrary to the said assurance on warranty and free service, the opposite party did not bother to visit the institute and carry out the repairs to the printer or replace with a new printer. The opposite party did not provide catalogue and his supplier's cash bill for the printer. In the absence of the said cash bill and catalogue, the complainant assume that the printer supplied was a used and defective one. Computer printing is also a requisite portion of the said word processing course to the typewriting students. Since the printer did not function at all, majority of the students admitted left the institute and joined elsewhere. This resulted a financial loss of Rs.20,000/- to the complainant besides loss of reputation of the institute. Since the opposite party holds warranty facilities with manufacturers of the component parts of the computer, he is bound to carry out the repairs during the warranty period, which he failed to do so. The refusal of providing services, negligence and deriliction of duty amount to deficiency in service. The opposite party is also liable for deceit and unfair trade practice. The opposite party made false and misleading representation that the computer and printer are of particular standards. Opposite party has adopted the technique of unfair trade practices too. Hence this complaint for refund of amount along with compensation and costs.

2. The opposite party remains ex-parte, though they have filed their version.

3. The complainant has filed affidavit and examined as PW1 and marked Exts.P1 to P9. PW2 & PW3 were also examined on behalf of the complainant. PW1 to PW3 have not been cross examined and hence their deposition stands unchallenged.


 

          1. The issues that would arise for consideration are:

          1. Whether there is any deficiency in service on the part of the opposite party?

          2. Reliefs and costs?

5. Points (i) & (ii): According to the complainant, the computer and printer purchased from the opposite party became defective from the date of purchase/installation. This computer has been installed at a typewriting institute. Though the complainant has nowhere pleaded in the complaint that the said system has been purchased for earning her livelihood, as per Ext.P2 notice issued to the opposite party, and in the affidavit of the complainant it has been stated that the system has been purchased for earning her livelihood. The allegation of the complainant is that the system became defective during the period of warranty. It is a settled position that even if the equipment was purchased for commercial purpose, the purchaser will certainly be a consumer under Sec 2(1)(d)(ii) in respect of services rendered or to be rendered by the seller for the proper functioning of the equipment during the period of warranty. Hence we have no doubt with regard to the maintainability of this complaint before us.

6. The complainant's case is that as per order made orally with the opposite party, the opposite party was to supply Pentium 3 model computer with printer and accessories whereas in violation of the same, the opposite party has supplied Celeron 733 Mhz which is a substandard computer with lessor amount. Hence the first aspect to be considered is whether the complainant has been supplied with different machine than ordered. As per Ext.P1, the particulars of the computer supplied reveal that Intel Celeron 733 Mhz processor has been supplied to the complainant. The complainant seen received the same without any objection. As per Ext.P2 the lawyer's notice issued on her behalf, the complainant has no complaint with regard to the allegation that the machine supplied to the complainant were materially different from the goods sought to be purchased by the complainant. Moreover, when Ext.P1 is conspicuous with regard to the machine supplied, the complainant very well had the opportunity to deny the same at the time of delivery itself and insist for the one allegedly sought by the complainant. There is no proforma invoice or any agreement of that sort to prove that the complainant had ordered another model than the one supplied. In the absence of proper evidence and in the above facts and circumstances of the case it is found that the allegation that the complainant has been supplied with different machine than ordered is found without any merits.

7. The next aspect to be looked into is whether the system supplied is a substandard one. As per Ext.P1 it is seen that the system has been purchased on 31/10/2001. Ext.P2 is seen that on 29/08/2002 which is well within a period of one year. In Ext.P2 it is alleged that eversince the date of purchase, the system and the printer were not working properly. Since the opposite party has never turned up to contest the case or controverted the said allegation, it stands unchallenged. The very fact that from the date of purchase itself, the system developed defects and the matter was informed to opposite party is enough to hold that system supplied had some defects. Ext.P2 sent by the complainant reveals that the system was not functioning properly and Ext.P2 which is a registered legal notice sent on behalf of the complainant, goes to prove that the improper functioning of the system has been brought to the notice of the opposite party well within one year of the purchase of the system and acceptance of the said notice by the opposite party is evident from Ext.P4. The complainant has alleged that the opposite party had assured one year warranty. So no warranty card has been produced in this case. The opposite party has never turned up to deny the same nor they have contested the case. The complainant has filed affidavit to the effect that the opposite party has failed to fulfill the promise as per the assured warranty.

8. An expert commissioner has been appointed by this Forum and in his Ext.C1 commission report, he has reported that 'on inspection, the keyboard and mouse were not responding as the windows OS was being loaded and hence the computer was judged as not working even for basic functioning'. Further he has reported that 'on loading OS, it was found that the printer EPSON stylus colour 480 was not properly installed........MS Office and few other software were loaded but as a whole the computer system remained virtually useless as many of the proper setting could not be accomplished including the essential printer........the printer was supplied as per specifications but not installed rendering it virtually useless. According to the expert commissioner in computer sale, supply means full installation and ensuring satisfactory functioning and not just delivery of the components at site. An uninstalled computer system is virtually useless. According to the computer, the printer is a brand new one, but it was not properly installed in the computer system rendering it virtually useless.

9. The opposite party has never challenged Ext.C1 report. The failure of the opposite party in not attending to the repair and after sales service is a gross deficiency in service in the manner and nature of performance on the part of the opposite party resulting loss to the complainant. It was the responsibility of the opposite party to rectify the defects. The complainant has succeeded in proving her complaint.

In the light of the above discussions, we find that the opposite party shall install the system in full to the satisfaction of the complainant ensuring satisfactory functioning of the computer system and the printer. The opposite party shall also pay to the complainant an amount of Rs.3,000/- (Rupees three thousand only)as compensation and Rs.2,000/- (Rupees two thousand only) as costs to the complainant. Time for compliance one month, failing which the above amount shall carry interest @ 9%.


 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 16th day of February, 2009.


 

S.K. SREELA, MEMBER.


 


 


 

G.SIVAPRASAD, PRESIDENT.


 


 


 

BEENA KUMARI. A,

MEMBER.

ad.

 

 

O.P.No.426/2002

APPENDIX

I. Complainant's witness:

PW1 : Kamalabhai. C

PW2 : Anilkumar

PW3 : Sheeba D. Raj

II. Complainant's documents:

P1 : Photocopy of cash bill dated 31.10..2001 for Rs.33,500/- of Eye Fill Systems.

P2 : Copy of Advocate's notice dated 29/8/2002

P3 : Copy of postal receipt dated 29/8/2002

P4 : Copy of acknowledgement card


 

III. Opposite party's witness: NIL

IV. Opposite party's documents: N IL

V. Court witness:

 

CW1 : Raja Rangan


 

VI. Court Exhibit:


 

C1 : Commission Report dated 10/11/2003


 


 


 


 

PRESIDENT

ad.


 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:


 

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER


 

O.P. No. 426/2002 Filed on 05..10..2002 Dated: 16..02..2009


 

Complainant:

            C. Kamala Bai, Proprietor, S.K. Typewriting Institute, Building No.NMC XV/568 K, 1st Floor, Near KSRTC Bus Stand, Neyyattinkara.

             

            (By Adv. M. Haridas)

             

Opposite party:

Sunil, Proprietor, Eye Fill Systems, RC Junction Paliyode, Kottackal – P.O., Pin: 695 124.


 

(By Adv. V.J. Jayakumar Abraham)


 

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 15..07..2004, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 15..12..2008, the Forum on 16..02..2009 delivered the following:


 

ORDER


 

SMT. S.K.SREELA, MEMBER:


 

The case of the complainant is as follows: The complainant is running a Typewriting Institute under the name and style S.K. Typewriting Institute and Commerce at Neyyattinkara, since 1984. The complainant had purchased one computer with printer and other accessories from the opposite party on 31/10/2001 for Rs.33,500/-. The installation of the computer was carried out by the opposite party at the said Typewriting Institute run by the complainant. The opposite party has assured the complainant one year warranty from the date of purchase of the computer besides assurance to provide free service to the computer during the warranty period. As per the negotiations and oral order the opposite party was to supply Pentiam-3 model computer with printer and other accessories, which is considered to be a standard one at a cost of Rs.33,500/- whereas in violation of the said negotiations and oral order, the opposite party has preferred to supply Celeron 733 Mhz which is a substandard computer costs comparatively lesser in the market, along with the Epson Stylus Colour 480 printer and other accessories. The opposite party did not supply two numbers black and one number colour Cartridges, which cost around Rs.3,000/- to be supplied along with the printer free of cost as seen printed on the cover of the printer. The printer developed complaints from the date of purchase/installation. Contrary to the said assurance on warranty and free service, the opposite party did not bother to visit the institute and carry out the repairs to the printer or replace with a new printer. The opposite party did not provide catalogue and his supplier's cash bill for the printer. In the absence of the said cash bill and catalogue, the complainant assume that the printer supplied was a used and defective one. Computer printing is also a requisite portion of the said word processing course to the typewriting students. Since the printer did not function at all, majority of the students admitted left the institute and joined elsewhere. This resulted a financial loss of Rs.20,000/- to the complainant besides loss of reputation of the institute. Since the opposite party holds warranty facilities with manufacturers of the component parts of the computer, he is bound to carry out the repairs during the warranty period, which he failed to do so. The refusal of providing services, negligence and deriliction of duty amount to deficiency in service. The opposite party is also liable for deceit and unfair trade practice. The opposite party made false and misleading representation that the computer and printer are of particular standards. Opposite party has adopted the technique of unfair trade practices too. Hence this complaint for refund of amount along with compensation and costs.

2. The opposite party remains ex-parte, though they have filed their version.

3. The complainant has filed affidavit and examined as PW1 and marked Exts.P1 to P9. PW2 & PW3 were also examined on behalf of the complainant. PW1 to PW3 have not been cross examined and hence their deposition stands unchallenged.


 

          1. The issues that would arise for consideration are:

          1. Whether there is any deficiency in service on the part of the opposite party?

          2. Reliefs and costs?

5. Points (i) & (ii): According to the complainant, the computer and printer purchased from the opposite party became defective from the date of purchase/installation. This computer has been installed at a typewriting institute. Though the complainant has nowhere pleaded in the complaint that the said system has been purchased for earning her livelihood, as per Ext.P2 notice issued to the opposite party, and in the affidavit of the complainant it has been stated that the system has been purchased for earning her livelihood. The allegation of the complainant is that the system became defective during the period of warranty. It is a settled position that even if the equipment was purchased for commercial purpose, the purchaser will certainly be a consumer under Sec 2(1)(d)(ii) in respect of services rendered or to be rendered by the seller for the proper functioning of the equipment during the period of warranty. Hence we have no doubt with regard to the maintainability of this complaint before us.

6. The complainant's case is that as per order made orally with the opposite party, the opposite party was to supply Pentium 3 model computer with printer and accessories whereas in violation of the same, the opposite party has supplied Celeron 733 Mhz which is a substandard computer with lessor amount. Hence the first aspect to be considered is whether the complainant has been supplied with different machine than ordered. As per Ext.P1, the particulars of the computer supplied reveal that Intel Celeron 733 Mhz processor has been supplied to the complainant. The complainant seen received the same without any objection. As per Ext.P2 the lawyer's notice issued on her behalf, the complainant has no complaint with regard to the allegation that the machine supplied to the complainant were materially different from the goods sought to be purchased by the complainant. Moreover, when Ext.P1 is conspicuous with regard to the machine supplied, the complainant very well had the opportunity to deny the same at the time of delivery itself and insist for the one allegedly sought by the complainant. There is no proforma invoice or any agreement of that sort to prove that the complainant had ordered another model than the one supplied. In the absence of proper evidence and in the above facts and circumstances of the case it is found that the allegation that the complainant has been supplied with different machine than ordered is found without any merits.

7. The next aspect to be looked into is whether the system supplied is a substandard one. As per Ext.P1 it is seen that the system has been purchased on 31/10/2001. Ext.P2 is seen that on 29/08/2002 which is well within a period of one year. In Ext.P2 it is alleged that eversince the date of purchase, the system and the printer were not working properly. Since the opposite party has never turned up to contest the case or controverted the said allegation, it stands unchallenged. The very fact that from the date of purchase itself, the system developed defects and the matter was informed to opposite party is enough to hold that system supplied had some defects. Ext.P2 sent by the complainant reveals that the system was not functioning properly and Ext.P2 which is a registered legal notice sent on behalf of the complainant, goes to prove that the improper functioning of the system has been brought to the notice of the opposite party well within one year of the purchase of the system and acceptance of the said notice by the opposite party is evident from Ext.P4. The complainant has alleged that the opposite party had assured one year warranty. So no warranty card has been produced in this case. The opposite party has never turned up to deny the same nor they have contested the case. The complainant has filed affidavit to the effect that the opposite party has failed to fulfill the promise as per the assured warranty.

8. An expert commissioner has been appointed by this Forum and in his Ext.C1 commission report, he has reported that 'on inspection, the keyboard and mouse were not responding as the windows OS was being loaded and hence the computer was judged as not working even for basic functioning'. Further he has reported that 'on loading OS, it was found that the printer EPSON stylus colour 480 was not properly installed........MS Office and few other software were loaded but as a whole the computer system remained virtually useless as many of the proper setting could not be accomplished including the essential printer........the printer was supplied as per specifications but not installed rendering it virtually useless. According to the expert commissioner in computer sale, supply means full installation and ensuring satisfactory functioning and not just delivery of the components at site. An uninstalled computer system is virtually useless. According to the computer, the printer is a brand new one, but it was not properly installed in the computer system rendering it virtually useless.

9. The opposite party has never challenged Ext.C1 report. The failure of the opposite party in not attending to the repair and after sales service is a gross deficiency in service in the manner and nature of performance on the part of the opposite party resulting loss to the complainant. It was the responsibility of the opposite party to rectify the defects. The complainant has succeeded in proving her complaint.

In the light of the above discussions, we find that the opposite party shall install the system in full to the satisfaction of the complainant ensuring satisfactory functioning of the computer system and the printer. The opposite party shall also pay to the complainant an amount of Rs.3,000/- (Rupees three thousand only)as compensation and Rs.2,000/- (Rupees two thousand only) as costs to the complainant. Time for compliance one month, failing which the above amount shall carry interest @ 9%.


 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 16th day of February, 2009.


 

S.K. SREELA, MEMBER.


 


 


 

G.SIVAPRASAD, PRESIDENT.


 


 


 

BEENA KUMARI. A,

MEMBER.

ad.

 

 

O.P.No.426/2002

APPENDIX

I. Complainant's witness:

PW1 : Kamalabhai. C

PW2 : Anilkumar

PW3 : Sheeba D. Raj

II. Complainant's documents:

P1 : Photocopy of cash bill dated 31.10..2001 for Rs.33,500/- of Eye Fill Systems.

P2 : Copy of Advocate's notice dated 29/8/2002

P3 : Copy of postal receipt dated 29/8/2002

P4 : Copy of acknowledgement card


 

III. Opposite party's witness: NIL

IV. Opposite party's documents: N IL

V. Court witness:

 

CW1 : Raja Rangan


 

VI. Court Exhibit:


 

C1 : Commission Report dated 10/11/2003


 


 


 


 

PRESIDENT

 




......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad