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. 290/2001 filed on 18..07..2001 Dated: 15..11..2008
Complainant:
R.M. Indu, T.C.16/1341, 'Mercy', Kannettumukku, Thycaud – P.O., Thiruvananthapuram – 14. (By Sri. P.P. Balakrishnan Nair)
Opposite parties:
1. Technocrat Systems Inc., T.C.14/493/2, Kochar Road, Edapazhinji, Thiruvananthapuram. (By Adv. Sri. S. Reghukumar)
2. Computech International Ltd., 77/2-A, Hazra Road, Kolkotta – 700 029.
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 12..04..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..10..2008, the Forum on 15..11..2008 delivered the following: ORDER
SHRI. G. SIVAPRASAD, PRESIDENT : The facts leading to the filing of the complaint are that the complainant purchased 3 computer systems (MT 233/32 MB/1-09B/14” Colour Monitor) manufactured by the 2nd opposite party from the 1st opposite party as per invoice No.385/2000 on 17..11..2000 for an amount of Rs.69,000/-. The 1st opposite party has collected an excess amount of Rs.21,000/-, as against the terms agreed upon. One of the above said machines stopped functioning on 12..02..2001 and complainant contacted the 1st opposite party. The 1st opposite party did not take any steps to solve the problem or even inspect the machine and effect necessary repairs so as to enable the complainant to operate the system effectively. Complainant, is a well qualified in computer applications, now engaged in software development and also conducting courses in computer applications by which complainant is earning her livelihood. The break down of the system has caused huge loss to the complainant. Complainant has incurred a loss of Rs.45,000/- by way of fees and software development charges. Hence this complaint claiming refund of excess amount of Rs.21,000/-, replacement of the machine or in the alternative refund of the amount of Rs.69,000/- with interest, compensation of Rs.45,000/- and Rs.31,500/- towards additional cost.
2. 1st opposite party entered appearance and filed version contending that the complaint is not maintainable either in law or on facts. Complainant is not a consumer. Complainant has purchased the computer systems for commercial purpose. Prior to the sale of the computer, 1st opposite party handed over to the invoice of the computer including the accessories. The said offer was accepted to the complainant and the computer and its accessories was supplied by the 1st opposite party to the complainant. The price was fixed not for the computer alone but it included its accessories, freight charges, installation charges etc. The price shown in the invoice was realised from the complainant. The service undertaken by the 1st opposite party was properly adhered to by the service engineers attached to the 1st opposite party. Computer was serviced to the satisfaction of the complainant. 1st opposite party did not receive any complaint as alleged on 12..02..2001. Whenever the service engineers attended the machine it was found that pirated softwares were installed in the machine unauthorisedly and the machines were found mishandled and operated by inexperienced persons. There was no break down as alleged in the complaint. The system does not suffer from any defect. Hence opposite party prayed for dismissal of the complaint.
3. The points that would arise for consideration are:
Whether 1st opposite party has levied excess price from the complainant? Whether the computers purchased from the 1st opposite party had been defective? Whether the defects, if any, are repairable? Whether there has been unfair trade practice and deficiency in service on the part of opposite parties? Reliefs and costs?
4. To support the contention in the complaint, complainant has filed an affidavit of herself as PW1 in lieu of examination in chief and marked Exts. P1 to P5. To support the contention in the version , Sri. Girish Krishnan, Chief Executive, Technocrat Systems has filed affidavit as DW1 in lieu of examination in chief and marked Exts.D1 to D3 and Commission Report as Ext.C1. 2nd opposite party did not file version, affidavit and documents. 5. Points (i) to (v): Admittedly, complainant purchased 3 computers manufactured by the 2nd opposite party from the 1st opposite party as per invoice No.385/2000 on 17..11..2000 for an amount of Rs.69,000/-. Ext.P1 is the copy of invoice dated 17..11..2000. As per Ext.P1, the price of 3 computers (MT 233(MMX)/32MB/1.0GB/1.44/KBD/MOUSE/14”SVGAColour Monitor is Rs.69,000/-. It has been the case of the complainant that an excess amount of Rs.21,000/- was collected on the said computers as against the terms agreed upon. Complainant did not furnish the terms of the agreement. Ext.P4 is a printed notice, seen published by the 2nd opposite party regarding the features of Compubell P 233 Mhz with MMX and Compubell P II 266 Mhz. The former is seen priced as Rs.15,990/-, while the latter is priced as Rs.19,990/-. It is pertinent to note that complainant has purchased 3 computers having features as MT 233 (MMX)/32MB/1.0GB/1.44/KBD/MOUSE/14”SVGA Colour Monitor. Complainant did not produce any material to show the actual price of the systems. 1st opposite party submits that they did not receive any amount excess of the value of the computers and its accessories and that prior to the sale of the computers 1st opposite party handed over the invoice of the computers including accessories and that the said offer was accepted by the complainant. Since the complainant alleges that 1st opposite party had collected an amount of Rs.21,000/-, from the complainant on the above said computers, the initial burden would lay on the complainant to prove that opposite party has collected an excess amount as against the terms agreed upon. Opposite party did not furnish any document to prove the same. Submission by the opposite party is that there is no statutory control over price fixation. There is no law or regulation which specifies the price of the computers. The price fixed in the invoice is the price levied from the complainant. We cannot question the reasonableness of price unless proved otherwise. In the absence of evidence or the relevant record showing the actual price as alleged by the complainant we are of the considered opinion that the price charged by the 1st opposite party is the actual price. The next point requiring consideration is whether the computers purchased by the complainant from 1st opposite party has been defective. It has been the case of the complainant that the said machines stopped function on 12..02..2001 and that opposite party did not take any steps to solve the problem or even inspect the said machines and effect necessary repairs so as to enable the complainant to operate the system effectively in spite of repeated requests. It has been resisted by the 1st opposite party by submitting that 1st opposite party did not receive any complaints as alleged on 12..02..2001. Ext.P5 is the copy of 'Material Acceptance Receipt' and support Engineers call report. As per Support Engineers call report the customer is Network Computers. The name of Network computers is not mentioned anywhere in the complaint. In the complaint it is mentioned that complainant is conducting courses in computer application from which it may presume that Network computers the name of the institution being run by the complainant for earning her livelihood. Here the allegation is that the said computers stopped functioning on 12..02..2001. Initial burden of proving the case is upon the person who alleges the complaint. Complainant did not take an expert commission to assess the problem as alleged in the complaint so as to establish the case. On commission application filed by 1st opposite party this Forum appointed an expert commission who filed report which has been marked as Ext.C1. As per Ext.C1 report, the present condition of the said computers is: System found to be slow in operation. Could be due to virus problem, problem related some specific software which is loaded both of which is a user–related problem. System showing only 16MB of memory (RAM) as against 32MB specified. The balance 16MB is damaged. Reason could be power fluctuation. Not working. System not powering on. Suspected power supply failure.
As per Ext.C1 report, it is concluded as follows: System: 1: Start up files have to be removed and checked for enhanced performance. If not successful, hard disk to be reformatted and operating system loaded afresh. Perform check for virus, reload installed components of software one-by-one and eliminate the software which is creating the problem.
System: 2: Additional 16MB or 32MB, as the case may be, to be installed as part of warranty commitment.
System: 3: The damaged power supply has to be replaced and the system to be brought to working condition.
Complainant did not file objection to Commission Report nor did cross examine the commissioner. Hence we accept the commission report. As per Ext.C1, system-2 has some defect which shows only 16MB OF MEMORY (RAM) as against 32MB specified. The balance 16MB is damaged. The said defect need be rectified. Complainant did not produce the warranty card. As per Ext.P4, 1 year on-site warranty is stated which is not disputed by opposite party. Hence we consider 1 year warranty. As a part of warranty commitment the said defect require rectification either by installation of additional 16MB or by 32MB, as the case may be. In view of the above we find the computer system-2 as stated in Ext.C1 is defective which is repairable.
In the result, complaint is partly allowed. Opposite parties shall jointly and severally rectify the defect of system-2 as stated in Ext.C1 Commission Report either by installation of additional 16MB or by 32MB, as part of warranty commitment. There will be no order as to compensation and costs in facts and circumstances of the case. 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, this the 15th day of November, 2008.
G. SIVAPRASAD, PRESIDENT. BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER
ad.
O.P.No.290/2001
APPENDIX
I. Complainant's witness: NIL
II. Complainant's documents:
P1 : Original cash/invoice Sl.No.003 dated 17..11..2000
P2 : Original cash/invoice Sl.No.004 dated 17..11..2000
P3 : Photocopy of certificate dated 14..06..2000
P4 : " advertisement
P5 : " Material acceptance report dated 12..09..2001
III. Opposite parties' witness : NIL
IV. Opposite parties' documents:
D1 : Photocopy of invoice dated 17..11..2000
D2 : " Advocate's notice dated 16..06..2001 issued by the complainant to the opposite parties. D3 : " reply notice dated 29..06..2001 issued by the 1st opposite party. v V. Court witness: NIL
VI. Court exhibit:
C1 : Commission Report submitted by the expert commissioner 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. 290/2001 filed on 18..07..2001 Dated: 15..11..2008
Complainant:
R.M. Indu, T.C.16/1341, 'Mercy', Kannettumukku, Thycaud – P.O., Thiruvananthapuram – 14. (By Sri. P.P. Balakrishnan Nair)
Opposite parties:
1. Technocrat Systems Inc., T.C.14/493/2, Kochar Road, Edapazhinji, Thiruvananthapuram. (By Adv. Sri. S. Reghukumar)
2. Computech International Ltd., 77/2-A, Hazra Road, Kolkotta – 700 029.
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 12..04..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..10..2008, the Forum on 15..11..2008 delivered the following: ORDER
SHRI. G. SIVAPRASAD, PRESIDENT : The facts leading to the filing of the complaint are that the complainant purchased 3 computer systems (MT 233/32 MB/1-09B/14” Colour Monitor) manufactured by the 2nd opposite party from the 1st opposite party as per invoice No.385/2000 on 17..11..2000 for an amount of Rs.69,000/-. The 1st opposite party has collected an excess amount of Rs.21,000/-, as against the terms agreed upon. One of the above said machines stopped functioning on 12..02..2001 and complainant contacted the 1st opposite party. The 1st opposite party did not take any steps to solve the problem or even inspect the machine and effect necessary repairs so as to enable the complainant to operate the system effectively. Complainant, is a well qualified in computer applications, now engaged in software development and also conducting courses in computer applications by which complainant is earning her livelihood. The break down of the system has caused huge loss to the complainant. Complainant has incurred a loss of Rs.45,000/- by way of fees and software development charges. Hence this complaint claiming refund of excess amount of Rs.21,000/-, replacement of the machine or in the alternative refund of the amount of Rs.69,000/- with interest, compensation of Rs.45,000/- and Rs.31,500/- towards additional cost.
2. 1st opposite party entered appearance and filed version contending that the complaint is not maintainable either in law or on facts. Complainant is not a consumer. Complainant has purchased the computer systems for commercial purpose. Prior to the sale of the computer, 1st opposite party handed over to the invoice of the computer including the accessories. The said offer was accepted to the complainant and the computer and its accessories was supplied by the 1st opposite party to the complainant. The price was fixed not for the computer alone but it included its accessories, freight charges, installation charges etc. The price shown in the invoice was realised from the complainant. The service undertaken by the 1st opposite party was properly adhered to by the service engineers attached to the 1st opposite party. Computer was serviced to the satisfaction of the complainant. 1st opposite party did not receive any complaint as alleged on 12..02..2001. Whenever the service engineers attended the machine it was found that pirated softwares were installed in the machine unauthorisedly and the machines were found mishandled and operated by inexperienced persons. There was no break down as alleged in the complaint. The system does not suffer from any defect. Hence opposite party prayed for dismissal of the complaint.
3. The points that would arise for consideration are:
Whether 1st opposite party has levied excess price from the complainant? Whether the computers purchased from the 1st opposite party had been defective? Whether the defects, if any, are repairable? Whether there has been unfair trade practice and deficiency in service on the part of opposite parties? Reliefs and costs?
4. To support the contention in the complaint, complainant has filed an affidavit of herself as PW1 in lieu of examination in chief and marked Exts. P1 to P5. To support the contention in the version , Sri. Girish Krishnan, Chief Executive, Technocrat Systems has filed affidavit as DW1 in lieu of examination in chief and marked Exts.D1 to D3 and Commission Report as Ext.C1. 2nd opposite party did not file version, affidavit and documents. 5. Points (i) to (v): Admittedly, complainant purchased 3 computers manufactured by the 2nd opposite party from the 1st opposite party as per invoice No.385/2000 on 17..11..2000 for an amount of Rs.69,000/-. Ext.P1 is the copy of invoice dated 17..11..2000. As per Ext.P1, the price of 3 computers (MT 233(MMX)/32MB/1.0GB/1.44/KBD/MOUSE/14”SVGAColour Monitor is Rs.69,000/-. It has been the case of the complainant that an excess amount of Rs.21,000/- was collected on the said computers as against the terms agreed upon. Complainant did not furnish the terms of the agreement. Ext.P4 is a printed notice, seen published by the 2nd opposite party regarding the features of Compubell P 233 Mhz with MMX and Compubell P II 266 Mhz. The former is seen priced as Rs.15,990/-, while the latter is priced as Rs.19,990/-. It is pertinent to note that complainant has purchased 3 computers having features as MT 233 (MMX)/32MB/1.0GB/1.44/KBD/MOUSE/14”SVGA Colour Monitor. Complainant did not produce any material to show the actual price of the systems. 1st opposite party submits that they did not receive any amount excess of the value of the computers and its accessories and that prior to the sale of the computers 1st opposite party handed over the invoice of the computers including accessories and that the said offer was accepted by the complainant. Since the complainant alleges that 1st opposite party had collected an amount of Rs.21,000/-, from the complainant on the above said computers, the initial burden would lay on the complainant to prove that opposite party has collected an excess amount as against the terms agreed upon. Opposite party did not furnish any document to prove the same. Submission by the opposite party is that there is no statutory control over price fixation. There is no law or regulation which specifies the price of the computers. The price fixed in the invoice is the price levied from the complainant. We cannot question the reasonableness of price unless proved otherwise. In the absence of evidence or the relevant record showing the actual price as alleged by the complainant we are of the considered opinion that the price charged by the 1st opposite party is the actual price. The next point requiring consideration is whether the computers purchased by the complainant from 1st opposite party has been defective. It has been the case of the complainant that the said machines stopped function on 12..02..2001 and that opposite party did not take any steps to solve the problem or even inspect the said machines and effect necessary repairs so as to enable the complainant to operate the system effectively in spite of repeated requests. It has been resisted by the 1st opposite party by submitting that 1st opposite party did not receive any complaints as alleged on 12..02..2001. Ext.P5 is the copy of 'Material Acceptance Receipt' and support Engineers call report. As per Support Engineers call report the customer is Network Computers. The name of Network computers is not mentioned anywhere in the complaint. In the complaint it is mentioned that complainant is conducting courses in computer application from which it may presume that Network computers the name of the institution being run by the complainant for earning her livelihood. Here the allegation is that the said computers stopped functioning on 12..02..2001. Initial burden of proving the case is upon the person who alleges the complaint. Complainant did not take an expert commission to assess the problem as alleged in the complaint so as to establish the case. On commission application filed by 1st opposite party this Forum appointed an expert commission who filed report which has been marked as Ext.C1. As per Ext.C1 report, the present condition of the said computers is: System found to be slow in operation. Could be due to virus problem, problem related some specific software which is loaded both of which is a user–related problem. System showing only 16MB of memory (RAM) as against 32MB specified. The balance 16MB is damaged. Reason could be power fluctuation. Not working. System not powering on. Suspected power supply failure.
As per Ext.C1 report, it is concluded as follows: System: 1: Start up files have to be removed and checked for enhanced performance. If not successful, hard disk to be reformatted and operating system loaded afresh. Perform check for virus, reload installed components of software one-by-one and eliminate the software which is creating the problem.
System: 2: Additional 16MB or 32MB, as the case may be, to be installed as part of warranty commitment.
System: 3: The damaged power supply has to be replaced and the system to be brought to working condition.
Complainant did not file objection to Commission Report nor did cross examine the commissioner. Hence we accept the commission report. As per Ext.C1, system-2 has some defect which shows only 16MB OF MEMORY (RAM) as against 32MB specified. The balance 16MB is damaged. The said defect need be rectified. Complainant did not produce the warranty card. As per Ext.P4, 1 year on-site warranty is stated which is not disputed by opposite party. Hence we consider 1 year warranty. As a part of warranty commitment the said defect require rectification either by installation of additional 16MB or by 32MB, as the case may be. In view of the above we find the computer system-2 as stated in Ext.C1 is defective which is repairable.
In the result, complaint is partly allowed. Opposite parties shall jointly and severally rectify the defect of system-2 as stated in Ext.C1 Commission Report either by installation of additional 16MB or by 32MB, as part of warranty commitment. There will be no order as to compensation and costs in facts and circumstances of the case. 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, this the 15th day of November, 2008.
G. SIVAPRASAD, PRESIDENT. BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER
ad.
O.P.No.290/2001
APPENDIX
I. Complainant's witness: NIL
II. Complainant's documents:
P1 : Original cash/invoice Sl.No.003 dated 17..11..2000
P2 : Original cash/invoice Sl.No.004 dated 17..11..2000
P3 : Photocopy of certificate dated 14..06..2000
P4 : " advertisement
P5 : " Material acceptance report dated 12..09..2001
III. Opposite parties' witness : NIL
IV. Opposite parties' documents:
D1 : Photocopy of invoice dated 17..11..2000
D2 : " Advocate's notice dated 16..06..2001 issued by the complainant to the opposite parties. D3 : " reply notice dated 29..06..2001 issued by the 1st opposite party. v V. Court witness: NIL
VI. Court exhibit:
C1 : Commission Report submitted by the expert commissioner PRESIDENT
......................Smt. Beena Kumari. A
......................Sri G. Sivaprasad | | 
