BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 291/2001Filed on 18.07.2001<br /> Dated : 15.10.2008<br /> Complainant:<br /> <br /> R.M. Indu, T.C 16/1341, 'Mercy', Kannettumukku, Thycaud P.O, Thiruvananthapuram -14.<br /> <br /> (By adv. P.P Balakrishnan Nair)<br /> <br /> Opposite Parties:<br /> <br /> 1.Technocrat Systems Inc., T.C 14/493/2, Kochar Road, Edapazhinji, Thiruvananthapuram.<br /> <br /> (By adv. S. Reghukumar)<br /> <br /> 2.The Compaq Computer (India) Pvt. Ltd., 92, Industrial Suburb, II Stage, Yeswanthpur, Bangalore – 560 002.<br /> <br /> (By adv. Mohammed Rafiq)<br /> <br /> 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 15.09.2008, the Forum on 15.10.2008 delivered the following:<br /> ORDER<br /> <br /> SRI. G. SIVAPRASAD: PRESIDENT<br /> <br /> The facts leading to the filing of the complaint are that the complainant purchased a Compaq System ( P III 700 SB 64 MB/144/4BXCDD/10293/56 6 KBPS/15” colons monitor) manufactured by the 2nd opposite party from the 1st opposite party. The actual price of the said system was Rs. 52500/-, whereas the 1st opposite party had charged an extra amount of Rs. 10500/- on the said machine as against the terms agreed upon. The said machine stopped functioning on 05.02.2000 and complainant contacted the 1st opposite party. Opposite party had not taken any steps to solve the problem or even inspected the machine and effect necessary repairs so as to enable the complainant to continue with the operation of the system. Complainant is well qualified in computer applications, and conducting courses in computer applications by which complainant is earning her livelihood. The break down of the said system had caused huge loss to the complainant. 1st opposite party had purposefully evaded from supplying the warranty card even though complainant had demanded the same many a time. Opposite party have committed unfair trade practice thereby caused great loss and hardship to the complainant. Hence this complaint claiming refund of excess price levied from the complainant to the extent of Rs. 10500/-, replacement of machine or in the alternative refund the price of the machine with interest and compensation. <br /> Opposite party entered appearance. 2nd opposite party did not file version and 1st opposite party 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 system for commercial purposes. Prior to the sale of the computer 1st opposite party handed over the invoice of the computer including accessories. The said offer was accepted by the complainant and computer and its accessories were supplied by the 1st opposite party to the complainant. The price fixed was not for the computer alone, but it included its accessories, freight charges, installation charges etc. The price shown in the invoice was realized from the complainant. The service undertaken by the 1st opposite party was properly adhered to by the service engineers attached to 1st opposite party. The 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 unauthorizedly and the machines were found mishandled and operated by inexperienced persons. There was no break down as alleged in the complaint. Warranty forms part of the package including CD etc. were supplied to the complainant at the time of installation of the computer system. There was no mistake to be rectified in the computer as problem was not relating to the hardware, but it was because of the pirated software complainant was using over which the 1st opposite party has no control. 1st opposite party has not committed any unfair trade practice. Hence 1st opposite party prayed for dismissal of the complaint with costs. <br /> The points that would arise for consideration are:-<br /> (i)Whether the 1st opposite party has levied excess price from the complainant?<br /> (ii)Whether the computer purchased from the 1st opposite party was defective?<br /> (iii)Whether there has been unfair trade practice and deficiency in service on the part of opposite party?<br /> (iv)Reliefs and costs.<br /> 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 P3. To support the contention in version, Gopalakrishnan, the Chief Executive, Technocrat System, has filed an affidavit as DW1 in lieu of chief examination and marked Exts. D1 to D3 and commission report as C1. 2nd opposite party did not file version, affidavit and documents. <br /> Points (i) to (iv):- Admittedly, complainant purchased a Compaq system 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. 63000/-. Ext. P1 is the copy of the invoice dated 17.11.2000. As per Ext. P1 the price of Compaq ( P III 700 SB 64 MB/144/4BXCDD/10293/56 6 KBPS/15” colons monitor) is Rs. 63000/-. It has been the case of the complainant that the price of the said system was only 52500/-, whereas the 1st opposite party had charged an extra amount of Rs. 10500/- as against the terms agreed upon. Complainant did not furnish the terms of the agreement nor did complainant produce any material to show the actual price of the system at the relevant time. Submission by the 1st opposite party was that opposite party did not receive any amount excess of the value of the computer and its accessories. The value received by the 1st opposite party is not for the computer alone, but it included its accessories, freight charges and installation charges etc. Further it is submitted by the 1st opposite party that prior to the sale of the computer 1st opposite party had handed over the invoice of the computer including accessories and the same was accepted by the complainant. Since the complainant alleges that 1st opposite party had charged an amount of Rs. 63000/- instead of the actual amount of Rs. 52500/-, on the said system, the burden would lay on the complainant to prove that the actual price of the said system was Rs. 52500/-, thereby we would be able to comprehend whether 1st opposite party had levied an excess price or not. Opposite party submits that there is no statutory control over price fixation. There is no law or regulation which specifies the price of the computer. 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 computer purchased by the complainant from the 1st opposite party was defective. It has been the case of the complainant that the said machine stopped functioning on 05.02.2001 and that opposite party did not take any steps to solve the problem or even inspect the said machine and effect necessary repairs even after repeated requests. Further complainant submitted that from 05.02.2001 till date, the said system is not functioning, which caused huge loss to the complainant. It has been resisted by 1st opposite party by submitting that 1st opposite party did not receive any complaint as alleged on 12.02.2001. Ext. P2 is the copy of the Support Engineers Call Report dated 12.09.2001. As per Ext. P2 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 is the name of the institution being run by the complainant for earning her livelihood. In this case the dispute is with regard to the problem in connection with Compaq P III. The 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, it is concluded that the system supplied is working perfectly in good condition and the configuration of the machine matches the supply order of the supplier, however it is advisable not to use pirated software in the computer which will negatively affect the performance of the machine and also to check the earthing of the building and make it correct to avoid damaging of electric component in the future. It has been specifically mentioned by the commission that the system found to be working in perfectly good condition. Only virus problem caused due to the use of pirated software. Complainant did not file objection to commission report nor did cross examine the commissioner. Hence we accept the commission report. In view of Ext. C1 we find the computer purchased by the complainant from the 1st opposite party was not defective. It has been argued by the complainant that three computer systems (MT 233/32 MB/1.04 B/14” monitor) that complainant had purchased for Rs. 23000/- each from the 1st opposite party on 17.11.2000 and the said systems were sold at a much higher price than the actual price. There is no pleading in the complaint regarding the purchase of the said computer systems (MT 233/32 MB/1.04 B/14” monitor) at higher price than the actual price and claim for refund of excess price nor averred the same in the proof affidavit nor discussed the same in the argument note filed by the complainant. Ext. P3 is the copy of the brochure. Arguments are without pleadings. We cannot go outside the pleadings in the complaint and it is the case pleaded that has to be found. <br /> In view of the above, the complainant has failed to establish the case. Complaint has no merit at all which deserves to be dismissed. <br /> In the result, the complaint is dismissed. <br /> 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.<br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15th October 2008.<br /> <br /> G. SIVAPRASAD,<br /> President.<br /> BEENAKUMARI. A : MEMBER<br /> <br /> S.K. SREELA : MEMBER<br /> <br /> <br /> O.P.No. 291/2001<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> NIL<br /> II COMPLAINANT'S DOCUMENTS :<br /> <br /> P1 - Photocopy of cash/invoice dated 17.11.2000 for Rs. 132000/-<br /> P2 - Photocopy of Support Engineers call report dated 12.09.2001.<br /> P3 - Photocopy of advertisement.<br /> <br /> III OPPOSITE PARTY'S WITNESS :<br /> NIL<br /> IV OPPOSITE PARTY'S DOCUMENTS :<br /> D1 - Copy of invoice dated 17.11.2000.<br /> D2 - Copy of lawyer's notice dated 16.06.2001 issued to the 1st opposite party by the complainant.<br /> D3 - Copy of reply notice dated 29.06.2001 sent by the 1st opposite party. <br /> <br /> <br /> <br /> PRESIDENT<br /> <br />