DIGITAL INFORMATION SYSTEMS vs M.G.RAJESH

THESE appeals are from the order in O.P. No. 548/96 on the file of Consumer Disputes Redressal Forum, Thiruvananthapuram. The 3rd opposite party is the appellant in Appeal No. 913/99 and opposite parties 1 and 2 are the appellants in Appeal No. 915/99. THESE appeals are being disposed of by this common order.

THE case of the complainant before the District Forum in brief is, himself an educated umemployed wanted to start a computer centre for earning his livelihood, for that he availed a loan of Rs. 1,25,000/- under the Prime Minister''s Rozgar Yojana Scheme from the Dhanalekshmi Bank Ltd. THE opposite parties installed HPS laser printer, towards the price of the same demand draft was issued. But soon after the installation defects were noticed in the printer in November, 1995, thereupon he informed opposite parties 2 and 3 to replace the same for which the 3rd opposite party informed that their liability is only to instal the equipment and that opposite parties 1 and 2 are liable for the replacement and other work connected with it. THE laser printer was taken away by the second opposite party; but instead of replacing the same, they sent the same to M/s. MP (India) Ltd., Bangalore. Inspite of re-installing the same again on 18.1.1996, it became defective. When required the replacement of the same, instead of complying with the said demand the second opposite party sent a technician for repairs. THE equipment continues to be defective. THEreby the complainant suffered heavy loss and his customers have withdrawn from engaging him for the work. THErefore, the complainant maintained himself is entitled to the replacement of the same or the return of the entire purchase price with a direction to pay the loss suffered by him. To this the second opposite party filed a version which was adopted by the first opposite party. The 3rd opposite party filed separate version. The second opposite party contended that the complainant is not a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986 (for short the Act). They have not issued any invoice to the complainant instead the invoice received by the complainant was from the 3rd opposite party, the same covers the cost of laser printer and other equipments, the 3rd opposite party is their dealer. The laser printer was installed on 3.8.1995, the 3rd opposite party received the bank draft including the cost of other equipments; the price of the laser printer was only Rs. 60,600/-. At the time of installation warranty was issued for a period of 12 months from the date of installation and the same is limited to the repair or replacement of parts of the equipment which are found to be defective, the warranty does not include replacement of the equipment. The laser printer was taken for repair in November, 1995 and the repairs were carried out at the service centre of the opposite party at Madras and was re-installed on 18.1.1996, the warranty was extended upto 2.1.1996. It is admitted that they were informed on 29.7.1996 that laser printer developed problems, which was attended, the defect was to the toner cartridge, which is a consumable item. As a special case the first and second opposite parties arranged to supply a new toner cartridge costing Rs. 5,000/- free of cost to the complainant, but when the Engineer visited the premises of the complainant on 9.8.1996 for replacement of the toner cartridge the complainant did not allow them to re-fix the toner cartridge. The allegation of manufacturing defect is denied, they wanted dismissal of the complaint.

The 3rd opposite party supported the contentions of the second opposite party that the complainant is not a consumer; he would contend as per the invoice by the second opposite party, the 3rd opposite party supplied and delivered the HPS laser printer. The same was installed in the premises of the complainant to his satisfaction. This opposite party is only concerned with the supply and delivery of the aforesaid system as per the terms of the first and second opposite parties. This opposite party is not responsible for the defect, if any, to the equipment and it is only the opposite parties 1 and 2 who are to attend the same. He supports the other contentions of the second opposite party. P.Ws. 1 to 3 were examined on the side of the complainant of whom P.W. 1 is the complainant. The opposite parties examined D.Ws. 1 to 6. On a consideration of the said material the District Forum made a direction to the opposite parties to pay the complainant Rs. 1,25,000/- the value of the printer alongwith interest @ 18% from the date of the complaint and also Rs. 5,000/- as costs and compensation. It is the said direction that is under challenge in this appeal.

CONSISTANT with respective cases of the opposite parties the learned Counsel for the appellants in Appeal Nos. 915/99 and 913/99 urged that the direction made by the District Forum is infirm as the same is not consistent with either law or evidence. The first point urged by the learned Counsels is that since the complainant is not a ''consumer'', the complaint is not maintainable. Both of them maintained that the District Forum has gone wrong in accepting Exbt. C2 report filed by D.W. 4 particularly in the context of the evidence of D.W. 6. It is urged, the findings and the relief granted are beyond the scope of the pleading as well as the reliefs claimed. Then it is alternatively maintained that the manufacturing defect being for the laser printer only, direction to return the purchase price, if at all, could only be that of the laser printer not for the whole equipment. The learned Counsel for the appellant in Appeal No. 913/99 who is the 3rd opposite party sought to maintain that even if the laser printer suffered from manufacturing defect, he cannot be held liable either for replacement or return of the purchase price as himself is not the manufacturer, he made reliance on the decision of the State Commission, Rajasthan reported in Mrs. Aruna Singhal v. Texla Television, Jupiter Radio (Reg.), II (1991) CPJ 498=1991 CPR 572, and also the decision of the State Commission, Goa reported in M/s. Essen Computers Ltd. v. Tagore Gracias, Panaji, 1992 (2) CPR 556. He also supported the case of the appellants in Appeal No. 915/99 maintaining that there is no manufacturing defect. It is urged by the learned Counsel that his responsibility is only to deliver the equipment to the complainant and he cannot be held responsible for the manufacturing defect. On the other hand the learned Counsel for the respondent/complainant in both these appeals sought to support the direction by the District Forum urging that the complainant is a consumer as the purchase was for earning his livelihood by conducting a computer centre. Alternatively it is maintained by him that since the defect rose during warranty period even if the purchase was for commercial purpose, he is a consumer. It is then urged by the learned Counsel that the frequent defects to the equipment itself would demonstrate that the same suffered from manufacturing defect. It is pointed out by him that whereas the purchase was on 3.8.1995 it could be descerned from Exbt. B2, it became faulty on 14.9.1995, again it became faulty inspite of repair in November, 1995. It is pointed out by the learned Counsel that though the printer was removed by the second opposite party for attending the same at their centre at Bangalore in the version they would admit that it was taken to Madras and though it was re- installed on 18.1.1996 it, became again faulty and inspite of attending the same the defect could not be cured. Since the defect was manufacturing defect as could be seen from Exbt. C2 and the evidence of D.W. 4, they were bound to replace the same or repay the purchase price which they did not, therefore, he had to institute the complaint. He maintained that there was absolutely no reason for not accepting Exbt. C2 filed by D.W. 4 who is a qualified and competent expert. The evidence of D.W. 6 who has not seen the equipment cannot attain probative force as to dislodge Exbt. C2 and the evidence of D.W. 4. As regards the argument by the learned Counsel for the 3rd opposite party that himself cannot be held liable for the manufacturing defect; it is urged by him that in the facts of this case he too is liable. Learned Counsel relied on the decision of my predecessor in Appeal Nos. 321/96 and 874/96 wherein it was held that the dealer was also liable for the manufacturing defect. Reliance was also made by the learned Counsel on the decision of the National Commission in Harmohinder Singh v. Anil Sehgal & Anr., II (1999) CPJ 8 (NC)=1999 CTJ 241, in support of the said argument that the dealer is also liable. As regards the argument of the learned Counsel for the 3rd opposite party that the relief now granted is beyond scope of the relief sought in the complaint, it is urged that the prayer in the complaint included the relief now granted and it is also maintained, on the basis of the decision of the National Commission in V.P. Sant v. Chairman, Delhi Development Authority, II (1995) CPJ 248 (NC)=1999 NCJ 482, that technicalities cannot be a ground to refuse a relief to which the consumer is entitled. Reliance was also made on the decision in Anjaleem Enterprises Pvt. Ltd & Anr. v. A. Lakshmanan, I (1996) CPJ 257 (NC)=1999 NCJ 182, to maintain that along with the price of the instrument direction to pay an amount towards the loss sustained by the complainant due to the manufacturing defect of the equipment, cannot be said to be faulty. In support of that the reliance was also made on the decision of the National Commission in M/s. Remington Rand of India Ltd. & Ors. v. M/S. Pioneer Typewriter Company, I (1996) CPJ 317 (NC)=1999 NCJ 43. Having regard to the nature of the points raised, in the context, the first question to be adverted is as to the maintainability of the complaint. The maintainability of the complaint is challenged on the ground that the complainant is not a consumer as the purchase was for commercial purpose. Section 2(1)(d)(i) of the Act though would not include a person who purchases the goods for any commercial purpose, the explanation to Sub-clause (1) of Section 2(1)(d) states that commercial purpose will not include purchase of the goods exclusively for the purpose of earning livelihood by means of self employment. The case of the complainant is that he purchased the same for earning livelihood. There is no case, the equipment was purchased for resale; it was installed and was used by the complainant for earning livelihood is sworn to by him in his affidavit, and there is nothing to show that he engages others for the said purpose or that he has other source of income or avocation. Apart from the same, D.W. 1 in his cross- examination admitted that the defects were reported during the warranty period. Then, even assuming that the purchase was for commercial purpose, the service during the warranty period would be the "service" within the meaning of Section 2(1)(o), the complainant, therefore, would be a consumer within the meanmg of Section 2(1)(d)(ii) of the Act. See M/s. Amtrex Ambience Ltd. v. M/s. Alpha Radios & Anr., I (1996) CPJ 324 (NC)=1999 NCJ 120 (NC). Therefore, it has to be found that the complaint is maintainable. Now the next question for consideration is whether the case of manufacturing defect is true. One of the points raised by the appellants was, there is no specific allegation of manufacturing defect in the complaint. Pleading should not be read as a statute. Even if the words "manufacturing defect" are not mentioned, the allegations as whole as to the facts along with the reliefs if would bring out the case of manufacturing defect that would be enough. There are allegations to the effect that the equipment is defective and unfunctionable; and the relief is not replacement or return of the purchase price. The pleading is sufficient to bring out a case of manufacturing defect.

THE main piece of evidence relied on by the complainant in support of his case of manufacturing defect is that of D.W. 4 and Exbt. C2. Objections were raised against the acceptability of Exbt. C2 and the evidence of D.W. 4. One of the arguments is, D.W. 4 is not an expert in relation to the particular subject and in support of the said argument the appellant/ opposite parties relied on the evidence of D.W. 6. Before going into the other details it would be necessary to advert to the acceptability of Exbt. C2. Exbt. CI report filed by D.W. 3 was set aside. It was thereafter mat D.W. 4 was appointed as Commissioner. In his examination as D.W. 4, he swears, he is the Senior Software Engineer in Technopark, Thiruvananthapuram, and states that his work concerns software development, hardware maintenance and net work. He has got the CA degree from Bharathiya University and proceeds to say that the syllabus includes subjects with respect to the same. He proceeded to state that he has obtained training in Macro Software from Bombay. His status as the Senior Software Engineer in the Technopark, Thiruvananthapuram is not as such challenged. In the context of his testimony that he has got enough training as well as instruction in his MCA on the subject it is not possible to agree with the opposite parties when they sought to maintain that D.W. 4 is not an expert in the field relying on the evidence of D.W. 6. D.W. 6 said himself was lecturer in electronics in the Engineering College. In the cross-examination by the third opposite party he says the study in MCA would not include laser printer and computer. But his statement is not supported by any material. Now coming to Exbt. C2 D.W. 4 gives details of his observation. He examined the equipment on 8.8.1998 at 12.30 p.m. After mentioning his observations he gives the nature of the print-out he obtained, he mentions the causes for the malfunctioning; he states in Exbt. C2 "this is definitely not the problem of the cartridge. Before testing, I had removed the cartridge from the printer and rocked it several times and inserted into the printer. I tested with a new cartridge also, which I brought for testing". THEreafter he concludes: "Considering all the above referred facts, my expert opinion is that all the defects I found and mentioned in the above paragraph are purely due to serious manufacturing defects of the said Laser Jet Printer". He has annexed with Exbt. C2 the print- out he took on inserting a new cartridge, the same itself would support his opinion that the equipment does not work as is required and the cause of the same, is due to manufacturing defect. Now reliance was made by the learned Counsel for the appellants on evidence of D.W. 6 to support their case that the conclusion reached by D.W. 4 is not correct. In the cross-examination of D.W. 6 by the complainant he says that he knows opposite parties 1 and 2 for the last several years. He has not seen the laser printer in question, he agrees that when the same fault is repeated that could be treated as due to manufacturing defect. Having regard to the fact that D.W. 6 had no occasion even to watch the performance of the equipment in question and also in the context of what he said in the cross-examination, his evidence cannot be given the over-riding effect on the evidence of D.W. 4 and Exbt. C2. It will be noted that soon after the purchase on 3.8.1995 defect was noted on 14.9.1995 that could be seen from Exbt. P3. Though the fault was said to have been cured, again the fault was repeated as is seen from Exbt. P4. Exbt. P5 shows that the complainant informed the second opposite party as to the defect and also the loss suffered by him, because of the malfunctioning of the equipment he required replacement of the same. This would support the case of the complainant that there was recurring defects. The same has to be taken into the consideration in evaluating the acceptability of Exbt. C2. The case of the complainant is that in November, 1995 the equipment was taken by the second opposite party for forwarding the same to Bangalore; Exbt. P6 would support the said case of the complainant. Exbt. P4 shows that it was re-installed on 18.1.1996; but as is seen from Exbt. P5 on 29.7.1996 the complainant reports to the second opposite party that the equipment is defective and wants replacement. Incidentally it has to be noted that though Exbt. P6 said that the equipment is taken for sending to Bangalore, in the version by the second opposite party it is stated that the equipment was sent to Madras instead. The said sequence of events have got relevance in considering the argument of the learned Counsel for the appellants that, if at all, the complainant is eligible only for the price of the laser printer not the whole equipment. Reliance was made by the learned Counsels on Exbt. P2 in support of their argument that the laser printer is valued at Rs. 60,500/-. It is also urged that the complainant mentions only of laser printer. But the words laser printer cannot be taken in isolation as the same is followed by the price which is mentioned as Rs. 1,25,000/- the value of the whole unit. A laser printer cannot be used without the accessories. Both Exbts. P1 and P2 mention the whole equipment though Exbt. P2 also states both the prices. Exbt. P1 issued to the complainant is dated 27.7.1995, Exbt. P2 is dated 30.10.1995, the same is seen not addressed to the complainant. It is clear from Exbt. P1 that what was bargained for, installed and consideration paid was for the whole unit. The alternative argument for the appellant that, if at all, the replacement could only be of the laser printer, and hence the direction for return of purchase price could be only for the price of the laser printer cannot be persuasive, Exbt. P1 issued by the 3rd opposite party who is acknowledged by opposite parties 1 and 2 as their dealer shows that an amount of Rs. 1,25,000/- was received towards the price of the whole equipment, separate price is not mentioned though two items are mentioned. A computer centre cannot function with a laser printer alone the whole unit constitutes laser printer and the computer. In this regard one should not miss the purpose for which the equipment was purchased and installed at the instance of the complainant. As is noticed, it was for his livelihood, an unemployed educated youth avails a loan under PMRY scheme, but for one reason or other the equipment could not function. Having regard to the purpose for which the equipment was secured by availing the loan, once it is seen, the unit could not function as is held out by the opposite parties, it could be easily concluded, the same resulted in loss to the complainant and this loss of income would directly reflect on his failure to discharge his obligation to the Bank from which he obtained the loan. Reliance was made by the learned Counsel for the respondent/complainant on Exbts. P8 to P10 in support of his submission, because of the defect in the functioning of the unit he could not discharge his obligation to the Bank. The case of the opposite parties is that when their technician visited the premises of the complainant with toner cartridge the complainant did not allow them to attend the equipment. As has noticed, the complainant wanted replacement of the equipment as according to him the same suffered from manufacturing defect. If his stand after having the aforesaid experience of recurring defects is true, and the opposite parties were aware that the equipment suffered from manufacturing defect, the complainant cannot be found fault with in not permitting them to make a further attempt by putting toner cartridge and making a further experiment in that regard.

AS has already noted, the evidence of D.W. 4 and Exbt. C2 clearly demonstrate that the equipment suffered from manufacturing defect. Admittedly the printer was taken by the second opposite party on 20.11.1995 and was re-installed only on 18.1.1996 during which period the printer was with them and their experts were attending the same. This circumstance would clearly indicate that they must have been aware that the printer suffered from manufacturing defect. This is so in the context of the evidence of P.W. 4 and Exbt. C2, then after having occasion to notice that equipment suffered from manufacturing defect, the opposite parties cannot insist for a further attempt at repairs when the same had to be replaced. Then the opposite parties cannot be permitted to take advantage that the complainant did not permit them to insert the toner cartridge at that stage. AS has already noted D.W. 4 is firm that the defect is not because of the cartridge, but is due to manufacturing defect. One important aspect now to be noted is, if as early as on 20.11.1995 the opposite parties knew that the laser printer suffered from manufacturing defect and they defaulted in replacing the same for the resultant consequences from the said omission on their part, they would be accountable.

THE computer is a software like the laser printer, the non-user for a long period would have adverse effect in its functioning. Even by replacement of the printer at this distance of time the unit would function has to be established, and in the aforesaid circurrstance, it was the burden of the opposite parties to show the same. In other words, they have to show that the unit would be functionable on the replacement of the laser printer. THEre is nothing to show that by replacement of the printer the unit would become functionable. THErefore, there is no justification to say that it would be enough to replace the printer. In the given circumstance it would not be justifiable to make a direction to replace the printer alone. Now the question for consideration is whether in that the 3rd opposite party who is the dealer could be made liable. As has noted the learned Counsel for the appellant in Appeal No. 913/99 relied on the decision in M/s. Aruna Singhal v. Texla Television, Jupiter Radio (Regd.) (supra) as well as the decision in M/s. Essan Computers Ltd. v. Tagore Gracias, Panaji (supra), to maintain that in a case of manufacturing defect the manufacturer alone could be made liable. As has noticed the learned Counsel for the respondent/complainant relied on the common order of my predecessor in Appeal Nos. 321/96 and 874/96 as well as the decision of the National Commission in Harmohinder Singh v. Anil Sehgal & Anr. (supra), in support of his case that direction in this regard could as well be against the dealer also. As has already noted, the case of the 3rd opposite party is that after delivery of the equipment he has no obligation to attend the defect and the obligation, if at all, is for opposite parties 1 and 2. One important aspect to be adverted in this connection is, admittedly the whole price of the equipment was received by the 3rd opposite party and he passed Exbt. P1 receipt to the complainant and Exbt. P1 reveals that he supplied the unit. It is true in Exbt. P2 he stated that the price of the laser printer is Rs. 60,500/-, the price of the whole unit is Rs. 1,25,000/- and the whole price was received by him. The payment of the price, delivery of the equipment and user of the same, was also as a single unit for which the whole price was received by the third opposite party. According to the complaint the transaction was with opposite parties 1 to 3, on delivery of the unit he paid the whole price to the 3rd opposite party who passed Exbt. P1 receipt. In the complaint it is alleged that in November, 1995 the complainant informed the non-functioning to opposite parties 2 and 3. What was delivered by the opposite parties was one unit. In such circumstance the agreement or understanding inter se between opposite parties one and two on the one hand and the third opposite party on the other cannot affect the claim of the complainant against them. The attending circumstances thus would generate an inference that the 3rd opposite party too was aware, and accountable for the manufacturing defect. In such circumstance the principle laid down by the learned predecessor in the common order in Appeal Nos. 321/96 and 874/96 would become applicable. The decision in Harmohinder Singh''s case (supra), referred to early held, the dealer cannot avoid his liability simply on the ground that he was not the manufacturer and that it is his responsibility to carry out the terms of the warranty and in turn he could have involved the manufacturer in fulfilling its obligation under the warranty. The facts of this case are such that the principle laid down by the National Commission in the said decision is applicable. When such is the position the 3rd opposite party cannot absolve himself from the liability of returning the purchase price.

It was also urged, the relief now granted is in excess of what is prayed. As has noticed, the prayer in the complaint is to direct the respondent to replace the laser printer or return the entire amount being the cost of the unit. The other prayer is, the opposite party be directed to pay the loss sustained by the complainant. Now the District Forum has made direction to return the price of the unit along with interest @ 18% and also Rs. 5,000/- as compensation and costs. The objection raised is that interest and compensation cannot together be awarded. In the decision in Pioneer Typewriter''s case (supra), referred to early, the National Commission upheld the direction for replacing the machine with compensation Rs. 10,000/-, interest @ 18% on the purchase price. The price of unit alongwith interest @ 18% from the date of complaint was awarded; it did take in the loss sustained by the complainant due to the non-functioning of the unit. As has already noted the complainant must have sustained loss, and the Rs. 5,000/- is awarded only towards compensation and costs. Having regard to the attending circumstance and the magnitude of the suffering of the complainant, we do not consider that the direction made by the District Forum is in any way faulty. We see nothing to interfere, the appeals fail and they are dismissed. Appeals dismissed.