HCL LIMITED vs AJAI KUMAR ALYA

APPEAL No. 330/SC/1995 has been filed against the judgment and order dated 10.11.1994 passed by District Consumer Forum, Lalipur in Complaint Case No. 104/1994. Briefly stated the facts of the case are as follows.

THE complainant Ajay Kumar Alya had purchased one photocopier machine on 20.4.1990 at a price of Rs. 49,995/- from the opposite party, M/s. HCL Limited. THE photocopier machine so purchased was for self-employment of the complainant and financing was done from the Bank as loan. THE complainant had also entered into an agreement with the opposite party No. 1 through which a service contract for the machine was taken from the opposite party No. 1 for a period of three years commencing from 26.10.1991 to 25.10.1994. For the service contract a sum of Rs. 20,000/- was paid by the complainant to opposite party No. 1 through the Bank on 30.9.1991. As per terms of the service contract the Engineer of the opposite party was required to service the machine and replace the spare parts like electronic board, panel, gears etc. free of cost. During the period of the service contract of three years the Service Engineer of the opposite party did not come from time to time with the result that there was deficiency in service and the complainant had to go to Jhansi time and again to lodge complaint to the opposite party No. 5, who is the agent of opposite party No. 1 at Jhansi. THE other opposite parties at Lucknow, Agra and Gwalior were also informed from time to time. On 8.2.1994 when there was break down of the machine opposite party No. 5 at Jhansi was informed. On 12.2.1994 the Service Engineer of opposite party No. 1 came to Lalitpur and found that the machine cannot be started. The Engineer went away after promising that he will return with spare parts but he never returned. On 21.2.1994 another Engineer, Ghan Shyam came to the workshop of the complainant but did not bring any spare parts like M.C. Relay and after three hours he went back and advised the complainant to change the remaining parts of the machine, after giving a report that the machine is totally stopped. Thereafter none came from opposite party. This resulted into financial loss and mental torture to the complainant and from 8.4.1994 to 29.4.1994 he was put to a loss of Rs. 200/- per day which comes to Rs. 16,000/-.

The complainant, therefore, lodged a claim before the District Consumer Forum for award of Rs. 51,250/- (on account of financial loss of Rs. 16,000/-, compensation and expenses of travelling Rs. 15,000/-, cost towards stoppage of the machine from 30.4.1993 to 7.2.1994 of Rs. 13,850/- and damages of Rs. 6,400/- towards mental torture etc.).

THE opposite party inspite of the service of notice did not appear before the District Consumer Forum and, therefore, ex-parte proceedings were drawn. The complainant filed an affidavit and other documents in regard to the service contract etc. and after hearing the case the District Forum decreed the complaint and directed the opposite parties to pay to the complainant a sum of Rs. 20,000/- as compensation. Cost of Rs. 100/- was also awarded.

AGGRIEVED of this order the opposite party, M/s. HCL Limited has come in this appeal. In the memo of appeal it has been stated that the opposite party had no knowledge of the case before service of the notice of execution proceedings and the entire proceedings proceeded ex-parte against the appellant. As per terms and conditions of the service contract, it was clearly stated that the contract shall be deemed to have been concluded in Delhi where it has been signed on behalf of HCL Limited and all obligation thereunder shall be deemed to be located at Delhi and the Courts at Delhi will have jurisdiction to the exclusion of all other Courts. The photocopier is an electronic equipment which requires regular maintenance through qualified Engineers and the machine in question was operated by three persons without obtaining the consent of the appellant which amounts to violation of terms and conditions of the service contract. The Forum at Lalitpur had no jurisdiction to try this complaint. In the Miscellaneous Case No. 9/2001, the applicant, who are the appellants, have stated that they have no office in Lalitpur and on the basis of the judgment and order passed by the District Consumer Forum on 10.11.1994 in Complaint Case No. 104/1994, the Execution Case No. 1/1995 has been instituted against the appellants. Even thereafter the complainant has filed another Complaint Case No. 15/2000 in the District Consumer Forum on the same subject-matter. This complaint case is not maintainable as the appeal is pending against the judgment and order passed in original Complaint Case No. 104/1994. In addition, the applicant received the notice in another Execution Case No. 3/2000 in respect of Complaint Case No. 104/1994. Therefore, the procedure adopted by the District Forum has not been in accordance with the law as in addition to Execution Case No. 1/1995 in Complaint No. 15/2000 and Execution No. 3/2000 has been proceeded against the applicant which is in violation of the law and the legal procedure has not been followed. It has, therefore, been prayed that the Forum be directed not to proceed and entertain the Complaint Case No. 15/2000 and Execution case No. 3/2000.

OBJECTIONS against this application were filed by the opposite party/complainant accompanied by an affidavit in which it has been stated that in Complaint Case No. 104/1994 the judgment and order delivered by the Forum has not been complied by the applicant and when the applicant filed an appeal before the State Commission an interim order was passed on 9.10.1995 that the appellant shall pay to the complainant an amount of Rs. 10,050/-. Even this interim order has not been complied with by the applicant and, therefore, he was compelled to institute Execution Case No. 15/2000 against the appellants/applicants. The miscellaneous application has been filed to harass the complainant.

WE have heard the arguments of the learned Counsel for the two parties and also the complainant who was present. The learned Counsel for the appellant has argued that the learned District Forum had no jurisdiction to try the complaint as it has been explicitely provided in the service contract that the jurisdiction will be exclusively with the Delhi Courts. It has also been argued that the service contract was for a period of three years. The complainant, during the contract period, was satisfied with the machine except for about 80 days when the machine developed problems and, therefore, a compensation of Rs. 20,000/- awarded by the District Forum was not based on solid grounds. The Counsel for the complainant/respondent has argued that the service contract in regard to the maintenance of machine clearly provides that the defects in the machine will be attended to at the place where the machine is installed. Therefore, the service was being provided by the opposite party No. 1 at Lalitpur itself and not at Delhi. Therefore, the jurisdiction rightly lies in Lalitpur. The period of service contract was from 26.10.1991 to 25.10.1994 and the machine stopped functioning from 8.2.1994. Therefore, the period of three years had not elapsed and for more than 10 months the machine became defective and ultimately unoperative due to the fact that the service providers did not remove the defects. It has also been stated that inspite of the orders passed by the Forum/Commission, the complainant has been put to harassment and mental torture. Therefore, he had to file execution case for recovering the amount granted by the District Forum and another execution case seeking receipt of the amount as ordered by the Commission in its interim order. We have also gone through the records of the two cases before us. In the appeal it has been contended that there is no jurisdiction of District Forum, Lalitpur and the territorial jurisdiction will lie only at Delhi. A perusal of the papers filed by the appellant will go to show that the machine in question was attended to at Lalitpur from time to time by the Service Engineers of the opposite party No. 1. These are annexed to the memo of appeal. The Service Engineer visited the shop of the complainant on 2.6.1994, 16.6.1994, 8.7.1994, 23.5.1994, 29.5.1994, 24.8.1994, 2.9.1994, 15.9.1994, 19.9.1994, 18.10.1994 and 23.10.1994. There is, therefore, no reason to believe that the jurisdiction does not lie at Lalitpur. The Forum was right in trying the complaint at Lalitpur. If it had been a matter of only purchase from Delhi, then the case would have been different but the service contract provides for the visit of the Engineer at site and the site was Lalitpur and a consideration of Rs. 20,000/- was paid for the service contract. We, therefore, hold that the point raised in regard to the jurisdiction has no basis.

A perusal of the annexures mentioned above will go to show that the machine was attended to by the Service Engineers of opposite party No. 1 from time to time. On a number of days the defects were removed and signatures of the complainant were obtained confirming rectification of the defects. The customer call-cum-service slip of 19.9.1994 makes it clear that the machine had some problems. Similarly the call chart of 29.6.1994 also indicates that the machine was not working. The call chart dated 8.7.1994 indicates that the drum life of the machine was over and it was suggested that the drum be changed. Again a number of defects were noticed in the call chart of 16.6.1994. This clearly goes to show that during the period of service contract itself the machine was not giving satisfactory performance and must have put the complainant to financial loss and mental strain. The service contract was to expire on 25.10.1994, but the defects in the machine continued to crop up from June onwards and ultimately it became unoperational for 80 days. Therefore, for about five months the working of the machine was irregular. The complainant had taken the machine as a measure of self-employment and, therefore, the loss caused to the complainant is understandable. In the circumstances the orders passed by the learned District Forum, Lalitpur granting a compensation of Rs. 20,000/- along with cost of Rs. 100/- are quite justified and does not need any interference and the same are liable to be confirmed. The appeal is, thus, liable to be dismissed. In regard to the miscellaneous case it is noteworthy that the conduct of opposite party No. 1 has been highly unsatisfactory. A perusal of the record goes to show that in case the opposite party No. 1 had complied with the interim orders passed by this Commission on 9.10.1995, the complainant would not have been put to harassment and because of the loss he had to file an execution case for compliance of the interim order. A perusal of the record goes to show that the District Forum has treated the application filed by the complainant as miscellaneous case and it has been wrongly mentioned as complaint case (para 15 of the miscellaneous application). The misc. case thus becomes infructuous and is liable to be rejected. ORDER The appeal is dismissed and the judgment and order of the learned District Forum are confirmed. Compliance of the order be made within six weeks from today. The appellant shall pay cost of Rs. 2,000/- to the complainant. Miscellaneous Case No. 9/2001 in view of this judgment and order becomes infructuous and is rejected. The District Forum concerned shall proceed with the execution proceedings in terms of judgment and order passed on 10.11.1994 in Complaint Case No. 104/1994. Let copy as per rules be made available to the parties. Appeal dismissed.