KIRAN DESSAI vs ZENITH COMPUTERS LTD.

THE appellant has assailed the order dated 28.1.2002 made by District Forum, North Goa, in Complaint No. 227/1994 whereby her complaint alleging deficiency in service on the part of the respondents was dismissed.

THE appellant is the complainant and the respondent is the opposite party before the District Forum. Parties shall be referred to as arrayed before the District Forum for convenience. The factual matrix of the complainant''s case as seen from the records can be stated thus:

The complainant purchased a Zenith Super PC x T System comprising T-1 micro laser for Rs. 1,64,000/- in January 1991. Certain terms and conditions were settled between the parties by letter dated 14.1.1991. The said system remained idle from 25.4.1993 on account of non-supply of toner. The complainant issued a letter to the opposite party dated 20.5.1993 for supply of one cartridge of toner for the microlaser of the said system. In view of the non-supply of the said part, the complainant issued a reminder dated 25.8.1993. In its reply dated 29.9.1993, the opposite party informed the complainant that the toner was not available and they were not in position to supply it. The complainant reminded the opposite party of the commitment made by them as regards the availability and supply of spare and consumables for the said T-I microlaser by her letter dated 21.10.1993. As there was no response, the complainant by her letter dated 25.11.1993 placed a firm order on the opposite party for the supply of spares, namely drum and drum cleaning assembly. This was followed up by more correspondence. However, the opposite party issued a reply dated 21.1.1994 and made baseless allegations against the complainant and demanded Rs. 5,000/- as inspection charges.

THE system remained idle from April 1993 till date. The complainant issued a legal notice to the opposite party dated 15.4.1994 and calling upon the opposite party to pay damages quantified at Rs. 50,000/-.

THE complainant claimed damages calculated at Rs. 200/- per day from 25.5.1993 till payment and further damages of Rs. 50,000/- for mental agony and harassment. Per contra, the opposite party contended that the complaint was not maintainable as the computer system has been utilized for commercial purpose. It was also contended that the complaint was filed belatedly beyond the period of limitation. The computer system was purchased in January, 1991 with twelve months warranty period. On expiry of warranty period, the complainant was approached for entering into annual maintenance contract which was turned down by the Complainant. The letter dated 19.2.1991 was denied as being a contract. It was reiterated that the system was installed in January, 1991 and the warranty expired by end of December, 1991. The complainant had not paid for the spares and consumables and, therefore, there was no contract of service. The District Forum after considering the evidence on record and submissions of the parties dismissed the complaint on the ground that the computer system had been purchased for commercial purposes. The Forum was also of the view that the allegations of deficiency in service and unfair trade practice had not been proved.

WE have perused the records of the trial proceedings in minute detail and considered the written arguments of the parties.

WE do not agree with the finding of the District Forum that the complainant was not a consumer as the goods have been bought for commercial purpose. The law on this point has been settled by the Apex Court in Laxmi Engineering Works v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC)=1995 AIR SC 2114. The Court ruled that a person who buys goods and uses them himself exclusively for purpose of earning his livelihood by means of self-employment is within the definition of expression "consumer". The Hon''ble Supreme Court gave illustrations to bring home the point and emphasized that even if such a person taken the assistance of one or two persons to assist/help him in operating the machinery, he would not cease to be a consumer. In the case before us, the complainant had purchased the computer system for her concern under the name and style of "Laxmi Prints" which was self employment venture. The mere fact that she was seeking the assistance of two helpers would not disentitle her from claiming relief under the Consumer Protection Act. The complainant was cross examined by the opposite party on the issue of commercial use of the sit system. She deposed that whenever she was absent, the shop remain closed as nobody else managed the said firm. She further deposed that the canon xerox machine and the typewriter were personally operated by her. In our opinion, there is nothing in the complainant''s affidavit nor in her deposition in cross to show that the said machinery was used for "commercial purposes" as laid down by Hon''ble Supreme Court in Laxmi Engineering Works case supra. We have also perused the profit and loss statement produced by the complainant in cross. It is true that the said machinery has been included as an asset and there is a provision made for depreciation thereof. However, this fact by no means discloses that the suit system was used for commercial purposes. In fact the accounts statement produced by the complainant vindicate our view that the firm "Laxmi Prints" was a sole proprietorship self-employment venture of the complainant.

Coming to the allegations of deficiency of service and unfair trade practices, the opposite party''s letter to the complainant dated 14.1.1991 is crucial to the dispute between the parties. It appears that the said letter was issued at the time of purchase of the suit system. In the said letter, Shri Rajesh Nadkarni Marketing Executive of the opposite party-company, assured the complainant that (1) the opposite party had a full-fledged setup for after-sales service at Sancoale Industrial Estate (ii) the opposite party had a ready stock of spares to provide service for the suit system, and (iii) the uptime of the system would be 95%.

BY letter dated 20.5.1993, the complainant placed an order for one cartridge of toner which she desired to procure from the opposite party-company as the same was not available in the market. This letter was followed up by a reminder dated 25.8.1993. The opposite party company, in their reply dated 29.9.1993 informed that the toner was not available with them and hence they were not in a position to supply the same. Thereafter, the complainant issued four letters to the opposite party-company requesting for supply of toner as well as for spares like "Drum" and "Drum Cleaning Assembly". The complainant also brought to the notice of the opposite party-company that the suit machine was down due to non-availability of the consumables and spares. In one of the letters, the complainant also asked for proforma invoice/quotation of the said consumables and spares. However, the opposite party-company in their letter dated 21.1.1994, agreed to inspect the suit machine on condition that the complainant pays inspection charges of Rs. 5,000/- in advance and thereafter the opposite party would submit an estimate for the repairs. The opposite party further stated that uptime could not be assured without an "Annual Maintenance Contract".

IT is clearly evident from the records that the complainant was only asking for supply of consumables and spares for the suit system. Therefore, the opposite partys-company''s stand that any service beyond the warranty period would be extended only if the complainant entered into an Annual Maintenance Contract cannot be accepted. The opposite party-company, in their letter dated 14.1.1991 has assured the complainant that they had a full-fledged setup at Sancoale Industrial Estate and that there was a ready stock of spares to provide service for the suit system. Whether the complainant attempted to procure the said consumables/spares from the open market and approached the opposite party-company as the same were not available by no means would dilute the liability of the opposite party to supply the same as and when they were approached by the complainant. In her letter dated 13.12.1993, the complainant had made it clear that she had purchased the suit system only because the opposite party-company had a full-fledged setup at Sancoale Industrial Estate and because ready stock of spares was available. In another letter dated 25.11.1993, the complainant placed a firm order for the spares and even asked for a proforma invoice to facilitate immediate payment. The opposite party-company''s replies dated 29.9.1993 and 21.9.1994 disclose a complete turn around from the assurances given in the letter dated 14.1.1991. In our considered opinion, the conduct of the opposite party-company in refusing to supply the spares and consumables on the pretext of Annual Maintenance Contract amounts to unfair trade practice coupled with deficiency in service, more so in view of the fact that the complainant-consumer was assured in writing about the opposite party-company''s full-fledged after-sale setup and ready availability of spares. The complainant purchased the suit system believing the assurances made in the said letter. In hindsight, the contents of the said letter dated 14.1.1991 have turned out to be empty promises. In our considered opinion, the complainant has shown pre-ponderance of probability of her allegations of unfair trade practice coupled with deficiency in service. The complainant has claimed damages and compensation under various heads at para 5 of the complaint.

SHRI S.G. Hegde, Chartered Accountant, has filed an affidavit-in-evidence in support of the complainant wherein he had stated that as per his assessment, the complainant was earning about Rs. 200/- per day at an average from the suit computer system. However, the income statements produced in cross do not support this assertion. The statements show that "Laxmi Prints" made an average net profit of Rs. 21,233/- in the financial years 1991-1992 and 1992-1993 when the suit machine was in operation. Considering that two thirds of the profit was generated by the suit machine (as per the assessment of the Chartered Accountant), the suit machine was generating net income of Rs. 1,180/- per month. In our opinion, the complainant would be entitled to a compensation to the extent to Rs. 1,180/- per month from May, 1993 till supply of the consumables and spares sought by the complainant.

AS discussed above, the opposite party-company committed unfair trade practice by luring the complainant into purchasing their system by giving false assurances in their letter dated 14.1.1991. There is no doubt in our minds that the complainant must have undergone mental agony and sheer helplessness and frustration because of the conduct of the opposite party. The correspondence of the opposite party clearly indicates that the opposite party abandoned the consumer after sale of the machine and sought to pressurize the complainant into entering into irrelevant maintenance contracts, etc. for supplying essential consumable and spares. In the light of our discussions above, we pass the following order: (i) The impugned order dated 28.1.2002 made by the District Forum North Goa in Complaint No. 227/94 is hereby quashed and set aside. (ii) The Complainant No. 227/94 on the file of District Forum, North Goa is partly allowed. (iii) The opposite party is directed to pay to the complainant an amount of Rs. 1,180/- per month from June, 1993 till supply of the "toner" for T1 Miscrolaser printer and "Drum" and "Drum Cleaning Assembly", within 30 days. (iv) The opposite party is directed to pay to the complainant an amount of Rs. 25,000/- as compensation towards mental torture and agony undergone by the complainant, within 30 days. (v) The opposite party is directed to pay to the complainant an amount of Rs. 10,000/- as costs of this litigation throughout. Order accordingly. Appeal allowed.