PCS DATE GENERAL INDIA LTD. vs JYOTI KOTHARI

THIS appeal has been filed by the opposite party (OP) against the order of the District Forum-I, dated 30.7.92.

BRIEFLY the facts are that the complainant Mrs. Jyoti Kothari, purchased a computer system from the opposite party for consideration of Rs. 36,300/- in March, 1990. She paid Rs. 36,000/- vide receipts dated 19.3.90 and 31.3.90. The balance amount has not been paid by her till date. The computer system was installed by the opposite party at her residence on 31st March, 1990. It is pleaded by the complainant that the computer system had not been working well since the time it had been purchased by her and its defects could not be rectified by the opposite party. She was working as a Senior Scientific Officer with the I.I.T., New Delhi and had undertaken a time bound project relating to Solar Passive Architecture. However, on account of malfunctioning of the computer she failed to keep up her commitment and suffered loss in reputation. She consequently filed a complaint for directing the opposite party to replace the computer alongwith the accessories, or in the alternative to refund the full amount of Rs. 36,000/- with interest and to pay damages of Rs. 50,000/- on account of mental torture and harassment suffered by her.

The complaint was contested by the opposite party. They inter-alia pleaded that the complainant was not a consumer and therefore, the complaint was not entertainable by the District Forum. They further pleaded that whatever defects were pointed out in the computer by the complainant, were rectified and some of the parts were replaced; thus there was no deficiency in service rendered by them to her.

THE learned District Forum directed the opposite party to replace the computer system with a trouble free computer system; in the alternative to refund Rs. 36,000/- to her alongwith interest @ 15% p.a. from 31.3.90 to the date of payment and to pay Rs. 30,000/- as damages for mental torture and harassment suffered by her. THE opposite party has come up in appeal against the said order to the Commission. The 1st contention of the learned Counsel for the appellant is that the Judicial Member of the Forum left the Court Room after hearing the case for sometime thus he did not hear the arguments of the parries in full. He submits that consequently the impugned order is liable to be set-aside on this short ground. On the other hand the respondent submitted that the Judicial Member heard most of the arguments and for a short period he left the Court Room. She urges in the circumstances there is no illegality in the order of the Forum.

WE have duly considered the argument. It is not disputed that the Judicial Member did not hear all the arguments and while the arguments were going on he left the Court Room. There is some difference between the version of the parties regarding the time during which he heard the arguments. Normally the cases under the C.P. Act are not very complicated cases and after hearing the case for sometime one can understand the facts and legal proposition involved therein. But we feel that the President should have remained present throughout the arguments. However, in the facts and circumstances of this case, we are of the view that it cannot be said that the Judicial Member did not hear the case at all and apply his mind to the facts of the case. Moreover, the complaint was instituted by the complainant before the District Forum in April, 1991. Already a period of about 3 years has expired. WE have also heard the .parties at considerable length. It will not be proper on one part to remand the case on this technical ground. Consequently we are not inclined to remand the case. The 2nd submission of the learned Counsel for the appellant is, that he made an application before the District Forum for allowing him to cross-examine the complainant. However, the application was not decided by the District Forum. He submits that he should be allowed to cross-examine the complainant. We do not find any substance in this submission as well. It is correct that the appellant filed an application for cross-examination of the complainant and the Forum passed an order on 25.5.92 that no useful purpose would be served by calling the complainant as the affidavit had already been filed by her. It however further observed that while hearing arguments it was considered necessary to call her for cross-examination she would be called. The case was adjourned to 29.6.92. On that date the complainant was present. However, it appears from the order, that at the time of arguments no request was made by the Counsel for the respondent that he wanted to cross-examine the complainant and on what points. There is also no mention about this fact in the final order of the Forum. No affidavit has been filed by the Counsel for the complainant that the application was pressed before the District Forum at the time of arguments and they did not decide the same. Consequently we reject this submission of the learned Counsel as well.

THE 3rd contention of the learned Counsel for the appellant is that the question whether the computer was or was not functioning properly was a technical matter and in order to decide it, the computer should have been sent under Section 13 of the Consumer Protection Act, hereinafter referred to as ''the Act'' for lesting to some technical person. We do not find any force in this contention as well. This point was not raised before the District Forum. It is not necessary that in all cases a machine should be sent for testing to a technical person. THE complainant drew our attention to various job cards prepared by the engineers of the appellant when they were called to rectify the defects. In case there were no defects in the computer they would not have attended to the complaints and wrote to her accordingly. In the job cards, it is mentioned that the appellant replaced many parts of the computer. In case the computer was functioning properly there was no necessity of replacing those parts by the appellant. THErefore, we reject the submission.

THE 4th contention of the Counsel for the appellant is that the computer was being used by the complainant for commercial purpose and therefore, the District Forum had no jurisdiction to entertain the complainant. We have given our thoughtful consideration to the argument but do not find any force in this contention too. THE complainant is a Sr. Scientific Officer in the Indian Institute of Technology and had undertaken a time bound project. In order to facilitate her work, she had purchased the computer. It has not been shown by the respondent that it was being used by her for any commercial purpose. THErefore, this contention is also rejected. The learned Counsel for the appellant in the first instance sought to contend that the computer was functioning properly but subsequently he submitted that the appellant was agreeable to replace the computer as directed by the District Forum. Thus he did not challenge that part of the order.

The last contention of Mr. Sukhija is that no damages should have been granted to the complainant as she used the computer for a considerable period. He submits that in any case, the amount of damages granted to her are very high. We have considered the argument. It has already been held by us that the computer had not been functioning properly. It is but natural that she must have suffered mental torture and embarassment as it did not function properly. She, however, has not been able to show to us material loss suffered by her due to non-functioning of the computer system. She completed the project without the help of the computer but it took her more time. In the circumstances it cannot be said that except for physical discomfort or mental torture there was any material loss suffered by her. She admits in her affidavit dated? April, 1992 that she suffered in her work which got delayed considerably. We are of the view that in the aforesaid circumstances the amount of damages granted to the complainant/respondent are on higher side. Consequently we reduce the amount of damages from Rs. 30,000/- to Rs. 20,000/-.

FOR the aforesaid reasons we partially accept the appeal and reduce the amount of damages from Rs. 30,000/- to Rs. 20,000/-. The appellant shall replace the computer system and pay the amount of damages within a period of 3 months from the date of order failing which action shall be taken against them under Section 27 of the Act and they shall further be liable to pay interest on the decretal amount @ 15% p.a. from the date of decree till the date of payment. In case they fail to replace the computer, they shall be liable to pay the price of the computer with interest as ordered by the District FORum. In view of the partial success of the appeal we leave the parties to bear their own costs in the appeal. Appeal partly allowed.