PRIYANKA COMPUTERS SERVICES vs BAJRANG LAL AGRAWAL

THIS appeal has been preferred against the order dated 5.2.2001 passed by the District Consumer Disputes Redressal Forum, Raipur (hereinafter referred to as ''District Forum'' for short) in Complaint Case No. 379/99 whereby the complaint was allowed.

BRIEF facts of the case as narrated in the complaint are that the complainant had purchased a PCL computer on 25.9.1996 from the opposite party No. 1 for a sum of Rs. 23,500/-. The opposite party No. 2 is the manufacturer of the said computer. The computer purchased by the complainant was of an inferior quality and defects developed in the hard disk during warranty period. Thereupon the complainant approached the opposite party No. 1 for replacing the defective hard disk. On 24.9.1997 the opposite party No. 1 kept the said hard disk with him with an assurance that he will send the same to the office of the opposite party No. 2 and get it rectified or he will replace the defective hard disk. It was further averred that till date the hard disk was not replaced despite repeated assurances being given by the opposite party No. 1. The opposite party No. 1 had averred in their reply that they are only the dealer of the opposite party No. 2 and actually the complainant had purchased the computer from the opposite party No. 2. It was also averred that the complainant got the D.D. prepared in the name of the opposite party No. 2, as such the said party had received the price of computer. Hence the complainant was not the consumer of the opposite party No. 1 but has filed the case on false premises.

The opposite party No. 2 remained ex parte and no reply was filed on their behalf.

THE learned District Forum came to the conclusion that by not replacing the hard disk of the computer during warranty period the opposite parties have rendered themselves liable for deficiency in service and had directed the opposite parties either to refund the price of computer amounting to Rs. 23,500/- within a period of two months or replace the defective hard disk with a very good quality hard disk. THE learned District Forum had further directed payment of Rs. 500/- towards cost of proceedings. Aggrieved by the said order the opposite party No. 1 has filed the present appeal. The learned Counsel for the appellant assailed the impugned order and urged that the impugned order is vague and it is not clear as against which of the two opposite parties the same has been passed. Further that the learned District Forum has erred in not appreciating the fact that the appellant/opposite party has not committed any deficiency in service as he had sent the defective hard disk to the manufacturer company without any delay. The learned Counsel for the appellant vehemently tried to demonstrate that the firm is not at all liable as it had only forwarded the draft and it was the manufacturer/respondent No. 2 who had received the entire money and was, as such, obliged to repair or replace the hard disk.

THE learned Counsel for the complainant/respondent No. 1 supported the impugned order and contended that the order of the District Forum is just and proper and no interference if called for. The respondent No. 2 neither appeared before the District Forum nor before us. After hearing the learned Counsel for both the parties at length and perusing the record we are of the considered opinion that the learned District Forum has rightly decided that the complainant is consumer of the opposite parties. We also agree with the reasons assigned for arriving at the said findings.

SO far as the question of deficiency in service is concerned, we are of the opinion that it is clear case of deficiency in service as the defects developed in the hard disk during warranty period were not rectified by either of the opposite parties. Now we have to consider as to who is to be held responsible for the aforesaid deficiency.

IT is settled that whether a dealer or agent will be liable together with the manufacturer is a question of fact to be decided on the basis of material on record. We are of the opinion that there is sufficient material on record to show that the appellant actively participated in the dealings between the complainant and opposite party No. 2. IT is undisputed that the appellant had sold computer of PCL Company to the complainant. The appellant had also received the demand draft from the complainant and had forwarded the same to the opposite party No. 2. IT is also undisputed that defect developed in the hard disk during warranty period and that the appellant had received the defective hard disk from the complainant with an assurance to send the same to the opposite party No. 2 for being repaired or replaced. All this goes to reveal that the complainant had no direct dealing with the manufacturer. The appellant had also handed over a copy of the letter alleged to have been sent by the appellant to the manufacturer/respondent No. 2 company and a copy of the same is on record. It appears from the same that the appellant had written a letter to some Manish Pujari of Nagpur. On the basis of contents of the letter it may be said that the appellant had made some efforts to resolve the matter. However, it also appears from the letterhead of the appellant on which the letter has been written that the appellant was authorized for sales and service from various companies and PCL is one of them. Hence there is no doubt that the appellant was authorized by the PCL Company not only to sell but also to provide service. Now it was for the appellant/opposite party No. 1 to prove the terms of agreement in support of their claim that sole responsibility to repair or replace the hard disk during warranty period was on the manufacturer company. No such agreement or other material is placed on record to indicate that the appellant was not under obligation to repair the defects in the hard disk during warranty period.

Under the circumstances, we are of the opinion that the appellant cannot be permitted to shirk from liability towards the complainant and both the appellant and manufacturer/respondent No. 2 are jointly and severally liable for deficiency in service for not rectifying the defects in the hard disk developed during warranty period or replacing the defective hard disk.

HOWEVER, it is observed that the learned District Forum had directed the opposite party to pay to the complainant Rs. 23,500/- i.e., the price of the computer or replace the defective hard disk with good quality hard disk. Such finding is obviously erroneous. Though the complainant has claimed such relief but the same cannot be granted as main contention of the complainant was that defects developed in the hard disk during warranty period were not rectified. It is a matter of common knowledge that the price of computer is inclusive of price of the hard disk but the same also includes various other items e.g. monitor, CVT, mouse etc., so even if the hard disk was defective, entire price of the computer cannot be directed to be refunded. Further, the price of the hard disk varies according to its capacity and make. Neither the complainant nor the opposite parties have stated as to what was the capacity and make of the hard disk or what was the actual price that was paid by the complainant towards the price of the hard disk. Under the circumstances, relief of refund of price cannot be awarded. This appeal is partly allowed. The order of the District Forum is set aside. It is directed that: (i) The opposite parties shall be jointly and severally liable to replace the defective hard disk of the PCL computer sold to the complainant by a standard compact hard disk of the same capacity so that the computer becomes serviceable above. The compliance as above be done within a month from the date of this order, failing which the opposite parties shall be jointly and severally liable to pay to the complainant/respondent a sum of Rs. 2,000/- (Rupees two thousand) only.

(ii) The opposite parties shall also pay jointly and severally consolidated sum of Rs. 8,000/- (Rupees eight thousand) towards harassment, inconvenience and loss suffered by the complainant in addition to Rs. 1,000/- towards cost of the proceedings.

Appeal partly allowed.