RAKESH KUMAR vs MANISH CHHABRA

THIS order will dispose of Appeal Nos.A-18/93 and A-19/93 which arise out of the same judgment dated 23.12.92 of District Forum-I.

BRIEFLY the facts are that the complainant purchased a computer package from M/s. Vikman Business Graffiks Pvt. Ltd. (VBGL) for a consideration of Rs. 50,000 / -. He also purchased a table top, with supports and transformer (SVT) for Rs. 2,500/-. He issued a Cheque dated 25.11.89 of Rs. 12,500/- in favour of M/s. Crompton Greaves Ltd. (OG) by way of advance, the manufacturer of the computer. Later he gave another cheque dated 3.1.89ofRs. 40,000/- in favour of VBGL. It is pleaded by him that VBGL and CG, gave warranty of the computer for a period of one year. The system, however, did not work and it has been lying idle since the date of purchase as the respondent failed to supply the software''s. Consequently, a complaint has been filed that the system should be made functional by the Opposite Parties and that respondent No. 1 be directed to supply the software''s. He has also claimed damages against them. The notice was issued to Mr. Manish Chhabra respondent only by the Forum, but he was proceeded against ex-parte as he did not appear inspite of service and the Forum vide order dated 20th October, 1989 directed the respondent to pay Rs. 57,500/- (Rs. 52,500/- paid by the complainant for purchase of computer plus Rs. 5,000/- as damages) alongwith interest @ 18% p.a. till the date of payment.

Mr. Manish Chhabra did not comply with the order of the Forum and was sentenced under Section 27 of the Consumer Protection Act to undergo one year''s imprisonment. He came up before this Commission against the order of his conviction which was set-aside by the Commission vide order dated 16.12.91 and the case was remanded to the Forum.

THE ex-parte order was set-aside by the District Forum on an application of the respondent and they were allowed to file the written statement. THEy pleaded that the manufacturer and supplier of the goods was CG and they were acting as a booking agent for them. THE computer system was provided to the complainant by CG in whose favour the advance cheque of Rs. 12,500/- had been issued by him. That was also installed by CG on 3.2.89. At the time when the complaint was filed, the computer had been functioning. In case there is some defect therein the complainant should get the redressal from CG. He also pleaded that the computer was supplied by M/s.. V.B.G.L. for a consideration of Rs. 57,325-00 out of which an amount of Rs. 52,500/- had been paid and the balance of Rs. 4,825/- has not been paid inspite of various requests. Instead of paying the amount of Rs. 4,825/- the complainant made a grievance to them that the monitor supplied by CG was not functioning properly. At their instance the CG changed the monitor on 19.5.89. It is further pleaded that the software''s were to be purchased by the complainant separately, from the manufacturer or the recognised dealer. No notice of the complaint was issued to the CG by the District Forum. After hearing the parties it directed Mr. Chhabra that he should make the system functional within 60 days. If for any reason it could not be made functional within that period due to any defect in the entire package, he would refund the amount of Rs. 52,500/- to the complainant alongwith Rs. 5,000/- as damages. Two appeals have been filed against the said judgment. One by Mr. Manish Chhabra (A-18/93) and other by Mr. Rakesh Kumar (A-19/93). A-18/93

FIRST I shall deal with the appeal filed by Sh. Manish Chhabra; The first contention of Mr. Mohd. Abid, the learned Counsel for the appellant is that the appellant was not liable to supply the software''s alongwith computer. We have duly considered the argument but regret our inability to accept the same. The complainant relying on the basis of advertisement published and the details provided by the appellant purchased the computer. In the details, it was mentioned that the VBGL would provide the entire package alongwith computer. In the package the following software''s are included (see Serial No. 4). "a. DOS b. DTP Software (Book Work-Designing) c. Word Processing Software d. Data base Management Software. e. Mouse Software. f. Sample Layouts."

In addition to the software''s the appellant offered club Membership of VBGL for one year. He also offered VBGL extensive training to one person for two days. From the aforesaid advertisement and the details it is evident that the appellant offered to supply software''s and he cannot now say that the respondent was not entitled to get software from him. Faced with this situation Mr. Abid sought to argue that the package was available between 13 and 19 Jan.''89, but the complainant respondent purchased the computer in the month of February. Therefore, he was not entitled to take benefit of the advertisement. We do not find any substance in this contention as well. In the receipt by which the amount of Rs. 12,500/- was received by the opposite party-appellant from the complainant, it is specifically mentioned that the amount was towards the cost of DTP Solution. In the details supplied to him, the phrase DTP Solution has also been used at various places. The phrase DTP Solution means the " Configuration Offered" as given at page-2 of the said details. It is not disputed that the appellant gave club Membership to the complainant and installed the computer at his residence. These two items are also provided in the details. If the software''s were not to be provided, the same would have been scored out from the details and he would not have also been provided with the above benefits. Therefore, we reject this submission as well. Mr. Abid has next argued that the appellant approached the complainant for rectification of the defects in the computer but he did not get them rectified. This contention is also without substance. It is not disputed that the computer cannot work unless software''s are fed therein. No software''s have been provided by the appellant to the complainant till date and therefore, the question of testing the computer could not arise. In the circumstance we reject this submission.

MR. Abid has further argued that the computer was used for three months by the complainant and therefore it cannot be said that it was not in a working condition. This argument has also no substance. As already discussed above the computer cannot be operated without software''s. In the present case the complainant has not been supplied with the software''s and therefore the question of using it did not arise.

MR. Abid has further argued that the relief which has been granted by the District Forum was not claimed by the complainant and therefore, that relief could not be granted. We have considered the argument. All the provisions of the Civil Procedure Code are not applicable to the complaints under the Consumer Protection Act (hereinafter referred as the Act). The complainant is required to state the facts in the complaint. In case a relief is available to him on the basis of the facts stated by him and the Para under the Act can grant that relief, it can always be granted to him. It appears that the appellant is not ready to give the software''s to the complainant. We have also apprehension that if software''s are supplied by him they may not be of good quality and again a litigation may start between the parties. Taking into consideration we are of the view that it will be proper if lump sum amount is given to the complainant for purchase of the software. We fix that amount as Rs. 15,000/-.

One of the reliefs which has been granted against the appellant is that the system should be made functional by them. C.G. is the manufacturer of the computer. In our opinion the manufacturer and the dealer were both liable to rectify the defect in the computer during the period of warranty. The complainant is a lay man and he / did not file the memo of parties in the District Forum. Therefore, no notice was issued by the Forum to the CG, though their names figured in the complaint. During the hearing this fact was discovered and consequently we issued notice to the C.G. and they are represented before us by a Counsel.

MR. Amitabh Narain, the learned Counsel for the CG has vehemently argued that no notice could be issued to the CG as they were not made parties to the proceedings. As already mentioned above their name was mentioned in the complaint as supplier of the computer through the appellant. It is further stated in the complaint that a cheque of Rs. 12,500/- was given by the complainant in the name of CG. It is also not disputed that the computer was supplied by them and that the monitor was found in a damaged condition and it was replaced by them. Taking into consideration all the aforesaid circumstances we do not agree with this contention. We further hold that C.G. is liable to rectify the defects in the computer, if it does not function after the software''s are fed interim. We are also of the opinion that the finding regarding damages is also unassailable. A-19/93 Now we advert to the appeal of the complainant. He has argued that he has not been granted interest on the decretal amount which he is entitled to get. It has been held by us, that the complainant has not been able to operate the computer as software''s were not supplied to him. However, he could himself purchase the software and use the computer. It has not been done by him. In the circumstances we are of the view that he is entitled to interest, only on the amount of Rs. 15,000/-, the price of the software''s. We fix 18% p.a. as the rate of interest.

NO defect has been pointed out by him in the computer. The only grievance of the complainant is that he has not been able to operate it for want of software''s. In the circumstances it will not be proper to allow interest on the price of the computer to the complainant. The complainant may purchase the software''s from his own resources and the respondents would make the computer functional. In case any defect is found in the computer the CG and Mr. Chhabra jointly and severely will get the same rectified. If there is defect in any other item of the package supplied by Mr. Chhabra, that should be got rectified by Mr. Chhabra. For the aforesaid reasons we partly accept both the appeals and direct Shri Chhabra to pay an amount of Rs. 15,000/- with interest @ 18% p.a. from 3.2.89 till date of payment alongwith Rs. 5,000/- as damages within a period of three months. M/s. CG and Mr. Chhabra are jointly and severely directed to make the computer functional, as soon as the complainant purchases the software''s. It will be proper that he should purchase the software''s within a period of six months. The warranty of the computer is extended for a period of 18 months from the date of the order. In case the respondents fail to comply with the order, action shall be taken against them u / Sec. 27 of the Consumer Protection Act and that Shri Chhabra shall further be liable to pay interest on the amount of Rs. 5,000 / at that rate from the date of filing the complaint till the date of payment. In the circumstances of the case we grant Rs. 3,000/- as cost against Shri Chhabra to the complainant. Appeals partly allowed. ______________