S. PATTABIRAMAN vs SP. ST. PALANIAPPAN

-THIS is an appeal against the order of 24th July, 1992 passed by the State Commission of Tamil Nadu in Original Petition No. 74 of 1992. The respondent complainant had purchased a Tower 386 computer on 30th October, 1990 from the appellant opposite party for Rs. 88,650/-. It was delivered on 3rd of December, 1990 and eventually installed in April, 1991. THIS computer was to be linked with two other computers already installed in the office of the respondent complainant. But from the very beginning the computer delivered was said to be not working properly. Complaints were made from time to time and the service staff of the appellant opposite party attended to the removal of defects of the computer supplied or to make it functional. On the 8th of August the computer was taken away by the appellant opposite party to the factory for repair and returned on the 11th August, 1991. It was taken again to the factory and returned on 7th November, 1991. The frequent break-down of the computer and the failure of the supplier to rectify the defects in the computer and make it functional led the respondent complainant to ask for refund of the cost of the computer and damages before the State Commission.

THE State Commission came to the finding that as the complainant respondent is a Chartered Accountant, he had purchased the computer for the purpose of his profession and as such it was for a commercial purpose. The State Commission, however, proceeded to state that the sale of the computer had a warranty and there was deficiency in service rendered by the appellant opposite party during the period of warranty. According to the State Commission, the warranty was a part of the contract for the supply of the computer and, therefore, "the purchaser becomes a consumer in respect of the services rendered or to be rendered by the manufacturer or supplier during the period of warranty". It, therefore, held that the respondent complainant was a consumer under Section 2(1)(d)(ii) of the Consumer Protection Act.

The finding of the State Commission was that during the period of warranty, the services rendered by the opposite party left much to be desired with the result the complainant could not fully utilise the computer purchased by him. The Commission, therefore, held that there was negligence and deficiency in service.

IN coming to this finding, it noted that the computer could not be linked with the two other computers already installed in the office of the respondent complainant, that the computer was taken twice to the factory on 3-8-1991 and then on 6-11-1991 but even thereafter it did not work properly etc. In its counter statement the appellant opposite party had pointed out that the warranty expired on 31st October, 1991. Thereafter he offered to the respondent complainant the service maintenance contract for a period of 12 months for a sum of Rs. 13,297 but there was no response from the respondent. After expiry of the warranty period the respondent complainant engaged the services of a third party to repair the system without the knowledge of the appellant opposite party. When the third party could not undertake the repair of the computer system, he lodged complaints and claims on the 5th February, 1992 regarding deficiency in the maintenance during the warranty period.

IN Annexure I to their appeal, the appellant had filed a statement of details of complaints made to him as the supplier and the action taken in respect of the said complaints. It received 11 complaints about non-functioning or malfunctioning of the computer from 4th January, 1991 to 31st October, 1991 and all the complaints were attended to and the computer was either found to be functioning or was made functional. It was only from 18th November, 1991 onwards they refused to attend to the computer because the warranty period was over. At the hearing he had also drawn attention to the service call reports filed in the paper book from page 24 to page 35 which the customer viz. respondent complainant had signed in token of the computer having been rectified to his satisfaction. The Respondent-Complainant in his counter has merely stated that the various Service Call Reports bear "ample evidence of the fact that the computer never worked properly and only generated service calls". Annexure C is a letter of 14th August, 1991 from the appellant opposite party to the respondent complainant that according to the service call reports signed by the executive of the respondent complainant and the engineer of the appellant opposite party the computer was affected by "Joshi virus" and the respondent complainant was advised to avoid using pirated operating systems and pirated softwares to avoid virus attack. He had particularly pointed out that the virus could affect the machine booting and system''s collapse could occur etc. He had further observed in that letter "Even earlier couple of times we have noticed that your machines had virus and also we brought it to your operator''s attention, but no corrective measures has been taken so far". It was emphasised that for machine''s safety only, legal software should be used. He has also pointed out that the computer was being used without air-conditioning as required, though no documentary evidence of such advise having been rendered has been submitted by the appellant.

IT is, however, clear from the narration of facts given above that there has been no deficiency in service on the part of the appellant opposite party. He had rendered service from time to time. Further, the service call reports indicate that the service rendered was satisfactory inasmuch as the defects were rectified and the computer system made operational to the satisfaction of the respondent complainant. We cannot also ignore that the complaint regarding the computer and the maintenance service being defective or deficient, was made only in February, 1992 after the warranty period has expired. We are, therefore, satisfied that there was no deficiency in service on the part of the appellant opposite party. Even if it is accepted that the computer did not really function at all it would only mean that there was inherent defect in the computer. Since this was sold for a commercial purpose, a complaint about the same cannot be maintained before a Consumer Forum.

IN the light of our findings above, the order of the State Commission is set aside and the complaint is dismissed. There is no order as to costs. Complaint dismissed.