SAKSHYAM SERVICES PRIVATE LIMITED vs SADHNA RANA

DISTRICT Forum, Jalandhar on April 17, 1998 allowed the complaint filed by Smt. Sadhna Rana w/o R.P.S. Rana with the direction to the opposite parties M/s. P.C.S. Data General (India) Limited and M/s. Sakshyam Services Private Limited to refund Rs. 99,470/- with 18% interest from the date of receipt of the aforesaid amount upto its return alongwith costs of Rs. 1,000/-. The present appeal has been filed by M/s. Sakshyam Services Private Limited. The complainant is the respondent so is the M/s. P.C.S. Data General (India) Limited, the opposite party. The prayer in appeal is for setting aside the impugned order against the appellant alongwith costs.

ON November 15, 1994, the complainant Sadhna Rana placed an order with the appellant, opposite party No. 2, for supply of original 486 DX Computer with 8 MB RAM as described in para 2 of the complaint against price of Rs. 92,970/-. The order was placed on the representation of Ashwani Sondhi, a Director of opposite party No. 2 and an authorised dealer of opposite party No. 1 M/s. P.C.S. Data General (India) Limited. The opposite party No. 2 was to provide service at Jalandhar where the computer was to be installed. The contract was accompanied by a warranty of one year. A sum of Rs. 1 lac was paid by Bank Draft drawn on Oriental Bank of Commerce, Jalandhar. Again an amount of Rs. 29,290/- was paid. The advance amount was paid by bank draft drawn on 8.12.1994 and the balance was paid in cash at the time of delivery at Jalandhar. Mr. Ashwani Sondhi himself delivered the computer at Jalandhar. He also got it installed. In December, 1994, he brought one Black and White Monitor instead of a Colour one. MS DOS 6.2 was not installed and these defects were pointed out to Mr. Ashwani Sondhi. He promised to bring his Engineer at Jalandhar, however, no-one came upto January, 1995. Thus, after prior intimation, the computer was taken to Delhi in December, 1995. It was kept for sometime and was handed over to the complainant stating that needful had been done. However, the computer did not work properly as per defects pointed out in para 6 of the complaint. Since the computer was lying unused, District Forum was approached for the relief. Separate replies were filed by opposite parties. M/s. P.C.S. Data General (India) Limited took up preliminary objections denying privity of contract. The complaint was bad for non-joinder of necessary parties. The complainant was not a consumer. The complaint was malafide and collusive between the complainant and opposite party No. 2 who was not their dealer. The sale took place at Delhi. Opposite party No. 2 was not authorised to make any upgrading of the computer system. Opposite party No. 2 had made unauthorised changes in the system. Opposite party No. 2 in its reply urged that complicated questions of law were involved and the matter was outside the jurisdiction of the District Forum. Sh. R.P.S. Rana, husband of the complainant dealt with the opposite party No. 2. The computer was purchased for commercial purposes with a view to re-sale the same. The warranty stood breached on account of breaking of the seals of the computer. It was stated that the computer was purchased for re-sale as the husband of the complainant had applied for sub-dealership of opposite party No. 2, who claimed to be authorised dealer of opposite party No. 1, the manufacturer of the computer. There was warranty for one year. The computer was ungraded as per advice of the complainant. It was admitted that Ashwani Sondhi had gone to Jalandhar to deliver the colour monitor and for taking price of the computer from the husband of the complainant. The supply of the computer with Black and White Monitor was as agreed. In February, 1995, computer was taken to Delhi as admitted. The machine was sent to the manufacturer and it was re-delivered to the complainant after necessary corrections. The complainant filed a re-joinder denying the new facts as introduced. Both the parties produced their evidence on affidavits and documents. Earlier the complaint was dismissed by the District Forum on October 1, 1996. An appeal was filed before this Commission against the aforesaid order which was accepted by this Commission on November 11, 1997. The case was remanded back to the FORA for decision on merits. After remand, both the parties were given opportunity to produce evidence and thereafter the impugned order was passed.

It has been argued on behalf of the appellant, the so called dealer, that infact there was no defect in the computer. Only service was done as a mark of goodwill, free of charge. Secondly, it has been argued that an application was moved before the District Forum for examination of the computer by an expert on which the FORA did not pass any order. Further reference has been made to the affidavits filed on behalf of the opposite parties to indicate that there was no defect in the computer. It has also been argued that the complainant cannot be considered as a consumer as computer was purchased for re-sale. We have given due consideration to the arguments aforesaid. However, we find no merit therein.

THE first contention of Counsel for the appellant is that there was no defect in the computer and only servicing was done at Delhi when the same was brought. It is in this context, it is further stated that computer is a sophisticated machine and the same should have been allowed to be examined by some expert to prove any defect in the computer and the District Forum wrongly rejected application filed in this respect. Reference were made to the decision of National Commission in M/s. Essen Computers Ltd. v. Tagore Gracias, III (1994) CPJ 131 (NC), and of Tamil Nadu State Commission, Chennai in M/s. Poppys Valley Pvt. Ltd. v. M/s. Modular Cold Rooms (P) Ltd., III (1998) CPJ 653. As far as the first case is concerned that has been cited, it is on the subject of use of the computer for commercial purposes. In the present case, no evidence has been produced on behalf of the opposite parties that either the complainant or her husband were already running any institute of giving training of computers to the students. THE mere fact that husband of the complainant had applied for franchise is not enough to hold that at the relevant time of purchase, husband of the complainant was running an Institute for giving training to students. Thus, ratio of the National Commission''s judgment is not applicable in the facts of the present case. As far as production of expert evidence is concerned, one fact is established from the evidence of the complainant that the computer is not working, much less satisfactory. As to what is the defect therein, that could only be established from the expert evidence and non-production of expert evidence in this respect is not considered fatal to the case of the complainant. At the appropriate time, request for examination of the computer should have been made but in the present case, such an application was made at the fag end of the proceedings. THEre is another aspect of the matter that M/s. P.C.S. Data General (India) Limited has not challenged the impugned order on merits as no appeal has been filed. THE finding of defect in the computer or deficiency in rendering service as such has to be accepted atleast against M/s. P.C.S. Data General (India) Limited Company. THE proceedings of the District Forum indicate that statement was recorded on December 24, 1997 that no further evidence was required. The further question for consideration is as to whether unfair trade practice was adopted by the appellant in the matter of supply of the computers. Reference be made to Ex. A-8, a letter from P.C.S. Data General (India) Limited that they had not appointed M/s. Sakshyam Services Private Limited to supply computer system on their behalf to the complainant. It was further informed that if the complainant had so purchased the system, it would be solely at his own risk and responsibility. This would show that sale of the computer by the appellant to the complainant was not as supplied by the manufacturer. Upgrading is stated to have been done before supply of the computer to the complainant which would itself indicate that the computer as received from the manufacturer was not supplied to the complainant. When unauthorised companies dupe the public by collecting huge amount for purchase of imported machinery without any authorisation from the manufacturer, it amount to unfair trade practice. The complainant in the present case on the assumption that original machinery was to be supplied had placed the order but as per allegations already referred to above, upgraded machine was supplied and upgrading was done at the level of the appellant. In the circumstances of the case as referred to above, the District Forum rightly passed the impugned order and we find no merit in this appeal which is dismissed with costs of Rs. 500/-. Appeal dismissed.