TAGORE GRACIAS vs TAGORE GRACIAS

BOTH the appeals are disposed off by this common order as they arise out of same order of the District Forum dated 23.3.92 passed in complaint No. 249/91. Shortly stated facts are that the complainants who are husband and wife purchased from M/s. Auspicio Rodrigues the local dealer a computer manufactured by M/s. Essen Computers Ltd., for a consideration of Rs. 41740/-. It is alleged in the complaint that the key board as well as the time clock of the computer were not working. Even after the replacement of the keyboard the computer could not be used. The complainant there- fore, filed a complaint on 21.3.1991 before the District Forum. On learning this information the opposite party No. 1 rushed to the residence of the complainant replaced that computer with a new machine. The complainant found that the new machine also having defects in the key-board and the hard disc. It is alleged in the complaint that the replaced computer was also defective. Therefore the complainant filed this complaint in respect of the second replaced computer claiming refund of Rs. 41,740/- and compensation of Rs. 49,000/-.

IN his written version the local dealer objected to the jurisdiction of the District Forum and also challenged the claim of the complainant. It is also alleged that the computer was purchased for commercial purpose. However, the Ld. District Forum allowed the complaint and ordered the manufacturer to refund the amount of Rs. 41.740/- with interest to the complainant and also ordered the payment of Rs. 1,000/- as compensation for the hardships. Feeling aggrieved by the aforesaid order the manufacturer M/s. Essen Computer Limited preferred an appeal No. 31/92 praying to set aside the impugned order and the complainant preferred counter appeal 19/92 to claim enhanced compensation.

We have heard Shri Noronha Advocate for the complainants. Shri Lawande Advocate for Auspicio Rodrigues the local dealer and Shri Hasmukh Shah Advocate for the manufacturer M/s. Essen Computer Limited. We have also gone through the records of the original complaint and heard the respective advocates at long. Shri Shah Advocate for the manufacturer Essen Computer Ltd., submitted that there was defect in the computer and therefore the complaint was not maintainable. We have found that key-board was replaced by the local dealer in the first computer and thereafter the machine was replaced. It further appears that the first computer was obviously defective which required replacement of parts and therefore it was replaced with another machine. The complainant has alleged that this replaced computer was also defective in its functioning as regards the key-board and other parts. The local dealer agreed the replacement and the necessary repairs were carried out to the computer. This facts and circumstances which placed before the District Forum are enough to establish that the replaced computer was also defective and there- fore the submission of Mr. Shah that there was no defect in the computer cannot be accepted.

SHRI Shah further contended that there was no contract between the manufacturer and the complainant as the order was booked through the local dealer. From the Invoice dated 23.10.90 we find that the order was booked directly with the Essen Computers Limited, Gandhinagar, Gujarat and therefore the submission of SHRI Shah that there was no contractual relationship between the complainant and the manufacturer cannot be accepted. Another limb of the argument of SHRI Shah is that he was not aware about the defects and therefore why his client should be held liable. According to SHRI. Shah the local dealer should be made accountable. During the course of the argument it has been admitted by SHRI Shah that Essen Computers Ltd. is the manufacturer of the computer sold to the complainant through local dealer. We have found that the said computer was defective for which the manufacturer is answerable for the defect. The Essen Computers Ltd., being the manufacturer is liable either to replace the goods of the similar description to the complainant or to refund the price of the computer under Section 14 of the Consumer Protection Act. SHRI Shah next contended that the District Forum had territorial jurisdiction as well as the pecuniary jurisdiction. According to SHRI Shah the order was placed at Ahmedabad and the goods were supplied from Ahmedabad and therefore the District Forum had no jurisdiction. It is important to note that in spite. of notice received by Essen Computers Limited from the District Forum, opposite party No. 2 did not file any written version to controvert the allegation made by the complainant. The allegation about jurisdiction is raised now orally. It is also stated by SHRI. Shah that he had despatched from Gandhi Nagar on 1.2.92 written version addressed to the District Forum Panaji under Postal Certificate. A Xerox copy of the postal certificate is shown to us bearing the postal stamp of 1.2.92. But we did not find the written version of opposite party No. 2 on record. The opposite party No. 2 also did not take care to file another copy of the written version before the District Forum when the earlier sent by post was not received. Thus we find that the District Forum had to decide the complaint without the written version from opposite party No. 2. Under these circumstances we are not inclined to accept the contention of SHRI Shah as regards to territorial or pecuniary jurisdiction in absence of the pleadings. It has also been contended by Shri Shah that Essen Computers Ltd., was not represented by the proper party. We find that this contention is wrong as M/s. Essen Computers Ltd., was a party. No such objections in the nature of proper party was raised before the District Forum. Hence the objection raised for the first time in this appeal, cannot be accepted.

LASTLY Shri Shah submitted that the complainants are not the consumer within the meaning of the Consumer Protection Act since the computer in question was .purchased for the commercial purpose. It has been submitted by Shri Noronha Advocate for the complainants that the computer was purchased by Fatima Gracias for personal use namely for expediting the work of Ph. D. within the limited time. It is also submitted that the said computer was installed at the residence of the complainant at Altinho. These two facts are stated by Fatima in her Affidavit. It is also found from the letter dated 19.10.91 addressed to the complainant by New Ways Marketing Association stating that the P.C./X.T. was installed at the residence of the complainant. There is no other evidence placed on record by the opposite parties to show that the computer as purchased for commercial purpose. Concerning the totality of the circumstance and the facts we find that there is no substance in Appeal No. 31 of 92 and therefore it is liable to be dismissed. In Appeal No. 19/92 Shri Noronha contended that the impugned order should have been passed by the District Forum making both the opposite party No. 1 and 2 liable jointly and severally. Shri Noronha submitted that as the order stands, it is very difficult to execute it against the opposite party No. 2 at New Delhi. It could have been very easier for the complainant to execute the order in the local Court. In our view this submission of Shri Noronha cannot be accepted in view of the facts appearing in this complaint that the manufacturer is liable for paying compensation for the defects in the goods in question and not the dealer. It will be unreasonable to make opposite party No.l liable jointly and severally. Another submission made by Shri Noronha is that the amount of Rs. 1,000/- granted to the complainant towards the compensation is inadequate and it should be increased to Rs. 49,000/- as claimed in the complaint. According to Shri Noronha the complainant had to suffer mental loss and therefore the complainant should be granted enhanced compensation. We find that the claim for compensation is imaginary and there is no material on record to quantify the loss to the tune of Rs. 49.000/-. Thus we pass the following order. ORDER Both the appeal Nos. 19/91 and 31/92 are hereby dismissed and the order passed by the District Forum is confirmed. Appeals dismissed.