T.J.JOY vs SPECTRA SYSTEM

THE complainant in O.P. No. 721/97 on the file of the District Forum, Thrissur, is the appellant. THE complainant alleged before the District Forum that he placed an order for a computer before the first opposite party dealer. THE computer was manufactured by the second opposite party. Consideration for the same Rs. 34,999/- was paid by demand draft. THE opposite parties had promised to instal the computer system in the premises of the complainant within 2 months of the order. But they did not keep the promise. THErefore, he alleged deficiency of service and wanted direction to the opposite party to instal the computer system, pay interest @ 24% on the amount paid by the complainant and to party Rs. 15,000/- as compensation. Second opposite party remained ex-parte. First opposite party filed version contending that he is only an authorised access member of the second opposite party who is the manufacturer; his role is only to obtain the order for the computer system manufactured by the second opposite party, make arrangement with the second opposite party to deliver the computer system and instal the same. Since he has already dispatched the demand drafts, second opposite party alone is liable. Before the District Forum complainant produced Exts. Al to A5. By the impugned order the District Forum dismissed the complaint relying on the decisions of the National Commission reported in I (1996) CPJ 91 (NC), Nanu Bhai v. Maruthi Udyog Limited & Anr. and I (1997) CPJ 59 (NC), Dr. G.S. Anandan v. E.N. Dileep. Aggrieved by the same the complainant has filed this appeal.

THE learned Counsel for the appellant/ complainant sought to distinguish the aforesaid decisions on the ground that whereas when those decisions concern case of sale only, in this case there was contract for sale of the computer system and it included a contract for installation as well as per the allegations in the complaint. First opposite party in their version stated that the second opposite party has to be made liable as per the terms of the contract. THE second opposite party remained ex-parte. When the contract is of such a nature, according to the learned Counsel, that part which concerns installation since is a service, the question thereof can be entertained by the District Forum. In support of the said argument reliance was made on the decision of this Commission reported in 1998 (2) CPR 515, M.J. Plywood Industries v. Aiswarya Agro Industrial Equipment. THEre the complainant placed an order for the supply of a diesel generator and made part payment of the consideration. THE complaint was dismissed by the District Forum holding that it was only a breach of contract. It is pointed out therein that the supply of the generator set includes erection also with a warranty and since service part was also involved, it is held that the District Forum erred in dismissing the complaint. Here also it is submitted by the learned Counsel for the appellant that there is a warranty also. Learned Counsel pointed out that Ext. A1 quotation contained a warranty for 13 months from the date of delivery or 12 months from the date of installation whichever is earlier. Relying on the principle laid down in the said decision it was urged by the learned Counsel that since there is a transaction involving installation of the computer system and the same had also warranty, that part of the service concerns service and it would be a composite contract which took in sale of computer system as well as service of installation consequently, according to him, it was not right for the District Forum to dismiss the complaint treating the transaction only as sale and purchase simplicitor. Learned Counsel for the respondent on the other hand sought to support the order of the District Forum maintaining that in the facts and circumstances of the case in so far as the main part of the contract concerns sale, complaint is not maintainable. In the context of the decision of this Commission reported in 1998 (2) CPR. 515, referred to earlier, since the contract in question involves service part also, it cannot be treated as sale alone. As is already noticed, the contract contains an agreement to instal the computer; and Ext. Al shows that there is warranty also. That certainly is an indication of service and the installation part cannot be stated to be not service. Therefore, we are of the view that the complaint could not have been dismissed simply on the ground that since the transaction is only a sale the dispute cannot be a consumer dispute. In that view we have to set aside the order of the District Forum.

In the result, the appeal is allowed, the impugned order set aside and the matter remitted to the District Forum which shall restore the matter to file giving an opportunity to both the parties to substantiate their respective contentions and then proceed to dispose of the matter in accordance with law. In this appeal there will be no order as to costs. Appeal allowed. ______________