V.B. COMPUTER ENTERPRISES (P) LTD.. vs MOHAN SINGH

MR. Justice K.K. Srivastava, President-This is an appeal filed by V.B. Computer Enterprises (P) Ltd., arrayed as O.P. No. 3 in the complaint Case No. 33 of 2000, against order dated 3.7.2001 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter to be referred as the District Forum-II).

THE District Forum-II proceeded ex parte against all the O.Ps. including the appellant. By the impugned order, the complaint was allowed and a direction was issued to O.P. Nos. 1 and 2 and the appellant to pay the amount of Rs. 47,495/- along with interest @ 12% p.a. from the date of deposit till refund and also allowed a costs of Rs. 1,100/-. The learned Counsel for the appellant, Mr. Rajesh Khurana, Advocate contended that the liability of the appellant has been wrongly fastened by the District Forum-II along with O.P. Nos. 1 and 2, who have been arrayed as respondent Nos. 2 and 3, namely, Pertech Computers Limited, SCO Nos. 451-452, Sector 35-C, Chandigarh and Pertech Computers Limited, having its registered office at FD-254, Salt Lake, City Calcutta (West Bengal), to refund the aforesaid amount and to pay the costs to the complainant. Mr. Rajesh Khurana, Advocate submitted that the complainant had booked a PCL (computer) P-100 with the appellant on 8.2.1997 and paid a sum of Rs. 45,995/-. The appellant/O.P. No. 3 forwarded the order of booking of the PCL along with the amount deposited, to the respondent Nos. 2 and 3/O.P. Nos. 1 and 2, who did not deliver the PCL computer and delayed the same. Consequently the complainant/respondent No. 1 approached the respondent Nos. 2 and 3/O.P. Nos. 1 and 2 for the refund of the amount together with interest.

The notice of appeal was served on respondents. Only respondent No. 1/complainant put in appearance through Mr. Sandeep Khunger, Advocate. The respondent Nos. 2 and 3 did not put in appearance despite service.

THE record of the complaint case was summoned from the District Forum-II. We have heard the learned Counsel for the appellant and the learned Counsel for the respondent No. 1/complainant. A perusal of Annexures C-1 and C-2, which are letters written by the respondent Nos. 2 and 3/O.P. Nos. 1 and 2, acknowledging the receipt of a sum of Rs. 45,995/- as advance against the order and thanked the complainant for choosing PCL as the computer vendor. These two documents i.e., Annexures C-1 and C-2, leave no room for doubt that the appellant/O.P. No. 2, the dealer had duly forwarded the booking order as well as the money deposited by the complainant to respondent Nos. 2 and 3/O.Ps. Nos. 1 and 2. Apart from this, a copy of letter dated 31.3.1997 (Annexure C-3) sent by PCL to S. Mohan Singh, shows that certain formalities were to be complied with regarding the supply of the PCL computer, which were duly complied with and delivery acceptance form signed by the complainant/respondent was sent, which has been annexed with Annexure C-3. Vide letter dated 8th August, 1997 (Annexure C-4), the Pertech Computer Ltd. wrote to the complainant that they will take about two more months'' time to deliver the machine or refund the complainant''s money in case he wishes to cancel his order.

A perusal of Annexure C-5, letter written by the complainant/respondent No. 1 to the Pertech Computer Ltd. which is dated 29.8.1997 will go to show that the order was cancelled and refund of the amount deposited was prayed for. These documents clearly show that the complainant was dealing with the respondent Nos. 2 and 3/O.P. Nos. 1 and 2, Pertech Computers, Chandigarh and Pertech Computers Ltd., Calcutta, West Bengal. In none of the communications, even copy was sent to appellant/O.P. No. 3 Sh. Mohan Singh filed his affidavit and in the affidavit also he referred to the documents referred to above and deposed in Para 10 about the deficiency in services rendered to the complainant and unfair trade practice, firstly by not delivering the computer in time and thereafter in not refunding the amount as per terms and conditions. In para 11, it was averred that O.Ps. were guilty of deficiency in service and unfair trade practice but the role of O.P. No. 3 was not speicifically mentioned in the affidavit. It may be added that the affidavit is almost verbatim copy of the complaint case. Since the appellant/O.P. No. 3 performed his part as a dealer in forwarding the booking order as well as in sending the money paid by the complainant as advance to the Pertech Computer Ltd. i.e. respondent Nos. 2 and 3/O.P. Nos. 1 and 2, he cannot be held guilty of deficiency in services. The complainant himself had been dealing with the Pertech Computer Ltd. for refund of the amount. In view of the evidence led by the complainant/respondent No. 1 himself before the District Forum-II, the District Forum-II committed an error in fixing liability on appellant/O.P. No. 3 to refund the said amount along with interest and to pay the costs as well. The appeal has, thus, considerable merit and is allowed. The order of the District Forum-II in so far as it relates to the liability of the appellant/O.P. No. 3, to refund the amount with interest and to pay the costs is set aside. The order of the District Forum-II is, however, confirmed in so far as it relates to respondent Nos. 2 and 3/O.P. Nos. 1 and 2. The appeal is allowed with no order as to costs. Copy of this order be sent to the parties free of charges. Appeal allowed.