State Consumer Disputes Redressal Commission
Raju. J, vs V. Jayadhar, on 7 May, 2010
Daily Order
First Appeal No. A/09/144
(Arisen out of order dated 30/12/2008 in Case No. CC 184/05 of District Kollam)
Raju.J
Vs.
V.Jayadhar
BEFORE :
HONORABLE JUSTICE SHRI.K.R.UDAYABHANU
, PRESIDENT
PRESENT:
None for the Appellant
None for the Respondent
Dated the 07 May 2010
ORDER
DISPOSED AS DISMISSED KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 144/2009JUDGMENT DATED: 07-05-2010 PRESENT: JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT SHRI. M.K. ABDULLA SONA : MEMBER APPELLANT Raju. J, Joydale, 142 - Bhavana Nagar, Kadappakada P.O., Kollam, Kerala, Pin - 691 008. (Rep. by Adv. Sri. S. Reghukumar) Vs RESPONDENTS 1. V. Jayadhar, Sreevihar, Mathruka Nagar - 145, Kollam, Kerala, Pin - 691 019. 2. Samson Decrus, Matha, 141 - People Nagar, Near Fire Station, Kollam, Kerala, Pin - 691 001. 3. Regional Sales Manager, HCL Infosystems, Frontline Nagar, Kochi, Kerala, Pin - 682 036. 4. The Chairman, HCL Infosystems Ltd., Frontline Division, E-4, 5 & 6, Sector - XI, Noida, Uttar Pradesh, Pin - 201 301. 5. Media Infotech, Kollam. (R2 rep. by Adv. Sri. Narayan. R & others) (R3 & R4 rep. by Adv. Sri. Shihabudeen Kariyath) JUDGMENT JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT
The appellant is the 1st opposite party in CC 184/2005 in the file of CDRF, Kollam. The appellant is under orders to refund a sum of Rs. 40,000/- and to pay Rs. 4,000/- as compensation and Rs. 1,000/- as costs.
2. It is the case of the complainant that he purchased an HCL Beanstalk computer and accessories from the 5th opposite party firm/dealer of which the first opposite party/appellant and the second opposite party are partners. On 3-11-2004 the system was brought to the house of the complainant and when attempted to install it they faced booting problems. Hence they did not install the computer fully. On the next day also they tried to install the programs but again booting problems persisted. The complainant wanted to replace the system. They immediately contacted the 3rd opposite party Regional Sales Manger, HCL Infosystems and discussed about the replacement of the system. The complainant was told that they will replace the system. Till the evening he waited and then contacted over phone. He was told that they are awaiting the arrival of the system. Suspecting foul play he immediately went to the shop and demanded replacement in writing vide Ext.P2. On subsequent enquiries he was told that the HCL Service Engineers will inspect the system. On 16-11-2004 again the system hanged. The first and second opposite parties came to his house and rectified the complaint. Many times thereafter the system hanged and rectified by the Service Personnel of the first and second opposite parties. They had assured to replace the system. On observing the delay to replace the system the complainant vide Ext.P3 letter dated 17-12-2004 demanded replacement of the system and documents within 3 days. On getting Ext.P3 opposite parties 1 and 2 assured over telephone that they would replace the system soon. They used to contact the 3rd opposite party the Regional Sales Manager of HCL and hand over the phone to the complainant to discuss the matter directly with him. On all those times he promised the complainant that the system will be replaced. In the mean time the firm was wound up in the 3rd week of January 2005. Thereupon the complainant sent Ext.P4 letter dated 24-01-2005 demanding the return of the amount paid ie, Rs. 40,000/-. He also sent a notice to the second opposite party which is dated 11-03-2005 which is produced as Ext.P7. In reply the second opposite party forwarded Edxt.P8 copy of the dissolution agreement of the firm and mentioned that the liabilities of the firm has been taken over by the first opposite party. The complainant again sent Ext.P9 notice dated 10-04-2005. The first opposite party on receipt of notice contacted the complainant and initiated for a compromise. Subsequently, he received a letter dated 26-04-2005 which is marked as Ext.P10 stating false averments. In Ext.P11 letter dated 01-05-2005 complainant has denied the above averments. It is the case of the complainant that he could not use the computer at all. He has sought for the return of the amount of Rs. 40,000/- from opposite parties 1 and 2 and for compensation of Rs. 20,000/- and Rs. 1,000/- towards costs.
3. In the version filed the first opposite party has denied the receipt of any amount from the complainant. According to him the warranty paper and other connected documents were handed over to the complainant along with the system but he did not return the warranty paper duly signed. Hence they are not in a position to get the system rectified by the HCL personnel. According to him there was no defect to the system. It is also alleged that the complainant and the second opposite party has colluded after dissolution of the partnership firm. It is denied that he ever agreed to replace the system. According to him only a sum of Rs. 2,000/- was paid as advance and the balance due is Rs. 45,200/-. He had asked the complainant to pay the balance and hand over the signed warranty papers and only then the defects if any can be got rectified through the company. It is alleged that the attempt is to escape from payment of the balance purchase price of Rs. 45,200/-.
4. The second opposite party has filed version admitting para 1 to 4 and 6 to 8 of the averments in the complaint. He has also not offered any comments on paras 10 to 12 and 14 of the complaint. It is pointed out that as per the dissolution agreement of the firm dated 10-02-2005 the liabilities have been taken over by the first opposite party. He has denied any liability.
5. The 3rd opposite party Regional Sales Manager of HCL has filed version stating that there is no contractual liability between the complainant and the 3rd opposite party. It is stated that the sale of the machine has not been reported to the company. It is pointed out that only if the sale is completed and warranty paper duly signed and forwarded, the company will be liable for the repair or inspection of the machine. It is denied that any employees of the 3rd opposite party contacted the complainant etc. They have denied any liability in the matter.
6. Evidence adduced consisted of the testimony of PW1, DW1 Exts. P1 to P12, D1 and D2.
7. The first respondent/complainant appeared in person. The appellant and the second respondent was represented by Counsel.
8. We find that the complainant has produced a number of letters signed by him given to the opposite parties demanding replacement of the computer and narrating the problems since the date on which the computer was brought to the house of the complainant, ie, on 03-11-2004. From the letter dated 04-11-2004 he has produced the representations in writing. Ext.P4 is the letter sent dated 24-01-2005. It is sent by registered post with acknowledgement. The earlier letters ie, Ext.P2 and P3 are acknowledged in writing by the second opposite party. Subsequently he has sent detailed notices vide Ext.P6 and P7. Ext.P8 is the reply of the second opposite party dated 28-03-2005 wherein it is mentioned that the Forum was dissolved on 10-02-2005. Ext.P8 is the copy of the dissolution agreement wherein at para 8 it is mentioned that the first opposite party has agreed to indemnify the second opposite party for any liabilities and damages in future in respect of business jointly conducted. Ext.P9 is the notice dated 10-04-2005 from the complainant to the first opposite party. Ext.P10 is the reply from the first opposite party as the Chief Executive of the firm dated 26-04-2005 wherein it is mentioned that as per the discussion it has been mutually agreed and settled that an extended warranty for a further one year will be given and that it was also agreed to deliver the Web Camera and 41 CD Pack and has requested to pay the balance amount at the time of delivery of the above items. Ext.P11 dated 01-05-2005 is the reply letter from the complainant denying the case mentioned in Ext.P10 that it has been mutually agreed etc. Ext.P12 is the copy of the bill, which according to the complainant is with respect to a new computer purchased by him. The same is dated 28-05-2005.
9. At the time of hearing, the Counsel for the appellant did not press the contention that the amounts as alleged were not paid. The case of the appellant is that the system was not examined by an expert and hence there is no proper evidence to establish the fact that the system was defective. We find that the above contention of the Counsel for the appellant cannot be countenanced as from the next day of the computer brought to the house of the complainant he has given in writing to the opposite parties 1 and 2 that the system is having defects and that it has to be replaced and that it was agreed by the opposite parties 1 and 2 to replace the system. The statement in the subsequent letters that he has already paid Rs. 40,000/- has not been refuted even in P10 dated 26-04-2005, the communication issued by the first opposite party. We find that the above elaborate documentary evidence fully support the case of the complainant that the system was defective from the very beginning. He has also filed the complaint at the earliest ie, in May 2005. Ext.P10 is dated 26-04-2005. We find that it stands established that the system was defective from the very beginning and that the respondents protracted the matter. The first opposite party has not contended in the version filed that the liability would vest on the 3rd and 4th opposite parties ie, HCL.
10. Ext.P8 dissolution agreement exonerate second opposite party from liability as all liabilities have been taken over by the first opposite party. Hence the first opposite party/appellant alone will be liable.
In the circumstances, we find that no interference in the order of the Forum is called for.
In the result, the order or the Forum is sustained and the appeal is dismissed.
The first opposite party is directed to make the payment within 3 months from the date of receipt of this order failing which the complainant would be entitled for interest at 12% per annum on Rs. 40,000/- from today.
The office is directed to forward the LCR to the Forum along with the copy of this order.
JUSTICE K.R. UDAYABHANU: PRESIDENT M.K. ABDULLA SONA : MEMBER Sr. [HONORABLE JUSTICE SHRI.K.R.UDAYABHANU] PRESIDENT