State Consumer Disputes Redressal Commission
M/S Forte System, vs R.P. Sood, on 18 March, 2013
3rd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 37 of 2009
Date of institution: 9.1.2009
Date of decision : 18.3.2013
1. M/s Forte System, SCO No. 33-34-35, New Budha Dal Complex,
Lower Mall, Patiala through its Partner.
2. Rajiv Kapoor, Partner, M/s Forte System, SCO No. 33-34-35,
New Budha Dal Complex, Lower Mall, Patiala.
.....Appellants
Versus
1. R.P. Sood, resident of House No. 5, Friends Colony, Patiala,
District Patiala.
....Respondent
2. Ambrish Mehta, Partner, M/s Forte System, SCO No. 33-34-35,
New Budha Dal Complex, Lower Mall, Patiala.
.....Proforma Respondent
First Appeal against the order dated 2.9.2008
passed by the District Consumer Disputes
Redressal Forum, Patiala.
Before:-
Shri Piare Lal Garg, Presiding Member
Shri Jasbir Singh Gill, Member Present:-
For the appellants : Sh. Dinesh Kumar, Advocate for Sh. Rajan Bansal, Advocate For respondent No.1 : Sh. Abhishek Arora, Advocate For respondent No.2 : Ex.-parte.
PIARE LAL GARG, PRESIDING MEMBER This is an appeal filed by the appellants-opposite parties No. 1 & 2(hereinafter called 'the appellants') against the order dated 2.9.2008 of the District Consumer Disputes Redressal Forum, Patiala(hereinafter called the 'District Forum') vide which the complaint of respondent No. 1/complainant (hereinafter called 'the respondent') was partly accepted by the District Forum.First Appeal No. 37 of 2009 2
2. Brief facts of the case are that respondent No. 1 had purchased assembled Computer from the appellants on 29.5.2003 for an amount of Rs. 25,300/-. In the last week of September and first week of October, 2007, he approached the appellants for the upgradation of operative system of the Computer and requested for the installation of Window XP system in place of Windows 98, which were already in his Computer. It was also asked by respondent No. 1 to the appellants to save all the data and documents already present/stored in the system, which was extremely significant and important for respondent No. 1. The computer was installed in the house of respondent No. 1 by the appellants on 5.10.2007 in his absence but when respondent No. 1 started the same it was found that all the memory/data/photographs which were saved in the Computer were already deleted by the appellants at the time of upgradation of his computer. Respondent No. 1 approached the appellants who sent his technician Malkiat Singh for the installation of Outlook Express and for the revival of the memory/data/photographs. Said Malkiat Singh installed the Outlook Express but he could not retrieve the memory but he assured that the memory will be revived/retrieved after discussion with Shri Amrish Mehta respondent No. 2. The memory was not revived by the appellants then respondent No. 1 served a registered legal notice on 10.10.2007 upon the appellants to retrieve the data in his Computer but the appellants failed to do so. The complaint was filed by respondent No. 1 before the District Forum with the prayer that the appellants as well as respondent No. 2 may be directed to pay Rs. 1 lac as damages on account of mental agony, harassment and monetary loss suffered by respondent no. 1 as well as litigation costs.
3. Upon notice, the appellants and respondent No.2 appeared through Sh. Rajiv Kapoor on 29.2.2008 and the complaint was adjourned for 7.3.2008 for filing of the reply. The appellants and respondent No. 2 First Appeal No. 37 of 2009 3 availed four opportunities for filing the reply and for payment of costs of Rs. 300/- but ultimately failed to file the reply and to pay the costs, as such, defence of the appellants as well as respondent No. 2 was struck off vide interim order dated 4.4.2008 of the District Forum.
4. The complaint of respondent No. 1 was partly accepted by the District Forum and the appellants and respondent No. 2 were directed to pay Rs. 2,000/- as damages on account of mental tension, harassment and litigation expenses to respondent No. 1 within one month from the receipt of the copy of the order.
5. Aggrieved against the impugned order, the present appeal was filed by the appellants on the grounds that the District Forum wrongly allowed the complaint and no opportunity was provided to the appellants to put forth their stand, the District Forum wrongly marked presence of Sh. Rajiv Kapoor as an Advocate on behalf of the appellants and the appellants remained unrepresented, as such, the order of the District Forum is liable to be set-aside.
6. We have gone through the pleadings of the parties, grounds of appeal, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
7. It is admitted by the appellants in para No. 4 of the grounds of appeal that they charged Rs. 750/- from respondent No. 1 for upgradation of the Computer system and removal of the virus. It was also admitted that it was told by the appellants to respondent No. 1 that while removing the virus all the files will be erased. It was instructed by respondent No. 1 to the appellants that if the data is saved then it will be good otherwise remove the same since he has no other option. So from the version of the appellants, the version of respondent No. 1 is proved without any doubt that the data already stored in the Computer/Hard Disk of respondent No. 1 was deleted when the appellants upgraded the computer. First Appeal No. 37 of 2009 4
8. Respondent No. 1 also tendered into evidence affidavit of one Ripudaman Singh, Technician who has complete technical details of Computers. His affidavit is Ex. C-2 and the relevant para No. 3 of the same is reproduced:-
"That the major defect caused by the opposite party to the computer of the complainant was wrong installation of RAM. The original RAM of 128 MB was required to be upgraded to 256 MB. However though the opposite parties had allegedly installed RAM of 256 MB in the complainant's computer, the said RAM was not compatible with the said computer. The computer was indicating specific RAM error. It was the duty of the opposite parties to assure the compatibility between the RAM and the mother board of the computer. Moreover, even the originality of the alleged 256 MB RAM is questionable."
9. The appellants have not produced any evidence to prove their version that respondent No. 1 has given his consent that he has no objection if the data already stored in his Computer is deleted during the upgradation of the System.
10. We have also perused the interim orders of the District Forum. The appellants availed four opportunities i.e. 7.3.2008, 14.3.2008, 28.3.2008 and 4.4.2008 for filing of the reply to the complaint. On 28.3.2008, the complaint was adjourned for filing of the reply on 4.4.2008 with costs of Rs. 300/- but on 4.4.2008, cost was not paid and reply was also not filed by the appellants as well as respondent No. 2 and defence of the appellants and respondent No. 2 was struck off. But appellant No. 2 Shri Rajiv Kapoor remained present on each and every date on behalf of the appellants and respondent No.2. Dated 23.5.2008 was fixed for arguments but an application was moved by Shri Rajiv Kapoor-appellant No. 2 for setting aside the order dated 4.4.2008 vide which the defence of the appellants and respondent No. 2 was struck off. The application was dismissed vide order dated 16.7.2008 of the District Forum. No revision against the said order was filed by the appellants and respondent No. 2. First Appeal No. 37 of 2009 5
11. At the time of arguments, Sh. Rajiv Kappor was also present. The complaint was decided by the District Forum after hearing counsel for respondent No. 1 and Sh. Rajiv Kapoor-appellant No. 2. As such, the version of the appellants that no opportunity of being heard was given/provided to the appellants by the District Forum is not correct.
12. We have also perused the power of attorney, which is at page No. 61 of the District Forum file, which was executed by Sh. Rajiv Kapoor in favour of Sh. Sanjay Dhawan and Sh. Samir Dhawan, Advocates but Sh. Rajiv Kapoor-appellant No. 2 himself remained present till the decision of the complaint. Application for setting aside interim order dated 4.4.2008 was also filed by Rajiv Kapoor as partner of appellant No. 1 and also annexed his affidavit in support of the application for setting aside the interim order.
13. From the application for setting aside the ex-parte order dated 4.4.2008 and from the pleadings it is proved beyond doubt that Sh. Rajiv Kapoor, remained present during the proceedings before the District Forum from his service till the decision of the complaint. But inadvertently, against his name 'as Advocate' was mentioned by the District Forum when he himself remained present on behalf of the appellants and respondent No. 2. So the version of appellant No. 2 that they never engaged Rajiv Kapoor as Advocate is only an excuse that no opportunity of being heard was given to the appellants by the District Forum which is not fair on his part and he tried his best to conceal the real fact from the State Commission.
14. There is no iota of evidence on the file to rebut the version of respondent No. 1. No reply and evidence was produced by the appellants and respondent No. 2 to falsify the version of respondent no. 2. Even no prayer was made in the grounds of appeal for setting aside the interim First Appeal No. 37 of 2009 6 order dated 4.4.2008. In the grounds of appeal the version of respondent No. 1 is also admitted.
15. In view of the above discussion, there is no merit in the appeal and the appellants had tried their best to mislead the State Commission, as such, the appeal is liable to be dismissed with heavy costs.
16. The appeal of the appellants is dismissed with costs of Rs. 10,000/- as the appeal is false, frivolous and vexatious, which will be paid by the appellants and respondent No. 2 jointly and severally to respondent No. 1 within 30 days from the receipt of the copy of the order. There is no infirmity in the order of the District Forum, as such, the order of the District Forum is affirmed and upheld.
17. The arguments in this appeal were heard on 11.3.2013 and the order was reserved. Now the order be communicated to the parties.
18. The appellants had deposited an amount of Rs. 1,000/- with this Commission at the time of filing the appeal. This amount of Rs. 1,000/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
19. Remaining amount shall be paid by the appellants and respondent No. 2 to respondent No. 1 within 30 days from the receipt of the copy of the order.
20. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Piare Lal Garg)
Presiding Member
March 18, 2013. (Jasbir Singh Gill)
as Member
First Appeal No. 37 of 2009 7