PETITIONER =Vs. = O.Ps
Deepanita Swarnakar, S/o Deepak Swarnakar, Soumen Dutta, Managing director,
Suri Sonotorepara, P.S-Suri, Birbhum Dutta-E-Net Services, S.P. More
Suri, P.O. & P.S. Suri, Birbhum

PRESENT : - Shri S.K. Roy ***----------------- President,

:- Shri M.K. Pal ----------------- Member.

Date: - 14/05/2009
J U D G E M E N T

In a nutshell the complaint story is that the complainant purchased a computer with accessories from the O.P at a price of Rs.30400/- on 12/9/05. Subsequently he returned the same and took another computer with accessories on 11/5/06. Due to defect in giving service the complainant requested the O.P orally and in writing to give the guaranty card, cash memo and to replace the computer by a new one. But in vain. Hence this case.
The OP contested the case by filing a written version wherein he has taken a few legal objections, denied the material allegations and has contended that on 2/9/05 the complainant purchased a L.G.P.C. at a price of Rs. 30400/-. He did not pay the price at a time and paid in several installments for which in terms and conditions he is liable to pay interest @ 24% p.a. on the price. On 11/5/06 the complainant returned that computer and took a different computer I.B.M, the price of which was Rs.35750/-. As the OP has claimed and demanded the difference of the price and the interest on the previous price, amounting to Rs.(5350/- + 7296/-) = Rs. 12646/-, the complainant to avoid the said amount has filed this case with false allegation. There is no defect in the computer and no deficiency in service. The case merits dismissal.
To prove the complaint case the complainant alone has sworn and filed an affidavit on evidence and a few documents marked exts.1 to 4/2.
On the other hand the OP himself and one Santanu Roy have sworn and filed two affidavit on evidence and documents, marked exts. A to D, to substantiate the defence case. Cases relied upon by the OP :- 2006(2) C.P.C-30-2007(1) C.P.C 379 & 2008(1) C.P.C 140.

Contd…2/

-::2::-

Points for consideration are:-
!) Is the complainant a consumer as defined in the C.P. Act,1986?
2)Has there any deficiency in service of the OP?
3)Is the complainant entitled to the reliefs prayed for?

D E C I S I O N S

Point No.1:- This point has been raised by the Ld. Lawyer for the OP submitting that the complainant is using the computer for commercial purpose by giving coaching to general public and doing official works of different offices receiving money from them and he is not doing any personal work for himself. So he is not consumer as defined in section 2(1)(d)(1) of the C.P. Act, 1986. He has further submitted that inspite of specific statements in paras 6 & 9 of the written version the complainant has not challenged the same in his affidavit on evidence. The above submissions remains unassailed. But the fact remains that it is well settled that the pleading are not the proof. The O.P. though has averred in the written version that the complainant is using the computer for commercial purpose which has not been corroborated and proved by any sort of evidence. When the purchase of the computer is admitted but allegation of commercial purpose is not proved, I am of the view that the complainant is a consumer as defined in the C.P. act,1986. This point is decided in favour of the complainant.
Point No 2:- This point has been agitated by the ld. Lawyer for the complainant submitting that the complainant firstly purchased one computer of L.G. make from the O.P. and as the said computer began to give trouble the same was replaced by a new one of I.B.M. make on the request of the complainant. But this one also began to give trouble within one and half months from the date of delivery. This was informed to the O.P. not only over telephone but also by letter within a very short time. But the O.P. neither repaired the computer not replaced the same. Another fact is that the O.P. did not give the guarantee card and cash memo for the 2nd computer, though he was requested. He has drawn my attention to ext.3 which shows about the intimation of defectness and request for guarantee card and cash memo. Even the O.P. though took the computer to his showroom for repair, till date has not returned the same after repair. This inaction and giving no post sale service and non issue of guarantee card and cash
Contd…3/

-::3::-

memo are nothing but deficiency in service.
Challenging the above argument the ld. Lawyer for the O.P. has submitted that as regards defectness in the computer as alleged by the complainant there is no evidence of any technical expert about the computer from the side of the complainant. On the contrary as per order of this ld. Forum the computer was taken to the show room of this O.P. from the complainant and the same has been technically examed and tested by an expert i.e. O.P.W. 2 Santanu Roy who has find that there is no defect in the computer. The ld. Lawyer has drawn my attention to ext. A, the report of the said expert. This report shows that there was or is no defect in the computer. In absence of any evidence of manufacturing defect or any defect there can be no reason for replacement of the sold article. Reliance placed upon the cases reported in 2006(2)C.P.C. 30; 2007 (i) C.P.C. 379 and 2008(i) C.P.C. 140. His further submission is that there is no provision of guarantee, only provision is of warrantee and that is for one year only. The warrantee card has given to the complainant. The disputes arose regarding the payment of the difference amount of the price of the two computers and the interest on the price of the previous computer which has been paid by the complainant in a few installments. So as per terms and condition No.2 as printed in the invoice cum challan the O.P. demanded the interest and the complainant to avoid the difference amount of the price and the interest has filed this case. He is not entitled to any relief as there was no deficiency in service of the O.P.
Taking into consideration the above arguments of the ld. Lawyers for both the parties and the other materials on record coupled with the decisions relied upon I incline to say and hold that as per evidence Act, the initial burden of proving the case lies upon the person who wants to assert some thing. In this case the claim of the complainant is for replacement of the computer, issue of cash memo and guarantee card;. When a sold article directed to be replaced is to be considered from the materials on record. In this case though the complainant has claimed that the computer is giving trouble due to defect, but unfortunately has not adduced any competent witness who could say about the defectness of the computer. On the contrary the evidence of O.P. W.2 Santanu Roy coupled with his report, ext. A it is seen that there is no defect in the computer. Again in absence of any Home Service card which is commonly known as Annual maintenance card, no Home Service after

Contd…4/

-::4::-

sale would be given as contemplated by the O.P. and there is no challenge of the same.
The complainant has not been able to establish by any reliable evidence that he has paid the difference of the price of the two computers and that he is not liable to pay interest on the price of the first purchased computer which he has paid in installment.
Above all the O.P. has taken the computer to his show room as directed by the Forum but the complainant has taken no appropriate step to take delivery of the same which as per the evidence of O.P. W.2 is quite O.K. and in serviable condition.
I do not find any deficiency in service of the O.P. This point is answered against the complainant.

Point No.3:- I am of the view that the complainant has filed this case with some ulterior motive only to harass the O.P. and to avoid payment of the difference of the price of the two computers and the interest on the price of the previously purchased computer in installments. But the rate of interest claimed by the O.P. is too high. In my opinion the rate of interest should be 12% p.a. The complainant is not entitled to any relief in this case. On the contrary he is to pay the interest on the price of the previous computer @ 12% p.a. and the difference of the rice of the two computers.
This point is answered accordingly.
In the result the case fails.
Fees paid are correct.
Hence,
It is,
Ordered
That the complaint is dismissed with cost of Rs. 1000/-..