FA.No.1858/2007 AGAINST C.D.No.199/2002 DISTRICT FORUM, NIZAMABAD.

Between:
K.Shiva Kumar, S/o.K.V.Vishwanath

Aged 59 years, Occ:Business,

R/o.H.No.2-7-77/2, First Floor,

Jawahar Road, Nizamabad. (Died) Appellant/

Complainant.

Per L.Rs.

1. Smt.K.Suchitra, W/o.late K.Shiva Kumar,

Aged 49 years, Occ:Govt. Teacher,

R/o.H.No.2-7-77/2, First Floor,

Jawahar Road, Nizamabad.



2. Kum.Srilalitha, D/o.late K.Shiva Kumar

Aged 18 years, Occ:Student

R/o.H.No.2-7-77/2, First Floor,

Jawahar Road, Nizamabad.



3. K.Sumanth Kumar, S/o.late K.Shiva Kumar,

Aged 17 years, Minor represented by his mother

And next friend, Smt.Suchitra, Appellants

A N D

M/s.ATS (Advanced Technological Services)

Rep. by its Proprietors A.Rajender, S/o.Shanker

And A.Srinivas S/o.Shanker,

Both R/o.Nizamabad,

1st floor, Haricharan Complex,

Beside Bus stand, Nizamabad. Respondent/

Opp.party.
Counsel for the Appellants: Sri T.Damodar

Counsel for the Respondents:-Mr.M.Hari Babu

QUORUM: SMT.M.SHREESHA, MEMBER

&

SRI K.SATYANAND, MEMBER

WEDNESDAY, THE SECOND DAY OF DECEMBER,

TWO THOUSAND NINE
(Typed to the dictation of Sri K.Satyanand,Hon’ble Member)

This is an appeal filed by the unsuccessful complainant assailing the order of the District Forum that went against him.

During the course of this appeal, the appellant died and his L.Rs namely, his wife and his minor children were brought on record as appellants 2 and 3.

The facts that led to filing this appeal are briefly as follows:

Originally the deceased complainant was running a public call office at Jawahar Road, Nizamabad. The respondent proprietorship firm was dealing in computers having its business at Nizamabad itself. According to the complainant, opposite party had two proprietors by name A.Rajender and A.Srinivas. Both were the sons of Shanker. Though the said assertion sounds anomalous, may be it was a business carried on by two brothers jointly. Attracted by the sale of computer’s advertised by the opposite party and on account of their affinity, the complainant claimed to have been lured into starting a business of internet café. In that process, the opposite party supplied four computer systems along with necessary accessories as per the invoice cum delivery dated 29-4-2004 for which the deceased complainant claimed to have paid Rs.1,95,710/-. The complainant also claimed to have obtained loan from the Corporation bank for the purpose and submitted that the venture was for his livelihood. The respondents assured all co-operation and in fact they themselves got the computers installed with the help of their engineers and staff members. It was also contended that they appointed one Kairamkonda Vidyasagar as operator for his internet café that was named as Srinivasa Internet café purportedly named after one of the proprietors, Mr.A.Srinivas. The complainant also claimed to have spent Rs.50,000/- towards furniture and other infrastructure. The said internet café was duly inaugurated with the best wishes of the opposite party. But soon the systems developed some defects and the complainant claimed to have made complaints to the opposite party more than 30 times within six months from the date of installation of the said internet café which developed slow processing of computers, weak browsing, stuck up of computers and data failure etc. On account of these defects, it was complained that the complainant sustained a loss of Rs.25,000/- per month even from the date of installation and he continued to suffer such loss. It is ultimately alleged that the opposite party supplied defective, duplicate, grey quality computers and second hand components and thereby indulged in unfair trade practice as a result of which, he sustained loss. So it seems the complainant requested the respondent to take back all the computers and accessories and return the amount paid by him together with interest and cost of furniture etc. But the respondent failed to respond. It was further alleged that in compromise talks, the respondent admitted having supplied defective and duplicate hardware but claimed that he had given more service to the complainant than was given to other customers. The opposite party ultimately declined to take back the hardware and refund the cost. The complaisant also claimed to have obtained test reports from Innovation Infotech and the experts testified to the fact that the components in the computers were duplicate and defective etc., It was also observed by them that the supplied articles were not as specified in the invoice and of lesser efficacy and quality. So the complainant claimed to have got issued a legal notice on 18-1-2002 to get relief but the opposite party issued a reply dated 25-1-2002 taking false pleas. The complainant also claimed to have given a police report upon which the police registered a FIR and the complainant was anticipating the filing of charge sheet. Thus alleging deficiency of service marked by unfair trade practice, the complaint was filed for refund of the money paid towards the goods along with interest as also the furniture and other expenses. Separately he claimed Rs.2,00,000/- towards mental agony.

The opposite party resisted the complaint. One A.Rajender filed the counter. It was firstly contended that A.Srinivas was no way concerned with the opposite party firm as on the date of supply of the computers. The counter went on denying the allegations by the complainant including their inducing to start an internet café, their appointing K.Vidyasagar as operator. The opposite party also asserted that they were regularly attending to the calls of the complainant by sending service technicians for maintenance purpose for a period of one year and during the said period, systems never gave any problem. They also denied the so called compromise talks and the opposite party ever admitting that the hardware etc. that was supplied were sub standard. The opposite party also asserted that the complainant had taken delivery of the goods sold, after getting it verified by his own technicians and if really he had any grievances as regards the quality etc., he ought to have got them checked without breaking the seals in the presence of the opposite party but on the other hand, he did not take any such steps. It was next asserted that ultimately the police had filed a final report in which they found that his complaint was false. It is reiterated that the opposite party never obliged the complainant to take back the computers and pay back the money and on the other hand when the opposite party refused a proposal to that effect by the complainant, the opposite party refused to oblige and for that reason the complainant engineered this false complaint.

In support of his case, the complainant filed his own affidavit and affidavits of as many as 6 witnesses in all examining P.W.1 to 7 including himself. He relied upon documents marked as Exs.A1 to A40. The opposite party on the other hand filed affidavit of R.W.1 and relied upon documents marked as Exs.B1 and B2. P.W.1 was cross examined.

On a consideration of the evidence adduced on either side, the District Forum came to the conclusion that the complainant failed to prove the deficiency of service etc., and dismissed the complaint.

Aggrieved by the said order, the complainant filed the present appeal finding fault with the District Forum for having dismissed the complaint branding its order as illegal, baseless, arbitrary and contrary to law. The District Forum erred in expressing doubt about Ex.A10. It also committed a mistake by not relying upon Ex.A15, likewise, it failed to appreciate Ex.A18, the report of the Commissioner. The argument of the respondent that the complainant might have replaced or removed the items which were supplied by the opposite party ought not to have weighed with the District Forum. The District Forum erred in holding that the complainant failed to file any document to prove that the opposite party admitted having supplied defective computers.

Heard both sides.

The points that arise for consideration are:

1) Whether the complainant could establish that the opposite parties supplied defective computers with duplicate and sub standard parts and accessories?

2) Whether the order of the District Forum suffers from any irregularity or illegality?

3) To what result?

The complainant filed this complaint to get back the money he paid to the opposite party for supply of four computers and also the other amounts that he spent in bringing up an internet café on the ground that the computers turned out to be defective, duplicate and of grey quality, with second hand components compounded by their subsequent failure to properly maintain that resulted in malfunctioning of computers etc., This constitutes the gravamen of the whole consumer dispute raised here. With all the other basic facts remaining beyond the controversy, the only thing that remains for consideration whether by the District Forum or this Commission is whether the complainant could prove the above mentioned chief imputation against the opposite parties. For the purpose of proving that the computers were defective etc., the complainant relied upon:

i) the test report by a technical expert attached to a company in this field by name, Innovation Infotech marked as Ex.A10. As rightly pointed out the first page of Ex.A10 is not filed. However, the complainant filed Ex.A11 which no doubt is the same thing as Ex.A10 in full observing some features in the computers and the components to the effect that the opposite parties failed to supply the hardware and accessories adhering faithfully to what they indicated in the invoice cum delivery receipts marked as Exs.A1 and A2. The said Ex.A.10 is dated 27-12-2001. At this juncture, it is essential to point out that it is a test report issued by Innovation Infotech behind the back of the opposite parties which means that no notice was ever given of such inspection by Innovation Infotech after a lapse of nearly eight months after the supply of the computers on 29-4-2001. So that document cannot be accepted as a gospel truth in order to uphold the contention of the complainant that the goods supplied were defective etc., The complainant could not successfully get over the endorsements he made at the bottom of Exs.A1 and A2 to the effect that he received goods in good condition and order. Now as the matter came up for enquiry, he tried to rely upon circumstances which are derogatory of his own endorsement which remained untainted by any vitiating elements which in fact were never pleaded in the context of such endorsements in Exs.A1 and A2. As a matter of fact, the legal incident of such endorsements would be that they would operate as estoppel against the complainant.

The next circumstances that he tried to rely upon is that he produced auxiliary evidence as the bad experiences of his customers with the internet café but such evidence hardly proves the core of the complaint as it cannot be proved by superficial evidence. He lastly relied upon the extra judicial admissions stated to have been made by A.Srinivas, who according to the complainant was one of the proprietors which in itself is contradiction in terms, that they supplied duplicate stuff as alleged. In order to prove that extra judicial admission also, he relied upon the evidence of the deponents on his behalf at random. But the fact remains that the complainant failed to file the copy of his notice given to the opposite party which could have thrown some light as to his clamor, if found a mention, in such notice, about their admissions. On the other hand, the complainant filed Ex.A12 notice which is totally unconnected with the allegations against the opposite party. In fact, it relates to a notice got issued by him through his advocate to Linkswell Telesystems Pvt. Ltd., and Master Chip Computer Services calling upon them to rectify some defects pointed out within five days and exhorting them, in case of default, of some legal action. By the way, this notice no doubt unwittingly filed by the complainant in order presumably to match it with the reply given by the opposite party marked as Ex.A13 betrays that the complainant did have a row with some other suppliers or service providers in this very same venture. Ex.A13 did not make any mention about the truth or otherwise of the extra judicial admission attributed to the opposite party. This circumstance improbablises that the complainant ever mentioned about such a fact in his notice to the opposite party. If really, the admission was true, the complainant would not have omitted to mention it in his legal notice to the opposite party. In view of these circumstances, it is difficult to believe that the opposite party admitted liability in the so called compromise talks. It is also abundantly clear from the documents of the complainant himself that A.Srinivas to whom he attributes most of the overt acts that led to filing this complaint was at the time of deal evidenced by A1 and A2 had nothing to do with the opposite party firm at that relevant point of time. The counsel for the appellant strenuously argued that the Commissioner’s report, Ex.A18 was in favour of the complainant. But it simply disclosed the state of affairs obtaining as on the date of his observation and it hardly possessess any competence to prove the condition of the computers and the spare parts so as to brand them as spurious or duplicate as on the date of the supply. We are therefore of the opinion that the Commissioner’s report too is not of much help to the complainant. Thus, the complainants could not establish their case in order to validly get any relief.

In as much as the District Forum addressed all these issues satisfactorily, we do not find any infirmities in the order under appeal. Accordingly the appeal is dismissed but without costs in the circumstances of the case.