PRAGATI COMPUTERS PVT. LTD. , MADRAS INSTITUTE OF DEVELOPMENT STUDIES vs Madras Institute of Development Studies , PRAGATI COMPUTERS PVT. LTD

THE Respondent and Complainant in First Appeal No. 21/92 who is the Appellant in First Appeal No. 56 of l992 had purchased five computer machines from the Appellant in First Appeal No. 21 of 1992 and Respondent in First Appeal No. 56 of 1992 in November, 1988. THE computers were installed in a suitable room as advised by the computer supplier. THE respondent/Complainant had also entered into a maintenance contract with the computer supplier for the period from 1.1.1990 to 31.12.1990. Under this agreement all repairs and replacements of the hardwares were the responsibility of the computer supplier.

ON the 5th of November, 1990 two of the five computers supplied by the computer supplier stopped functioning. Two more computers supplied by the same supplier stopped functioning on the 7th of November, 1990. The computer supplier maintained that the non-functional computers would have to be repaired at the cost of the complainant. This was estimated at Rs. 56,466/-. After examination of the evidence and the averments of the parties the State Commission came to the conclusion that the cause of damage to the machines was sudden and high voltage spike. Further, that the parts of the machines damaged were covered by the contract of maintenance and liable to be repaired or replaced by the computer supplier if the damage occurred during the period of the contract except where it is due to Vis Major or Force Majeure. The State Commission found that the damage suffered by the computers was not due to Vis Major or Force Majeure or causes beyond the control of the Appellant-Complainant. The computer supplier also failed to give instructions to the Complainant to install devices to prevent damage due to high voltage spikes and that it amounted to negligence on the part of the computer supplier.

Therefore, the State Commission ordered that the computer supplier should replace the damaged computer machines in their possession and make them operational.

ACCORDING to the computer supplier the computers got damaged due to sudden high voltage spike and this was an act of God and hence they were not liable. The ground on which they have challenged the order of the State Commission is set out below: "Para 4. In November 1990, four computers supplied by the appellant to the respondent stopped functioning. The cause for the failure of the machines was that the computers were hit by a transient surge in the mains power, which had been severely affected by the cyclonic storms during last week of October/1st week of November, 1990. It is pertinent to point out that the lines were still under rectification by the MES. This transient surge proved fatal to the hard disc, floppy drivers, power supply units and main circuit boards of two of the machines. Para 5. It is respectfully submitted that when the high tension cable of a power line falls on, say, the neutral line or comes in its contact otherwise, this is called a "short circuit" and before the circuit trips, a short transient phenomena takes place which is sufficient to affect sensitive equipment like computers, even though other equipments, such as air-conditioners, will not be affected by such transient phenomenon. The same applies to the fall of lightening anywhere on the lines. There is no protection against this (except a tone UPS system with ultra-isolation). The cause for the failure of the computers was, therefore, due to an "act of God" and beyond the control of the appellant. The appellant could not be made liable for the damage as per condition VI of the contract for maintenance under the principle of Force Majeure."

At the hearing the Counsel for the Appellant in Appeal No. 21/92 could not substantiate that the computers were damaged by an "act of God" beyond the control of the Appellant. The State Commission has specifically considered whether the sudden high voltage spike in this case could be considered as Vis Major or Force Majeure beyond the control of the opposite party. As noted by the State Commission, high voltage spikes are generally common in the Madras electricity system and, therefore, the high voltage spike which damaged the machines on the 5th of November, 1990 could not be considered as an event unforeseen. Protection against high voltage spikes causing damage to computer machines is obtained by use of spike suppressor or spike buster, and also by installation of a Veristor which provides limited protection against the spikes. It is significant that two computers supplied by the computer company in this case stopped functioning on the 5th of November, 1990 and the computer company''s maintenance personnel who inspected the machines on the 6th of November, 1990 did not advise any special protective measures for the remaining machines. In fact maintenance was the responsibility of the supplier. Two more computer machines of this computer company failed on 7th November, 1990 and these machines were also taken away by the computer company for repairs. The three computers supplied by the Hindustan Computers Limited and the fifth supplied by the computer supplier continued to function well without any problem in spite of spikes.

THESE facts clearly establish that the theory of Vis Major or "act of God" having caused damage to the machine supplied by the computer company is not tenable. We are, therefore, in agreement with the finding of the State Commission and confirm its order. According to the Order of the State Commission four computer machines (3 XT and one AT) were damaged but eventually it ordered repairs free of cost of two computer machines only. There are no directions as to the remaining two damaged machines. The computer purchaser viz. The Madras Institute of Development Studies in its appeal has drawn attention to the fact that the State Commission erred in directing repairs to two machines only, but it has prayed for repair of three machines (XT) instead of four. We order accordingly: the three XT computers supplied by the computer supplier and damaged on the 5th and 7th November, 1990 be repaired by the computer suppliers at its own cost and made fully operational. To the extent the Order of the State Commission is modified. The appeal of the computer purchaser, the Madras Institute of Development Studies is allowed in part and that of the respondent. Computer supplier is dismissed. There is no order as to costs. Appeal allowed.