D.O.F. 08.08.2008

                                                                                   D.O.O. 24.06.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:   Sri. K. Gopalan                                     :        President

                Smt. K.P. Preethakumari                     :         Member

                Smt. M.D. Jessy                                    :        Member

Dated this the 24^th day of June, 2011.

C.C.No.173/2008

Ratheesh Kumar T.P.,

S/o. V.K. Kunhikkannan,      

‘Reena Nivas’, Maloor P.O.,                                   :         Complainant  

Mattannur (Via),

Kannur District 

(Rep. by Adv. K.R. Satheesan)

1.  M/s.  Kunnath Zerox Systems,

     6/572, MA Bazar, Bank Road,    

     Calicut – 673 001

2.  M/s. Sahil Graphics                                        :         Opposite Parties

     990, Sector-23, NIT,

     Faridabad-121005,

     Haryana

(Rep. by Adv. C.K. Rathnakaran)

O R D E R

Smt.K.P. Preethakumari, Member.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to take back the Sahil Brand offset printing machine  and to return ` 5,90,100 collected by opposite party as the price of machine with ` 50,000 as compensation and cost.

          The case in brief of the complainant is that he is running a printing press by name ‘V.K. Printers’  for earning his livelihood by means of self-employment by availing bank loan.  On 14.10.2006, he purchased a Sahil brand sheet fed offset printing machine (15x20) with all standard accessories for ` 4,99,900 from 1<sup>st</sup> opposite party and 2<sup>nd</sup> opposite party is the manufacturer.  The 1<sup>st</sup> opposite party collected an amount of ` 2,25,000 as advance stating that if they waited till the bank issues D.D. after completing the loan formalities, the supply of the machine would be further delayed and the above said amount would be returned with interest as and when bank issues D.D. for ` 4,99,900.  Eventhough the bank issued the D.D during October, 2006, the 1<sup>st</sup> opposite party repaid the above said amount of ` 2,25,000 only after one month without interest.  After 4 days of installation of the machine the shaft of the machine was broken due to manufacturing defects and thereafter the machine was defective.  Eventhough the service personals of opposite party tried to rectify the defects, they couldn’t repair the same and at last during November, 2007, the 1^st opposite party agreed to provide a new machine to the complainant on condition that the complainant had to pay an additional amount of ` 90,200 as the cost of the new machine would come as ` 5,90,100 and the complainant had agreed to pay the same eventhough he was not liable to pay the same as a compromise and paid the same on  17.11.2007.  The 1^st opposite party has taken back the first machine without delivering the new one and not given the first machine repaired till the delivery of new machine and the act of opposite party is against the terms of agreement and amounts to cheating.  Later on 31.11.2007, the 1^st opposite party delivered a new machine without documents and on enquiry it was told that it would be given at the time of installation, but not delivered at the time of installation.  After repeated demand the 1^st opposite party issued a bill for ` 3,75,100 and a warranty certificate on 15.12.2007.  As per the bill the price of the new machine is only ` 3,75,100 and the opposite party had collected excess amount of ` 2,15,000 and the warranty does not bears the number of machine, authority of the manufacturer etc.  Soon after this the complainant contacted the 1<sup>st</sup> opposite party for payment of ` 2,15,000 illegally collected and he had agreed to repay the same but not paid so far.  The 2^nd machine is also not working properly and has serious manufacturing defect.  According to the complainant the opposite party supplied a second hand machine having so many defects and has collected excess amount, which is unfair trade practice and deficit service.  Due to the act of opposite parties the complainant caused both mental as well as financial loss and he is liable to get compensation also.   Hence this complaint.

          In pursuance to the notice issued by the Forum both opposite parties appeared and filed their version contending that the Forum has no jurisdiction to try the above complaint.  The 1^st opposite party is residing in Calicut and the 2^nd opposite party is residing in Faridabad and as per the complaint itself the complainant purchased the machine from the 1^st opposite party at Calicut and the entire transaction took place from Calicut.  The opposite parties admits that the complainant had purchased a Sahil printing machine for ` 4,99,000 from 1<sup>st</sup> opposite party and denied the averment that the above machine is for eking his livelihood by means of self employment.   The complainant was already having a printing press at Peravooor and was having sufficient business and the opposite party supplied Sahil machine to the Peravoor unit of the complainant and not for V.K. Printers at Maloor.  The opposite party denied the averment that he had collected an advance amount of             ` 2,25,000 and agreed to return the amount with interest if the supply of the machine was delayed etc.  According to the opposite party he had supplied Sahil machine for the Peravoor unit and received ` 4,99,900 by way of D.D. and after one month from the date of purchase, the complainant requested the above opposite party to take back the machine as it was not feasible for his investment and requested to supply a small machine and to refund the difference of amount.  Accordingly the opposite party supplied machine having the size 1319 R.C and refunded the difference of ` 2,20,000.  The opposite party further denied the allegation in the complaint that within 4 days of the installation of the machine the shafts of the machine was broken due to manufacturing defects and thereafter machine was found defective on so many times that the service persons of the opposite party could not repair the machinery and that 1^st opposite party agreed to provide a new machine to complainant on a condition that the complainant had to pay an additional amount of ` 90,200 as the cost of the new machinery comes to ` 5,90,100 and that complainant agreed to pay the amount of ` 90,200 and paid the amount of ` 90,200 on 17.11.2007 etc.

          According to opposite party on 22.05.2007, the complainant approached to opposite party for supplying another machine at Maloor unit and agreed to supply another machine for ` 3,75,700.  The opposite party has quoted a low price only due to the reason that the complainant was a regular customer of the opposite party.  The opposite party further denied the allegation that he was taken back the machine, and did not deliver the new machine as agreed and the act of opposite party is against the agreement etc.  The 1<sup>st</sup> opposite party has taken back the machine already supplied as per the request of the complainant and supplied another machinery having a small size and hence there is no necessity to repair the old machinery as stated in the complaint.  The opposite party again denied the allegation that opposite party did not give documents of new machine and that machinery supplied at Maloor unit on 30.11.2000 was in continuation of the machinery agreed to be supplied as per the quotation dated 17.01.2008 and that the opposite party, did not issue any bill or warranty card and that on getting the bill, the complainant demanded the above opposite party to refund an amount of ` 2,15,000 and that the opposite party agreed to return the said amount and that the second machinery supplied by the above opposite party to the complainant is having manufacturing mechanical defect and the same is not working properly and that the purpose of purchasing the machinery was not served etc.

          The value of the second machinery supplied was ` 3,75,100 but the complainant gave only ` 90,200 as advance.  The complainant refused to pay the balance even after repeated request made by the opposite party.  After installing the machinery at Maloor unit, the opposite parties service engineers Anil and Raju gave training to the workers of complainant to operate the machineries.  Thereafter due to the reckless use of the machinery by untrained persons there occurred some complaint to the trade cylinder of the machine.  On 10.03.2008 Mr.Mukesh Bhat, the Service Engineer of the opposite party visited the unit of complainant and replaced the cylinder of the machine and also gave some settings to the machine.  The cylinder will cost an amount of   ` 15,000 and the complainant did not permit the Service Engineer to take back the damaged cylinder, and threatened the opposite party’s Engineer.  The machine has no mechanical or manufacturing defect and the cylinder was damaged only due to the careless use of machine by untrained person.  The opposite party denied the allegation that the 2<sup>nd</sup> machine supplied by 1<sup>st</sup> opposite party is also having manufacturing and mechanical defect and instead of new machine the 1<sup>st</sup> opposite party supplied second hand machine with many defects and 1<sup>st</sup> opposite party collected excess amount which amounts to unfair trade practice and deficiency in service etc.  The 1<sup>st</sup> opposite party supplied brand new machine to the complainant and that 1<sup>st</sup> opposite party did not collect over and above the quoted price.  The opposite parties have not caused any financial and mental agony to the complainant and the complaint was filed to avoid the payment of balance of ` 2,84,900 of the 2^nd machine and hence the complaint is liable to be dismissed.

          Upon the above contention the following issues have been raised for consideration.

1.         Whether the complaint is maintainable and the Forum has jurisdiction to try the case?

2.         Whether there is any deficiency of service on the part of opposite parties?

3.         Whether the complainant is entitled to any relief?

4.         Relief and cost.

The evidence in the above case consists of oral testimony of PW1, DW1, CW1 and Exts. A1 to A7, C1 and C2.

Issue No.1 :

          The opposite parties contended that the Forum has no jurisdiction to try the complaint since both opposite parties are not within jurisdiction and the entire transaction took place from Calicut.  Moreover the complainant is not a consumer since the complainant has got other source of income for his livelihood.  As per the Act in order to constitute territorial jurisdiction, the opposite parties mentioned in the complaint reside or carry onbusiness within the local limits of the district Forum or the cause of action wholly or partly arises in territorial limits of the district Forum.  In this case the DW1, Branch Manager deposed before the Forum that “]cm-Xn-bn ]dª BZ-ys¯ sajo³ hm§n¡p-¶-Xn\v th­n ]cm-Xn-¡m-c-\pT Rm\pT BZ-y-ambn _Ô-s¸-«Xv I®qÀ {_m©n sh¨mWv”. He again deposed that “Machine customer Bh-i-y-s¸-Sp¶ Øe¯v F¯n-¨p-sIm-Sp-¡p-I-bmWv ]Xn-hv.” This shows that the opposite party carry on business within the jurisdiction of this Forum and part of the cause of action also arise within the jurisdiction and hence it is seen that the Forum has territorial jurisdiction to try the case.  Another contention of the opposite parties is that the complainant has other source of income and hence he has purchased the offset printing press not for eking his livelihood.  But the complainant contended that he had purchased the machine by taking loan for eking his livelihood.  The opposite party has not produced any documents to show that the complainant has other unit and also has other means for his livelihood.  So opposite party has failed to prove that the complainant has purchased the printing press for commercial purpose.  So we hold the view that the complainant is a consumer and the Forum has ample jurisdiction to try the case and hence issue No.1 is found in favour of the complainant.

Issue No.2 to 4 :

          The opposite party admitted that the complainant has purchased a Sahil printing machine for ` 4,99,000 from opposite party, but contended that he has another printing unit at Peravoor and the machine was purchased for the unit.  But the complainant deposed before the Forum that “t]cm-hq-cn Ipsd ap³]v bqWnäv D­m-bn-cp¶p.  AXv letter press Bbn-cp-¶p.  t]cm-hq-cn \n¶v amän-bn-«mWv ameq-cn XpS-§n-b-Xv.”  The DW1 also deposed that “Hm^v skäv printing press AÃ, letter press Bbn-cp¶p t]cm-hq-cn \S-¯n-b-Xv.”

So the case of the complainant that he had conducted a letter press at Peravoor is substantiating the above deposition of DW1.  Moreover if the complainant has any other printing unit in Peravoor, there are documents with the concerned authorities and the opposite party has not produced any such documents to prove that the complainant has another printing unit.  So the above contention raised by opposite party is only for the purpose of the case.

          The complainant contended that the opposite party had collected    ` 2,25,000 and agreed and return the said amount with interest after receiving the D.D. from bank etc. Opposite party denied this and the complainant has not produced any document to show that he had given the above said amount to the opposite party and they returned it only after one month after receiving D.D. from bank without interest and hence we are discarding this contention as such.

          The opposite party admits that the complainant requested them to replace the machine already delivered, but contended that they supplied machine having smaller size 13X19R.C and refunded the difference of     ` 2,20,000 and later on demanded for another machine and paid an advance amount of ` 90,200 towards the value of third machine. According to the complainant the opposite party demanded ` 90,200 more for replacing the defective machine since they are intended to deliver a machine having value of ` 5,90,100.   But the opposite party had delivered a second hand machine having a value of ` 3,75,100 and not repaid the balance amount of ` 2,15,000 which is collected in excess from the complainant.  The DW1 deposed before the Forum that “]cm-Xn-¡m-c\v \ÂInb c­v sajo-\pT 15X20 sskkm-Wv. 13X19R-C F¶ {_mâp-ff sajo³ ]cm-Xn-¡m-c\v \ÂIn-bn-«n-Ã. 13X19R-C sajo³ sImSp-¡m-¯Xp sIm­v ]WT Xncn¨p sImSp-t¡­n h¶n-«n-Ã.”   But this deposition is contrary to the statement in the version that “The opposite party supplied machine having size 13X19 R.C and refunded the difference of ` 2,20,000.  He again deposed that “ChnsS \ÂInb D¯-c-¯n Rm\mWv H¸n-«-Xv.  AXn ]d-bp¶ Imc-y-§Ä t\cn-«-dn-hp-ff Imc-y-§-fm-Wv.”  He again deposed that “Hm^vskäv sajo-\-ÃmsX thsd sajo-s\m-¶pT sImSp-¯n-«n-Ã.  BZ-yT sImSp¯ sajo³ XI-cm-dm-bXp sIm­mWv c­m-as¯ sajo³ \ÂtI­n h¶Xv F¶p ]d-ªm icn-b-Ã.   BZ-ys¯ sajo³ Xncn-s¨-Sp-¯n-«mWv c­m-as¯ sajo³ supply sNbvXXv F¶p ]d-ªm icn-b-Ã.  ]cm-Xn-¡m-c-\n \n¶pT Hcp sajo-\pT Xncn-s¨-Sp-¯n-«n-Ã.” He further deposed that “]cm-Xn-¡m-csâ ssIh-iT c­v sajo³ Ds­¶v R§Ä¡v hmZ-anÃ.  R§-fpsS Ad-nhn ]cm-Xn-¡m-c\v \ÂInb sajo³ Ct¸mÄ ameq-cn-em-Wp-f-f-Xv.” From the above deposition which are highly contradictory in nature reveals that the contentions put forwarded by opposite party that they had supplied three machines is not correct.  He again deposed that “]cm-Xn-¡m-c\v R§Ä 2 sajo³ am{Xta supply sNbvXn-«p-f-fq.  ]cm-Xn-¡m-c-\n \n¶pT sajo³ H¶pT Xncn-s¨-Sp-¯n-«n-Ã.” Moreover eventhough the opposite parties contended that they had issued a third machine to the complainant and he has paid only ` 90,200 and not paid the balance amount of ` 2,84,900 towards the value of third machine, they have not produced any document to show that they had delivered a third machine to the complainant. Moreover the opposite party has not demanded the balance amount of the third machine.  The DW1 deposed that “]cm-Xn-¡m-c³ h¡o t\m«o-k-b-¨n-cp-¶p.  AXn\p  adp-]Sn \ÂIn.  B adp-]Sn t\m«o-kn ` 2,84,900  In«m-\p-s­¶v Bh-i-y-s¸-«nà F¶p ]d-ªm icn-bm-Wv.”  Moreover according to opposite party A6 is issued for the third machine for which the complainant paid only ` 90,200.  But in A6 nothing is written to this effect and not asked for the balance amount.   Moreover the opposite party has not produced any documents or any statements of account.  From the above discussion it is clearly shows that the story of a third machine is a concocted one which is made only for the purpose of the case.  Moreover it is clear that the opposite party had received ` 5,90,100 from the complainant as the value of machine and also clear that there is only one machine with the complainant which is supplied as per Ext.A6- Bill.

          The complainant has taken out an Expert Commissioner and his report was marked as Ext. C1 and C2 and was examined as CW1.  The Commissioner reported that he visited the printing press, Maloor in Building No.3/163 in Maloor Panchayath an d he further reported that the main part of the machine which is the printing area is totally dead, and the motor for the printer delivering mechanism is not working and hence he was not able to start the machine.  He further reported that vaccum sucker for the paper loading and up and down movement of the table is in working condition which shows that the electrical power is entering in the machine and the supply connections from the mains to the machine are in good condition.  The rollers, belts, illumination system of the machine also not in working condition.  Eventhough the first report of the Commissioner was remitted at the instance of opposite parties since they are not present at the time of examination, the opposite party was remain absent even at his second inspection, inspite of proper notice was issued.  According to the Commissioner the machine is not in working condition.  The complainant contended that the machine became defective within a few days itself, the complainant suffered financial loss by stopping the work in the press.  He deposed before the Forum that “ameq-cn sajo³ sIm­p h¶v {]hÀ¯n-¸n-¡m³ ]än-bn-Ã.  AXp-sIm-­mWv register sN¿m-Xn-cp-¶-Xv.  Fsâ Afn-bsâ retirement B\p-Iq-e-yT hm§n-¨n-«mWv 5þ6 e£T cq] Xncn-¨-S-¨-Xv.” This shows that complainant was not able even to register the institution, which means that the machine is not in a working condition at the time of installation itself and hence the complainant who had started the establishment by availing loan from the bank had suffered so much of financial as well as mental pain.  From the above discussion it is clear that the complainant had given ` 5,90,000 as the value of the offset printing machine and it has become defective during installation itself.  So the complainant has suffered so much of financial loss.  The facts and circumstances of the case warrants compensation and considering the gravity of mental, physical and financial agony we assess ` 25,000 as compensation.  The opposite party is liable to give back ` 5,90,100 which was received from the complainant and the complainant is also entitled to get ` 1,500 as cost of the proceedings and order passed accordingly.

          In the result the complaint is allowed directing the opposite party to refund ` 5,90,100 (Rupees Five lakh ninety thousand and one hundred only) along with ` 25,000 (Rupees Twenty Five Thousand only) as compensation and ` 1,500 (Rupees One thousand five hundred only) as cost of the proceedings to the complainant after taking back the faulty machine within one month from the date of order, failing which the complainant is entitled to execute the order as per the provisions of Consumer Protection Act.

                         Sd/-                           Sd/-                      Sd/-      

     President                    Member                 Member

APPENDIX

Exhibits for the Complainant

A1.  Copy of the lawyer notice dated 12.06.2008.

A2.  Postal receipt.

A3.  Postal acknowledgment.

A4.  Letter dated 19.06.2008.

A5.  Tax invoice dated 14.10.2006.

A6.  Retail invoice dated 30.11.2007

A7.  Warranty certificate.

Exhibits for the opposite party

Nil

Exhibits for the Court

C1.  Letter dated 20.04.2009.

C1(a).  Postal acknowledgment.

C1(b).  Letter dated 08.04.2009.

C2.  Letter dated 30.10.2009.

C2(a).  Postal acknowledgment.

C2(b).  Letter dated 22.10.2009

Witness examined for the complainant

PW1.  Complainant.

Witness examined for opposite party

DW1. K.S. Sudhakaran          

Witness examined for the Court

CW1.  Vinodan M.

      /forwarded by order/

                                                                     SENIOR SUPERINTENDENT