This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for direction upon O.P.No.1 and 2 to replace the Konica Minolta BIZHUB C224 model printer machine or to refund the purchase money of `3,11,500/- with interest and for compensation of Rs.3,05,000/- for mental harassment and deficiency in service , for business loss and also Rs10,000/- for litigation cost.
The case of the complainant in short is that the complainant for earning his livelihood by self employment purchased the above mentioned Multifunctional Colour Printer machine and paid `3,11,500/- through a bank draft issued by O.P. No.3 /bank on 22.06.2013. The machine was handed over and installed in his shop at Raiganj, Uttar Dinajpur and technician of O.Ps assured of providing monthly servicing of the machine with a prescribed charge as per terms and condition for Annual Service Agreement with O.P.No.1 . Petitioner alleges that the machine was defective and he could not run the same from very begining . That, O.P.NBo.1 did not provide important accessories like ADF, Touch Pen, Installation/ Driver CD etc. He found the machine was used previously and tonner was empty. He informed the matter O.P.No.1 and technician came to resolved the defect but after few days machine again started to create problem. Then petitioner requested O.P.No.1 to replace the machine but with no result. However, he plied the machine after repairing. That, O.P. received monthly servicing charges up to Nov. 2014 but did not complete the service and then the machine became useless and complainant suffer irreparable loss and injury. As O.P. failed to replace the same. Petitioner then sent a legal notice on 17.03.2015 and cause of action arose from that date as O.P did not turn up. Therefore petitioner filed this case before the Forum with above prayer.
O.Ps. appeared and contested the case by filing written version, where they categorically denied the allegations of the complainant. O.P.No.3 in his written version denied the allegations of negligence of deficiency on their part and practically complainant did not pray for any relief against this O.P who is proforma defdt.. in this case . O.P.No.1 & 2 assailed the complaint petition along with other grounds denying an y deficiency in service on their part. These O.Ps stated that the machine was supplied on the basis of full Annual Service Maintenance Agreement between the complainant and the O.P which includes all required material be provided by the company on credit and beginning of very next month. Counter reading is asked by the company to raise the bill as per full annual service maintenance agreement . Therefore without any investment the customer will take production from the machine for whole month. That after selling the produce i.e print out and photo copies throughout the month, the customer is liable to pay the agreed amount to the company by 7th of the next mo nth. The machine has got an inbuilt counter which increase by one number when one print out or copy has been produced. From the counter reading it is observed how many copies have been produced for the month and it also revealed from the bill signed by the customer.
The O.P/ company also sent color tonner ( ink) on 20.07.2013 and found at that time the machine has produced 2743 number of prints with the help of the ink supplied. . That the complainant was so satisfied and shown interest for having another large format machine from the O.Ps. That the complainant used the machine from 22.06.2013 to 30.11.2014 and machine produced 72,441 number of print out . That `31,852/- are due from the complainant and complainant took a loan of `3000/- from O.Ps. Inspite of repeated request by the company to pay the bill amount so that they can continue the service, the complainant did not comply. Instead complainant filed this fribulous and vexatious complaint and O.P prays for dismissal of the same.
DECISION WITH REASONS
Petitioner himself has been examined as P.W.1. O.P.No.2 Bappa Das has been examined as O.P.W.1.Comaplainant files Xerox copy of D.D of U.B.I showing payment of `3, 15,000/- Demand Draft to O.P./ Company for purchase of the machine. He also filed documents, copies of challan, terms and conditions, Proposal, reminder, lawyer’s notice dt. 12.03.2015 etc. Complainant was examined and cross examined as p.w.1 . O.P filed examination in chief and complainant filed questionnaires to o.p.w.1 and reply of questionnaires is also filed by O.P.No.2.
Giving due consideration to the contents of the complaint petition, documentary evidence on record, hearing, argument advanced by the lawyers of both sides, the Ld. Forum has come to the findings as follows: -
Admittedly the Petitioner purchased the machine through O.P.No.3/Bank by paying `3, 15,000/-. Challan dt. 22.06.2013 is filed showing receiving the machine. Other documents supplied by O.P/Company like tax invoice, money receipt etc. goes to support these facts. In his evidence P.W.1 stated that at the time of starting machine he found tonner was empty and that machine was used previously but there is no concrete evidence in this regard that the machine was used one. He also deposed that he was unable to use the machine properly for some defects in the machine. Again he deposed that O.P. did not supply accessories or replace those and he was bound to ply the machine with hardship. That O.P never takes any step for repair or replace the machine and that there was manufacturing defect. At the same time in cross examination he deposed about the agreement and that except printing papers other things like tonner ink etc. was supplied by the company along with some consumable spare parts. That, servicing of the machine was maintained by the company as and when required but at the expenses of the complainant like travelling, food and lodging of the repairer as per the agreement. That they had to pay the company the charges for printing and he made such payment up to Nov. 2014. That he did not make any payment thereafter in spite of demand by the company as per agreement. Therefore from the evidence of the P.W.1 it is clear that complainant used the machine procured printing, photo copies etc. from the machine and as per agreement the company took necessary charges. Company also gave necessary service of maintenance and repair of the machine as and when required up to Nov. 2014. O.P.W.1 deposed that complainant has used the machine from 22.06.13 to 30.11.14 and produced 72,441 number of print outs/ copies. Therefore petitioner cannot deny this fact that he failed to ply the machine for mechanical defect. On the other hand from the evidence of complainant and O.Ps it is clear that the machine was in operation and O.P. also gave necessary maintenance services as per the agreement. Perused the terms and condition of the agreement dt. 02.05.2013 filed by the complainant in this regard which also support the case of the O.Ps. It is also admitted by p.w.1 that he defaulted in making payment as per the said agreement after Nov. 2014. Therefore he cannot expect any further service regarding maintenance of the machine as per terms of the agreement. Moreover O.P. claims that `31,152/- is due till date which complainant did not mitigate in spite of repeated demand. Whatever may be the dues complainant himself admits in evidence in cross examination that he did not make further payment after Nov. 2014 to the O.P in spite of demand by the Company as per terms and conditions for Full Annual Service Maintenance Agreement.
In the light of our above discussion and after careful scanning of evidence on record and documents cited and also after hearing arguments advanced by the Ld. Lawyers of the parties we find that complaint has not been able to make out the case that he was supplied with a defective machine which he could not operate. Moreover, it is proved that complainant used the machine; procured print out copies regularly up to Nov. 2014, while he purchased the machine on 22.06.2013. The company rendered necessary services to the complainant by attending the machine following the agreement, as and when called for, as it is admitted by the complainant in his evidence.
Therefore this Forum cannot hold that O.P is negligent and deficient in rendering services to the complainant. On the other hand, complainant did not comply the terms of agreement by paying necessary charges after Nov. 2014. Therefore complainant is defaulter and cannot pray for compensation from O.P for harassment and deficiency in service. Complainant failed to prove by any cogent evidence that he suffered business loss during the period. Therefore we do not find any merit in the petition and complainant is not entitled to get any relief as prayed for. .
Fees paid are correct. Hence, it is
ORDERED,
That the consumer complaint being No. CC-32/2015 be and the same is dismissed on contest.
Let copies of this order be supplied to the parties free of cost.
