Dated this the 31^st day of January, 2011

Present: Smt.Seena.H, President

            Smt.Preetha.G.Nair, Member     

            Smt.Bhanumathi.A.K, Member                                 Date of filing: 26/09/2008

CC No.141/2008

Fr. Biju Mapranathkaran

Executive Secretary

Attappadi Social Service Organization

Reg. No.53/88, ASSO Bavan

Pakkulam

Thavalam.P.O

Palakkad.                                                -                        Complainant

(By Adv.K.V.Mani)

Vs

1. M/s.C.A Office Machines

    North Manor

    4A Pullepady

    Cochin 682018.

    (By Adv.Aswathy.R)

2. C.A Office Machines

    19 Fahim Complex

    Puthur Road

    Palakkad.

3. Xerox India Ltd.

    Kaloor Tower

    Kaloor.P.O

    Ernakulam.

    (By Adv.S.M.Unnikrishnan)

4. Trichur Computer Centre

    Grace Building

    Robinson Road

    Near Railway Gate

    Palakkad.                                            -                        Opposite parties

   (By Adv.T.K.Sandeep)

O R D E R

          By Smt.PREETHA.G.NAIR, MEMBER

          The organization represented by the complainant had purchased a Xerox Machine model No.WC-315 S.No.3501027099 from Xerox Modi Corporation Ltd.  The complainant had entered into “Volume Based Service Agreement” with the opposite party as directed by the Xerox Modi Corporation Ltd and renewed the agreement for a period from 16/10/06 to 15/10/07.  At the time of renewing the agreement the organization has paid Rs.7,913/- to the 1^st opposite party as service charge.  The equipment has not been functioning from June 2007 and the complainant informed the opposite party several times for service and repair of the machine.  Then an employee from the Palakkad branch checked the machine and assured immediate service of the equipment.  But nobody turned up even after the repeated reminders by the complainant letter dt.14/9/07 and 19/9/07 and telephonic conversations.  But so far no technician either from the Palakkad branch or Cochin office turned up to check the equipment or to repair the defects.  Again the complainant had issued a registered lawyer notice dt.02/02/2008.  But the opposite parties have not replied or clear the defects of the machine.  As per the VBSA the opposite party is liable to render the necessary services and maintain the equipment and keep the same in good condition till their agreement expires i.e on 15/10/2007.  The complainant stated that the machine was purchased from 3^rd opposite party and 1^st opposite party is the service agent of the 3^rd opposite party and 2007 June onwards 3^rd opposite party withdrawn the service agency and 4^th opposite party as the service agent.  Hence opposite parties are jointly and severally liable for the damages.  The complainant is being a social service organization due to the negligence, irresponsible action and failure of the service of the opposite party the complainant had affected much of their office works.  Hence the complainant prays an order directing the opposite parties to

1. Remove the defects pointed out by the complainant

2. Replace the Xerox machine model No.315 with a new one of similar description without any defect.

3. Pay Rs.1,00,000/- as compensation for the loss and injury suffered due to negligence of the opposite parties.

          Opposite parties filed version stating the following contentions.  1^st opposite party stated that the machine is alleged to be purchased from Xerox India Ltd and 1^st opposite party was the service agent of Xerox India Ltd for the period 16/10/2006 to 15/10/2007.  But Xerox India Ltd had withdrawn the service agreement with 1^st opposite party from June 2007 and they had appointed Trichur Computer Centre as their service agent for Palakkad. The sale of spare parts to 1^st opposite party from Xerox India Ltd was stopped from the day they withdrew the service agreement and 1^st opposite party was unable to serve the customers of Xerox India Ltd. On the appointment of the new servicing agent, the existing contracts were transferred to the new servicing agent.  Now no spares are sold to 1^st opposite party and any service done by them would only be illegal.  1^st opposite party stated that they had clearly informed the complainant about his inability to render service as his service agreement was terminated since June 2007 and the Trichur Computer Centre was newly appointed service representative.  The 1^st opposite party understand that Trichur Computer Centre has provided the complainant a spare xerox machine for use till the repair of the machine.  Hence the allegation of loss and much inconvenience is all false and hence denied.  The complainant does not fall within the definition of a consumer and the dispute is not a consumer dispute.

          3^rd opposite party stated that no complaint was ever lodged before 31/7/2007.  When a complaint was informed on 31/7/2007 it was duly attended by the service engineers on 1/8/07.  3^rd opposite party stated that on inspection it was found that the few parts being consumables and out of the purview of the agreement needs to be replaced on chargeable basis and it was brought to the knowledge of the complainant.  Thereafter the complainant did not agree to the same and raised completely baseless and excessive demands of replacing the parts free of cost.  Further submitted that even today the service provider is ready to replace the consumable parts on chargeable basis but the complainant wants replacement free of cost beyond the terms of warranty.  3^rd opposite party stated that the service agreement with the 1^st opposite party was valid upto 15^th October 2007 and assignment as to the agreements to 4^th opposite party was effective from 01/08/07 which was informed to the complainant.  The service of the 3^rd opposite party has not been deficient in any manner and they cannot be held jointly and severally liable for any violation.

          4^th opposite party stated that they have not entered into any agreement with the complainant.  4^th opposite party has not received any complaint or letters from the complainant.  Letter would have been served on the 1^st and 2^nd opposite parties and 4^th opposite party has no knowledge about letters.  Neither the opposite parties 1 to 3 nor the complainant had paid any consideration to 4^th opposite party to bind them with any liability for the service of the xerox machines.  4^th opposite party stated that as per the VBSA agreement between the complainant and 1^st and 2^nd opposite parties any dispute between the service providers and the customers are to be referred to an arbitrator. 

          Hence all opposite parties prayed that dismiss the complaint with cost of opposite parties.

          Complainant and opposite parties 1, 3 and 4 filed affidavits and documents.  Exts.A1 to A7 marked on the side of complainant.  Ext.B1 marked on the side of 3^rd opposite party.  Complainant was examined.

          Issues to be considered are;

1. Whether the complaint is maintainable before the forum?

2. Whether the complainant is a consumer u/s 2(d)(i) of the Consumer Protection Act.

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

4. If so, what is the relief and cost entitled to the complainant?

          Issue No.1:

Opposite parties 3^rd and 4^th stated that if there is any dispute between the service providers and the customers it is to be referred to an arbitrator under the terms of the VBS agreement and the forum lacks jurisdiction.  But the complainant stated that it is only a general term and it is not sufficient to oust the jurisdiction of the forum.  Moreover there is no specific provision in the agreement which expressly bar the jurisdiction of the forum.  Section 3 of the Consumer Protection Act deals that Act not in derogation of any other law:- The provisions of this Act are in addition to and not in derogation of the provisions of any other law for the time being in force.   In view of the above circumstances we are of the view that complaint is maintainable before the Forum.  1^st issue answered in favour of the complainant.

          Issue No.2:

          Opposite parties stated that complainant is running education institutes for profits and employed many people.  3^rd opposite party stated that the complainant is running commercial business in the name of Attappadi Social Service Organization.  No documentary evidence was produced by the opposite parties to show the complainant is running commercial business.  At the time of examination the complainant stated that the organization has used the machine to issuing photocopy for themselves.  The complainant has not running education institutions. So the complainant is a consumer under section 2(i)(d) of Consumer Protection Act.

Issue Nos.3 & 4:

          The complainant is Fr.Biju Mapranathukaran, Executive Secretary of Attappadi Social     Service Organization.  In the affidavit complainant stated that the organization had purchased machine from the 1^st opposite party, who is the authorized service provider of 3^rd opposite party and entered into VBSA with 2^nd opposite party who changed its name as of the 4^th opposite party being the authorized service provider.  After admitting the complaint notice was issued to 2^nd opposite party.  But the notice returned with endorsement “no such addressee”.  But 4^th opposite party stated that they are a reputed service provider having its head office at Trichur had very recently started its branch office at Palakkad.  No evidence was produced by 4^th opposite party to show 2^nd opposite party is a separate entity working under the care and control of the 1^st opposite party.  The complainant stated that 2007 June onwards supplemental 3^rd opposite party withdrawn the service agency and appointed 4^th opposite party as the service agent.  3^rd opposite party stated that they received a complaint on 31/7/07 and the service engineer has attended the complaint on 1/8/07.  According to Ext.B1 photocopy of call note “Blank display, power supply failed so needs replacement” was mentioned in remarks.  In the version 3^rd opposite party admitted that they are ready to replace the consumable parts on chargeable basis but the complainant wants replacement free of cost.  No evidence was produced by 3^rd opposite party to show the service call note is issued to the complainant.  At the time of cross examination of complainant he stated that 3^rd opposite party was inspected the machine but not repaired the machine.  In the affidavit of the complainant stated that at the time of signing the VBSA the former Executive Secretary, Fr.Stephen Thachil has represented the organization and now he is the Executive Secretary of the organization.  In the present case 3^rd opposite party was admitted that they are ready to replace the consumable parts on chargeable basis.  4^th opposite party stated that they are not a party to any agreement with the complainant and they started to do its service only for those customers who had entered into VBSA contracts after the period of 14/8/07.  1^st opposite party stated that appointing a new service agent the policy is that all the existing contracts would be transferred to the new service agent.  In short opposite parties have no dispute regarding the defects of the machine.  But none of them are ready to repair the machine.  In the present case complainant and 1^st opposite party are entered into VBSA on 16/10/2006.  1^st opposite party stated that in June 2007, Xerox India Ltd had withdrawn the service agreement with the 1^st opposite party and they have appointed Trichur Computer Centre as their service agent of Palakkad.  According to Ext.A4 1^st opposite party received the service agreement charges of Rs.7,913/- from the complainant on 6/11/06.  The complainant had not taken expert opinion to prove the manufacturing defects of the machine.  As per Ext.A5 and Ext.A7 the former Executive Secretary had informed the complaint of the machine to the 1^st opposite party.  According to Ext.A6 the complainant had sent lawyer notice to the 1^st opposite party.  No evidence was produced by the 1^st opposite party to show repair or inspect the machine.  In the above discussions we hold the view that there is deficiency in service on the part of opposite parties.  Hence the complaint allowed.

          2^nd opposite party is exonerated.  We direct opposite parties 1, 3 and 4 jointly and severally to  

1. Remove the defects and repair the xerox machine model No.315 free of cost within one month from the date of order.

2. Pay Rs.5,000/- (Rupees Five thousand only) as compensation for mental agony

3. Pay Rs.1,000/- (Rupees One thousand only) as cost of the proceedings.

          If the opposite parties are not ready to repair the machine within one month from the date of receipt of the order complainant is entitled for an additional amount of Rs.25,000/- (Rupees Twenty five thousand only) from the opposite parties.

          Pronounced in the open court on this the  31^st day of January, 2011

     Sd/-

 Smt.Seena.H,

President    

    Sd/-

Smt.Preetha.G.Nair,

                                                                                                      Member

                                                                                                           Sd/-                                                                                                             Smt.Bhanumathi.A.K

    Member

Appendix

Witnesses examined on the side of complainant

PW1 – Fr.Biju Mapranathkaran

Witnesses examined on the side of opposite parties

Nil

Exhibits marked on the side of complainant

Ext.A1 – Agreement dt.30/6/04

Ext.A2 – Agreement

Ext.A3 – Photocopy of letter dt.16/10/06

Ext.A4 – Photocopy of receipt for Rs.7,913/-

Ext.A5 – Photocopy of letter dt.14/9/07

Ext.A6 – Photocopy of lawyer notice dt.02/02/08

Ext.A7 – Photocopy of acknowledgement card

Exhibits marked on the side of opposite parties

Ext.B1 – Photocopy of Service Call Note

Cost (Allowed)

Rs.1,000/- (Rupees One thousand only) allowed as cost of the proceedings.