Rajasthan

StateCommission

CC/17/2015

Manish Gupta s/o Dinesh Gupta - Complainant(s)

Versus

Canon Image Square - Opp.Party(s)

Yatendra Prkash Sharma

11 Jan 2016

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

 

COMPLAINT CASE NO: 17/2015

 

Manish Gupta s/o Dinesh Gupta r/o Gupta Studio,Kankroli Bus stand, Kankroli, Ramdhun Ashram, Kankroli,Udaipur.

Vs.

 

Canon Image Square, 329, M.I.Road, Jaipur through Manager/Proprietor & ors.

 

Date of Order 11.01.2016

 

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

Mr. Kailash Soyal -Member

 

Mr. Yatindra Prakash Sharma counsel for the complainant

Mr.Shailendra Chhabra counsel for non-applicant no.3

 

 

 

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BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

This complaint has been filed by the complainant with the contention that he purchased a Canon Digital ALR camera no. EOS-ID X-21118017000476 for an amount of Rs. 4,17,095/-. Alongwith the camera four lenses were also given to him for the use. The camera was having two years warranty but after some time it was found that pictures clicked from the camera started giving lines. The complaint was communicated to the non-applicant and they stated that camera has to be sent to Delhi service station. Thereafter they demanded Rs.90,000/- as repair charges whereas the camera was in warranty period. Due to the defect of camera the complainant has to cancel booking of 4-5 marriages and other programmes in January. He has to suffer mental agony and loss. Ultimately the non-applicants were not ready to repair the camera without repair charges and the complainant has to deposit Rs.60492/- as repair charges. Thereafter camera has been handed over to him. Hence,non-applicants are guilty of deficiency in service and Rs. 60492/- be refunded to him alongwith the cost of camera and lenses and compensation for mental agony,financial loss and expenditure be allowed to him.

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Per contra a detailed reply has been filed by the non-applicants but during arguments the main contention of the non-applicant is that the complainant cannot be termed as consumer as camera was purchased for commercial purpose and condition of sale has not been fulfilled by the complainant and he has misuse the camera and point out it towards the intense light source which has damaged the internal components and sensor of the camera which is not covered under the warranty and they have not committed any deficiency in service.

 

Heard the counsel for the parties and perused the original complaint as well as record of the case.

 

The first contention of the non-applicant is that the complainant has purchased the camera for commercial purpose and he is not a consumer and complaint is not maintainable and reliance has been placed on 2011 (1) CPR 1 (SC) Birla Technologies Ltd. Vs. Neutral Glass & Allied Industries Ltd. where the goods were purchased for commercial purpose and it was held that complaint before the Consumer Disputes Redressal Forum is not maintainable.

 

There is no dispute with this preposition but the

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contention of the complainant is that he has purchased the camera only to earn his livelihood, hence, Forum has jurisdiction and he has placed reliance on 1996 (2) CPR II Cheema Engineering Services Vs. Rajan Singh. Here in the present case the contention of the complainant is that he has purchased the camera to earn his livelihood and not for re-sale or earning huge profit. It has not been contradicted by the non-applicant with any evidence.

 

The non-applicant has also relied upon 2008 (2) CPR 124 (NC) M/s.Wimco Ltd. Vs. Ashok Sekhon where the court has rightly pointed out that where goods are purchased not for self consumption or in self employment the person could not be said to be a consumer. Hence, in the definition of consumer the explanation says that when the goods are purchased exclusively for the purpose to earn livelihood then it would cover under the definition of consumer.

 

Further in AIR 1995 Supreme Court 1428 Laxmi Engineering Works Vs. PSG Industrial Institute the court has made it clear that when the goods are purchased exclusively for purpose of earning livelihood by means of self employment then complaint is maintainable.

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Further in I (1992) CPJ 95 (NC) Super Engineering Corpn. Vs. Sanjay Vinayak Pant & ors. the word commercial purpose has been defined which means profit making in large scale and small ventures were distinct from profit making purpose.

 

In I (1991) CPJ 499 Synco Textiles Vs. Greaves Cotton & Co. the court has held that person who obtained goods for re-sale or carrying any activity for profit then they will exclude from the definition of consumer which is not the case here. It is the contention of the complainant that he has purchased the camera for earning his livelihood by way of self employment. Hence, the objection raised by the non-applicant is not sustainable.

 

The facts are not in dispute that the complainant has purchased Canon digital camera on 25.3.2013 and warranty was upto 24.3.2015 i.e. for two years and in the meanwhile the camera got defect as it started giving lines in the pictures which defect was removed after charging Rs. 60492/-. As the camera was in warranty period the charging of repair charges were deficiency in service on the part of non-applicant.

 

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The contention of the non-applicant is that camera was got defect as it was pointed out towards an intense light source. It is true that it was the condition between the parties that the camera should not be pointed out towards an intense light source otherwise it may damage the image sensor or the camera's internal components but whether these conditions were ever communicated to the complainant is not proved and furthermore there is no iota of evidence to show that the camera was not used properly or it was pointed out towards an intense light source. No techenical report or report of expert on behalf of the non-applicant has been submitted. Only an affidavit of Sushil Kumar who is Asstt. Manager (Training) has deposed that camera was damaged on account of external cause but what is the basis of this contention has not been stated. Hence, there is no evidence to the effect that camera was mis-used or it was pointed out towards an intense light source and the complainant is guilty of mishandling the camera.

 

It has also been stated that till 22 months the camera has worked well and no deficiency was found. Be that as it may be the case when the camera has got defect within the warranty period, it was the duty of the non-applicant to get it repaired

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immediately without any charges but it has charged unnecessarily and committed deficiency in service as well as unfair trade practice.

 

The complainant has contended that he has to cancel his bookings and other programmes due to defect in camera but to prove this contention, no evidence has been submitted. No document to the effect of booking of marriages or programmes or cancellation of the same has been submitted. There is no evidence to the effect that he has to refund the money which he has charged as advance from the parties. Hence, he does not proved that he has suffered any financial loss due to defect in camera.

 

Further camera is with the complainant and the defect is removed, hence he is not entitle to have the cost of camera or the lenses.

 

Hence, complaint is liable to be accepted. The non-applicant is ordered to pay the amount of Rs. 60492/- which he charged as repair charges. Furthermore for mental agony the complainant is entitled for compensation of Rs. 15,000/- as well

 

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as Rs. 10,000/- as cost of proceedings. The amount should be paid within one month failing in payment in the stipulated time the complainant would be entitle to 9% interest thereon.

 

 

(Kailash Soyal) (Nisha Gupta )

Member President

 

 

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