Before  the District Consumer Dispute Redressal Commission [Central], 5th Floor                                                   ISBT Building, Kashmere Gate, Delhi

                                      Complaint Case No.-254/ 2018

Surender Gupta, Proprietor of M/s Vishkarma Tunch Center

31/3192, Beadon Pura, Karol Bagh, New Delhi-110005

[Also at: 3645/14, Raigarpura, Karol Bagh, N.Delhi-110005]           …Complainant

                                                Versus

Contech Instruments Ltd.  (through its Directors)

207, Namdhari Chamber, 9/54, D.B. Gupta Road

Karol Bagh, New Delhi-11005

[Also at: 301, Punit Industrial Premises,

Turbhe Naka Turbhe, Navi Mumbai-400705]                                     ...Opposite Party                                             

                                                                                    Date of filing:              28.11.2018

                                                                                    Date of Order:             03.07.2023

Coram: Shri Inder Jeet Singh, President

               Ms. Shahina, Member -Female

               Shri Vyas Muni Rai,    Member

Inder Jeet Singh, President

                                                       ORDER

1.1. (Introduction to case of parties) – The complainant, a goldsmith, in order to earn his livelihood, had purchased a second hand gold measuring machine from Sh. Naresh Kumar, who had originally purchased it from OP/Contech Instruments Ltd., machine was under warranty. Later-on, some problem was developed after the period of warranty but complainant had AMC which include extended warranty, however, the OP is not repairing the machine. That is why the complaint because of deficiency in services and unfair trade practice.

1.2. Whereas according to OP, on the eve of re-sale of the machine warranty ends but the OP was confident in its machine as well as to  meet the need of customers, the OP had extended the warranty to the complainant for the remaining period of after purchase of machine by the complainant from the original buyer Sh. Naresh Kumar. The warranty period was over. The complainant took AMC, which does not amount to extension of warranty period and scope of AMC does not cover consumable spares etc. There is no deficiency of any services and unfair trade practice.

2.1. (Case of complainant) – Sh. Naresh Kumar is friend of complainant Surender Gupta. He had purchased gold testing machine known as “Contech metal tester” bearing model no. CCGX-102, having SAC Code 998719, serial no. 132001 (briefly 'machine') from OP/Contech Instruments Ltd. (who deals in manufacturing and exporting high precision electronic balances and complete range of electronic balances, weighing scales for various applications etc.). He had purchased it in July 2016 for Rs. 12,00,000/-.

            In July 2017, the complainant purchased that machine as a second hand machine from Sh. Naresh Kumar for Rs. 4,00,000/- and complainant also informed the purchase of machine to OP, he paid Rs. 1,00,000/- to OP, since Naresh Kumar had purchased machine on installments and Rs.1,00,000/- was paid to OP as balance amount. The OP extended the warranty of machine from July 2017 to December 2017. The complainant had also arranged loan from HDFC Bank in July 2017 for buying the machine, he has been repaying the loan with interest.

2.2. In August 2018, the complainant found some defect in the machine and he approached OP for appropriate repairs, however, OP refused it being out of warranty but advised that warranty period can be extended by paying annual maintenance charges (AMC). The complainant was allured of rosy pictures by OP and complainant paid Rs. 35,000/- for extending the warranty period against invoice. On 20.08.2018 the machinery was repaired and one part also changed by the OP through its engineer. Again, on 23.8.2018 the machine stopped working all of a sudden because of picture tube was defective, which defect was earlier repaired by engineer of OP, consequently the complainant started suffering his working being goldsmith to earn his livelihood and he was not able to measure the purity of gold.

2.3. On the same day, complainant approached OP for appropriate repair etc. but OP demanded Rs. 40,000/- in advance but complainant requested that there is valid warranty period for repairs, he was behaved rudely by the OP. The complainant has been pursuing OP for appropriate repairs but OP is not cooperating and demanding Rs. 40,000/-. He has also written email apart from telephonic requests but OP is behaving completely as a monopolistic and adopting unfair trade practice, whereas the complainant is a middle class person. He is facing great hardships for want of repairs of the machine and suffering a lot, being at the verge of starvation. That is why the complaint for appropriate directions to OP to repair the machine or in alternate to provide new machine without any cost, apart from compensation of Rs. 3,00,000/- and costs.

2.4. The complaint is accompanying identity proof of complainant, digital photographs of machine, declaration of Sh. Naresh Kumar of sale of machine to complainant, extension of warranty of machine from 01.07.2017 to 31.12.2017 by OP on its letter head, papers of bank loan stated to be against car loan, repayment schedule of bank loan and loan agreement, pro-forma invoice dated 18.08.2018 of annual maintenance contract charges, delivery challan of 18.08.2018, tax invoice dated 28.08.2018 of Rs. 35,000/-, service report of 20.08.2018/ 21.08.2018 and email dated 04.09.2018.

3.1 (Case of OP)- The OP filed detailed reply and opposed the complaint vehemently, there are repetitions of same facts in different paragraphs of reply. Briefly, The complainant is not a consumer, the machine purchased was for purely commercial gains. OP is engaged in business to business (B2B) form of commercial transaction as the products/machines being sold by OP are intermediary products, which are used for commercial purposes.

3.2. On 25.08.2016 Sh. Naresh Kumar of M/s Krishan Gold Tunch purchased a machine, it paid full and final payment of Rs. 9,69,000/-, for which appropriate invoice was issued. The machine was installed at the premises of said firm, apart from appropriate instructions of his handling and operation, for which delivery receipt, warranty card with terms and conditions was issued and services were rendered from time to time, the service report have also been filed with the reply.

3.3. On 03.07.2017, the Naresh Kumar had sold the machine to complainant. On 10.07.2017, the OP had issued the declaration that the said machine will be under warranty from 01.07.2017 to 31.12.2017. The complainant had not purchased the machine from OP but warranty of machine was extended since, firstly, it was for remaining period of warranty, secondly as a customer care satisfaction, thirdly OP was confident in its machine, otherwise warranty immediately ends on re-sale of the machine. However, OP had not taken amount of Rs. 1,00,000/- from the complainant, nor any receipt is produced to this effect, since it is a blatant lie. The machine was reinstalled at the premises of complainant as a gesture of goodwill for the customers and OP had also given appropriate instructions for functioning and handling the machine properly, since it involves complex commands. As per complainant’s own document, they are car loan papers, they are not pertaining to loan in respect of the machine.

3.4. Since OP is manufacturer of machines and it had agreed to offer its services to the complainant and it had also serviced unit of complainant on 22.07.2017, 24.07.2017, 12.09.2017, 16.09.2017, 27.03.2018 and 26.06.2018, the appropriate service reports have also been filed. It was  07.08.2018, OP informed complainant after visit of engineer, which also find mentioned in letter dated 07.08.2018, that there was heavy dust accumulation in the component of the machine particularly in the X-ray tube and the detector; it was main reason for damaged to the machine and complainant was advised to keep the machine in a proper dust free working condition besides its proper handling; PCB of mother board was not working. The complainant was made aware about scope of AMC, thus, pro-forma invoice dated 18.08.2018 for Rs. 35,000/- as service charges for non-comprehensive AMC was given, which covers online service and visit of engineer, if necessary, but it did not provide any replacement of part or repairs. On 20.08.2018 the complainant entered into AMC with OP and paid Rs. 35,000/- towards AMC, the terms and conditions of contract were provided and AMC contract does not cover breakdown arising out of partly or wholly misuse of the equipment or its use under the environmental condition not prescribed by the company or unsuitable for the equipment.

            In the service report of 20.08.2018,  the complaint of complainant was noted as machine not working properly and the work was done and the instrument was working properly while noting down that AMC contract is non-comprehensively taken.  On 23.08.2018 OP informed the complainant that high voltage x-ray tube was damaged due to accumulation of heavy dust. The complainant was offered provisional arrangement of X-ray tube from the stock of OP to replace the damaged tube and to get the damage tube repaired from abroad, the total cost of repair of tube was Rs. 75,000/- and complainant was asked to deposit Rs. 40,000/- in advance and remaining amount of Rs. 35,000/- is to be paid after receipt of repaired defective tube. The OP has acted and performed its acts and deeds within the parameters of AMC, its terms and conditions are known to the complainant and the documentary record supports the facts described by the OP.

The AMC is neither warranty nor extended warranty and it does not cover defective parts but the machine has been damaged by the complainant by using it improperly. There is no deficiency of services or unfair trade practise and complaint is liable to be dismissed.

3.5.  The reply is accompanying with record of invoices, challan, service reports  and warranty in respect of  purchase of machine by Sh. Naresh Kumar of M/s Krishna Gold Tunch. Reply is further supplemented with the record of letter dated 07.08.2018, AMC quotations dated 20.08.2018, invoice dated 23.8.2018, letters, reply dated 05.09.2018 to email and such other record.  

4. (Replication of complainant) – The complainant filed detailed replication, even by reproducing  definition of consumer, to reaffirm the complaint as correct. The complainant is a consumer because the machine was purchased for self-employment to earn his livelihood. The OP took annual maintenance charges from the complainant and extended the warranty in respect of the machine. No receipt of Rs. 1,00,000/- paid to the OP was issued but amount was paid, that is why the warranty was extended upto 31.12.2017. It is not a car loan but loan was taken for the machine against the guarantee of car, that is why it is car loan. The amount of Rs. 35,000/- was paid against tax invoice, its overleaf bears  terms and conditions of sale. The complaint is correct.

5.1. (Evidence)- The complainant Surender Gupta led his evidence by filing detailed affidavit, which is on the lines of complaint and documents in support thereof.

5.2. The OP led evidence in detail, by filing three affidavit viz. (1) affidavit of Sh. Dinchand Gahekar, Branch Manager of Delhi Office (North India Region) of OP; (2) affidavit of Sh. Subhash Rajat, Service Engineer of Delhi Office (North India Region) of OP and (3) affidavit of Sh. Ganjanan Pawade, Service Department Manager of OP.

            The first affidavit of evidence narrates as to how the deponent had dealt with the situation administratively from the time machine was originally purchased by Sh. Naresh Kumar till the development took place till the breakdown of machine while it was with the complainant. The other deponent Subhash Rajat, being ITI in electronics and engineer, mentions about the functioning of machine, his visits at the premises of Naresh Kumar and later at the premises of complainant to attend the complaints. The third deponent is also associated with the service department and he also dealt with the complainant inclusive of aspects of AMC.

6.1 (Final hearing)- In the phase of final hearing, the complainant filed detailed written arguments and similarly OP had also filed the written argument, in fact they have reproduced their pleadings/evidence as arguments. 

6.2. Both the parties were given opportunities to make oral submissions thus Ms. Isha Advocate for complainant and Sh. Manoranjan Paikari, Advocate for OP presented submissions on behalf of OP.

7.1 (Findings)- The rival contentions are considered and assessed, keeping in view the material on record and majority of evidence is in the form of documents. The contentions of parties are not being repeated here, since the cases of parties have already been referred.

7.2. According to OP, the complainant is not a consumer, since the machine was not purchased by the complainant directly from OP as well as the nature of machine is to use it for commercial purposes and complainant is not end user/consumer. But complainant has reservations that he is goldsmith, he bought the machine for his self-employment to earn his livelihood.

            On the face of argument of OP, it appears that since the complainant had not purchased the machine directly from OP, he cannot be a consumer. Whereas, the circumstances are speaking contrary to it, firstly, the OP had considered and extended warranty period upto 31.12.2017 after purchase of machine by complainant from Shri Naresh Kumar and later-on AMC was also entered with complainant, it was also acted upon by attending the complaints and providing the services, by virtue of these two agreement de-jure relations came into existence between them. Thus, in terms of definition of consumer u/s 2(d) of the Consumer Protection Act, 1986, the complainant in consumer since he hired and availed the services of OP by virtue of extended warranty upto 31.12.2.017  and then by agreement of AMC. Moreover, the complainant maintains that he is gold-smith, he lead evidence as Proprietor of M/s Vishkarma Tunch Center and earn livelihood by that avocation but there is no other contrary evidence by OP that during service visit, some other activities were found. This contention is disposed off in favour of complainant and against the OP.

7.3.1. There is rival plea of the parties that as per complainant the AMC means and includes extended warranty, whereas on the other side, it is just an AMC and its scope is also mentioned, it cannot be treated or construed extended warranty.

7.3.2. While assessing the submissions of the parties, the plea of OP is that the agreement AMC be read as it is but on the other side plea of complainant is that AMC is to be read to include extended warranty as it was so agreed. It needs to see the documentary record.

            The complainant himself has filed pro-forma invoice dated 18.08.2018 (at page 40) and its heading is annual maintenance contract charges and the amount mentioned is Rs. 35,000/- in respect of the subject machine, it excludes consumable spares. Then tax invoice dated 28.08.2018 was prepared being AMC and the description is given of maintenance contract charges. The OP has also filed quotations (at page no. 29) about annual maintenance contract charges, which was written to complainant and it is accompanying terms and conditions of AMC that it includes online service and visit of engineer if so required but it do not cover replacement of any components. Further, on the overleaf of tax invoice, there are terms and conditions of sale and clause no. 13 is of warranty, the complainant emphasizes that clause no.13 of warranty applies.

            However, at the outset, it is tax invoice and in case there are print of terms and conditions of sale, the terms and conditions will apply when the goods/machines are sold, the present case is not of selling of goods but of services in the form of AMC. Therefore, it would not given any benefit to the complainant that there is terms and conditions of sale consisting clause no.13 of warranty.

7.3.3. The agreement entered between the complainant and OP is of AMC and it excludes consumable spares, there is nothing in the pro-forma invoice or in the tax invoice that it is extension of warranty. The complainant is also knowing about the warranty, since when machine was purchased from Sh. Naresh Kumar the complainant had requested the OP and at that time warranty was specifically extended from 01.07.2017 to 31.12.2017 and expression ‘warranty’ has also been mentioned in that declaration  (at page no. 20 of the paper-book), which do not find mention either in the pro-forma invoice or in the tax invoice. The circumstances does not decipher any fact that AMC is a warranty/extended warranty by the OP nor the circumstances cull out on the part of complainant that under the garb of extended warranty, OP had issued annual maintenance charge invoice. It is held that there was no extended warranty by virtue of tax invoice dated 23.08.2018.

7.4. Since it is a case of repair of defective tube that too from abroad and it is not within the scope of AMC between the parties, therefore, the OP cannot be directed to do it under the terms of AMC. There is no deficiency of services on the part of OP nor unfair trade practice.

8. In view of the above discussion and conclusions, it is concluded that complainant failed to establish his complaint that there was extend of warranty by the OP under the AMC contract dated 23.08.2018 or repair of defective x-ray tube falls within the scope of AMC. The complaint fails. It is dismissed. No order to costs. 

9. Announced on this 3rd July, 2023 [आषाढ़ 12,  साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.

[Vyas Muni Rai]                                 [ Shahina]                               [Inder Jeet Singh]

           Member                                   Member (Female)                              President