Heard learned counsel for both sides on V.C.  

2.      Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.   The factual matrix leading to the case of the complainant is that the complainant purchased the  xerox machine from  OP No.4 to use same in his PCO Booth which he opened for earning his livelihood on self-employment.  The purchase was made on 20.5.2002. After purchase the complainant found the xerox machine did not run properly for which the OP No.4  sent his Service Engineer to repair the same on 27.6.2002, 8.7.2002, 10.8.2002 and 12.9.2002. Since the defect could not be removed, the OPs replaced the same with another Xerox machine on 22.1.2003. Thereafter, the second one also gave trouble for which it was repaired time to time on 5.2.2003, 7.3.2003, 14.3.2003, 14.6.2003, 9.8.2003 and 12.9.2003. Thereafter, the machine remained idle. Complainant had already paid the instalment as per the agreement to OP No.4. The total cost of the machine was Rs.1,07,000/- paid to OP No.4. Since the machine could not fletch the required result, complainant was put into loss and mental agony. Since the OPs did not remove the  machine or return the money, alleging deficiency of service, the complaint was filed.

4.      OP Nos. 1 and 2 filed written version refuting the allegations made in the complaint. The OPs admitted to have sold the xerox machine to the complainant. OPs have further averred that the complainant has kept the xerox machine by the road side and for that it gave trouble from time to time. They have submitted that whenever there is request made for repairing, they have attended the same. They have admitted about their service dated  20.5.2002, 27.6.2002, 8.7.2002, 10.8.2002 and 12.9.2002. However, since the complainant was complaining regularly, the OPs replaced the machine with a new one on 22.1.2003. The free service was given to the second machine on 5.2.2003. There was a call from the complainant again on 14.3.2003 and it was attended. Thereafter also the OPs have attended the service on 14.6.2003, 9.8.2003 and 13.9.2003. The OPs have made a table showing the defect in the machine and lastly it is stated that the machine was not maintained properly as per the instruction given by the manufacturer because it is installed in the dusty area and not shifted to dust free place for which it gave trouble from time to time. It is further averred that in every time the service was attended by the OPs as per the job card. Since the machine gave trouble due to mishandling and not as per the instructions and the OPs have attended the services regularly, there is no any deficiency of service on the part of the OPs.

5.      After hearing both sides, learned District Forum passed the following impugned order:-

                             “xxx   xxx   xxx

            In the result the complaint is allowed on contest against opposite parties jointly and severally with a cost of Rs.2000/- and OP No.1 is directed either to replace the defective copies with a new one of other model in  whatever cost taking the previous payment to account on realization of the short fall if any from complainant, or, to return back Rs.1,07,000/- with 6% interest per annum from the last date of receipt till date of making payment to complainant within 60 days from the date of this order.”

6.      Learned counsel for the appellants submitted that the learned District Forum has erred in law by not going through the written version properly. Learned District Forum ought to have considered the materials of the OPs so as to find out the deficiency of service on the part of the OPs.

7.      Learned counsel for the appellants submitted that the learned District Forum has committed error in law by not considering the fact that the complainant is not a consumer because it has purchased the xerox machine for the purpose of his business and no where it is stated that it was purchased for self-employment and as such, he was not a consumer u/s 2(1) (d) of the Act. Learned counsel for the appellants further submitted that the complainant himself admitted in his affidavit that he has been operating the xerox machine in a closed room. In a closed room or by the side of the road the operation of the xerox machine would not yield same result as enunciated in the instruction. Since the machine was not maintained by the complainant properly and the OPs attended the same with full satisfaction, there is no deficiency of service and this fact has not been considered by the learned District Forum. In toto he submitted that the order of the learned District Forum is illegal and improper for which it should be set aside by allowing the appeal.

8.      Learned counsel for respondent No.1 submitted that the complainant adduced the evidence affidavit whereas the OPs have not filed any affidavit. In the affidavit of complainant, it is stated that the complainant in order to maintain his livelihood has opened a PCO Booth namely, M/s Rashmi Tele-communication and accordingly required the xerox machine to increase his business. According to him, any commercial purpose does not mean that it is made for the business purpose. The complainant has clearly stated that this xerox machine is installed to  operate in the PCO business which he has started for his livelihood on the self-employment scheme. He submitted that the learned District Forum has passed the impugned order correctly.

9.      Learned counsel for respondent No.1 further submitted that the complainant has proved sufficiently  regarding the xerox machine  installed which did not yield any good result and the second machine also gave same trouble for which the complainant has proved manufacturing defect in such machine for which OP Nos. 1 and 2 have deficiency of service. Therefore, the learned District Forum has rightly observed about the deficiency of service or unfair trade practice on the part of the OPs. On the other hand, he supports the impugned order.

10.    Considered the submission of learned counsel for  both sides and perused the DFR including the impugned order.

11.    It is admitted fact that the complainant has purchased the xerox machine at first from OP No.4 for  consideration of Rs.1,07,000/- on 20.5.2002. It is also not in dispute that the machine gave trouble from time to time for which OP has deputed his Service Engineer to repair the same and finally on 22.1.2003, the first machine   went replaced by the second machine. Further, it is stated that the complainant again suffered for the same trouble with the machine for which the OP attended the repair work of the machine.

12.    The complainant has specifically stated in his affidavit that due to such   defect in the xerox machine, it could not earn good money and suffered from such mental agony. Further, he asked for replacement of the said machine. It is stated in the affidavit by the complainant that he has installed the machine in a closed room by not allowing any dust inside because the OPs have taken the plea that since there is dust affecting the machine it gave trouble from time to time. On the other hand, the OPs have stated that the complainant has not used the machine under the written instruction of the OPs.

13.    The affidavit of the complaint has been also opposed by the OPs by filing objection where it is stated that if a machine operated in a close room, it will not work properly, as such the instructions are violated. The instructions are necessary to be gone through to find out the fault with the complainant or the OPs. That instruction is available with the DFR which is as follows:-

                   “xxx   xxx   xxx

                        Environments to avoid

Locations exposed to direct sunlight or strong light (more than 1,500 lux.)

Locations directly exposed to cool air from an air conditioner or heated air from a heater.(Sudden temperature changes might cause condensation within the copies.)

Places where the copier might be subjected to frequent strong vibration.

Dusty areas.

Areas with corrosive gases.

Places higher than, 2000m or 6,500 ft above sea level.”

14.    So from the material, it is observed that the machine has given trouble from time to time because of the instructions not being followed by the complainant. Therefore, learned District Forum has not actually gone through the optimum environmental condition as required for the machine and the same is available on record and found that the OPs are responsible for the manufacturing defect from time to time. Therefore, the finding of the learned District Forum is not agreed to.

15.    In view of above, the OPs having replaced the new one and the same trouble continues, the manufacturing defect what the machine cannot be come as a decision but it is only happened mishandling of the machine having not maintained. Therefore, the impugned order is set aside and the appeal stands allowed. No cost.

          DFR be sent back forthwith.

          Statutory amount deposited be refunded to the appellants with interest accrued thereon if any on proper identification.

          Supply free copy of this order to the respective parties.