This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant is an automobile engineer and being an unemployed person applied for Government of India Financial Assistance under Prime Minister’s Employment Generation Programme (PMEGP Scheme) in the month of August, 2012 for unemployment assistance and, thereafter, complainant faced an interview by the District Industrial Centre, Government of West Bengal and he was successful in the said interview and selected for undergoing training and he was granted a loan of Rs.5,01,700/- and with the help of said loan complainant was searched of canon made latest Digital Malti Colour Copier-Cum-Silk Screen Printing Machine and by some source he came to know the OP are dealing in canon manufacturing machine and thereafter, one official day he visited the office of the OP and found that the OP is dealing in machine for which the complainant was looking for. Thereby complainant after satisfying with the representation of the OP placed an order for supplying a Digital Malti Color Copier-Cum-Silk Screen Printing Machine with all fittings and all other standing accessories approving the quotation given by the OP on 07-01-2013. Thereafter, paid a token amount of money as advanced finally on 21-12-2012 procuring a bank finance from U.B.I., Koley Market Branch, Kolkata – 700 012 paid the OP entire amount of Rs.4,85,000/-. Thereafter, vide bill no.5 and challan No.2120 dated 11-03-2013 the OP sent a machine to his place and goods were received by the complainant on 11-03-2013 which was found an old one, however, complainant paid full price to purchase a latest machine. So, complainant was dis-satisfied about the genuineness of the machine manufactured by the reputed canon company, immediately called at the office of the canon company who informed about the details of the said machine including the fact the machine which was supplied to him i.e. iR3100 series which are an old one and has already attend the end of life. Thereafter, complainant visited the office of the OP and asked them to replace the machine by a new one as OP had received a payment of Rs.4,85,000/- for the price of a new and latest machine, the OP at the first instance denied the fact and subsequently having seen all proof relating to the said machine admitted that the machine which was supplied to the complainant is an old one and assured for supplying a new machine. But after assurance complainant waited for sometime but the OP did not respond thereafter, complainant visited their office when complainant demanded the service manual and warranty papers from the OP but they did not supply it.
Fact remains complainant procured the said machine through bank finance in order to built up his career by engaging her such business but his dream stands shuttered for the unfair practice and deceitful manner of trade by the OPs as the complainant has been paying monthly instalments to the bank against the said machine and for the above sort of unfair trade practice and deceitful manner of trade and also for selling of old one in place of a new one by the OP1 complainant has prayed for redressal.
OP1 by filing written statement has submitted that complainant purchased the machine in question on 16-03-2013 under Prime Minister’s Employment Generation Programme(PMEGP), financed by Allahabad Bank, Hatibagan Branch and question of machine manufactured by reputed Canon Company does not arise at all and that allegation is completely baseless and moreover, the machine was not purchased for his livelihood. There is no such an averment in the complaint but it was for commercial purpose and when the same was purchased for commercial purpose, same cannot be adjudicated by this Forum treating the complainant as not a consumer. Further it is submitted that machine is hypothecated to the OP Bank as per rules and regulation of the Bank and practically complainant after payment of the said machine did not show any eagerness to receive the same but created pressure upon the OP for refund of the cost of the said machine at a discount rate and at that point of time finding no other alternative OP requested the complainant to take delivery of the same and ultimately it was delivered in his business place. Thereafter, the relationship in between the OP and complainant became harsh and complainant always trying to create such atmosphere to create pressure upon the OP to refund the entire amount of machine so, OP 1 prays for dismissal of the case.
On the other hand, OP2 by filing written statement has submitted that there is no cause of action against Bank. Bank sanctioned loan amount and paid it to the seller as per selling price of the machine and it was a government loan as granted as per DIC’s approval and now, there is due and outstanding in the said loan account as on 17-06-2014 is Rs.4,80,329/- and OP2 reserves its right to take legal step for recovery of the outstanding amount of the loan amount and if there is any responsibility regarding any defect OP2 is not responsible, but the seller is fully responsible for quality and condition of the machine. If the machine is found to be defective then the OP1 is to be held responsible for deficiency of service. But this complaint is not tenable for which the present complaint should be dismissed against OP2.
Decision with Reasons
After thorough study of the complaint including written version and further hearing the Ld. Lawyers of both the parties including documents we have gathered that it is undisputed fact that the complainant purchased the machine in question 11-03-2013 under Prime Minister’s Employment Generation Programme financed by UBI, Koley Market Branch, so, it is clear that complainant got such relief for purchasing the same from the Government as an unemployed person and it is no doubt for maintaining his family. So, allegation of the OP1 that complainant purchased the same for commercial purpose is not at all proved rather it is proved that for his livelihood as an unemployed person he has got such protection from Prime Minister’s Employment Generation Programme, so, complainant is a consumer under the OP1 when OP1 sold away the same to the complainant and through bank the vital part of the price of the said machine (unit) was paid and OP1’s allegation that complaint is not maintainable is also not tenable in view of the fact, there is a relation between complainant and OP1 as purchaser and seller that is no doubt consumer and trader relation. Truth is that by paying a sum of Rs.4,85,000/- against a quotation dated 21-12-2012 complainant purchased the same and on 11-03-2013 entire price was remitted directly to the OP1 by OP2, the UBI, Koley Market Branch and admitted fact is that machine is hypothecated to OP2 Bank and ultimately complainant received the machine on 11-03-2013 at his residence address not at his place of business. Practically complainant has tried to convince that Digital Malti Color Copier-Cum-Silk Screen Printing Machine is a secondhand one that it is made of reputed Canon Company as it was expressed. Complainant has tried to convince that when he found that it was a secondhand one he reported the matter to the Canon Company who in reply submitted that the machine which was supplied by the OP1 to the complainant that iR3100 is an old one and already had attained their end of life and thereafter, complainant reported the matter to the OP1 and asked them to refund the machine or to refund the entire amount or supply a new latest machine to the complainant as it is a secondhand one. But OP denied all the above fact but tried to convince that it was purchased by the complainant being satisfied about its function and as assembled one etc. and its capacity and Bank has confirmed it and at the same time DIC also approved it. Bur after considering the papers filed by the complainant it is found that OP1 DC Trading Company did not supply any warranty book or name of the service centre or warranty period or warranty card at all in respect of the said machine and the name of the manufacturer is not noted and its activity etc. But fact remains complainant after observing and handling the machine found that the same is second hand one and it was reported to the Canon Company and Gurupada Biswas, Business Manager of Canon India Pvt. Ltd., 3A, Shakespeare Sarani, 1st Floor, Kolkata – 71 reported that the said item which was purchased by the complainant is of iR3100 series are old one, has already attained their end of life and Canon’s Business Manager, Gurupada Biswas suggested him to purchase an upgraded machine. Complainant reported the matter to the OP1 but OP1 has tried to say that complainant purchased it after observing it, inspected the manufacture’s name etc. So, OP1 has no liability and manufacturer Canon shall have to give service but most interesting factor is that complainant purchased a new Digital Print of Canon make but truth is that Business Manager of Canon India Pvt. Ltd. reported that the item which was purchased by the complainant is an old one and has already attained their end of life then it is clear that OP1 only for the purpose of deceiving the complainant sold an old machine to the complainant without handing over the warranty card, product brochure and other copies not even the warranty then it is clear that complainant somehow or otherwise purchased from some other places somehow repaired and coloured it and thereafter sold it as a new one. OP has his scope to show before this Forum that he sold a new item of Canon India to the complainant. He has failed to produce any document warranty etc. but it is proved from the report of the Business Manager, West Bengal, Canon India Pvt. Ltd., Kolkata – 71 that the item which was sold by the OP1 to the complainant is not only old one but it already attained their end of life that is such a machine which is not fit for operation or use what company has confirmed the same but against that OP1 has nothing to say. At the time of hearing of argument OP1 was present before Forum who was asked whether it was a new machine or old one, whether the machine’s life expectancy expired but he was kept silent. He only stated that it is Canon made and complainant purchased it at a reduction rate knowing fully well that it is not a new one but anyhow after considering the receipt issued by the OP1 on 16-03-2013 it is clear that there is no such note that it is an old one for which he gave deduction of amount etc. at the same time in the said receipt there is no number of the machine not even the manufacturer’s name, warranty period etc further no VAT Tax was charged against that and at the same time OP1 DC Trading Company has failed to prove that he is the dealer of the Canon India Pvt. Ltd. So, considering all the above facts and circumstances, we are convinced to hold that Canon has no liability for repairing in view of the fact that life of the machine already expired as per manufacturer’s report and it was an old one and in respect of certain manufacturing item of any company if company declares that such system expired by the manufacturer in that case said machine is called old one and expired one and that was reported by the Canon India Pvt. Ltd., Kolkata to the complainant that is supplied by the OP1 that OP1 has not disclosed the fact in the written version but only tried to convince that machine was sold in reduction rate and complainant knowing fully well purchased it at simple price. So, considering all the above facts it is proved that OP sold away in a deceitful manner and sold the old one without giving any chance to the complainant to realize that old one is being sold at a highest rate at a price of Rs.5 lakhs. DIC also failed to search out such deceitful manner of sell by the OP1 and also the bank.
Considering all the above fact we are convinced to hold that no doubt OP1 adopted unfair trade practice and OP1 sold a dead machine (as per manufacturer’s report dated 14-05-2013), the present Canon machine to the complainant and the model no.iR3100 series are old and already attained their end of life that means the damaged dead machine had been sold by the OP1 to the complainant such an act is no doubt an unfair trade practice on the part of the OP1 and for which OP1 is found a cheat trader in the market and no doubt even after receiving Rs.4,85,000/- for the said dead machine he did not sup-ply the detail of the machine’s warranty or brochures etc in respect of the running the same and that unfair trade practice was taken by the OP1 to make profit more by selling dead machine to the unemployed youth who tried to establish in its life by taking the benefit of the Prime Minister’s Employment Generation Programme and so, it is proved that an unemployed complainant has been deceived by the OP and no doubt such a deceitful manner of trade on the part of the OP1 has caused financial loss, mental suffering, family pain and suffering for which OP1 is liable to refund the entire amount to the complainant at once and also to pay compensation for suffering of the complainant and for complainant’s failing to earn daily alms by using for machine (dead machine). Further complainant reported the matter to the OP1 if OP1 would be a honest businessman or trader he must have to take such step to replace the same but that has not been done and practically OP1 sold fabricated and fake selling of articles and negative attitude not to consider the grievance of the complainant, complainant was forced to appear before this Forum for redressal because complainant has suffered much and spent huge money for which OP1 shall have to pay cost also.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against the OP1 with a cost of Rs.10,000/- and same is dismissed against OP2, the Bank without any cost.
OP1 is hereby directed to refund the entire amount to the OP2 at once against loan account of the complainant because complainant paid that amount taking such loan on the basis of DIC’s approval and as per terms and conditions of PMEGP scheme and along with all interest as would be assessed by the OP2 Bank for clearing the loan account of the complainant in purchasing the dead machine and it must be paid within two months from the date of this order failing which OP1 shall have to pay penal damages at the rateRs.500/- per day till full satisfaction of the decree and if said amount is collected it shall be deposited to the Forum’s account for adopting unfair trade practice and also for selling secondhand article as new one by adopting deceitful manner of trade OP1 is imposed a penal compensation of Rs.50,000/- to this Forum and it is imposed to check the OP1’s deceitful manner of trade and adopting unfair trade practice in future and said amount shall be deposited to the Forum’s Account within 2 months from the date of this order.
OP1 is directed to comply the Order very strictly and to satisfy the decretal amount and cost etc. within stipulated period failing which penal action shall be started against the OP1 u/s.27 of the C.P., Act for which he shall be liable to pay further fine and penalty.
