PER JUSTICE R.C. JAIN, PRESIDING MEMBER

      Chronologically this complaint is the oldest consumer complaint on the Board of this Commission.  One reason why the complaint remained pending before this Commission is that after its trial the complaint was decided by a five Members bench of this Commission vide an Order dated 25^th November, 1999.  By the said order the complaint was partly allowed in the following manner:

“ In the circumstances of this case and after taking into account the report of the CMC Ltd., we are convinced that there is a definite deficiency on the part of M/s. Hindustan Computers Ltd. in supplying equipment, subject of this case, to the State Government of Maharasthra.  We also find that it is not possible to replace the machinery at this stage.  Therefore, we are of the considered view that it would be fair and just to pass the following order.

Hindustan Computers Ltd., should refund the cost of machinery i.e. Rs. 58,66,725/- to the State Government of Maharasthra and pay interest at the rate of 12% from the 7^th October, 1993 the date on which the complaint was filed before us till the date of payment.  We are of the view that no further compensation as demanded by the Complainant is necessary as 12% interest is being awarded by way of compensation.  There is no orders as to costs.  The payment should be made within three months of the date of this order.  Upon receiving this payment, the complainant should hand over the concerned machinery and equipment to the Hindustan Computer Ltd., within one month.”

2.  Aggrieved by the aforesaid order passed by this Commission, the opposite party-Hindustan Computers Ltd. (HCL) filed civil appeal No. 859/2000 before the Hon’ble Supreme Court of India.  The said appeal was decided by the Hon’ble Supreme Court vide an Order dated 28^th April, 2000, thereby, allowing the appeal and setting aside the order of this Commission and remitting the matter back to this Commission by observing as under: -

“After hearing learned counsel for the respondent, we are of the view that this contention of the appellant’s counsel is well founded.  As per the order of the Commission, we find that the Commission felt that it was too late in the day for the appellant to raise the objections.  We may point out that when on 28.7.1995 an interim order was passed by the Commission appointing an expert to submit a report, it was not agreed between the parties that the report of the Corporation would be final and would be binding on the parties.  It will, therefore, be necessary for the Commission to go into the merits of the objections.

We, therefore, set aside the order of the Commission and remit the matter back to the Commission and request the Commission to go into the merits of the objections raised by the appellant.  We also request the Commission to take up the matter as early as possible.  The appeal is accordingly disposed of and remitted to the Commission for disposal of the objections.”

3.         After the remand of the matter to this Commission, it remained pending for consideration of the objections raised by the opposite party-Hindustan Computers Ltd., against the report of Computer Maintenance Corporation Ltd., (CMC).  It was vide an order dated 18^th November, 2008 that this Commission decided the said objections of HCL to the report of CMC.  The complaint could have been answered thereafter, but counsel for the complainant-Government of Maharashtra kept on representing before the Commission that it had filed SLP/civil appeal in the Supreme Court against the order passed on 18^th November, 2008 by this Commission and that this Commission should await for the outcome of the said SLP.  On this representation the Commission was constrained to adjourn the matter on several occasions and ultimately with great difficulty the counsel for the complainant was persuaded to argue the complaint.  In the above background we proposed to finally dispose of the present complaint.

4.         State Government of Maharasthra has filed the present complaint against the Hindustan Computers Ltd., (HCL) and International Data Management Limited alleging the defects in roller cameras (800 DDS) supplied by the HCL and deficiencies in service in removing the defects in the roller camera system and claiming the refund of the price of the roller camera system of Rs. 58,66,725/- with interest @ 18% per annum besides a sum of Rs. 1,84,00,046/- towards production loss and further loss till the opposite party replaced the machinery.

5.         The complaint was filed with the averments and allegations that the State Government of Maharasthra and in particular the Manager, Government Photo Registry, Pune, wanted to change its system of photocopying of the registered documents, which were to be preserved in terms of the statutory provisions because they found that the planetary camera system in use since 1927 was not adequate enough to cope with the continuously increasing number of documents.  The documents are supplied to the public on demand for a nominal charge, which is not even sufficient to meet out the cost of preparation of the copies. Therefore, with a view to modernizing the system and after obtaining expert advice from TATA Consultancy Service (TCS), the State Government invited tenders specifying their requirements for a modern photocopying system.  The opposite party no. 1 and 2- Hindustan Computers Ltd., also submitted their tenders, which was accepted after on the spot demonstration and satisfactory performance. The complainant placed the order for the supply of following roller camera system and the ancillary machines at a cost of
Rs.61,16,140/- :

6.            It is alleged that above machines were acquired by the complainant pursuant to the following assurance given by HCL:

(i)                Roller Camera (800 DDS) will give output of 40,000 sides on one machine in one shift of 8 hours at the rate of 5,000 sides per hour;

(ii)              Printing at the rate of 12 prints per minute i.e. 5760 prints per shift of 8 hours per reader printer PC-80 machine;

(iii)            Quality Control Machine PC-80 FS can check quality of 40,000 sides photographed on 16 mm microfilms in one shift of 8 hours.

(iv)            Processor AP-165 can process one 16 mm roll of 100 ft. in 30 minutes;

(v)              Duplicator Pro-speed 1000 can duplicate 16 mm and 35 mm rolls of 100 ft. length within a period of 10 minutes;

(vi)            One Cartridge will give an output of 5000 prints initially and 5000 prints after each re-filling of toner ink.  This re-filling can be made upto 7 times and thus one cartridge and 7 times re-filling will give 40,000 prints;

(vii)          Democrol A and B liquids supplied in one pack with two bottles each containing 200 ml. will be useful for processing the two film rolls.

7.            That apart the, HCL informed the complainant that consumables such as Cartridge Toner Ink and Democrol A and B required for the operating the machinery will be supplied by the HCL and accordingly the complainant placed the order for the supply of consumables also. After the supply of the above-referred machines, OP No. 1 and 2 installed the machines in Government Photo Registry Office in Pune and thereafter, under the supervision of the representative of OP No. 1- complainants started operation of the machinery on 11.7.1992.  Initially, the representative of OP No. 1 had operated the machines and simultaneously gave training to the employees of the complainant on the new machinery.  Afterwards, the employees of the complainants started the work on the machines.

8.            It is alleged that the machines and consumables supplied by the Ops were of very low quality at highly quoted price and output from the machinery and consumables were not as per the commitment.  It is further alleged that from the beginning of the operation of the machines it did not function in accordance with the commitment of the opposite parties therefore, the matter was taken up with the representatives of the opposite parties and the representatives of the Ops repaired the machines as many as 184 times (during the period from14.7.92 till 8.7.1993.  The repairs so carried were perfunctory and / of temporary nature and so the machines continued to be faulty / defective.

9.       Besides pointing out the above defects, complainants have alleged the following instances of deficiencies in service on the part of the opposite party:

(A)            The Complainants say that the Opponent No. 1 & 2 have not supplied the machinery as per their commitment and as prescribed in the tender.  Complainants further say that Opponent No. 1 & 2 had supplied the machinery of very low quality and due to that the output of the photography and printing is very less as compared with the commitment of the Opponent No. 1 & 2.  The Complainants for ready reference are reproducing comparison of committed output and actual output as under:

(B)             As per the commitment of the Opponent no. 1 for the period from July 1992 to September, 1993 the production of Photography sides should have been 1,28,50,000 sides but actual output is 48,40,948 sides, i.e. 37.67%.

(C)            As per the commitment of the Opponent No. 1 for the period from July, 1992 to September, 1993 production of Printing sides should have been 57,82,500 but actual output is 13,97,282 sides, i.e. 24.16%.

(D)            The Complainants says that, the Opponent No. 1 & 2 had supplied the cartridges (consumables) of very low quality at higher price and from which output is also very low.  The Comparative table of the same is as under:

               Considering the comparative table as mentioned in Clause No. 11 hereinabove, it is crystal clear that, output from the machinery and consumables delivered by the Opponent No. 1 & 2 is not as per the commitment and the promised quality.

10.  According to the complainant due to the supply of the defective / sub-standard machines and consumables and less output capacity of the machinery, the Government will have to incur a loss of Rs. 5,96,24,000/- out of which, Government has already incurred loss to the tune of
Rs. 1,84,46,000/- till 30^th September, 1993.  On the above allegations, the complainant has claimed the following reliefs:

(a)              The Hon’ble National Commission be pleased to order Opponents to replace the machinery as per the quality and commitments given in the tender dated 02.11.1990 of the Opponent no. 1;

(b)             Alternatively, the Complainants pray that, if the Hon’ble National Commission come to the conclusion that, Opponents are unable to replace the machinery as per Prayer (a) then, the Hon’ble National Commission be pleased to order the Opponent No. 1 to 4 jointly and severally liable to refund the cost of machinery i.e. Rs. 58,66,725/- with 18% interest p.a. quarterly rest from the date of the payment till the date of refund of the amount to the Complainants;

(c)              The Hon’ble National Commission be pleased to order Opponent No. 1 to 4 jointly and severally liable to fulfill short fall in the output at their own cost & risk within stipulated period of three months;

(d)              Alternatively, the Complainants pray that, if the Hon’ble National Commission come to the conclusion that, Opponents are unable to do the work as per Prayer (c) then, the Hon’ble National Commission be pleased to order to the opponent no. 1 to 4 jointly and severally liable to pay Rs. 1,84,00,046/- towards the production loss which had been incurred by the Complainants till 30.9.1993 and further losses till the opponents replace the machinery as prayed in Prayer (a) or refund of the cost as per Prayer (b) hereinabove because the Complainants have to extract the production from the same low quality machinery and consumables;

(e)              The Complainants further say that, if the Opponents are able to replace the machinery as prayed in Prayer (a) then considering monopoly of the Opponents as to the supply of machinery and consumables and maintenance services for the same, the Hon’ble National Commission may be pleased to direct the opponents to supply good quality consumables and give proper maintenance service from time to time as required by Complainants;

(f)                Cost of this petition may please be awarded;

(g)              The Hon’ble National Commission may be pleased to pass any other just and equitable order to meet the justice.

11.     The Opposite Parties being noticed on the complaint contested the complaint by filing written version.  Opposite Party No. 1 & 2 have not filed separate versions. A written version has been filed on behalf of the Opposite Party No. 3 & 4.

12.     In their written versions, the opposite party No. 3 & 4 have raised preliminary objections in regard to the maintainability of the present complaint on the ground that complainant is not a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act 1986 (The Act) the complaint is barred by Limitation.  On merits it is not denied that the above equipment and machinery was supplied but it is sought to be explained that it was impossible for anyone to calculate the number of documents that a operator will be able to copy during the particular period and the operator’s speed and efficiency was an important and reliable factor in the operation of the equipment. The machines were capable of producing 40,000 sides per 8 (eight) hour shift only if the operator incharge inserting the documents into the camera does so @ 2500 pages i.e.500 sides per hour but if the operator was unable to do so or unwilling the results would be less than the prescribed 40,000 sides.            It was also stated that if the processing chemical are not filled in time or the film runs out of stock it will add to further delays.  It is stated that it is almost impossible for any manufacturers / supplier for such equipments to guarantee output which is entirely dependent upon the operator’s performance.  The supplier can only guarantee the output, provided the operators conform to the efficiency standards required for optimum production from the equipments.  It is also pleaded that before placing the order for the supply of the machinery and equipments, the opposite party gave a demonstration of the machines before the Purchase Committee specially appointed by the complainant and in the said demonstration, the opposite parties quite successfully gave the demonstration of micro filming of 10,00,000 (Ten lakhs) pages and after the said demonstration and being satisfied, the supply order was placed.  It is denied that there was any breach of conditions of the contract or there was any defect in the machines or deficiency in service.  Rather it is maintained that despite the complainant’s failure to enter into Annual Maintenance Contract (AMC) after the period of warranty, the opposite party as a goodwill gesture and courtesy attended to the complaints made by the complainant about the improper functioning of the machines.  It is denied that there was any deficiency on the part of the opposite parties for which the complainant can claim any compensation, much less the compensation claimed in the complaint. 

13.          Complainant has filed rejoinder / counter reply to the reply of opposite party no. 3 & 4 thereby controverting the objections and pleas raised in the reply and reiterating the averments and allegations made in the complaint.  As regards, the failure of the complainant to make optimum utilization of the machines, it is explained that the same could not be done, as the machines were not functioning properly on several occasions.

14.     In support of their respective pleas and in order to establish their case, parties have largely relied upon various documents, largely correspondences exchanged between the parties and also the supporting affidavits. The complainant has filed joint affidavits of Shri Ghaneshyam Nandlal Talreja, Inspector General of Registration and Controller of Stamps, Maharashtra State and Shri Yashwant Namdeo Mohite, Service Manager, Government Photo Registry, Pune.  Similarly affidavits of Shri Ashok Kumar Sharma and documents have been filed on behalf of the opposite parties.

15.       We have carefully considered the entire evidence and material brought on record and have heard Mr. A.K. Adsure, Advocate for the complainant and Mr. V.N. Kaura, Advocate and Ms. Paramjeet Benipal, Advocate for the opposite party and have considered their submissions.

16.     It is pertinent to note here that after the parties had completed their pleadings and filed evidence and material in support of their respective pleas and controversy was crystallized, this Commission with a view to sort out the same decided to refer the matter to an independent expert agency for its expert opinion.  This was done with the consent of the parties vide an Order dated 28^th July, 1995 which we may like to reproduce here as a lot of controversy was sought to be raised about the scope of reference made to the CMC as also the intrinsic value of the report submitted by the CMC:

          “ Heard both sides.  It was agreed by both the parties that the equipment and the software supplied by Hindustan Computer Ltd. to the State Government of Maharashtra need an inspection to determine the following issues:

1.                 Whether it is suitable for the purpose for which it was supplied? 

2.                 Whether it is operational for the purpose for which it was supplied?

3.                 If not, what are the defects / deficiencies in this regard and the reasons for these defects and deficiencies?

4.                 What steps can and should be taken to remove these defects to make it operational?

It was agreed that the Computer Maintenance Ltd. (A Govt. of India Enterprise), the Arcade, World Trade Centre, Cuffe Parade, Bombay – 400 005, may be requested to undertake the work of inspection and preparation of a report on the four issues mentioned in the preceding paragraph.  Therefore, CMD Ltd. is hereby requested to undertake the work of preparing a report on the points mentioned earlier for the assistance of this Commission.  While preparing this Report the CMD would associate the representative of the State Government of Maharashtra and M/s. Hindustan Computer Ltd. during their inspection of the equipment.  CMC would also be free to associate any other institution and / or expert in case they think it necessary for the purpose of the work assigned to them.

Both the parties would deposit Rs. 25,000/- each with the CMC to defray the initial expenses in this regard.  The quantum of final payment to them would be decided by this Commission later.

Post the case after the report of the CMC is received”. 

17.          Pursuant to the said directions, the CMC undertook the task entrusted to it and after visiting the site and having deliberations with the officials of the complainant representatives of the HCL, submitted its report dated 22.4.1997.  It would appear that parties did not file any objections to the said report of the CMC for considerable period but at the fag end of trial of the complaint earlier that applications under Section 45 of the Evidence Act seeking cross-examination of the certain witnesses and another application raising certain objections against the report of the CMC dated 22.4.1997 was filed on behalf of the opposite party-HCL.  It would appear that the said application and objections of the HCL were not decided by this Commission till the disposal of the complaint vide an Order dated 25.11.1997.  However, before disposing of the complaint, HCL made certain suggestions for removing the defects and deficiencies in the machines in question which were not found to be viable / practicable by the CMC.  It would also appear that HCL / Canon carried out inspection in order to rectify the defects in the machines and also that of cameras but the critical spare parts, which were required to be replaced were not available since the production of rotary camera model was stopped, the critical parts could not be supplied.  Ultimately the HCL offered to supply planetary cameras in place of rotary cameras and one such camera was infact supplied to the complainant but could not be put to use. This Commission on consideration of the matter and largely guided by the findings in the report of the CMC and subsequent reports submitted by the HCL, partly allowed the complaint vide Order dated 25.11.1999 holding that since CMC was appointed to submit a report with the consent of the parties, it was too late for the HCL to raise objections against the said report.  Suggestions made by the HCL in order to solve the problem were not found viable by CMC, production of Rotary Camera having been discontinued by Canon and supply of critical parts required to be replaced were not available.  The defects in the machines could not be rectified and therefore, holding the opposite party-HCL guilty of deficiencies in service partly allowed the complaint directing the HCL to refund the full price of Rs. 58,66,725/-.

18.     As noted above, aggrieved by the aforesaid order of this Commission, opposite parties filed civil appeal before the Hon’ble Supreme Court which was allowed and the complaint has been remtited back to this Commission with the directions to decide the objections raised by the HCL in their applications after hearing the counsel for the parties.  Accordingly, after hearing the counsel for the parties, this Commission disposed of the said application and the objections raised by the opposite parties against the report of the CMC vide an order dated 18.11.2008, thereby holding as under:

          “ The report of the CMC in the opening part duly takes into account the gamut of the controversy and the terms of reference and the task entrusted to CMC.  A bare reading of the order dated 28.7.95 would show that this Commission wanted the CMC to “inspect the equipment and software” supplied by the HCL and lying at the premises of the complainant in order to find out whether the equipment was suitable and operational for the purpose for which it was supplied and whether there existed any defects/deficiencies in that regard and the reasons for those defects and deficiencies.  It would appear that the officials concerned of the CMC tried to formulate their opinion by adopting what was termed by them as the ‘Methodology of Investigation’ by resorting to the following steps:

a.                 Study of the relevant documents.

b.                 Visit to the Government Photo Registry.

c.                  Meetings with Senior Officials like Inspector General of Registration representing the complainant and meeting with the General Manager (Mumbai Office), General Manager (Noida Office) and Manager (Field Support Imaging Systems) of the OP-HCL.

Based on the said methodology, the CMC gave the findings.  After examining the defects and deficiencies as pointed out by the representatives of the GPR, the CMC gave its findings / reasons on/for the said defects.  The report of CMC concluded as under:

4.1             The equipment is not suitable for the purpose for which it was supplied.

4.2             The equipment is not operational for the purpose for which it was supplied.

4.3             The defects/deficiencies in this regard and the reasons for these defects and deficiencies are described in section 2 of this report.

4.4             M/s. HCL has offered various suggestions / solutions to reduce or eliminate the defects and deficiencies (described in Section 2) to make the equipment operational.  However, these remedies have one or more of the following shortcomings:

They would reduce the throughput of the system drastically

They would reduce the clarify of the printed images.

They would increase the paper or toner consumption.

Hence, they are not sufficient to resolve the problems effectively and permanently.

In the opinion of the investigator M/s. HCL has not been able to suggest any effective ways to remove the defects.

These findings and conclusions of the CMC are sought to be assailed by the OP on a variety of grounds.  But before examining those objections, we would like to observe that we cannot accede to the prayer of the OP for permission to cross examine the officials concerned of the CMC at this distant stage, the report being of the year 1997 and thus more than 11 years old.  Even otherwise we do not think that any useful purpose would be served by calling the officials of the CMC for cross examination.  Besides, the parties before us are not sure if such officials who were responsible for the said report are still employed with the CMC and available for the purpose of cross examination.

Mr. Koura, besides referring to the report of CMC has also invited our attention to another report of the Internal Committee of the complainant/Govt. of Maharasthra which was appointed to go into the question of suitability of the camera and equipment for the purpose of microfilming of the registration documents.  We have also been taken through the notice inviting tenders and the quotations submitted by the OP for the supply of the said equipment as well as their Annual Maintenance Contract (AMC).  On the strength of these documents, it is pointed out that the report of the CMC is neither in consonance with the Commission’s order dated 28.7.1995 nor does it meet its requirements.  In this regard, it is pointed out that the officers / investigators of the CMC made no effort to physically inspect the equipment and the software as also their operation because the CMC team found that the equipment had not been operational for a long time.  The observations in this regard in the report are as under:-

Current Status of the Equipment:  The equipment is not in use at present due to various operational problems faced by GPR.  The problems as reported by GPR are listed below.  However, the investigator did not see actual demonstration of the problems.

Mr. Koura further submits that officials concerned of the CMC did not take the minimum trouble of examining the equipment in detail as it stood, what to talk of seeing its actual operation as was expected of them in terms of the directions given by the Commission.  There appears merit in this contention because the report is totally silent if the software talked of in the order of this Commission was at all inspected and examined.  In the first paragraph of the report under the heading ‘Findings’, the report itself says that the findings recorded are based on the information collected from the officials of the GPR and the documents shown by them to the investigator.  This would imply that neither was the HCL notified about such visit of the investigators to the GPR office at Pune on the date of visit nor was any opportunity granted to them to have their say in regard to the submissions made by the officials of GPR to the CMC investigators.  No doubt, the investigators later had a meeting with the officials of the HCL also but there is nothing in the report as to what transpired between those officials of the HCL and the CMC officials.  The report in this way appears to be largely based on the say of the officials of the complainant, rather than an independent technical assessment of the equipment and the software by the investigators of the CMC.  CMC was appointed as a technical expert body to report about the suitability and operational worthiness of the equipment and the software.  Accordingly to Mr. Koura and in our view also, the CMC did not accomplish the task entrusted to it in the manner it was expected by the Commission and, therefore, this report cannot be sustained.  In any case, it cannot form the sole basis for deciding the claims of the complainant.

As against this, the submissions on behalf of the complainant are that the report is strictly in consonance with the directions of the Commission and the findings are otherwise borne out by the material already on record, more particularly certain correspondence exchanged between the parties.  It is stated that the objections filed by the OP are highly belated and, therefore, not bonafide.  In our opinion, these contentions have no merit more particularly so when the Apex Court has itself remitted the matter back to this Commission for consideration of the objections of the OP qua the said report of the CMC on merits.

Having considered the matter, we are of the clear opinion that the report dated 22.04.97 of CMC is not in strict conformity with the directions of the Commission contained in its order (supra) and, therefore, cannot form the sole basis for answering the complaint.  However, the Commission would be free to take such assistance from the said report, as it may consider necessary.  Objections of the OP are allowed to that extent.  Application and objections stand dispose of accordingly.” 

19.       As noted above, it was represented to this Commission that the aforesaid order of this Commission has been challenged before the Hon’ble Supreme Court but till date no order passed by the Supreme Court in the said SLP has been brought on record.  Therefore, it can be said that the order passed by this Commission has attained finality.

20.     In view of the above background, the crucial questions which we need to consider are (i) whether the roller cameras and other machinery supplied by the opposite parties to the complainant were of sub-standard quality / of was not of the quality and capacity as held out by the opposite parties or it was defective in any manner and (ii) whether there was any deficiency in service on the part of the opposite parties in maintaining / rectifying defects in the said machinery and equipments.

21.     The Registration Department of the Maharashtra Government had adopted photocopying system alongwith old system of hand copying ever since 1927.  Going by the increase in the work of Registry and with a view to adopt a modern microfilming system, the State of Maharashtra decided to acquire the said system and published a tender inquiry in its Government Gazette dated 11.10.90.  Several persons / companies dealing in the manufacturing and supply of such microfilm system including the HCL submitted its tender on 02.11.1990 whereby they offered to supply the said system giving out the salient features of the system.  Vide Government Order dated 14.9.1990, a Purchase Committee of certain Government officials of various ranks headed by Inspector General of Registration and Controller of Stamps, Pune was constituted to recommend / decide on the purchase of the modern microfilming machinery.

22.     It would appear that the said committee considered the question as to the selection of the equipment which was suitable and after a meeting held on 16.11.90, the said Committee decided as under:

          SELECTION OF EQUIPMENT

            “ Considering the nature of documents, Rotary Camera will not be suitable for the following reasons:

1)                 Because of folding at the edges of the document, while feeding paper may get stuck in Rollers resulting in tearing of documents.

2)                 Stacker cannot be used because nature of documents are of uneven size and thickness, old and not of sharp edges.  Therefore rated capacity drops considerably.

3)                 In a Planetary camera, both the film and the documents are stationary during the process of exposure while in Rotary camera, film and documents are moving simultaneously during exposure.  Any mismatch in the speed may cause blurred images and the overall resolution will always be lower.  Items like thumb impressions and faint matter may not be clear.

4)                 For feeding the document in Rotary Camera, it has to be fed breath wise because of narrow throat and little bigger size than prescribed size of documents cannot be fed.  Therefore, the number of documents per roll at given reduction ratio will be less in one roll.

5)                 Documents pages are not of even size thus causing difficulty in viewing in printing.

6)                 Some Rotary cameras do not have provision of frame numbering and blip coding.  This needs to be ascertained as this is essential for accurate and fast retrieval.  In Planetary camera some do not have frame numbering and blip coding facility (old models) but in new models this provision is existing.

7)                 As far as output per day per shift is concerned, if you take into account the time wasted in removing paper jams which is a frequent experience in old documents, you will find that the practical output of documents is more or less equal as a planetary camera.

8)                 For a single person to microfilm documents which are bound, which are to be folded during microfilming such as the documents in G.P.R. it should not exceed 1800-2000 pages per person per shift.  This output cannot be increased even with Rotary Camera.  Probably it is less because of paper jams.

9)                 All our documents are bound and Rotary cameras do not accept bound documents.

10)            In Rotary camera documents will not have uniform alignment in exposing process because of manual feeding limitations, nature of documents and roller.

TECHNICAL OPINION

11)            Microfilm Camera : It should be Planetary, with sequential numbering and tri level blip coding.

12)            Microfilm Processor : It should have a variable temperature, speed control, dual tank for wash.  It should have facility to process both 16/35 mm film.

13)            Microfilm Duplicator : It should have capacity for 100’ and 1000’ rolls.  It should be silver film duplicator.  It should have variable speed and light intensity control.  It should not be diazo since it is not archival.  It should duplicate 16/36 mm film.

14)            Reader Printer:  It should have facility to print from old and new rolls.  It should have facility for printing from negative and positive film.  It should have prism rotation.  It should have facility for auto masking, with a cartridge carrier and roll film carrier and low copying cost.

15)            Set No. 2 and 6 will meet the requirement and therefore recommend.

    Sd/-                                                                     Sd/-

(C.S.P. Patel)                                     (Y.N. Mohite)

Patel Microdata Pvt. Ltd.                                 Manager

Bombay                                                           G.P.R.P. Pune 

    Sd/-                                                                                      Sd/-

(B.M. Shaikh)                                                                      (K.N. Rao)

Desk Officer 5 & 7                 Administrative Officer                                             I.G.R.O. Pune                                                                    G.P.R.O. Pune  “      

 22.    From a bare perusal of the above report, it is manifest that the expert Purchase Committee which was constituted by the State Government recommended the purchase of Planetary Cameras with consequential numbering and dry level blip coding and categorically stated that Rotary Camera will not be suitable for the object in view.  They gave several reasons why they preferred the purchase of planetary cameras over rotary cameras.  In doing so they have taken into account the various attenuating circumstances and the envisaged handicaps which the Photo Registration Office might face in the matter. Despite these specific findings and recommendations of the Committee, the Purchase Committee accepted the tender of the opposite parties and placed the order for the supply of microfilming rotary cameras and other equipments forgetting that the purchase of such equipments were against the recommendations of the Technical Committee.  Therefore, we must hold that to begin with, it was the complainant’s own mistake to have decided to purchase rotary microfilming cameras instead of planetary cameras going by the purpose sought to be achieved by use of such cameras.  It appears to us that this decision later led to various problems faced by the staff members of the Registry deputed to operate the said machines which became the bone of contention between the parties and subject matter of the present complaint.  In fact what was apprehended by the Technical Committee in relation to the non-suitability of the rotary camera system proved correct once the said system was put into service.

23.     Now coming to the allegation of defects in the machinery and consumable goods, we may at once notice that the only allegation made in this behalf is that the machinery and consumable goods supplied by the opposite parties were of very low quality, of highly quoted price and the output from the machinery and consumables was not as per the commitment and the same was of very poor quality.  This is sought to be established from the circumstances that the machinery was required to be repaired as many as 184 times from the date of commissioning i.e. 14.7.92 till 08.7.93.  The allegation is denied by the opposite parties and it is maintained that the machinery and consumables supplied by the complainant were standard equipments and conforming to the specifications mentioned in the tender.  In any case, it is sought to be explained that the problems faced by the complainant were not on account of any defect in the machines as such, but it was mainly on account of the improper / mishandling of the machines and under-utilization of the optimum capacity of the machines rather than on account of any inherent or any other defect in the machines. It is not denied that the representatives of the opposite parties visited the Registry of the complainant on a large number of occasions but it has been explained that it was more as a goodwill gesture and courtesy rather than pursuant to a contractual obligation, because the defect liability period which commenced on 13.2.1992 had expired  latest on 02.5.1992 when the three months warranty period expired.  In this connection, it is pointed out that no AMC was given to the opposite parties after the expiry of the free warranty and maintenance service period and therefore they were not legally obliged to inspect and rectify the defects.  It is also sought to be explained that the visits of the representatives of the opposite parties were mostly for carrying out the preventative maintenance rather than rectification of any defects in the machines and equipment so supplied by the Opposite Parties.  This is so born out from the service reports placed on record.

24.          Having considered the respective submissions, we must hold that the complainant has failed to establish through any cogent evidence that the machinery and consumables so supplied by the opposite party were defective or sub-standard.  In any case no specific defect(s) has been pointed out in the said equipment and the consumables except that the performance / output was not as per the commitment.  What were the reasons why the complainant was not able to achieve the performance as per the promise held out by the opposite parties has to be considered in the light of various factors.  In this connection, we may notice that going by the best case of the complainant as set out in Para 11 (B) and  (C) of the complaint was:

“ (B)    As per the commitment of the Opponent No. 1 for the period     from July, 1992 to September, 1993 the production of photography sides should have been 1,28,50,000 sides but actual output is 48,40,948 sides, i.e. 37.67%.

             (C)      As per the commitment of the Opponent No. 1 for the period from July, 1992 to September, 1993 production of Printing sides should have been 57,82,500 but actual output is 13,97,282 sides, i.e. 24.16%.”

25.     The lower production / output of the Rotary Camera and Reader Printers is sought to be explained by the Opposite Parties on the premise that the complainant operated the equipment in one shift only comprising actual period of use between 5-6 hours and therefore, optimum results could not be achieved.  In any case, it is pointed out that during the demonstration period of the equipment by the operators of the opposite party in the presence of the officials / operators of the complainant, the capability of the equipment was successfully demonstrated to ten lac documents as promised.  There appears to be force in this contention put forth on behalf of the opposite parties because acquiring the modern/sophisticated machines and equipments of high production capacity is one thing and its optimum and proper utilization is another.  Even the best machine and equipment if not properly operated or put to optimum and recommended use may not be able to achieve the target which is expected from such a machine.  This is what has actually happened in the case in hand.

26.     On going through the entire material, it would appear to us that non-suitability of the machine for the purpose for which it was acquired and thereafter, its under-utilization etc., were the main factors which were responsible why the desired results could not be obtained from the machinery and equipments supplied by the opposite party.  We say so because no complaint of any kind was made either about the defects in the machines and equipments or deficiencies in service, atleast for first three months of the warranty period.  The first ever complaint was made on 14.7.1992 i.e. after about five months of the installation of the machines and two months after the expiry of the warranty period.  The complaints were promptly attended to and it was found that it was relating to preventive maintenance and after the service of the camera was carried out the complainant recorded their satisfaction “Machine found working satisfactorily.”  From the table of the service report appear as Annexure-9 to the complaint, it would be manifest that most of the visits of the representatives of the opposite party were in order to carry out the preventive maintenance (i.e. general cleaning or cartridge refilling) rather than to repair any defect in the machines and equipments.  This also finds support from the report of CMC.  The very fact that the complainant had printed about 14 lac copies of the documents against applications for certified copies between February,1992 to September, 1993 would show that the machine had worked reasonably well and the low output, if any, was due to improper / less operation of the machine.

27.     That apart, capability of the machine was also dependent on the use of proper consumables.  In this case the ink cartridge was required to be replenished whenever it had exhausted.  If the cartridge was not replenished immediately, the machine would be lying idle and the number of copies would certainly be reduced during that period.

28.     As would be evident from a reading of the affidavit of Shri Ashok Kumar Sharma, filed on behalf of the opposite parties is that main reason for not achieving the requisite number of copies was as under:

          “ I say that it was observed that there was a serious lack of application, motivation or willingness to work on behalf of personnel deputed by the Complainant to operate the Equipment.  This led to a serious non-observance of the basic standards of care required to be applied for feeding documents to the Equipment and especially to the Rotary Cameras and Printers.  The documents required to be fed into the Rotary Camera for photographing are required to be free of any binding of any nature and particularly of any pins, tags or clips of any kind.  The documents and its edges have to be thoroughly flattened and only undamaged an intact documents have to be fed to the cameras.  However, the operators deployed by the Complainant commonly fed documents with pins, clips and tags, or documents with folded edges, crimples and tags into the rotary cameras, which resulted in the cameras jamming.  The un-jamming of the cameras and making the cameras refunctional is an easy and routine procedure, which the operators had been taught to perform.  However, the operators preferred to close the equipments, make a complaint and go off from work and leave it to the technicians of the Respondent to attend to the complaint to remove the jam and / or the pins, tags and clips, and to clean the equipment and to make the equipment refunctional.  This led to a much higher degree of complaints than was warranted and to a much larger involvement on the part of the engineer or technicians of the Respondent, than was anticipated or required.  This will be apparent from an understanding of the Equipments involved, and their functioning and the care and precautions required to be taken in operating each of these equipments.”

29.     The above position has gone un-rebutted on record from the side of the complainant and therefore, we must also hold that it was mostly on account of the improper handling and lack of initiative on the part of the officials of the complainant which was largely responsible for the lower output rather than any defects in the machine.

30.     It was contended on behalf of the complainant that the critical parts of the rotary cameras, which the opposite parties had undertaken to supply were not supplied, may be for whatever reasons and therefore the opposite parties are guilty of deficiency in service.  In this regard, we may simply observe that after their own inspection, the opposite parties did make every effort to procure the said critical parts or even to replace the rotary camera but since the production of the same had been stopped by the manufacturer-Cannon, it was not possible still as a goodwill gesture the opposite parties continued to carry on repair of the equipments at substantial cost and without any charges from the complainant.  Not only that the opposite parties have agreed to provide two planetary cameras in lieu of the two rotary cameras free to the complainant and in fact, one such cameras was actually received by the complainant.  It appears that the complainant did not accept the supply of the other planetary camera because by that time the complainant had acquired and switched on to an all-together different system of photocopying of the documents for their Registry. In our view, the opposite parties although under no legal obligation to extend such assistance did so only as a goodwill gesture having regard to their own high image in the market. In those circumstances in our view nothing more could have been done by the opposite party to mitigate the situation faced by the complainant.

31.          Having considered the matter in its entirety, we are of the view that the complainant has miserably failed to establish that the machine and equipments supplied by the opposite party was substandard or was not conforming to the specifications ordered for or had any inherent or other defect or that there was any deficiency in the service on the part of the opposite parties after supplying the said equipment entitling them to the relief (s) claimed.

32.     For the above stated reasons, we dismiss the present complaint, however, with the observation that if the complainant is so willing, the opposite party shall supply them one planetary camera as per their offer, which holds good even now.  In the peculiar facts and circumstances of the case, parties are left to bear their own cost.