KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL 312/06 JUDGMENT DATED: 28.7.09 Appeal filed against the order passed by CDRF Pathanamthitta in OP.170/03 PRESENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER Rajesh, : APPELLANT Proprietor, M/s Arackamannil Printers, Pazhavangadi.P.O., Ranni. (By Adv.N.Padmini) Vs. M.E.Easow(Mannumkal), : RESPONDENT Director, Guideline Displays Advertisers and Publishers, V/5B, Melel Builidngs, Mandiram.P.O., Ranni, Pathanamthitta District. (By Adv.Czisy Chacko) JUDGMENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER The above appeal is preferred from the order 27.1.2006 passed by CDRF, Pathanamthitta in OP.No.170/03. The complaint in the said original petition was filed by the respondent herein as complainant against the appellant/opposite party alleging deficiency in service on the part of the opposite party in printing of directories on behalf of the complainant. The opposite party entered appearance before the Forum below and contended that there was no deficiency in service on the part of the opposite party in printing the directory as agreed. It is further contended that the opposite party printed 500 copies of directories as agreed and that the complainant returned 200 copies by pointing out some printing mistakes in those directories. The opposite party rectified the mistakes and informed the complainant to get back those 200 copies of directories; but the complainant was not amenable and filed complaint in OP.170/03. Thus, the opposite party requested for dismissal of the complaint. 2. Before the Forum below, the complainant was examined as PW1. Ext.A1 to A6 documents were also marked on the side of the complainant. The opposite party was examined as DW1 and Ext.B1 to B4 documents were marked on his side. On an appreciation of the evidence on record, the Forum below accepted the case of the complainant to a greater extent and thereby passed the impugned order directing the opposite party to pay Rs.27200/- being the printing charges for 200 copies of the directory with a further direction to pay compensation of Rs.3000/- with cost of Rs.1000/-. The opposite party is also directed to pay interest on the aforesaid sum of Rs.27200/-. Aggrieved by the said order, the present appeal is filed by the opposite party therein. 3. We heard both sides. The learned counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the complainant is not a consumer as the transaction entered into between the complainant and the opposite party is a commercial transaction. The appellant has also relied on the admission made by PW1 regarding the failure on the part of the complainant in approving the proof of the matter. It is also submitted that there was no deficiency in service on the part of the opposite party as the opposite party rectified the mistakes crept into the printing of the directories. Thus, the appellant requested for setting aside the impugned order passed by the Forum below. On the other hand, the learned counsel for the respondent/complainant supported the order passed by the Forum below. He canvassed for the position that the opposite party failed to execute the printing work which was entrusted with the opposite party printor; that the opposite party did not hand over 200 copies of the directory after rectifying the mistakes. So, the respondent requested for dismissal of the present appeal. 4. The points that arise for consideration are:- 1) Whether the complainant in OP.170/03 on the file of CDRF, Pathanamthitta is a consumer coming within the ambit of the Consumer Protection Act, 1986? 2) Whether there was any deficiency in service on the part of the opposite party as alleged by the complainant? 3) Whether the Forum below can be justified in passing the impugned order directing the opposite party to refund the printing charges for 200 copies of the directory with compensation of Rs.3000/- and cost Rs.1000/-? 5. Points 1 to 3:- There is no dispute that the complainant (respondent) entrusted the printing of 500 copies of directory with the opposite party (appellant.)
The printing charge was fixed at Rs.68500/-. Admittedly the entire consideration of Rs.68,500/- was received by the opposite party. The complainant Guideline Displays Advertisers & Publishers decided to print the aforesaid directory for their business promotion. So, the transaction related to printing of the directory can be treated as a commercial transaction. The complainant has also admitted that the directory was printed and published as part of their business promotion. It is to be noted that the printing work was entrusted with the opposite party on 22..1..2003 The amendment to Section 2(1)(d) came into force on 15.3.03 . Prior to the said amendment (amendment Act 62 of 2002) service availed or hired for commercial purpose was also included within the ambit of the Consumer Protection Act, 1986. The service of the opposite party was availed by the complainant prior to the amendment of section 2(1)(d) of the Consumer Protection Act, 1986. There can be no doubt that the service availed by the complainant for commercial purpose would also come within the purview of the Consumer Protection Act. Hence we hold that the complainant before the Forum below was a consumer coming within the ambit of the Consumer Protection Act, 1986. 6. The evidence of PW1(complainant) would make it clear that there was no written agreement between the complainant and the opposite party with respect to the printing of the directory. There was only an oral agreement or understanding between the parties and thereby the complainant entrusted the printing of 500 copies of the directory with the opposite party for a consideration of Rs.68500/-. The complainant paid the entire amount in three installments. It is to be noted that no specification was given for the printing of the directories other than a cassette disk. It is the case of the opposite party that the said CD was returned to the complainant after completion of the printing work. But the aforesaid CD is not forthcoming from the side of the complainant or from the side of the opposite party. It an admitted fact that the opposite party printed 500 copies of the directory and handed over the same to the complainant. So, in the ordinary course the aforesaid CD which was entrusted with the opposite party for the printing of the directory might have been returned to the complainant. Anyhow the aforesaid CD is not available for scrutiny. It can only be inferred that the opposite party printed the directory as stipulated in the said CD. If that be so, there can be no deficiency in service on the part of the opposite party in printing the directory as agreed. 7. Admittedly the complainant returned 200 copies of directory for rectifying the mistakes in printing the said directory. The complainant has also pointed out printing mistakes in the said directory. The opposite party being the printer was bound to rectify those mistakes and return those copies to the complainant. 8. The opposite party much relied on Ext.B2 lawyer notice dated 25.7.03 issued by the opposite party to the complainant. A perusal of B2 lawyer notice would make it clear that the opposite party rectified the printing mistakes crept into the said copies of the directory and that the opposite party was ready and willing to hand over the rectified 200 copies of the directory. Ext.B2 lawyer notice was issued by 25.7.03. The complaint in OP.170/03 filed on 6th August 2003. It is to be noted that no reply was issued to B2 lawyer notice. Instead of getting those 200 copies of directory from the opposite party, the complainant filed the complaint in OP.170/03. This circumstance would give an indication that there was no deficiency in service on the part of the opposite party in curing the defects in printing the directory; but the complainant was very much interested in filing the complaint in OP.170/03 seeking the relief of getting compensation of Rs.1,83,237/-. The Forum below failed to appreciate the circumstances available in this case. The Forum below failed to consider the issuance of lawyer notice at the instance of the opposite party. The Forum below has also omitted to note the fact that complainant was not ready or willing to go through the proof of the matter and approve the proof. PW1 has categorically admitted that he did not go through the proof because of paucity of time. In such a situation the complainant is not expected to find fault with the opposite party for the defects or mistakes crept into the directory. It is to be noted that the opposite party was very much ready and willing to rectify the printing mistakes. The available circumstance would only show that there was no such deficiency in service on the part of the opposite party in printing the directory. If that be so, the Forum cannot be justified in finding the opposite party as deficient in executing the printing work which was entrusted by the complainant. We have no hesitation to set aside the aforesaid finding entered into by the Forum below. The complaint in OP.170/03 deserves dismissal. Hence we do so. 9. In the result the appeal is allowed. The impugned order passed by the Forum below in OP.170/03 is set aside and the complaint in OP 170/03 is dismissed. The complainant will be at liberty to get back the corrected 200 copies of directory from the opposite party and that the opposite party is bound to hand over the said 200 copies of the directory to the complainant. The parties are directed to suffer their respective costs through out. SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER ps
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