Tamil Nadu

StateCommission

A/305/2019

Authorized Signatory, Prompt Copier Services, No.99/87, Swarnapuri Anex, Near ANS Dhivyam Jewels, Omallur Main Road, Salem 636 004. - Complainant(s)

Versus

M.Jothi, M/s.Sri Maruthi Xerox, No.2, Basement Floor, Opposite Devi Textiles, MG Road, Hosur, Krishn - Opp.Party(s)

M/s.V.Nicholas

30 Mar 2023

ORDER

 IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:   Hon’ble THIRU. JUSTICE R. SUBBIAH  :     PRESIDENT

                 THIRU R   VENKATESAPERUMAL           :      MEMBER

 

F.A. No. 305 of 2019

[Against the order passed in C.C. No.13 of 2017 dated 07.03.2019 on the file of the D.C.D.R.F., Krishnagiri].

 

Thursday, the  30^th day of March 2023

Authorised Signatory

Prompt Copier Services

No.99/87 Swarnapuri Annexe

Near ANS Dhivyam Jewels

Omallur Main Road

Salem – 636 004.                                                      ..  Appellant/  

        Opposite party       

 

- Vs –

 

M. Jothi

M/s. Sri Maruthi Xerox

No.2, Basement Floor

Opp. Devi Textiles

MG Road, Hosur,

Krishnagiri District.                                                    .. Respondent/                                                                                   Complainant

 

 Counsel for Appellant / Opposite Party        : M/s. V. Nicholas

 Counsel for the Respondent/Complainant    : M/s.V. Balaji

 

 

This appeal came before us for final hearing on 16.03.2023, and on hearing the arguments of the counsel for both the parties and on perusing the material records, this Commission made the following :-

O R D E R

R.SUBBIAH J., PRESIDENT

 

                This appeal has been filed under Section 15 of the Consumer Protection Act, 2019 as against the order dated 07.03.2019 passed by the District Consumer Disputes Redressal Forum, Krishnagiri in C.C. No.13 of 2017, allowing the complaint filed by the Respondent herein.

 

        2.  The Appellant is the opposite party and the respondent is the complainant.  For the sake of convenience, the parties will be referred as per their ranking before the District Forum. 

 

        3.  The case of the complainant, as given in the complaint filed before the District Forum, is as follows :-

                The complainant booked one Badgy 200 model, ID Card printer (SS) bearing Sl.No.10000413640 over phone on 12.05.2016 with the opposite party.  Hence, the opposite party sent one Mr.Vikraman, Engineer to the complainant in Hosur on 12.05.2016 and received Rs.30,000/- as advance and gave a receipt on 13.05.2016.  As agreed by both the parties, out of the total cost of Rs.52,000/-, the balance Rs.22,000/- has to be paid by the complainant, at the time of installation of the machine.  On 26.05.2016, the opposite party received the balance amount and installed the printer, with one year warranty and issued a receipt for Rs.22,000/-.  The work of the machine is to print matters perfectly in the smart cards viz., ATM cards and releases the cards promptly.  Obscure printing and the cards getting struck continuously, would amount to deficiency of performance of the printer. The smart cards were also supplied by the opposite party at a cost of Rs.2/- each. Since the machine gave unclear printouts with the cards getting struck often, the complainant reported the same to the opposite party.  Though the machine was serviced by the opposite party on 08.10.2016 and again on 07.11.2016, the problem still persisted.  Hence, the complainant issued a legal notice on 03.01.2017. The opposite party sent a reply dated 21.01.2017 stating the complainant had not lodged any complaints, subsequent to their second service on 07.11.2016.  The opposite party has not rectified the problem, even after several requests.  Till now the machine is not working and it is idle and stagnant in the house of the complainant as a luggage.  Thus, alleging deficiency of service, the complaint has been filed for the following directions to the opposite party:-

1. To replace the defective copier or refund the cost of the copies Rs.52,000/- to the complainant;
2. To pay a compensation of Rs.1,00,000/- for the loss of income and the mental agony to the complainant; and
3. To pay a cost of Rs.10,000/-.

  

                4.  The said claim was resisted by the opposite party filing a counter stating that it is a false allegation of the complainant that the printer renders obscure printing and the cards are struck continuously.  On 30.05.2016, through the company service Engineer by name Thangavel, the printer was installed in the premises of the complainant.  After installation, it was checked in the presence of the complainant and he was fully satisfied with the working condition of the printer.  Thereafter, demo was given, clearly explaining how the printer has to be handled.  On receipt of the complaint on 08.10.2016, the opposite party sent a service engineer to check the condition of the printer, who found that the complainant has not fixed the ribbon properly.  When the ribbon was fixed properly, the printer was perfectly working and a print out was also taken to confirm the same, in the presence of the complainant.  Since she was fully satisfied, she signed the service report on 08.10.2016.  Again, based on the second complaint the service engineer Thangavel checked the printer on 07.11.2016 and found that the printer was perfectly alright. In the presence of the complainant, he printed few cards and since she was satisfied with the performance, she signed the service report.  Hence, it is false to allege that the problem persisted even after check up on 07.11.2016.  In response to the legal notice sent by the complainant dated 03.01.2017, the opposite party had replied stating the facts.  Therefore, it is false to allege that the opposite party avoided the complaints given by the complainant and that they did not rectify the problem even after several requests and that the printer is not functioning properly.  The error in the printer had occurred because the complainant is not aware as to how to operate the printer.  As alleged by the complainant, if the printer is at fault, it is not possible to get prompt printing.  Therefore, it is false to allege that the opposite party did not rectify the problem even after several requests of the complainant.  The printer is perfectly in working condition and that the opposite party is always ready to prove that the printer is working properly. Thus sought for dismissal of the complaint.

 

                5.  In order to prove the case, both the parties have filed their proof affidavits and on the side of the complainant, 6 documents have been marked as Exhibits A1 to A6 and 7 documents were filed on the side of the opposite parties and marked as Exhibits B1 to B7.

 

                6.   The District Forum, after analyzing the entire evidence on records had observed that a original printed card has been produced as Ex.A5 on the side of the complainant to show that the printing is obscure, which is not clear.  Therefore, it is clear that the opposite party had supplied a defective printer and there is deficiency of service on the part of the opposite party and hence directed the opposite party to replace the printer or pay a sum of Rs.52,000/-.  Aggrieved over the same, the present appeal has been filed by the opposite party.

 

                7.  It is the submission of the counsel for the appellant/ opposite party that the complainant had purchased one BADGY 200 Card Printer (SS) from the opposite party.  The same was installed in the complainant’s premises on 26.05.2016.  Thereafter, on two occasions the complainant had lodged complaints stating that the printer is not working.   Immediately, the same was attended by the opposite party and rectified on 08.10.2016 and 07.11.2016.  However, on 03.01.2017, she has sent a legal notice stating that the printer is not working properly and it was giving a lot of problems and the printing was obscure.  The opposite party replied the legal notice stating that the complainant is not operating the printer properly.  But, this was not accepted by the complainant.  However, the defects pointed out by the complainant were rectified immediately.  But, the District Forum had observed that if there is a problem in the printer, the opposite party should have sent the service engineer to rectify the same.   Assailing the said finding, the Appellant/ opposite party had submitted that he is only an authorised signatory, who had supplied the printer and he is not the manufacturer.  Therefore, it is not his responsibility to send a service engineer to check the defects and rectify the same.  Therefore, no liability could be fastened on the opposite party.    Moreover, when the complainant had alleged that there is a manufacturing defect in the printer, he ought to have produced an expert evidence to that effect, which he had failed to produce in this case.

 

                8.  Countering the same, learned counsel for the complainant referring to Section 2(r) (1) (vii) of the Consumer Protection Act, 1986 corresponding to Section 2(47)(i)(g) of the Consumer Protection Act,2019 submitted that, if a warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence.  Therefore, it is incorrect to state that it is for the complainant to prove the defects by producing expert evidence.  With regard to the other submission made by the counsel for the appellant/ opposite party that he is only an authorised signatory and not a manufacturer and therefore the complaint is liable to be dismissed for non-impleading of the manufacturer, it is replied by the counsel for the respondent/ complainant that as per Section 2(j)(ii) of the Consumer Protection Act, 1986, “manufacturer means a person who, does not make or manufacture any goods but assembles parts thereof made or manufactured by others”.  Therefore, even if they supply the goods manufactured by others, they will fall within the purview of manufacturer and therefore there is no need to implead the actual manufacturer of the machine, as a party.

 

                9.  Keeping in mind the submissions made by the learned counsel for the appellant/opposite party and the counsel for the respondent/ opposite party, we perused the entire material available on records.         

                10.  We are not inclined to accept the submission of the respondent/ complainant that there is no need to implead the actual manufacturer of the goods since the appellant/opposite party itself will fall within the purview of manufacturer as per Section 2(j)(ii) of the Consumer Protection Act.  When the complainant is making a specific allegation that the printer is not properly working, he ought to have impleaded the manufacturer of the machine, because the manufacturer is a necessary party for effective adjudication of the complaint.  When the necessary party is not impleaded, effective adjudication cannot be done.  Therefore, the complaint is liable to be dismissed on this short ground alone.  Moreover, in the instant case except marking Ex.A5, i.e., some printed cards, no steps were taken to produce an expert opinion to show that the printer is not working.  But, it is the submission of the counsel for the complainant that since there is one year warranty in this case, as per Section 2(r)(1)(vii) of the Consumer Protection Act, 1986 corresponding to Section 2(47)(i)(g) of the Consumer Protection Act, 2019, it is for the manufacturer/ opposite party to prove that the warranty issued by them is based on adequate or proper test.  In the instant case, the opposite party/ manufacturer has not taken any steps to prove that the warranty issued by him is based on proper test.  In view of this submission made by her in the complaint, it would be appropriate to extract Section 2(r)(1)(vii) of the Consumer Protection Act, 1986,

        “ gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof; Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;”

A reading of the proviso to the above section 2(r)(1)(vii) states that only if a defence is raised to the effect that such warranty is given by the opposite party based on adequate or proper test, then the burden of proof lies on the side of the opposite party to prove such defence.  But in the instant case, the defence of the opposite party is that the complainant has not fixed the ribbon correctly in the machine and that is why the printer was not working properly.  When the ribbon was re-fixed properly, the machine started functioning.  Therefore, the opposite party has not raised any defence based on the warranty in this case.  Therefore, Section 2(r)(1)(vii) of the Act has no application in this case.  It is a well known legal principle that always the initial burden of proving the case rests upon the shoulder of the person, who is making the allegation.  Only in the event of establishing the case, the burden will be shifted to the shoulder of the respondent, to disprove the same.  Hence, in the instant case, the complainant has to prove that the machine is not working properly.  In this case, except marking Exhibit A5, some printed cards, the complainant has failed to obtain expert opinion.  Therefore, the order passed by the District Forum allowing the complaint, based on Exhibit A5, i.e., the printed cards marked on the side of the complainant is not correct.  Hence, we are of the opinion that the order of the District Forum is liable to be set aside. 

 

                11.   In the result, the Appeal is allowed, by setting aside the impugned order dated 07.03.2019, passed by the District Consumer Dispute Redressal Forum, Krishnagiri in C.C. No.13 of 2017.

 

 

R  VENKATESAPERUMAL                                                                                               R.SUBBIAH

         MEMBER                                                                                                                    PRESIDENT

Index :  Yes/ No

AVR/SCDRC/Chennai/Orders/March/2023