BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 191/2007 Filed on 04.09.2007

Dated : 31.08.2009

Complainant:

Mohandas, Thushara Traders, Thushara, Vandannur, Kilimanoor, Thiruvananthapuram.

(By adv. Narayan. R)

Opposite parties:

1. Blitz Communications, 2^nd Floor, North Square, Ernakulam North, Ernakulam represented by its Manager.

    

2. Xerox India Ltd., DLF Square, Jacaranda Marg, M. Block, DLF City, Phase II, Gurgaon-122 002, Haryana.

This O.P having been heard on 07.08.2009, the Forum on 31.08.2009 delivered the following:

ORDER

SMT. S.K.SREELA : MEMBER

The complainant is a small time trader, running a shop, along with his son, for their livelihood and self-employment. In the month of December 2006, the complainant saw an advertisement of the 1^st opposite party in the Malayala Manorama newspaper offering for sale of Modi Xerox Photocopier manufactured by the 2^nd opposite party at a rate of Rs. 35,000/- under a special Christmas and New Year offer. Attracted by the offer, the complainant contacted the office of the 1^st opposite party and he was handed over a brochure containing the features of the Christmas and New Year offer. As per the warranty conditions, the 1^st opposite party offered '1 year/1 lakh copies spot service free'. The complainant was also given a document containing the technical data of the photocopier. Accordingly on 04.01.2007 as per the offer conditions, the complainant paid an amount of Rs. 10,000/- as advance. On 06.01.2007, the staff of the 1^st opposite party delivered the photocopy machine to the shop room of the complainant at Thiruvananthapuram. The complainant paid in full the remaining amount of Rs. 25,000/- to the 1^st opposite party. However, contrary to the assurances made by the 1^st opposite party, the photocopier proved faulty from the very inception itself. Within a short span of time, the complainant had to call upon the 1^st opposite party to rectify the defects. There was also poor response from the 1^st opposite party towards the service requests made by the complainant. All these defects and shortcomings have happened during the warranty period itself. Due to the continuous and persisting defects and impertinent attitude towards the service requests, the complainant requested the 1^st opposite party to replace the machine with a defect free one; or in the alternative to take back the machine and refund the money paid by him, for which there has been no response from the 1^st opposite party. The complainant has now been informed that the model sold to him viz, Modi Xerox RC Photocopier 5625/1025 RF is a model now not in existence and that spare parts of the same are not available. It is after fully knowing this and with a clear intention to cause damage to the complainant that the 1^st opposite party had sold this photocopier machine. The aforesaid act of the opposite parties have caused much agony, misery and financial hardship to the complainant. Hence this complaint for redressal of his grievances.

The 1^st opposite party in their version contends as follows: The complainant is not a consumer as defined under Sec. 2(1) (d) of the Consumer Protection Act, 1986. That the present complaint is bad for non-joinder of proper parties. There is no priviity of contract between the complainant and the 1^st opposite party. A reconditioned Modi Xerox photocopier was purchased by the complainant on 04.01.2007 after being totally satisfied with the working, quality and durability of the machine. There was no malfunction of the machine. The allegation in the complaint that the machine is lying in a non-working condition is a completely false and malafide contention made by the complainant. It is totally denied by this opposite party. In fact the complainant has been using the machine regularly and he is earning from this. Moreover this respondent is ready to repair the machine within the stipulated guarantee period. On 15.01.2007 the complainant requested this opposite party to train him and his workers once more since he was unable to understand the working of the machine properly, the respondents technicians again visited the complainant on 16.01.2007 and spent hours training the complainant and two other workers of the complainant about the proper working and maintenance of the machine. Subsequently the opposite party and his technicians always used to visit the complainant's shop and assist and train him and his workers in working of the machine. This opposite party states that many times his technicians have visited the complainant's shop and every time he has seen the machine working smoothly without any defects. The machine was selected, sold and delivered from the opposite party's Ernakulam office. Therefore it is respectfully submitted that this Hon'ble Forum has no territorial jurisdiction to entertain this complaint. The complaint is not maintainable on the ground that the machine was purchased for a sole commercial purpose and not for self employment as stated in the complaint. The complainant has been using this machine strictly for commercial purpose. The complainant is running many such establishments for the purpose of commercial use. This respondent states that even today this machine is in a perfect working condition. On enquiry it is revealed the petitioner is still using the machine. Hence prays for dismissal of the complaint.

The 2^nd opposite party remains exparte.

The complainant, PW1, has filed affidavit and marked Exts. P1 to P5 on his side. PW1 has not been cross examined and hence his affidavit stands unchallenged. Opposite parties had no evidence.

The issues that could arise for consideration are:-

1. Whether the complaint is maintainable before this Forum?

2. Whether there is any unfair trade practice and deficiency in service on the part of the oppoiste parties?

3. Whether the complainant is entitled for any of the reliefs claimed?

Point (i) : The 1^st opposite party contends that the machine was sold and delivered from the opposite party's Ernakulam Office and hence this Forum lacks territorial jurisdiction. The complainant pleads that the machine has been delivered by the 1^st opposite party at the shop of the complainant at Thiruvananthapuram. But from the version of the 1^st opposite party itself it could be found that 1^st opposite party and his technicians went to the premises of the complainant and plugged on the machine and instructed him about the working and very thoroughly explained about the complete functioning of the machine to the complainant and his employees, which would go to prove that the machine has been installed and demonstrated by the 1^st opposite party at the complainant's premises which is at Thiruvananthapuram. Since part of the cause of action having been arisen within the territorial jurisdiction of this Forum, we find that this Forum has territorial jurisdiction to entertain the complaint.

The 1^st opposite party further contends that the complainant has been using this machine strictly for commercial purpose and not for self employment. The complainant alleges that the machine has become defective during the warranty period. By now it is a settled position that purchaser of a machine would be a consumer if the defect in machine develops within warranty period even though the machine was purchased for commercial purpose. Therefore, the contention of the complainant not being a consumer is repelled being without any merit.

Points (ii) & (iii):- The documents on record show that the complainant has been sold a reconditioned photocopier. In Exts. P4 & P5 it has been mentioned that Modi Xerox RC Photocopier and specifically mentioned at the bottom of Exts. P4 & P5 that R.C means reconditioned. Hence the contention of the learned counsel for the complainant that the complainant was unaware that he has been given a re-conditioned photocopier cannot be accepted.

From the pleadings in the complaint, it could be found that the machine has become defective during the warranty period itself. The machine has not been examined by any experts. The 1^st opposite party in their version has stated that the allegation that the machine is lying in a non-working condition is a completely false contention. Besides this the 1^st opposite party in their version has admitted that they are ready to repair the machine within the stipulated guarantee period. Moreover, the complainant as PW1, has sworn that, the photocopier proved faulty from the very inception itself. The defects still persists and with not even 3000 odd copies been taken, the photocopier has become useless. PW1 further swears that due to the continuous and persisting defects and impertinent attitude towards the service requests, he had requested for replacement of the machine with a defect free one or in the alternative to take back the machine and refund the money. But there was no response from the opposite parties. The above statements of the complainant stand unchallenged and uncontroverted as PW1 has not been cross examined by any of the opposite parties.

Considering the above facts and circumstances of the case, we are of the view that the non-performance of after sale service promptly and the persistence of the defects in the machine as sworn by PW1, constitutes deficiency in service on the part of the opposite parties. The complainant has admitted that they could use 3000 odd copies. Hence after deducting depreciation for the period of use, we assess the value of machine as Rs. 30,000/-.

In the result, the complaint is partly allowed. The opposite parties 1 & 2 are hereby directed to rectify the defects in the machine in dispute, to the full satisfaction of the complainant, within one month from the date of receipt of the order failing which opposite parties shall refund Rs. 30,000/- with 9% interest from the date of order till realization and shall also pay Rs. 1,000/- as costs of the proceedings and on receipt of the amount, the complainant shall return the machine in dispute to the opposite parties.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31^st day of August 2009.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

C.C. No. 191/2007

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Mohan Das. K

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of Malayala Manorama Newspaper dated 24.12.06.

P2 - Copy of Modi Xerox RC-A3 Copier Christmas and New

Year offer.

P3 - Copy of brochure with warranty conditions.

P4 - Copy of quotation dated 03.01.2007.

P5 - Copy of bill dated 06.01.2007 for Rs. 25000/-.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT