By Smt. C.S. Sulekha Beevi, President,

Brief facts:-

1. Complainant is a registered Society carrying on charitable, educational and social welfare activities. The Society purchased from first opposite party a Photostat machine for it's day to day affairs for a total sum of Rs.72,520/-. The machine was installed by first opposite party on 09-01-2004. The machine developed snags often and on reporting the complaints first opposite party used to set it right. Toner was replaced on various occasions at the expense of the complainant. Opposite parties are the sole distributors of the toner applicable to the machine and complainant had to depend on them for obtaining the same. Even though few toners were replaced by first opposite party in time later opposite party refused to supply toners as demanded. The machine developed defects like, dual consumption of paper sheets, non-obtaining colour images, incomplete images, less clarity, improper print paper consumption, damages to papers etc. Though complainant contacted both opposite parties several times requesting to rectify the defects opposite parties did not respond. Complainant issued a registered lawyer notice to which first opposite party replied stating false allegations. The machine is lying idle since one month due to non-supply of toner. That complainant spend Rs.18,200/- for purchase of accessories. The machine is now quite useless. Hence this complaint seeking refund of Rs.72,000/- with interest @ 18% and other related reliefs.

2. First opposite party filed version admitting that complainant had purchased a RICOH FT 4615 photostat machine by paying Rs.72,520/-. It is submitted that first opposite party is the dealer and second opposite party is the manufacturer. That no false representations regarding quality or performance of the machine was made to the complainant and that proper service and replacement of consumables were provided by first opposite party till the advent of certain undesirable acts on the side of complainant. The warranty period was three months. Opposite party had attended all the service calls promptly. The agreed terms of service was that service maintenance and replacement of consumables like toner at the cost of complainant. That complainant did not make prompt payments of the toners supplied and always delayed the payment. As such first opposite party demanded that payment of the toner be cleared before any further service or supply of toners further. Then complainant locked up and restrained the Sales Manager, Sri. Ganesh and demanded the supply of toner. First opposite party was forced to supply toner and obtain release of the staff. After this incident the staff of first opposite party were reluctant to attend the service calls from complainant due to the fear of being manhandled. It was after this incident that first opposite party issued legal notice stating that the machine is defective and alleging non supply of accessories/toner. First opposite party has replied stating the true facts. It is stated that the allegation that machine has defects and inherent manufacturing defect is false. That complainant had demanded for supply of toner even after issue of legal notice and also prior to filing of this complaint. First opposite party had supplied toner for which complainant had made payments. That therefore the allegation that the machine is lying idle for a month is totally false. It is further submitted that the machine is a black and white photocopier and cannot provide colour images. That complainant has not entered into any service maintenance contract with opposite party. That the complaint is frivolous and vexatious.

3. Bereft of the superfluous averments in the version it is submitted by second opposite party that the machine was purchased for commercial purpose and that complainant is not a consumer. That maintenance of machine and supply of accessories are done subject to terms of warranty and service maintenance agreement. That consumable parts are always supplied at the cost of customers and beyond warranty period the parts are supplied at the expense of customers. After expiry of warranty, the customers are expected to enter into separate service maintenance agreement. The complainant did not enter into any such agreement with opposite parties. It is denied that the machine is having defect or any manufacturing defect. It is stated that consumption of toner depends on the usage and accordingly the same has been replaced whenever demand was made by complainant. That the replacement of toner is in no way due to any defect of the machine. The delay if any caused for supply of toner was only because the complainant delayed the payments of the toners supplied. That complainant adopted high handed approach by detaining the service engineer of opposite party on 08-12-2004. Complainant then demanded supply of 2 nos. of toner catridges as a condition precedent for release of Mr. Ganesh. This service engineer was allowed to leave the premises of complainant only after first opposite party arranged for supply of two toners and that too against deferred payments. That this act on the part of complainant itself disentitles him to get any relief from the Forum. The details of date of supply of toner and date of payment made by complainant are stated in the version. It is submitted that the machine is a black and white machine and will not therefore provide colour images. The other defects alleged to the machine are specifically denied. That proper services and timely supply toner/accessories were made by opposite parties. That complainant has suppressed the true facts and that he is not entitled to any reliefs.

4. Evidence consists of the affidavit filed by complainant and Exts.A1 to A12 marked for him. First and second opposite parties have filed separate counter affidavits. Exts.B1 to B4 marked for second opposite party. No documents marked for first opposite party. Either side has not adduced any oral evidence.

5. Points for consideration:-

(i) Whether complainant is a consumer.

(ii) Whether opposite parties have committed any unfair trade practice

and deficiency in service.

(iii) If so, reliefs and costs.

6. Point (i):-

Opposite parties have disputed the complainant to be a consumer contending that the Photostat machine was purchased by the society and therefore it was purchased for commercial purpose. Second opposite party relied on Ext.B4 which shows the various establishments run/conducted by the complainant society. It is specifically stated by complainant that the society is indulged in social, educational and charitable activities and that the Photostat machine was purchased for it's day to day affairs. So the machine was intended to facilitate the work of the society. Opposite parties have not specifically pleaded or proved that complainant was collecting charges for the photostats taken by the machine. Therefore the activity for which the machine is used was not for generating profit but for facilitating work of the office of the society. On such score we do not consider that the machine was purchased for commercial purpose. Hence complainant is a consumer and the complaint is maintainable. Point found in favour of complainant.

7. Point (ii):-

The allegations levelled against opposite parties are that the machine has defects which are also manufacturing defects. That opposite party failed to render proper and prompt service and did not supply toner and accessories on demand.

8. Denying the machine to have any defect and manufacturing defect it is submitted by opposite parties that proper service and supply of toner was made to the complainant. That the payment for toner was much delayed and due to this reason opposite party insisted to clear payment before supply of toner any further. On this the service engineer of first opposite party, Sri. Ganesh, was wrongfully restrained by complainant. That to release the service personal complainant demanded to supply two toners on deferred payment which first opposite party was forced to do to obtain the release of Sri.Ganesh. That after this the staff of opposite party was reluctant to attend the service calls fearing being manhandled. It is submitted that toner was supplied a few days prior to this complaint which would show that complainant was using the machine immediately prior to this complaint.

9. The burden to prove that the machine/goods is defective is upon the complainant. No steps have been taken by the complainant to discharge this burden. Admittedly the warranty period of the machine is only three months from the date of installation which is 09-01-2004. This complaint is filed only on 02-3-2005 which is almost one year after the purchase of the machine. Complainant alleges that the machine developed snags oft and on. Ext.A5 series which are the service call sheets shows that the machine was attended to by service engineer of opposite party. These call sheets do not disclose any major defect recorded to the machine. Some of the service call sheet were only for replacement of toner. In these call sheets the complainant has endorsed his seal to the effect that after servicing the machine is working satisfactorily. Further it is affirmed by first opposite party that on 08-12-2004 toner was supplied, but the legal notice was send on 09-12-2004. The payment for this toner was received only on 03-01-2005. On 18-01-2005 again toner was supplied and payment was received immediately. That the next month itself this complaint was filed. It can be inferred easily that if the complainant was in need of toner on 08-12-2004 and 18-01-2005 then of course the machine was being used by the complainant. So the allegation that the machine is useless and is lying idle is untenable and unacceptable. Though complainant states certain defects to the machine, the working condition of the machine and the extend and nature of the defects if any has not been proved by expert evidence. For these reasons we are unable to hold that the machine has any defects.

10. On perusal of evidence and materials on record what we are able to sum up is that the real grievance of the complainant is the non-availability of toner cartridges. Without the toner the machine is ofcourse, useless. Needless to the say that demand for the toner depends on the use of the machine. Opposite parties being the sole distribution of toner applicable for the machine complainant was constrained to depend on them for obtaining the same. Complainant does not have a case that he used to pay the price of the toners immediately or that no delay was caused. It is clear from the facts of the case that the whole issue has arose out of the difficulty for the complainant to obtain toners on delayed and deferred payments. Complainant has no case that opposite party failed to supply toner even after payment. Ext.A5 shows that opposite party have attended the service calls of the complainant. Though complainant contends that opposite party did not respond to the request for service it is not specifically stated or affirmed by complainant the dates of requests which were left unattended by opposite party. From the above discussions we are unable to find any unfair trade practice or deficiency in service on the part of opposite parties. Point found against complainant.

11. In the result, complaint dismissed. Parties are directed to suffer their respective costs.

Dated this 25th day of May, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A12

Ext.A1 : Photo copy of demand draft for Rs.47,500/- dated, 10-01-2004

by complainant to 2^nd opposite party.

Ext.A2 : Photo copy of invoice dated, 31-12-2003 from 2^nd opposite party

to complainant.

Ext.A3 : Photo copy of Installation report dated, 09-01-2004 from 2^nd

opposite party to complainant.

Ext.A4 : Photo copy of letter dated, 01-12-2003 from 1^st opposite party

to complainant.

Ext.A5 : Photo copies of Service call sheets (7 Nos.) from 1^st opposite party

to complainant.

Ext.A6 : Photo copy of Lawyer notice dated, 09-12-2004 by complainant's

counsel to opposite parties.

Ext.A7 : Photo copy of bills dated, 05-7-2004 from opposite parties to complainant.

Ext.A8 : Photo copy of bill dated, 25-5-2004 from opposite parties to complainant.

Ext.A9 : Photo copy of Invoice dated, 24-5-2004 from opposite parties to complainant.

Ext.A10 : Photo copy of bill dated, 08-12-2004 from opposite parties to complainant.

Ext.A11(a,b,c): Photo copy of bill, invoice, delivery chalan dated, 18-01-2005 from

opposite parties to complainant.

Ext.A12 : Photo copy of notice dated, 10-01-2005 from 1^st opposite party to complainant.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Exts.B1 to B4

Ext.B1 : Photo copy of the Certified true copy of the resolution passed at

the meeting of the Board committee on 28-10-2005.

Ext.B2 : Photo copy of the terms and conditions.

Ext.B3 : Photo copy of the terms and conditions.

Ext.B4 : Calender for the year 2007 of complainant's establishment.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER