Date of Filing:17.04.2008<br /> Date of Order:26.11.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> <br /> Dated: 26TH DAY OF NOVEMBER 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> <br /> <br /> COMPLAINT NO: 967 OF 2008<br /> M/s. Unique Digital Prints<br /> Rep. by Prop: Manjunath<br /> No. 176/5, Shashi Plaza, ‘A’ Cross<br /> Opp. to Gali Anjaneya Temple<br /> Mysore Road, Bangalore 560 026 Complainant<br /> V/S<br /> M/s. Global GTS Technologies<br /> Rep. by its partner: Gopalakrishna<br /> ‘Vanushrae’, No. 01, 12th Main road<br /> Brindavan Nagar, Mattikere<br /> Bangalore 560 054 Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act. <br /> The facts of the case are that complainant purchased New Global GTS solvent Printer for Rs. 7,55,000/- from the opposite party and paid Rs. 5,05,000/- by cash and for the balance amount 10 post dated cheques of Rs. 25,000/- each was issued. Totally printer costs Rs. 7,60,000/- to the complainant. On 13/10/2007 complainant and opposite party entered into a sale agreement. The printer was facing one or the other problem from the date of purchase. The complainant submits that the printer supplied was different from the ordered one and even the software is also pirated CD. It is also submitted that the printer machine was broken from inside of the machine and even rusted in some of the parts which shows that the opposite party sold the used printer machine to the complainant. The opposite party mechanics used to take more time in repairing and spent materials of the complainant for test prints which costs Rs. 20,000/- and Rs. 25,000/-. By this the business of the complainant hampered. It is also submitted that the spare parts of the printer was not available with the opposite party. The complainant sent letters requesting opposite party to replace the printer for which opposite party did not turned up. Complainant made several requests to opposite party. Opposite party neglected to settle the claim of the complainant which amounts to deficiency of service. Complainant sent legal notice to opposite party. Opposite party replied to the legal notice rejecting and denying all claims made by the complainant. Hence, the complaint. The complainant prayed to direct the opposite party to pay Rs. 2,75,000/- with interest and to return the printer machine amount of Rs. 5,05,000/-.<br /> 2. Notice was issued to opposite party. The opposite party appeared through advocate and defence version filed stating that complaint is not maintainable either in law or on facts. It is submitted that complainant being totally convinced and impressed with the latest printing features of the different printing machines was pleased to place an order for purchase of printing machine Solvent Q-jet Printer 3312 model for Rs. 7,47,000/- inclusive of all taxes and both the parties agreed to the terms and conditions of Agreement of sale. The opposite party visited the complainant establishment after delivery of the printer along with his technicians to assess the performance of the printer. There was no problem with the printer as alleged in the complaint. The complainant started to dishonour the cheques for the reason of insufficient funds. Rs. 1.00 lakh paid by the complainant is towards furtherance of the contract. Opposite party submits that there are different modes that could be adopted for obtaining the desired prints by giving proper command in the software. To get good quality print one should use the machine in 4 pass mode to get optimum out put and good quality of solvent inks should be used. Adequate training was provided by the opposite party to the staff of the complainant. The complainant was not handling the printer with due diligence and proper care as per the instructions of the opposite party. Complainant has not stated specific problem that he was facing with the machine in the complaint. Opposite party has promptly attended to the queries of the complainant. Opposite party denied that the printing machine of different model was supplied to the complainant. The machine provided to the complainant is brand new one. The printer was used by inexperienced untrained boys of the complainant. All other allegations made in the complaint are denied by the opposite party. <br /> 3. Arguments are heard.<br /> 4. The points for consideration are:<br /> “1. Whether the complaint is maintainable?<br /> 2. Whether the complainant has proved deficiency in service on the part of the opposite party?”<br /> 5. The learned advocate for the opposite party argued that complaint is not maintainable on the ground that the printer purchased by the complainant was for commercial purpose and the complainant is doing business. Therefore, he is not a ‘Consumer’ under the Consumer Protection Act. On this ground itself the learned counsel submitted that complaint is liable to be dismissed. Under the definition of ‘Consumer’ in section 2(d) of Consumer Protection Act ‘Consumer’ means ‘any person who buys goods for consideration ..... but does not include a person who obtains such goods for resale or for any commercial purpose”. Complainant has no where stated in his complaint that he has purchased Solvent Printer (12 head) for the purpose of earning his livelihood by means of self employment. The printer purchased by the complainant is worth Rs. 7,47,000/-. The complainant himself has stated in para 13 of his complaint as under:<br /> “In the meanwhile at the opponent’s visits & over phone to the complainant has instructed the opponent that, ‘Not to present the post dated cheques’ given to the opponent, as monthly installment payment for the said printer machine, on the above reasons. Hence, the opponent was already called upon, to replace the acquired printer machine to the complainant as it holds 1 year Warranty still (As per Clause 12 of Sales Agreement Dt. 14/09/07) & makeup the Expenses spent by the complainant for repairs of the above printer machine till today amounting to Rs. 75,000/- with interest at 2% per month as it is a Commercial transaction & make good of business loss occurred by the opponent to the complainant by the said machine & which amounted to Rs. 2,75,000/- with the said interest till the payment made by the opponent in full.”<br /> 6. By this para it goes to show that the complainant has admitted that he is doing business and the transaction is a commercial transaction. Under these circumstances on the admission of complainant itself it is clear that he cannot be considered as ‘Consumer’ as defined under Consumer Protection Act 1986. In the absence of any pleading or proof that the machine purchased by the complainant was exclusively for the purpose of earning his livelihood, for the means of self-employment the irresistible conclusion would be purchase of printer machine is for commercial purpose. Therefore, on this ground itself the complaint is liable to be dismissed. Secondly, the complainant has not come with a bonafide intention before this fora, because the price of the machine purchased was Rs. 7,55,000/-, out of that Rs. 4,05,000/- was paid by cash to the opposite party and the complainant has given post dated 10 cheques to the opposite party. The cheques have been presented for encashment by the opposite party and cheques have been bounced for ‘insufficient funds’. For that the present opposite party has filed a criminal case under section 138 of NI Act against the present complainant before the 13th Additional Chief Metropolitan Magistrate, Bangalore. The opposite party has produced copy of P.C.R. No. 8271/2008 registered against the Proprietor, M/s. Unique Digital Prints. Thus, learned counsel of the opposite party argued that as a counter blast to the criminal complaint filed against the present complainant under section 138 of NI Act the complainant has approached this forum. Therefore, the intention of the complainant is not fair and bonafide. He wants to avoid balance payment. When the intention of the complainant in filing the present complaint is not fair and bonafide in that case no relief can be granted to the party. The complainant has alleged that the machine was not working properly and the opposite party has not supplied the new machine and thereby he has cheated him. To prove this allegation there is absolutely no evidence or proof before this forum. Except the bald allegation made in the complaint there is no proof or any other legal and acceptable evidence to show that the machine supplied by the opposite party is not working properly and it was old machine. The complainant has not taken expert opinion to find out whether the printer machine supplied by opposite party is working in good condition or not. No expert opinion or report to establish that printer machine purchased by the complainant is having manufacturing defect. So under these circumstances also the complaint is not maintainable. Taking into consideration of all the facts and circumstances of the case the complainant has miserably failed to prove deficiency in service on the part of the opposite party. Therefore, I feel the complaint is liable to be dismissed. In the result, I proceed to pass the following:<br /> ORDER<br /> <br /> 7. The Complaint is dismissed. No order as to costs.<br /> 8. Send the copy of this Order to both the parties free of costs immediately. <br /> 9. Pronounced in the Open Forum on this 26TH DAY OF NOVEMBER 2008. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br />