Present (1) Sri Nisha Nath Ojha

                  District & Sessions Judge (Retd.)

                     President.                                               

            (2) Sri Sheo Shankar Prasad Singh,

                   Member.

                  Date of Order- 30.01.15

                                                 ORDER

 Sheo Shankar Prasad Singh

1. The complainant approached this forum for following reliefs  against Opposite Parties:-

A. To pay Rs. 12,00,000/-(Twelve Lac Only) which was  invested by the complainant in her business including the machine price.

2. To pay of compensation at the rate of 18% per annum.

2. Prior to discussing the matter it is relevant to mention here that this complaint petition is being disposed of in the light of remand order dated 27.05.11 passed by the Hon’ble State Commission in First Appeal No. 634/2007 which was preferred by the complainant against the order of dismissal dated 26.09.2007 passed in this case earlier

        3. The complainant has made following averment and             submissions in his complaint:-  

1. The Complainant had purchased a photo developing & Printing/Machine namely “Imager”135 (R.A) for her use in her Focco photo Colour Lab to earn her livelihood from the same and to maintain herself and her family members.  The Opposite Party No. 1, M/s Godrej Me Ltd., situated at Godrej Bhawan Block-GN, Sector V, Salt Lake, Kolkata-91, is the producer and seller of Photo Lab machines to be used in Photo Colour Lab.
2.  The Opposite Party No. 7, Mr. Santanu Sarkar approached Mrs. Sapna Rani and induced her to purchase the photo machine and also promised that he would help in running the machine as service Engineer is living at Patna. He also promised to help in day to day problems so that she earns well through the machine.
3. Accordingly the complainant purchased a Photo-developing & Printing machine namely Imager 135 (RA) from Opposite Party No. 1 for valuable consideration of Rs. 5, 75,000/-(Five Lac Seventy Five Thousand Only). The machine was installed by company on 04.09.99 at 6 MIG Kankarbag, Patna.
4. The complainant with the help of Opposite Party No. 7 had arranged a loan for purchase of the said Imager Machines from the Bank for which the complainant has to pay interest. The complainant had invested Rs. 12, 00,000/-(Twelve Lac Only) for smooth running of her Colour Lab to earn her livelihood.
5.  The Opposite Party sold the Imager Machine to the complainant with the assurance that it is new and it shall work properly after installation. The Opposite party  had also assured that after installation of Imager Photo machine at Patna by the complainant the Opposite Party shall do all proper maintenance and repair of the said machine at place of its installation. The required spare parts will also be kept at Patna Office with Mr. Santu  Sarkar, Service Engineer to repair and Maintenance of Machine at Patna. The company representative Sri Santu Sarkar at the relevant time had said that the Opposite Party had his office for doing maintenance of the sold machine at Patna giving the address of the said office of Opposite Party No. 7 to the complainant. The office of the Opposite Party No. 7 was in existence at Patna at the relevant time.
6. The Opposite Party No. 1 sold the said Imager Photo Machine to the complainant by saying new Machine and received the price for a new machine but after installation of the said Machine, it was found to be defective and old one because some steel plates were found rusted and it was not functioning properly although the complainant observed all the instruction to operate the Machine given by Opposite Parties at the time of sale but in spite of that the  machine sold  by respondents did not function properly.
7. The complainant has been making repeated complaint about the defective services stating the non-functioning of the sold imager Machine and the complainant has been making repeated complaint to Opposite Party No. 1. The Opposite Party No. 1 at the time of sale of said Machine to the complainant had issued warranty for 6 months but the said Machine after installation did not function smoothly within the warranty period also. The Opposite Party in spite of complain given by the complainant did not render his proper services to repair the machine for proper functioning due to which the complainant could not earn her livelihood in spite of huge investment in her firm Focco Photo Colour Lab at Kankarbagh, Patna.
8. Subsequently the Opposite Party approached the complainant through its authorized agent Mr. Kalol Nandi the Service Engineer of Godrej Photo-me Ltd. Company who had his office at Godrej Bhawan, block G.N., Sector-V, Salt lake , Kolkata-91 who asked the complainant to enter-into annual maintenance contract (A.M.C.) with M/s Godrej Photo-me Ltd. and  On this  assurance complainant  entered into the comprehensive  A.M.C. (Annual Maintenance Contract) with opposite party on 18-08-2001 for a term of one year.  
9. The Opposite Party received Rs. 35,000/-(Thirty Five Thousand Only) from the complainant for doing comprehensive annual maintenance for proper function of entire Machine and entered-into Annual Maintenance contract with the complainant and assured to do the entire annual maintenance of the Colour Photo Machine Imager at Patna from his Kolkata Office within 24 hours on Telephonic complaint.
10. Initially Opposite Party disclosed to the complainant that he had his office at Patna and also has office at Kolkata. The Opposite Party did not say about any other office to the complainant at the time of sale or at the time of A.M.C. of said Machine. There was no contract between the complainant and Opposite Party that the complainant will have to do any correspondence with the opposite party at his Mumbai Office. All the contracts are executed between the purchaser and the Company through the authorized agent of the company at the place where the negotiation for sale of the Machine is finalized and as such the contract with the complainant was executed at Patna. The Opposite Party does business of selling and servicing of Photo developing & Printing Machine all over India of its products.
11. It is important to note that Opposite Party closed their branch offices one after another. After selling the machine to complainant they closed Patna Office subsequently after taking AMC money the Opposite Party closed their Kolkata Office and did not inform or allowed to be known about any other offices correspondence.
12. After installation of the Imager machine in the shop of the complainant it did not function properly and the complainant has been making complaints in writing by giving letter/complaint to the Opposite Party. It is stated that in spite of repeated complaint made by the complainant the Opposite Party did not render its service till date of filing of complaint petition and hence committed deficiency in his service for maintenance of the Machine due to which the complainant has been suffering loss and the business of complainant to earn her livelihood had badly suffered loss worth Rs. 25,000/-(Twenty Five Thousand Only) per month.
13.  In spite of the annual maintenance contract between the complainant and the Godrej photo-me Ltd. having its service office at Kolkata, the Opposite Party did not give any service to the Photo Colour Lab machine Imager sold to the complainant in spite of various complaints given by the complainant by courier letter and registered post.
14. Ccorrespondence by Several letter sent to the Opposite Party by the applicant used to be managed by the Opposite Party returned  back to the applicant So, the petitioner/applicant filed criminal case against the Opposite Party and its authorized agent and Director in the Court of C.J.M., Patna in which the cognizance was taken on 21.11.2002 by A.K. Shrivastav judicial Magistrate 1^st Class, Patna under sections 420/409/120B of Indian Penal Code against the accused person in Complaint Case No. 1015(c) of 2002and one of the accused Adi B Godrej S/o Late B.P. Godrej filed quashing before the Hon’ble High Court, Patna bearing quashing Cr. Misc Case no. 31433 of 2003 and Cr. misc. no. 31441 of 2003 and the Hon’ble High Court quashed the order of the cognizance dated 21.11.02 holding that the fact of the case is not of criminal nature and the petitioner may file suit in Civil Court or before the Consumer forum, vide order dated 20.12.05 giving a right to the applicant to file the complaint case before this Forum.
15. It is stated that due to the deficiency of service of Opposite Party to do maintenance of the photo lab imager machine the complainant could not earn her livelihood from the business of studio and has suffered loss of Rs. 12,00,000/-(Twelve Lac Only) at least due to the non-functioning of the said photo lab imager machine from the period Oct 2001 till date and still the said machine has not been replaced or repaired by the respondent and this applicant is suffering day to day loss of his business to earn her livelihood. The Opposite Party is liable to pay compensation over the said amount as the Opposite Party in spite of the knowledge of the fact that the Company of the said machine has stopped functioning due to deficiency in service of Opposite Party for which complainant has filed criminal case. The Opposite Party has not done maintenance of the photo lab imager machine intentionally and the same is still in non-functioning condition. It is stated that the Opposite Party in order to save their skin from the payment of the claim amount to the applicant whom the applicant has suffered due to deficiency of service of Opposite Party, the Opposite has closed his Patna Office and Kolkata Office.
16. It has been submitted that from the perusal of the order of the Hon’ble High Court it is crystal clear that the applicant has legal right to claim compensation.
    4. The Opposite Parties have  filed reply to the complaint petition by way of written statement with following assertion :-

i.      That the complainant is not a consumer under the Consumer Protection Act and the complaint has no cause of action to file complaint against the Opposite Party. That complainant has been filed with ulterior motives and malafide intention to harass the Opposite Party.

2. The Opposite Party has supplied Photo developing & printing/Machine (Imager 135 (R.A.) of good quality to the complainant having a good picture quality.
3. The Opposite Party states that the said machine is required to be used as per the instruction manual and in a proper manner, the complainant has nowhere in the complaint stated that she has used the said machine as per the instruction manual.
4. The Opposite Party further states that they have installed the said machine and requested the complainant to inform them to give proper training to the complainant technician to enable him to handle the said machine in a proper way; however the complainant failed to inform the Opposite Party and started using the said machine without having proper training.

We have perused the entire documents available on the record and have heard the Parties.

The Opposite Party has contested the case only on two grounds i.e. the on limitation and warranty.

In view of the order of the Hon’ble Patna High Court in Criminal Case No. 31433/03 and 31441/03 wherein the Hon’ble Court was pleased to pass order dated 20.12.05 to the following effect

“This court is clearly satisfied that cause of action has allegedly arisen out of a grievance with regard to annual maintenance contract for which the appropriate remedy for the complainant would be a civil proceeding or the consumer forum as he may be advised”.

 Consequently the complainant has filed this case before this forum.

Apart from this the complainant has been regularly making correspondence with the Opposite parties for redressal of her grievances and getting no response she preferred the present complaint and thus the objection of the Opposite parties that the complaint is barred by limitation is not justified.

Thus we have come to the conclusion that the machine in question went out of order for want of annual maintenance as the machine was not properly or at all not attended too by technicians of the Opposite Party or their agent.

Accordingly We direct the Opposite Party No. 1   to 7 jointly and severally to refund Rs. 5,75,000/-(Five lacs seventy five thousand only) being the price of the machine to the complainant within a period of two months from the date of receipt of this order provided the complainant returns the old machine within a period of one month from the date of receipt of this order failing which the complainant will be paid interest @ 12% per annum by the aforesaid  opposite parties on amount aforesaid till it is finally paid.

The aforesaid Opposite parties are also directed to pay Rs- 25,000/-(Twenty five thousand only) to the complainant as composite charge for compensation and litigation costs.

         Member                                                                            President