BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P.NO. 110/1999 Filed on 01.03.1999

Dated: 30..12..2008

Complainant:

Meena.S., Sankaralinga Vilas, T.C.25/3622, Tank Road, Puthenchanthai, Thiruvananthapuram.

(By Adv. Salini S.Nath)

Opposite parties:

1. M/s. Godrej Trading and Services Company Limited, Malankara Building Complex, Palayam, Thiruvananthapuram – 3.

2. M/s. Godrej Pacific and Trading Limited, Paripillil Buildings, 3^rd Floor, Opp. Choice Towers, Manorama Junction, Panampilly Nagar, Cochin – 36.

3. M/s. Godrej and Boyce Manufacturing Company Limited, Pirojsha Nagar, Vikhroli, Bombay – 79.

(By Adv. S. Sreekumar)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 27..12..2004 the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 15..11..2008, the Forum on 30..12..2008 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT

The facts leading to the filing of the complaint are that complainant had purchased an Electronic Typewriter manufactured by the 3^rd opposite party through the 1^st opposite party as per the receipt dated 31..01..1996 for Rs.24,232/- issued in favour of Central Bank of India, Thiruvananthapuram, which was delivered to the complainant on 15..02..1996. Complainant purchased the said machine with the sole intention of starting a job typing centre for eking her livelihood by means of self employment, by availing a loan from the PMRY Scheme through the Central Bank of India. Several defects began to occur in the said machine within 4 months of its delivery, complainant immediately informed the same to the 1^st opposite party. 1^st opposite party sent their service agents M/s. S.R Associates on 05..09..1996 to see the complaints. After examination of the said machine service agents informed the complainant that the defects have been rectified by them. Again several defects occurred in the said machine. Complainant contacted and requested the 1^st opposite party to rectify the defects. On 12..01..1997 the 1^st opposite party sent their service people to inspect the said machine and they took the machine to their servicing centre and returned the same to the complainant on 10..05..1997 informing the complainant that all the defects in the said machine have been rectified and assured that the machine is in a good working condition. After that the above said complaints repeated and complainant approached the 1^st opposite party and requested to replace the said machine. No action was taken by the 1^st opposite party. Complainant sent a letter dated 05..08..1998 to opposite parties 1 & 3 informing them about the said defects and requested them to replace the said machine with a new defect free one. 1^st opposite party sent a reply dated 12..08..1998 stating that the sales and service of Godrej Electronic Typewriter are being done by the 2^nd opposite party and requested the complainant to take up the matter with them. 3^rd opposite party did not send any reply. Complainant sent a letter to 2^nd opposite party stating that all the above facts, but 2^nd opposite party did not send reply nor did take any steps to settle the claim. The acts of the opposite parties amounts to grave deficiency in service. Due to the acts of opposite parties complainant suffered severe mental agony, inconvenience and other untold difficulties. Hence this complaint to direct the opposite parties to replace the said machine with a defect free one or to pay the loan amount of Rs.24,232/- to the complainant and to pay an amount of Rs.15,000/- as compensation and cost.

2. Opposite parties 1 & 2 filed version contending that the complainant is a DTP operator, complainant purchased one Electronic Typewriter on 15..02..1996 which was manufactured by the 3^rd opposite party and was installed by the warranty service provider M/s. SRS Associates which carries a warranty for 3 months. After the said warranty period the complainant can enter into the maintenance contract directly with the warranty service provider or per call repair to set right the defects for smooth trouble free of the operation of the typewriter. The complainant approached this Forum on 27..02..1999 where the typewriter is neither under warranty nor in maintenance contract with the service provider. Complainant reported her first complaint on 03..09..1996 after nearly 9 months of installation. Opposite parties had done the repairs free of cost on 05..09..1996 within two days from the date of receipt of the complaint through service provider. Opposite parties averments stated in para 5 of the complaint are denied. The averments in para 6 & 7 of the complaint are far from truth. On the insistence of the complainant, the Manager of the Central Bank, Thiruvananthapuram has written a letter dated 16..12..1998 to opposite parties 1 & 2 stating complainant's liability to the bank. Even under such circumstances, opposite parties responded by confirming with the service provider M/s. SRS Associates, Thiruvananthapuram to the bank that their inability since mother board and ribbon winding motor were damaged and the machine is neither under warranty nor in maintenance contract. The same had been forwarded to the Manager, Central Bank. The complainant is not entitled to any redressal. Hence opposite parties 1 & 2 prayed for dismissal of the complaint.

3. 3^rd opposite party filed version contending that 1^st & 2^nd opposite parties are one and the same firm. The complainant is not a consumer under the Consumer Protection Act. The complaint is barred by limitation. The said machine was installed on 15..02.1996 and the complaint is seen filed on 27..02..1999. The 2^nd opposite party received the first complaint on 03..09..1996 only, although it was not warranty period, 2^nd opposite party had done the repairs of the said machine free of cost on 05..09..1996. The averments in paras 5 to 7 are far from truth. The complainant had caused the Manager of the Bank to send the letter dated 16..12..1998 with the calculated intention to evade her liability to the bank. Even under such circumstances, 2^nd opposite party had responded. But complainant illegally insisted the 2^nd opposite party to repair the machine free of cost. There is no deficiency in service on the part of 3^rd opposite party. Hence 3^rd opposite party prayed for dismissal of the complaint.

4. The points that would arise for consideration are:

(i) Whether the electronic typewriter is under warranty or in maintenance contract?

(ii)Whether the electronic typewriter is having manufacturing defects?

(iii)Whether the defects are repairable?

(iv)Whether the complainant is entitled to replacement of electronic typewriter or refund of loan amount?

(v) Other reliefs and costs?

5. In support of the complaint, complainant has filed proof affidavit and marked Exts.P1 to P13 and Commission Report as Ext.C1. Complainant has been cross examined by the opposite parties. In rebuttal, opposite parties have filed affidavit and marked Exts.D1 to D4. Opposite parties have not been cross examined by the complainant.

6. Points (i) to (v) : It has been the case of the complainant that complainant had purchased an Electronic Typewriter manufactured by the 3^rd opposite party M/s. Godrej & Boyce Manufacturing Company Ltd, through the 1^st opposite party M/s. Godrej Trading and Service Company Ltd vide receipt dated 31..01..1996 for Rs.24,232/- which was delivered to the complainant on 15..02..1996; that several defects were occured in the said typewriter within four months of its delivery and the same was informed to the 1^st opposite party and that the service agents sent by the 1^st opposite party examined the said machine and informed the complainant that all the defects have been rectified. It has also been the case of the complainant that the aforesaid defects again occured and the complainant contacted and requested the 1^st opposite party to rectify the said defects, but the 1^st opposite party did not heed to the requests, that finally on 12..01..1997 the complainant personally approached the 1^st opposite party and 1^st opposite party's service personnel inspected the machine and took it to their service centre and returned the same to the complainant on 10..05..1997 informing her that all the defects have been rectified, that complaints in the said machine repeated and complainant sent letter dated 05..08..1998 to opposite parties 1 to 3 informing them about the said defects and requested them to replace the said machine with a new defect free one. Main thrust of argument advanced by the opposite parties was to the effect that the said typewriter was neither under warranty nor in maintenance contract with the service provider. Hence the first point requiring consideration is whether the said machine is under warranty or in maintenance contract. Submission by the opposite parties was that the said machine was installed on 15..02..1996 by warranty service provider SRS Associates, Thiruvananthapuram which would carry a warranty for 3 months, and after that the complainant could enter into the maintenance contract directly with the warranty service provider or per call repair to set right the defects for smooth trouble free operation of the typewriter. It is pertinent to note that complainant did not mention about the warranty in the complaint. In her cross examination complainant admitted that the service was done by the SRS Associates, while the machine was installed by the company people, she would remember that warranty was for 2 months. She has deposed that the machine had developed trouble within 4 months from the date of installation and in her cross examination, complainant admitted that she did not contact the 1^st opposite party within 4 months from the date of installation. Complainant did not produce the cash bill, nor did furnish the warranty if any issued by the opposite parties. The initial onus of warranty is to be established by the complainant. In the absence of any material on record regarding warranty or maintenance contract, we are of the considered opinion the Electronic Typewriter is neither under warranty nor in maintenance contract. Ext.P1 is the receipt for Rs.24,232/- dated 31..01..1996 issued by the 1^st opposite party. A perusal of Ext.P1 would disclose that the receipt for Rs.24,232/- issued by the 1^st opposite party was towards advance payment for supply of electronic typewriter. Ext.P2 is the copy of the letter dated 5^th August 1998 issued by the complainant to 3^rd opposite party. Ext.P5 is the reply sent by the 3^rd opposite party to the complainant to take up the matter with 2^nd opposite party, an associate of the 3^rd opposite party. Since complainant failed to establish any warranty or maintenance contract, whatever defects occured in the said machine that could be rectified only on payment. In this context it would be appropriate to peruse Exts. D1 to D4. Ext.D1 is the communication dated 16..12..1998 received from Central Bank of India by 2^nd opposite party. On a perusal of Ext.D1 it is found that complainant was allowed a loan under PMRY from Central Bank of India for the purchase of Electronic typewriter and she had purchased a machine as per bill No.WNY/649800 dated 08..02..2006 of Godrej Trading and Service Company Ltd., that bank was informed by the complainant that the machine had several defects and not functioning properly, that the attempt to get the defects rectified through the service agent of the 2^nd opposite party did not yield the desired results and that the bank informed the 2^nd opposite party that the machine was hypothecated to the bank and that because of the defective functioning, the borrower informed the bank that she was unable to generate income for repayment. So bank requested the 2^nd opposite party to take appropriate steps. Ext.D3 is the reply dated 06..02..1999 sent by the 2^nd opposite party to the Central Bank, in which bank was informed that the said Electronic typewriter is neither under warranty nor in maintenance contract with the service provider M/s. SRS Associates of the 2^nd opposite party. It was requested to the same by the 2^nd opposite party to advise the user to approach M/s. SRS Associates to enter a maintenance contract or per call repair to set right the defects for smooth functioning of the typewriter. It is pertinent to note that nowhere in the complaint it is alleged that the machine had manufacturing defect and complaint sent communication to opposite parties only on 05..08..1998 regarding the defects of the machine. While 1^st opposie party sent reply on 12..08..1998 by Ext.P5 to the complainant to take up the matter with the 2^nd opposite party. Opposite parties have never been cross examined by the complainant. Ext.C1, commission report has stated some defects without specific explanation which was seen filed on 07..07..2003. In the absence of either warranty or maintenance contract, it will be unjust and improper to direct opposite parties to replace the said machine with new one or refund the amount on the basis of commission report alone.

In the result complaint is dismissed. Both parties are directed to bear and suffer their costs.

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 30^th day of December, 2008.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.110/1999

APPENDIX

I. Complainant's witness:

PW1 : Meena

II. Complainant's documents:

P1 : Photocopy of receipt dated 31..01..1996

P2 : " of letter dated 05..08..1998 issued to the opposite party by the complainant.

P3 : Postal acknowledgment card dated 11.08.1998

P4 : " dated 05.08.1998

P5 : Letter No.GV/cc/1484 dated 12..08..1998 issued to the complainant.

P6 : Copy of letter dated 05..08..1998 issued by the complainant to the opposite party.

P7 : Acknowledgment card dated 10..11..1998

P8 : Letter No.ADV,98-99 A24 dated 16..12..1998

P9 : Copy of advocate notice dated 08.02.1999

P10 : Registered letter returned with remarks as 'Refused"

P11 : Acknowledgment card dated 10..02..1999

P12 : Acknowledgment card dated 10..02..1999

P13 : Photocopy of certificate dated 04..02..2004

III. Opposite parties' witness: NIL

IV. Opposite parties' documents:

D1 : Letter No.ADV-98-99/424 dated 16.12.1998

D2 : Letter No.SRS/LT/02/99 dated 05.02.1999

D3 : Letter No.GVM/CBI/Tvpm dated 06.02.1999

D4 : Copy of letter No.SRS/LT/03/99 dated 17..03..1999

V. Court witness: NIL

VI.Court exhibit:

C1 : Commission Report

 PRESIDENT