::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::
C.C. No.52/2017.
Date of filing: 08.08.2017.
Date of disposal: 05.05.2018.
P R E S E N T:-
(1) Shri. Jagannath Prasad Udgata, B.A., LL.B.,
President
(2) Shri. Shankrappa (Halipurgi),
B.A.LL.B.,
Member.
COMPLAINANT/S: 1. M/s Sahara computers, Ram Chowk,
Bidar 585 403, Karnataka,
represented by its proprietor
Mr. Sangmesh Biradar,
Aged: Major.
(By Smt.Padma Maharaj., Adv.)
VERSUS
OPPONENT/S: 1) M/s HP INC, ZFI, 24, Salapura Arena,
Hosur Main Road, Bengaluru 560 030,
represented by its Authorized Attorney/
Signatory.
2) M/s MS Graphics 9-12-628,
Halmandge Complex, BVB College Road,
Bidar, Represented by its Proprietor.
(By. R.1. Madanrao Biradar., &
R.2.Sri.S.M.Shetkar., Adv.)
:: J UD G M E N T ::
By Shri. Jagannath Prasad Udgata, President.
The complainant has approached this Forum by filing a complaint u/s 12 of the C.P. Act, 1986, alleging deficiency of service against the O.P.s.. O.P.No.1 is manufacturer of DeskJet printer and the O.P.No.2 is the dealer under the O.P. No.1 selling its products at Bidar.
2. As per the averments of the complaint, the complainant had purchased a HP DeskJet Printer, 5810 A10, bearing serial no S/N CN5C41G01Q with one year manufacturer’s warranty from O.P.No.2, the authorized distributer of the O..P.No.1 vide Invoice NO.409 on 16.03.2016. The complainant vide Para-3 of the complaint states that, he had purchased the Printer to earn his livelihood by utilizing the same during the declaration of results of S.S.L.C., P.U.C., CET & CBSE etc, on different dates of month of May 2016.
3. It is the claim of the complainant that, within two months of purchase of the printer, it stopped working due to latent defect and on 03.05.2017, he lodged online complaint vide No.5747207. The complaint since was unattended another complaint was lodged vide o.5747887 on 04.05.2016 but none attended the complaint. It is on record vide Annexure-B that, the complainant had lodged another complaint online on May 26 2016 with O.P.No.1, informing the fact of the technician removing the printer head on 08.05.2016. the complaint aforesaid was duly replied by the help desk on the next date asking him to contact the Technical support team.
4. It is further in the averment of the complainant that, the O.P.No.1, not responding to online complaints, he got issued a legal notice through his counsel on 06.06.2016, against which a reply was sent on 18.06.2016, seeking further in-formations. A final legal notice was got issued at the behest of the complainant on 23.09.2016, providing the required details, but the O.P.No.1 has not taken any positive steps.
5. Owing to the anomalies aforesaid, the complainant is before us with a prayer of repair/ replacement of the defective printer together with a claim of compensation of Rs.50,000/- towards damages and Rs.5,000/- for litigation expenses.
6. The opponents upon notice have entered appearances through Counsels of their choice and have filed elaborate written versions refuting the assertions of the complainant.
7. In the versions, the O.P.No.1 has sung paens of its’ international reputation, strict quality control approval of its’ products by certifying authorities and so on. It further highlights the network provisions to attend customers’ complaint.
8. However, the O.P.No.1 claims that, the complaint is an abuse of process of law and hence not maintainable. It further claims, the complaint is vague, baseless and with malafide intent. It further claims that, the defect is not certified by a recognized and notified laboratory. It vouches the efficacy of the printer as a whole and further claims that, while attending the complaint the service engineers issue job cards at the spot. Surprisingly, no copy of job card has been produced by the O.P.No.1.
9. The O.P.No.1 in Para-8 of the versions admits about the complaints lodged on 03.05.2016 and 09.11.2016 concerning print quality issue and paper pick up issues and resolving the lacunae by on sight Engineers resorting to repair and cleaning the pickup roller in terms of the warranty. The O.P.No.1 has further averred questioning about proper electricity supply and handling of the equipments etc. The O.P.No.1 in Para-10 of the versions claims that, there is no known issues regarding manufacturing defects or technical faults in the printer in question etc. It has cited certain cases of the Hon’ble National Commission to wriggle out from the case, which are not applicable to the present case.
10. Of all the grounds of rebuttal by the O.P.No.1, the primus enter pares, is specified in Para-13 of the versions in which the jurisdiction of the forum is challenged taking shelter of section 11(2) of the Consumer Protection Act, 1986 and it is stated that, the O.P.No.1 has neither a branch office or is carrying business within the territorial jurisdiction of this Forum. It is further submitted that, the complainant has not made out any case to be granted a relief u/s 14 of the Consumer Protection Act, 1986. Therefore, the O.P.No.1 prays a relief of dismissal u/s 26 of the Consumer Protection Act, 1986. The manufacture-ship by O.P.No.1 and dealership of O.P.No.2 and sale of the printer is however admitted in para-16 of the versions. The further fact of complaint dated 03.05.2016 and 09.11.2016 is admitted by the O.P.No.1, so also the receipt of legal notice. In para-20 of the versions the O.P.No.1 claims to have appended Annexures 1&2 regarding rendering services, which has never been filed.
11. The O.P.No.2 in its versions does not dispute about the sale of the Printer, but claims that, the complainant was using the same for commercial purpose and hence challenges the rights of the complainant to maintain the present complaint. TheO.P.No.2, also feigns his unawareness about the defect found in the Printer within two months (sic) inspite of the communications at Annexure-B. From out of the pleadings of the parties to the dispute, the following points arise for our Consideration.
- Does this Forum has the territorial jurisdiction to entertain this complaint?
- Dose the O.P.No.2 prove that, the complainant is not a consumer?
- Does the complainant prove that the O.P.s have caused deficiency in service?
- What orders?
12. Our answers to points are as following:-
- In the affirmative.
- In the negative.
- In the affirmative.
- As per the final orders owing to the following:-
:: REASONS ::
13. Point (1): The O.P.No.1 has raised a big hoopla over this aspect, albeit exactly extracting the provisions of Section 11(2) of the Consumer Protection Act, 1986 which is self explanatory in Para-13 of its versions. In the instant case, there is no denial specifically by the O.P.No1 that, its product was not sold through O.P.No.2, a business establishment at Bidar. Rather there is admission in its part about attending the non functional printer on more than two occasions. This ipso facto proves that, the O.P.s are carrying on business at Bidar and as envisaged in Section 11(2)(b) of the Act, this Forum has the jurisdiction to try this case and we answer this point in affirmative.
14. Point (2): It is in the pleadings of the complainant that he has purchased the printer to earn his livelihood. There is no serious challenge to this averment. Hence this case clearly comes in to the purview of the explanation provided in Section 2(1)(d) of the Act, which reads as hereunder.
2(1)(d)(i) – X X X X X.
2(1)(d)(ii) – X X X X X.
[Explanation: For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means o self-employment;].
15. In view of the above, we hold that, the defence of O.P.No.2 holds no water and answer this point in the negative.
16. Point (3): Undoubtedly the O.P.No.1 has highlighted about its reputation, quality control procedures, motto of customer satisfaction and so on . It has further admitted about attending to rectify anomalies on 03.05.2016 and 09.11.2016, well within the periord of warranty. What but intrigues us is apropos to the communication vide Annexure-B date: 26.05.2016, about the removal of the printer by the Engineer of the opponents on 08.05.2018 and not returning the same up to 26.05.2016, during the crucial business period of the complainant. This point is no where dealt or answered by the opponents at any point of time and deficiency of service is glaring at their faces. This negligence neutralises the dicta of the judgements quoted by the O.P.No.1 and answering this point in the affirmative, we proceed to pass the following:-
ORDER.
- The complaint is allowed in part.
- Both opponents are jointly and severally directed to either repair /replace the defective printer to the full satisfaction of the complainant;
- Both O.P.s are further directed to pay a sum of Rs.10,000/- towards business loss and consequential damages together with a litigation fee of Rs.3,000/-.
- Four weeks time granted to comply this order.
(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 05th day of May 2018).
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
Documents produced by the complainant
- Annexure. A- Copy of cash memo.
- Annexure. B– Copy of e-correspondence lodging complaint.
Date: 26.05.2016.
- Annexure. C– Office copy of legal notice date: 06.06.2016.
- Annexure.D—Reply notice.
- Annexure. E– Office copy of final legal notice date: 23.09.2016.
Document produced by the Opponents.
-Nil-
Witness examined.
Complainant.
- P.W.1- Sri Sangamesh Nasigar (complainant).
Opponent No.1
- R.W.1- Sri Maharudrappa S/o Basavanappa Nelege (O.P.No.2)
- R.W.2- Smt.Nirmala Veera Raghava D/o Veera
Raghava. (Authorised signatory of O.P.No.1).
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
