DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 84 of 12-03-2008<br /> Decided on :21-05-2008 <br /> <br /> Jiwan Kumar C/o Garg STD/PCO, Near Bus Stand, Bhucho Mandi, District Bathinda.<br /> .... Complainant<br /> Versus<br /> <br /> M/s. Shanti Electronics, Post Office Bazar, Bathinda, through its Prop./Partner /Incharge Mr. Bittu<br /> <br /> ... Opposite party <br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. H.S. Dhanoa, Advocate.<br /> For the Opposite parties : Sh. K C Bhanot, Advocate.<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT<br /> <br /> 1. Instant one is a complaint under Section 12 of the Consumer Protection Act,1986 (Here-in-after referred to as 'Act') which has been preferred by the complainant seeking direction from this Forum to the opposite parties to repair the Fax machine at the earliest; pay Rs. 1.00 Lac as compensation on account of mental tension, agony, botheration and harassment besides Rs. 3300/- as cost of the complaint.<br /> 2. Version of the complainant lies in the narrow compass as under :-<br /> Complainant was having Fax machine of Model No. FQ-51, Sr. No. 51, Make Sharp. It was having faults known as “out of Paper Display and Printing Not Clear”. On 24.8.07 he had taken it to the opposite party for repairs. Assurance was given to him by the opposite party for repairing the machine. He was further advised to leave it for repairs and collect it on 31.8.07. Accordingly, it was left there vide Job Card No. 12615 dated 24.8.07. When he visited the opposite party on 31.8.07 for collecting the machine, he was told that it was not yet repaired and that repairs would take more time of 4-5 days. Accordingly, he again visited the opposite party but machine was not repaired. Even thereafter he continued visiting the shop of the opposite party time and again. Fax machine was not repaired. No satisfactory reply was given. Machine was not returned. Opposite party continued putting of the matter on one pretext or the other. Letter dated 5.2.08 was sent by him to the opposite party for repair of the Fax machine and for returning it but to no effect. Registered notice was sent by him through his counsel on 22.2.08. Despite this, opposite party paid no heed. He alleges that act and conduct of the opposite party has caused him mental tension, agony, bothration, harassment and financial loss as the machine is the only source of his livelihood. There is deficiency in service and unfair trade practice on the part of the opposite party.<br /> 3. Opposite party filed its version taking legal objections that complaint is not maintainable in the present form; this Forum has got no jurisdiction to entertain and try the complaint; complainant is not consumer; he has no cause of action to file the complaint and he has not approached this Forum with clean hands. Inter-alia its plea is that it never refused to hand-over the Fax machine to the complainant. Rather complainant refused to receive it. Without his consent and price of the components required for repairs, work cannot be undertaken. He wants to get the machine repaired under threat. On 31.8.07, he was apprised that the machine is of obsolete model. Request was made by him to exploit resources to procure the components and he would take the machine only in working condition. Job Card issued was subject to some conditions. Question of giving the machine on 31.8.07 did not arise. Complainant was apprised that the components required are not available with the manufacturers and they have stopped manufacturing the machine of this model. In these circumstances, neither the repairs can be estimated nor the machine can be repaired. Still he was persisting that it should be repaired. He refused to take it back. It admits the receipt of the legal notice. Efforts were made to arrange the components but of no avail. Remaining averments in the complaint stand denied.<br /> 4. In support of his averments contained in the complaint, complainant has produced in evidence his affidavit (Ex. C-7), photocopy of Job Card (Ex. C-1), photocopy of letter dated 5.2.08 (Ex. C-2), photocopy of postal receipt (Ex. C-3), photocopy of legal notice dated 22.2.08 (Ex. C-4), postal receipt (Ex. C-5), acknowldgement (Ex. C-6) and affidavit of Sh. Sham Kumar (Ex. C-8).<br /> 5. In rebuttal, on behalf of the opposite party two affidavits of Sh. Brij Mohan (Ex. R-1 & Ex. R-2) and one of Sh. Mukesh Sodhi ( Ex. R-3) have been tendered in evidence.<br /> 6. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of the complainant.<br /> 7. Some facts do not remain in dispute in this case. They are that Fax machine was brought to the shop of the opposite party on 24.8.07. Job Card was issued by the opposite party and copy of the same is Ex. C-1. Till date it is lying unrepaired with the opposite party.<br /> 8. Arguments pressed into service by Mr. Dhanoa, learned counsel for the complainant are that opposite party had assured to return the machine after repairs. Despite his repeated visits, it has neither been repaired nor returned unrepaired.<br /> 9. Mr. Bhanota, learned counsel for the opposite party argued that model of the Fax machine brought for repairs was obsolete. Its components/parts are not available. In the letter sent by the complainant copy of which is Ex. C-2 no request was made that machine be returned unrepaired. As per terms and conditions on the back of the Job Card, opposite party is not liable for completing the job for technical difficulties/non availability of parts and reasons beyond its control. Moreover, customer/consumer is to pay charges to the tune of Rs. 100/- in case Fax machine is to be taken as it is. In the reply of the complaint, opposite party has shown its readiness and willingness to hand-over the Fax machine to the complainant. It is the complainant who is not receiving it without repairs. For this, he drew our attention to the affidavits Ex. R-1 & Ex. R-2 of Sh. Brij Mohan and Ex. R-3 of Sh. Mukesh Sodhi.<br /> 10. We have given our thoughtful consideration to the rival arguments.<br /> 11. In the affidavit Ex. R-3 Sh. Mukesh Sodhi states that machine is obsolete and Company has discontinued manufacturing this model of the machine. Its spare parts are not available and this fact was brought to the notice of the complainant. He was advised to take back the machine after paying minimum charges of Rs. 100/- but he refused. Likewise is the affidavit Ex. R-1 of Sh. Brij Mohan @ Bittu. No weight can be attached to the affidavits Ex. R-1 to Ex. R-3. They stand amply rebutted with the abundant evidence led by the complainant. Complainant in his affidavit Ex. C-7 reiterates his version in the complaint. No doubt as per terms and conditions on the back of the Job Card, opposite party is not responsible for completion of the job for technical difficulties/non-availability of the parts and the reasons beyond its control. If the plea of the opposite party is taken as it is that components of the machine are not available in the market and it is considered in view of Condition No. 4 on the back side of the Job Card, even then, opposite party cannot evade its liability to return the Fax machine to the complainant. Minimum service charges of Rs. 100/- are to be paid incase the customer denies to get the set repaired due to any reason. In this case complainant has not made request to the opposite party that his Fax machine be not repaired. Accordingly, opposite party cannot demand minimum service charges of Rs. 100/-. Opposite party did not write any letter or send any notice to the complainant that Fax machine be taken back as its components for its repairs are not available in the market. No doubt in the letter dated 5.2.08, copy of which is Ex. C-2, there is no specific mention that machine be returned unrepaired yet it is clear that he was paying visits to the opposite party for getting the machine and it was not delivered. Plea of the opposite party that it was brought to the notice of the complainant that components of the machine are not available and he was not taking back the machine, does not sound to reason at all. Had this story been true, complainant in the natural course of events would have received the machine without any hesitation. There could be no benefit to him in leaving the machine with the opposite party particularly when it could not be repaired. Complainant sent notice to the opposite party copy of which is Ex. C-4. Receipt of this notice has been admitted by the opposite party. Through it opposite party was cautioned to return the Fax machine within 7 days from the date of its receipt. Despite this, no reply of the notice was sent nor machine has been returned as it is. Hence, adverse inference is drawn against the opposite party to the effect that the story brought before us by it is not true. Its eleven hours plea in the reply of the complaint that it is prepared to hand-over the Fax machine to the complainant even today cannot be termed bonafide as machine is lying with it since 24.8.07 and has been kept by it without any reasonable and probable cause. Accordingly, deficiency in service on the part of the opposite party is proved.<br /> 12. Now question arises as to which relief should be accorded to the complainant. In our view direction deserves to be given to the opposite party to return the Fax machine to the complainant. Complainant is craving for compensation of Rs. 1.00 Lac. Act and conduct of the opposite party must have caused him mental tension, agony, botheration and harassment for which he deserves some compensation which we assess as Rs. 500/-.<br /> 13. No other point was urged before us at the time of arguments.<br /> 14. In the result, complaint is allowed against the opposite party with cost of Rs. 1,000/-. Opposite party is directed to do as under :-<br /> i) Return the Fax machine to the complainant against receipt.<br /> ii) Pay Rs. 500/- to the complainant as compensation under Section 14 (1)(d) of the Act.<br /> Compliance of this order be made within 30 days from the date of receipt of its copy failing which the amount of compensation under Section 14(1)(d) would carry interest @9% P.A till realisation.<br /> Copy of this order be sent to the parties concerned free of cost and file be also consigned.<br /> Pronounced :<br /> 21-05-2008 (Lakhbir Singh )<br /> President<br /> <br /> (Dr.PhulinderPreet) Member<br /> 'iki' Member