Haryana

Yamunanagar

CC/730/2013

Vivek Soni S/o. Tirath Ram Soni - Complainant(s)

Versus

M/S Spectrum Computers - Opp.Party(s)

Sonia Rohilla

05 May 2017

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                    Complaint No. 730 of 2013.

                                                                                    Date of institution:01.10.2013

                                                                                    Date of decision: 05.05.2017

 

Vivek Soni son of late Tirath Ram Soni resident of House No. 419, Soni Kunj, Krishna Colony, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.                                                                                                                                                       

                                                                                                                       …Complainant.

                                    Versus

 

1. M/s Spectrum Computers, near Fountain Chowk, Workshop Road, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar- Haryana- 135001, through its Proprietor/Partner.
2. Brother International (India) Private Limited, Unit No. 111, 1^st Floor, C-Wing 215, Atrium Andheri Kurla Road Andheri (east) 400059 being manufactuer of Brother Printer.                                                                                                                                                                                                                         …Respondents.

BEFORE:       SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

                        SMT. VEENA RANI SHEOKAND, MEMBER.

 

Present: Ms. Sonia Rohila, Advocate, counsel for complainant.

              Sh. Amit Bansal, Advocate, counsel for respondent No.1.

              Respondent no.2 already ex-parte.

 

ORDER    ASHOK KUMAR GARG, PRESIDENT

 

1.                     Complainant  Vivek Soni has filed the present complaint under section 12 of the Consumer Protection 1986 amended up to date.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant is running his business under the name and style of “Soni Pollution Checking Center,” Yamuna Nagar and has running pollution checking centers in the city and for that purpose there is massive use of computers and printers and to meet the day to day requirement of his business, the complainant approached the respondent No.1 (hereinafter respondents will be referred as OPs) for purchase of one printer and told to the OP No.1 that his work totally depend upon the printers. Accordingly, he purchased a printer of brother company mode DCP J125 for a sum of Rs. 8200/- vide bill No. 1877 dated 21.08.2012. At the time of selling the printer in question, the Op No.1 told to the complainant that the printer is having one year unconditional warranty. On any defect in the printer, the same will be replaced with new one of the same make within warranty period of 1 year. It has been further mentioned that after about 12 days of its purchase, the printer in question stopped working and the matter was immediately report to Op No.1. As per advice of OP No.1, printer in question was brought to the workshop of Op No.1 and after its checking, it was disclosed by the engineer/expert of the OP No.1 to the complainant that there is problem with its cartridge. The Op No.1 asked the complainant to pay a sum of Rs. 800/- for replacement of cartridge and showed the complainant that the cartridge in question will be sent to the company i.e. “Brother Printer”. Thereafter, after the replacement of cartridge the printer in question remained in working for about 7 days and again it become defective and the complainant again approached the OP No.1 but at this time, the engineer of Op No.1 told to the complainant that the head of the printer has become defective and for its solution, the complainant was advised that the cartridge can be replaced with ink drums. At that time, OP No.1 assured to the complainant that there will be no effect on the warranty of printer if the cartridge will be replaced with ink drum. Accordingly, the OP No.1 replaced the cartridge with ink drum in the printer in question. However, again after 10 days, printer in question again stopped working and in the first week of October, 2012, the complainant brought the printer in question to the workshop of OP No.1 but this time OP No.1 refused to replace the Ink Drum with Cartridge by saying that the warranty of the printer has been effected and no repair will be done with the printer without paying its charges. However, Op No.1 advised to the complainant that if he left the printer with the Op No.1 and if the company agreed with the warranty schedule, only then the printer in question could be replaced with new one or its defective parts could be changed with new part free of costs. So, the complainant left his printer with the OP No.1 in the first week of October, 2012 and since then the printer is lying with the OP No.1. Due to the defective printer, the business of the complainant spoiled and he was compelled to purchase 2 new printers from the Op No.1. Accordingly, he purchased 2 new printers from the OP No.1 make HP-1000. But this time, the Op No.1 did not issue any bill/invoice for purchase of new printers and gave assurance that the price of the said printer will be adjusted with the price of defective printer make brother. Finding no alternate, complainant sent a registered legal notice dated 06.08.2013 calling the Op No.1 to refund the sale price of Rs. 8200/- alongwith interest etc. but despite of receipt of the legal notice, the OPs remained failed to comply with the contents of the legal notice nor OPs have replied the legal notice given by the complainant.  Hence, there is a deficiency in service and unfair trade practice on the part of the OPs. Hence, this complaint.

3.                     Upon notice, OP No.1 appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; complaint is bad for mis joinder and non joinder of necessary parties; complainant has not come to the court with clean hands and has concealed the true facts; as per complaint of the complainant it seems that the said printer was mishandled by some unqualified and unauthorized person and it is settled principle of law and as per terms and conditions of the warrant card, if the printer is tampered with by an unqualified and unauthorized person and not by authorized centre of the company then neither the manufacturer nor the supplier is liable in any manner whatsoever. It has been admitted that the complainant purchased one printer make brother DCP J125 vide bill No. 1877 dated 21.08.2012 and on merit it has been stated that the complainant is involved in the commercial activity and as such there is no relationship of consumer and supplier between the parties. It was the complainant who decided to purchase brother make printer model DCP J125 at his own free will and OP No.1 never given the unconditional warranty of one year rather described to the complainant that he will get the warranty subject to manufacturer’s policy and warranty service by authorized service centre only. Rest contents of the complaint were denied being concocted and manipulated. It has also been denied that printer in question is lying with the Op No.1. Lastly, prayed for dismissal of complaint.

4.                     OP No.2 failed to appear despite service, hence he was proceeded ex-parte vide order dated 09.09.2014.

5.                     In support of his case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of invoice dated 21.08.2012 as Annexure C-1, Copy of legal notice and postal receipt as Annexure C-2, Photo copy of reply of legal notice dated 27.08.2013 as Annexure C-3 and closed the evidence on behalf of complainant.

6.                     On the other hand, counsel for the OP No.1 tendered into evidence affidavit of sh. Rajiv Galhotra authorized signatory of Op No.1 as Annexure RW/A and photo copy of invoice/bill dated 21.08.2012 as Annexure R-1, Photo copy of reply of legal notice dated 27.08.2013 as Annexure R-2, Postal receipt dated 03.09.2013 as Annexure R-3 and closed the evidence on behalf of Op No.1.

7.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

8.                     The only plea of the complainant is that printer make Model DCP J125 purchased by the complainant on 21.08.2012 for a sum of Rs. 8200/- was having manufacturing defect from the very beginning and the Op No.1 is responsible to replace the same with new one or refund the cost of the printer in question is not tenable firstly on the ground that from the contents of para No.2 of the complaint, it is clear that complainant was running a business under the name and style of “Sony pollution Checking Centre” at Yamuna Nagar and using the printers and computers for that purpose to meet out the day to day requirement of his business. Not a single iota of word has been mentioned by the complainant that he was running the business for his livelihood when the complainant himself admitted that he was using the said printer for earning profit by running the business then we are of the considered view that he does not fall under the definition of Consumer as defined under section 2(1)(d) of the C.P.Act.

9.                     Secondly, the complainant has also totally failed to prove that the printer in question was having any manufacturing defect as neither he placed on file any expert or mechanic report in support of his version nor he moved any application under section 13(1)( C) of the Consumer Protection Act to appoint any Local Commissioner or get any report from the expert which is mandatory to decide the complaint on merit under section 13(1)( C) which is reproduced here as under:-

“Where the complainant alleged defect in the goods which cannot be determined without proper analysis or the test of goods, the District Forum shall obtain a sample of the goods from the complainant, still it and authenticate it in the manner prescribed and referred the sample so sealed to the appropriate laboratory alongwith a direction that such laboratory make an analysis or test, which ever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its finding thereof to the District Forum within a period of 45 days of the receipt of the reference or within such extended period as may be granted by the District Forum.

            Learned counsel for the complainant draw our attention towards the reply of the legal notice Annexure R-2 and C-3 and argued that contents mentioned in para No.5 of the reply of the legal notice given on behalf of Op are totally contradictory as in the reply of legal notice Annexure C-3 it has been mentioned that printer in question “is lying in our workplace and can be picked up any time” whereas in another reply Annexure R-3 under the same para these facts are totally missing. Meaning thereby that Op No.1 has played a fraud and has placed on file manipulated reply of the legal notice just to save his skin from the liability. Learned counsel for the complainant further argued that still printer in question is lying with the Op No.1, even to prove this thing the learned counsel for the complainant examined the Op No.1 as annexure RW/A. We have gone through the cross examination, the counsel for the complainant has totally failed to bring out any truth from the mouth of the OP No.1. We have seen both the reply of the legal notice dated 27.08.2013 sen to the counsel for the complainant. The reply of legal notice prepared on 2 pages Annexure R-2 bears the signature of OP on 2 papers whereas reply to the legal notice prepared on 2 pages Annexure C-3 bears only signature of another person at the last page i.e. second page of the reply, so in both the reply of the legal notice it cannot be ruled out that there may be some manipulation in the reply of legal notice Annexure C-3. More particularly, when the complainant has admitted in para No.9 of his complaint himself that no reply of legal notice was given by the complainant to them. So, we are of the considered view that the complainant is not entitled to get any relief on this account also. The law referred by the counsel for the complainant titled as Confident Dental Equipments Ltd. Versus Devesh Jain (Dr), 2009 (3) CLT page 325 is not disputed but not helpful in the present case.

10.                   Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.05.05.2017

                                                                                                (ASHOK KUMAR GARG)

                                                                                                PRESIDENT

                                                                                                DCDRF,YAMUNANAGAR

 

 

 

                        (S.C.SHARMA)                        (VEENA RANI SHEOKAND)

                        MEMBER                                  MEMBER