Complainant by filing this complaint has submitted that complainant being an unemployed person for the purpose of his livelihood, purchased a new colour digital printing machine of Konica Minolta bizhub – C220 for Rs. 2,49,000/- vide invoice No. TE/5173 dated 16.01.2012 and complainant obtained his trade license in the name of his proprietorship business M/s. KBC & Co. and the said printing machine was purchased in the name of the said proprietorship firm and soon after installation and operation of the said machine as on 01.03.2012, it was found defectiveand the picture quality is imperfect with different colour impressions, fading deep and light quality of picture which does not maintain standard perfection/quality and those are other faults facts like ink blotting, paper jamming, late printing sheet etc.
Complainant informed about the said grievance to the op on 06.03.2012 and 07.03.2012, one Sushil Singh service manager of Konica Minolta Mumbai Branch office visited and checked the machine but faults were not cured and considering the said defect of the machine initially complainant by written statement dated 31.03.2013 mentioning and requested to take back the defective machine and to refund the consideration price which has been received by the op on 10.04.2012.
Op as since receiving of the said letter of refunding money, has tried to solve the defects by sending Mr. Dhiraj Arora, the Technical Office Product Manager and Mr. Gourav Bhatia, Technical Support Specialist, service and support division of Konica Minolta business solutions from Gurgaon who examined the machine by wasting huge valuable papers for print verification but no effective result was achieved.
Thereafter local technician/engineer/representative Mr. Amit Majumdar and Mr. Topjyoti Das tried to solve the defects but failed. Further from time to time up to the month of August 2012 from March 2012, op tried to solve the same sending other persons but the said defects remained same as it was. Further one local technical expert, confidentially revealed the truth to the complainant that it is an old defective machine which has been sold by the op but he expressed his inability because defects were there. But op by brining engineers from Mumbai and Gurgaon of the said company tried to convince that replacement must be made if defects are not removed.
But practically complainant failed to use that machine and instead of refund of money one Gautam Laha through email informed the complainant to spend another Rs. 31,000/- for replacement defective parts. But complainant informed the op that the machine is initial defective which has been drawn attention within the warranty period so that op is liable to bear the cost and remove defects but op remained silent about replacement of defective parts and instead op again suggested another company Business Machine Corporation which through email dated 16.05.2013 has informed the complainant to prior deposit of Rs. 25,000/- as a cost of security deposit on the ground that the complainant is no its direct purchaser. But complainant did not agree with that and meanwhile since March 2012, complainant has been suffering from loss and damages of Rs. 50,000/- per month for not running the said machine and practically complainant faced financial loss and also paid the loan amount what he got substantially.
Finding no other alternative complainant served a letter on 08.07.2013 through his lawyer which was received by the op on 11.07.2013 by op remains silent. Thereafter complainant filed a complaint before CA & FBP for amicable settlement for his grievance. But CA & FBP Authority informed the complainant to seek relief before Consumer Forum.
Fact remains ops are the trader within the meaning of the C.P. Act who has sold a defective printing machine having their full prior knowledge of the same before selling it to the complainant and by that act they have not only harassed and caused mental pain and sufferings and financial loss but also adopted unfair trade practice and in the above circumstances complainant prayed for refund of the price of the defective machine including other costs and also charges for unfair trade practice and causing mental pain and agony etc.
Against the above complaint Pradip Kumar Khaitan, Director of M/s. Transcon Electronics Pvt. Ltd. submitted that complainant is not a consumer and practically complainant after purchase of the same violated the terms and conditions of using of the said machine. Fact remains complainant has bought a machine of multi-functional printer meant strictly for office use, to industrial card printing which was never meant for and industrial car printing job are separate line of more expensive products called production printing machines. Op further submitted that complainant has been using the product to counterfeit third party software for the printing which is in gross violation of the terms and conditions of usage and for which the warranty is invalidated.
Further it is submitted if there was any malfunctioning in the performance of the product purchased by the complainant, the liability for such product performance is on the manufacturer of the said machine and not of the op who are the dealer of the product and as such even taking into account the allegations and averments made in the complaint by the complainant the manufacturer of the product ought to have been made a party to the present proceedings.
This op submitted that date of purchase of the said machine is on 16.01.2012 and installation date is 31.01.2012 on which date the packaged warranty of six months started running and there were no defect or complaints in respect of the functioning of the machine in the nature of the alleged defects in the present complaint upto the warranty period from the date of installation but same are on account of normal wear and tear and service requirements in the usual course of use of the machine and truth is that the same is evident from the machine log book minutes accepted by the complainant himself by signing on each event against any service request.
Further the log book of the entire warranty period commenced on 31.01.2012 and from the date of entry and that is also placed before this Forum and it would be evident from the entries made in the said log book that the performance of the machine consistently improved over the period of warranty and op always gave proper service as and when called for. But no manufacturing defect was detected by the expert. Lastly it is submitted that the entire allegation is false and the present op is no way to refund the same or refund of the money in view of the fact it is noted replacement would be made by manufacturer by Konica Minolta Electronics Pvt. Ltd. business solution. Further the condition and usage of the said machine is enumerated in the dealership agreement dated 01.01.2011 between the op and the manufacturer which clearly states the terms of usage of the machine clause 7 and the complainant is not entitled to get any benefit and there is no manufacturing defect and present op never took any malpractice or any sort of act which is deceitful in nature.
Practically on 13.10.2014 op no.2 accepted the written version of op no.1 as their written version and that was accepted and no separate written version was filed by the op no.2 which was made party in this case on the basis of the written version filed by the op no.1. So, we are proceeding accordingly for disposal of the case.
Decision with reasons
On hearing the Ld. Lawyers of both the parties and also considering the written version of the op nos. 1 & 2 which is treated as joint written version and further from the documents filed by the op no.2, it is clear that op no.2 issued a certificate that Konica Minolta bizhub – C220, Sl. No. AOED043006582 is a fresh new machine which was sold to Transcon Electronics Pvt. Ltd. address 10, Govt. Place (East), Kolkata- 700069 and by letter dated 01.04.2014 of Konica Minolta Business Solution India Pvt. Ltd., has confirmed that M/s Transcon Electronics Pvt. Ltd. is an authorized partner of the op no.2 to consolidate and execute and provide for sales service on behalf of Konica Minolta Business Solution India Pvt. Ltd. for the State of West Bengal and Sikkim. So, it is clear that op no.1 is a business partner of op no.2 and op no.2 is the manufacturer of the item. So, in the eye of law both are equally liable for rendering service to the purchasers and also to give effect of the entire warranty as given by the op no.2 and invariably by that to the customer or consumers. It is admitted position as per joint written version of the op nos. 1 & 2 that complainant purchased the said digital printing machine on 16.01.2012 on full payment and installation of the same was made on 31.01.2012 and warranty was valid for six months from 16.01.2012 to 15.07.2012.
Op has submitted that there was a machine log book and all difficulties and services as per request of the complainant are usual wear and tear in course of use of the machine which is evident from the entries of the said log book as submitted by the op that means several times same was placed for repairing and just after purchase all those difficulties were not detected. So, we have gone through the machine log book Annexure-A, wherefrom we find that though basic machine installed on 31.01.2012 first for paper jamming and fade printing matter including printer’s defect were informed on 02.02.2012. But the machine was repaired on 25.02.2012 and it was found working. Next complaint was filed on 25.02.2012 alleging slow printing. Thereafter it was repaired by installing driver and driver installed and found working. On 11.05.2012 bye pass calls and on 14.07.2012 machine was checked and machine charging wear was cleared and machine was working. On 03.09.2012 machine was cleaned and working and in all cases customers were found satisfied about the work. So, from the date of purchase of the machine on 16.01.2012 till 03.09.2012 during warranty period all sorts of services were duly given and necessary changes are made by the ops without any cost but service was given and in all respect complainant put his signature about satisfaction of the running of the said machine. So, apparently from the log book we find that op gave all sorts of services and changed materials without any cost for about 9 months even after expiry of warranty period and in all cases complainant himself signed in the said log book after proper repairing work and general servicing for wear and tear and in no case complainant made any complaint about any manufacturingdefect.
Now the question is whether during the period of warranty any manufacturing defect was detected but in this case complainant has not produced any such document. Another factor is that this complaint was initially filed on 26.02,2014 whereas the actual warranty period expired on 16.07.2012 and further fact is that op gave free service in all respect up to 03.09.2012 but from the 03.09.2012 to 26.02.2014 what had been done by the complainant in respect of that machine that means machine has been operated by the complainant without any problem.
Fact remains after consulting the documents, it is clear that complainant first made complaint on 31.03.2012 that was completely redressed and complainant after satisfaction signed in the log book and regarding the lawer’s letter dated 08.07.2013 it is clear that the defect or fault as noted in the said letter what has been completely repaired and even after that up to Sept. 2012 complainant got all sorts of service from the ops and complainant signed in the log book being satisfied and it was running and that is noted.
Another factor is that complainant has failed to produce any believable document before this Forum to show that ops did not render service or op did not remove the defects within the warranty period. But at the time of filing the complaint, and in support of the complaint, only one letter was dated 31.03.2012 was given but the machine was repaired and checked and it was found in good condition and necessary repairing were properly done, service was given and machine was checked and charger were cleared and in all the cases machine was found properly working. Then it is clear that complainant miserably failed to prove that during warranty period the machine has no manufacturing defect. But most interesting factor is that op challenged the allegation of complainant and alleged that he used pirated printing card and that is coral software which is or does not support in the present machine for which complainant faced such problem. But complainant has not denied that fact but whatever it may be we have gathered that in the said machine there is no certificate of the manufacturing company to that effect that there is no defect and it is quite Ok. That certificate has also not been filed by the complainant that it has defect.
So, we find that the matter can be disposed of by directing the ops i.e. Manufacturing Company and op no.1 to depute 3 engineers of the op nos. 2’s company to check the entire machine in presence of the complainant and complainant shall be satisfied about the running of the machine smoothly and if any article is used by the op as pirated one that shall be removed and actual software shall be placed and thereafter to make it usable and running and operational by the complainant and after collecting signature from the complainant in the said inspection paper, op shall be released from their liability otherwise not. Accordingly we dispose of the complaint as it is running condition at present, so we are allowing this complaint with cost.
Hence, it is
ORDERED
That the complaint be and the same is allowed in part on contest against the ops with cost of Rs. 5,000/- which shall be paid by the ops jointly and severally to the complainant.
Ops are jointly and severally directed to appoint three engineers of the op no.2’s company and to check the machine being Sl. No. AOED043006582 as per Tax Invoice dated 16.01.2012 and thoroughly repair and make it usable and running condition in the premises of the complainant within 45 days from the date of this order and same shall be noted in the log book which would be done by the op’s engineers and taking signature of the complainant and op nos. 1 & 2 shall issue a certificate to that effect that machine is free from any manufacturing defect and it is in good running condition and all pirated software has been removed and original parts shall have to install and the entire matter shall be noted in the machine log book by the engineers and the certificate shall be issued by the op no.2.
If ops fail to comply this order within 45 days, in that case, ops shall have to pay a compensation of Rs. 50,000/- to the complainant and that shall be paid within one month from the date of expiry of the stipulated 45 days for giving certificate as per spirit of the order.
Even if ops fail to comply that order, in that case, penal action shall be started against them and for disobeyance and noncompliance of the Forum’s order they shall have to pay penalty of Rs. 10,000/- and fine of Rs. 2,000/-.
