Complainant Kartik Chandra Das by filing this complaint has submitted that complainant is an unemployed man and due to earning of his livelihood, decided to start a self-employment business and for that purpose, complainant applied for necessary permission/licence from the local authority under the Govt. of West Bengal.

          After learning from a reliable source, on 18.05.2013 complainant went to op no.1’s office for purchasing a ‘Swift Advent Plus’ machine and advanced Rs. 5,000/- out of the total cost of the said machine of Rs. 5,05,000/-.  In this case op no.1 is the dealer and op no.2 is the manufacturer of the said machine and complainant took the above amount of Rs. 5,05,000/- as business loan from the UCO Bank, Shyampur Branch, Howrah and the complainant paid Rs. 3,20,000/- on 28.05.2013 and after that payment, op no.1 the dealer sent the aforesaid machine to the complainant’s house on 05.06.2013 with one year warranty and then complainant paid the balance amount of Rs. 1,60,000/- on 08.06.2013 and Rs. 20,000/- on 10.06.2013 and ops duly accepted the same.

          Thereafter within two months from the date of purchase, the said machine became in-operative and the complainant immediately informed the fact to the op no.1 over phone and op no.1 sent their technician for necessary service on 19.08.2013 and after necessary inspection of the machine, technician wrote that ‘SIDE Lay’ was not working perfect and after necessary instruction from the op no.1, the technician changed the defective part on the same date.  But after one day of the service, the said machine again became defective and the complainant wrote a letter to the op nos.1 & 2 on 20.08.2013, in reply op no.2 sent a letter to the complainant on 30.08.2013 mentioning that as per suggestions given by their factory technician Mr. Deore, they later deputed Mr. Choudhury for further modifications in the said machine and proper registration, however if the complainant felt that same was not acceptable to him, they were ready to replace the machine as a special case.

          Though op no.2 sent their technician, but no fruitful result was given and in that case op no.1 wrote letter to op no.2 the manufacturer on 22.10.2013 for doing necessary action about the defective machine and also complainant sent letter to op no.2 for requesting to refund money of the said defective machine due to inherent defect of the said machine.  In such circumstances, op no.1 advised the complainant to take high quality of machine i.e. Advent Plus Offset Printing Machine with full Type side Lay and complainant agreed to take the same and also ready to pay a sum of Rs. 45,000/- and paid Rs. 20,000/- as advance on 04.11.2013.  As per MoU complainant have to pay the balance amount of Rs. 25,000/- after installation of the said machine.

          But till now op no.1 did not take any action for installation of Advent Plus Offset Printing Machine to the complainant’s premises.  So, in that case, both op nos. 1 & 2 adopted unfair trade practice and such sort of activities on the part of both the ops, complainant has to suffer a huge monetary loss, mental agony, harassment and for the above reasons, complainant filed this case for redressal and for compensation.

          On the other hand op no.1 by filing written version has submitted that the complaint is vexatious and full of falsity and also the complaint is not maintainable in its present form and law.  Op no.1 further submitted that it would be apparent from the documents in the custody of op no.2 that complainant availed of a loan from the op no.3 for purchasing the alleged machine for his livelihood.  But the same was not used by way of self-employment as it was for commercial purpose, so, the present complaint cannot be adjudicated under C.P. Act.

          Op no.1 also submitted that if the machine has manufacturing defect, in that case manufacturer op no.2 is liable to replace the same not the op no.1.  On the other hand op no.2 offered the complainant to replace the present machine with a new one which was not accepted by the complainant.  It is also a fact that the complainant neither paid the balance amount nor agreed to share transportation expenses for the new machine.  Further op no.1 stated that complainant has not alleged for deficiency in service against him.  So, there is no question of adopting any unfair trade practice and complainant is not entitled to get any relief as prayed for.

          Op no.1 further submitted that there was a talk of compromise in between the complainant and op no.1 and due to negative attitude of the complainant, op no.1’s effort of compromise failed and however op no.1 agreed to repay the cost of the machine without VAT in five equal installment.

          It is further submitted that to resolve the matter the manufacturer op no.2 also offered to replace the present machine with new one but complainant did not proceed for the reason best known to him.  Fact remains that complainant included some distorted facts based on concocted stories made by the complainant without any cogent documents and only to create sympathy of the Ld. Forum, some false stories have been included.  Further it is submitted that it is known to the complainant that op no.1 is the dealer and the machine was manufactured by op no.2 and for any manufacturing defect, manufacturer is liable to repay the said amount and after receipt of telephonic message from the op no.1.  Op no.1 sent service technician and they tried to remove the defect for the satisfaction of the complainant as would be apparent from the Annexure made by the complainant.

          So, there is no negligence and deficiency on the part of the op no.1 for which the present complainant should be dismissed and moreover the machine is in good running condition when complainant has stated in his complaint that he has not got the production beyond his expectation and for which complainant prayed for exchange of the existing machine for getting a sophisticated machine.

          It is true that to maintain goodwill of the op no.2, op agreed to sell in exchange of the existing machine on payment of additional amount of Rs. 45,000/- and accordingly op no.1 received Rs. 20,000/- from the complainant on 04.11.2013.  Thereafter complainant did not pay the balance amount as agreed including transportation expenses and he has also to pay VAT and statutory levies etc. as per that agreement.  But complainant in lieu of that prayed for refund of money from the op no.2 beyond the knowledge of op no.1 and further complainant shall have to prove what sort of deficiency or negligence on the part of the op is there and practically complainant has failed to prove that there is any negligence or deficiency on the part of the op and also failed to prove that machine is defective.  In the result, op no.1 prays for dismissal of this case.      

                                                     Decision with reasons

          On proper consideration of the complaint and written version and also considering the argument as advanced by the Ld. Lawyers of both the parties it is found that it is undisputed fact that complainant purchased this machine from M/s. Printer Traders Pvt. Ltd. on payment of Rs. 5,05,000/- which is proved from the money receipt of M/s. Printer Traders Pvt. Ltd. op no.1 and also from their money receipt issued by the op no.1 from the complainant.  Same are marked as Annexure- 6, 7 & 8 of the complaint and also the tax invoice dated 05.06.2013 as Annexure-9.  Further it is found that op no.1 received the total amount by issuing receipt Annexure-10 dated 08.06.2013.  Further op no.1 received another amount of Rs. 20,000/- in respect of exchange of new machine vide Annexure-11 dated 10.06.2013.

          Fact remains that complainant after installation of the said machine found some problem and that was reported to the op and op sent manufacturer’s technician who found Side Lay working is not perfect and service technician on 19.08.2013 took action, fitted new Side Lay fitting and machine timing and machine was found running to the satisfaction of the complainant and machine timing was perfect and complainant signed in the said receipt on 19.08.2013 being satisfied about that work made by the op no.1. 

          Subsequently on 30.08.2013 op no.1 wrote a letter to the complainant stating that complainant is not satisfied about that machine.  But from that letter Annexure-14, it is clear that Manufacturer’s service technicians improved the said machine and registration that time was satisfactory level.  But complainant is not satisfied for which he wrote a letter to the company and company op no.2 informed him that if it is not acceptable to the complainant, they are ready to replace his machine as a special case and for which customer should visit the plant and prays for dispatch and complainant after receipt of the said offer, went to that place and order was given but complainant wrote on the said receipt i.e. Annexure – 17 that he is not willing to take new machine in place of that.  He wants the entire amount.

          Complainant also noted in that letter that the machine may be taken away by the company or the op no.1 on payment of Rs. 5,40,000/-.  In the written version op no.1 admitted that in para-4 that he is willing to refund the entire amount by five installments.  But complainant is not willing to take back it.  At the same time it is admitted that company op no.2 agreed to replace a new machine in place of the present machine.  But complainant did not accept it.

          If we consider this two version or admission of the op no.1 as noted in para-4 of the written version it can safely be said that invariably there is some problem in the said machine for which op no.1 agreed to refund the entire amount by five equal installment and company also offered to replace the said machine after taking some extra amount.  So, we are convinced that at the time of sell, op no.1 practically assured him that the said machine will produce more printing and print their items as per satisfaction of the complainant.  But ultimately that machine failed to produce such item on printing for which we can say that there were some defects in the machine because the machine which was sold by the complainant was not up to the mark of expectation and desired printing articles.

          So, we are convinced to hold that when op no.1 is willing to refund the said amount, invariably it is proved that there were certain defects for which op no.2 agreed to replace the said machine when they realised.  Invariably complainant was not satisfied about the company’s activities and their machines for which he prayed for refund of the said amount which is paid by the complainant.

          Another factor is that from the bank loan op no.3, complainant purchased it from op no.1 and Manufacturer is op no.2 and as per settled principle of law if anyone sells any item of any manufacturer and if it is found that it is not upto the mark of the satisfaction of the customer, in that case seller and manufacturer both are equally liable to compensate.

          Anyhow the question is whether the machine is in question was purchased for his livelihood or not.  But fact remains that in this case there is warranty and fact remains during warranty period, Manufacturer is bound to replace or repair the same.  But in this case it is found that the complainant purchased the machine for a particular type of printing.  But ultimately this present machine failed to provide such printing articles through that machine.  So, invariably it is not fit for printing of such article as per requirement of the complainant and it is also found that as per warranty issued by the company it is found that the machine was installed on 15.06.2013 and the problem was detected forthwith on 19.08.2013 and prior to that the complaint was made.

          Thereafter further complaint was made on 30.08.2013 when company informed the complainant for replacement of the said machine and op no.1 also reported that the machine shall be replaced.  But subsequently it was found that after visiting op no.2’s factory and considering the said new machine, complainant found that the machine will not give particular type of printing as required by the complainant.  But truth is that op forthwith asked the complainant to take a new machine in place of that.  Complainant agreed to replace it by new machine but thereafter refused to accept the same.  When that is the fact, then it is clear that at present complainant intends to get back the money.

          But truth is that a special type of printing article was required by the complainant for which complainant went to the op no.1 and op no.1 convinced the complainant that if he purchases the said machine, in that case, the present machine will serve the purpose of the complainant, but ultimately complainant did not get such service, that means the present machine is not printing particular type of printing as required or desired by the complainant and no doubt op no.1 asked the complainant to come to his company, complainant went there, admitted to accept.  But subsequently complainant found that the said specific machine will also not give such result.  But op no.1 has admitted that he is willing to refund such amount after taking back such machine.  But if we go through warranty clause, in that case we find that as per warranty clause, complainant is entitled to get service/replacement etc.  But anyhow the defect has not been proved.  But it is proved that op no.1 seller of the machine convincing the complainant that the requirement of the complainant would be solved if it is purchased and such sort of assurance on the part of the complainant as a dealer or seller is no doubt deficiency of service and in fact before this Forum, op no.1 failed to satisfy the complainant that through that machine, the required printing articles can be processed by that machine.  But op did not give such demo prior to installation of the same which is proved.

          So, no doubt it is deficiency and deceitful manner of selling on the part of the op no.1.  But if we go through the warranty clause, then it is clear that after installation, complainant shall have to get repairing etc. and if there is any defect, in that case, replacement should be processed.  But defect of the machine has not been proved by the complainant.  On the contrary it is proved that the machine was sold by the op no.1 by convincing the complainant that the machine will give desire result in respect of registration of printing etc. and that purpose has not been served by that machine which is proved.

          So, invariably op no.1 agreed to refund the said amount.  But fact remains that the machine was installed, complainant initially got services and he was satisfied which is evident from the complainant’s own document Annexure- 12 dated 19.08.2013.

          Another factor is that after 19.08.2013 no doubt complainant is running the said press.  There is no version in the complaint that he is sitting idle for not getting actual machine or he has lost his job for want of machine.  But it is proved that complainant has some other machine and Saraswati printing place is no doubt is known as a big press and complainant has other machineries for printing.  But Ld. Lawyer for the op submitted that it is for commercial purpose.  So, this complaint is not maintainable.  But in this regard after considering the entire fact, we find that it is settled principle of law though particular product is produced for commercial purpose, yet if any defect in printing during warranty period is detected then purchaser is construed as consumer for this after sale service and this thought has been confirmed by National Commission in their judgement published in 2006 CTJ 89 (CP) Peerlit Ltd. – Vs – Tharna Garrel Ash Corporation and Another and relying upon that principle of law, we find that deficiency was in respect of selling the same.

          Practically complainant intended to purchase a particular item of machine for particular printing work.  But op no.1 sold a different type of machine convincing that this machine will serve the desired requirement of the complainant, so, we are convinced that the entire sale was made by the op misguiding the complainant.  So, invariably the machine is no doubt defective one to the complainant and for which even if it is commercial purpose, complainant is a consumer and no doubt complainant is entitled to get back the amount.  But no doubt the present amount shall be paid after deduction of VAT because complainant intended to purchase the exchange machine and thereafter he desired to purchase for which it is clear that complainant cannot get the VAT amount.  But no doubt complainant is entitled to Rs. 4,80,953/- the value of the said machine, but not entitled to get VAT on sale Rs. 24,000/- from the op nos. 1 & 2 jointly and severally and further complainant is entitled to get back Rs. 20,000/- what has been paid by the complainant to the op no.1 for purchasing the exchange of machine.  But when complainant is not willing to exchange of machine, then invariably op nos.1 & 2 are liable to repay the same.

          Accordingly complainant is entitled to Rs. 4,80,953/- from the op nos. 1 & 2 and when op no. 1 admitted that he was willing to pay, then invariably op nos. 1 & 2 jointly and severally shall have to pay the same to the complainant.  But as because it is hypothecated article, complainant shall have to submit the bank statement in this regard at first and if it is found that the bank outstanding is more than Rs. 5,00,000/- in that case the cheque shall be issued in the name of op no.3 Bank against the loan account of the complainant of the op no.3 Bank for clearing the outstanding the loan amount of the complainant.  But it shall be paid within one month from the date of this order failing which till full satisfaction of the decree, loan interest rate shall be assessed over the same and that shall be paid by the op nos. 1 & 2 jointly.  Accordingly the complaint succeeds.

          Hence, it is 

                                                            ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs. 5,000/- against the op nos. 1 & 2 and same is dismissed against op no.3 exparte but without any cost.

          Op nos. 1 & 2 are hereby directed jointly and severally to pay Rs. 4,80,953/- to the complainant’s Loan A/C against the machine to the op no.3’s Bank.  On the date of payment op nos. 1 & 2 shall have to remove the said machine in proper condition from the premises of the complainant on proper receipt.

          Op nos. 1 & 2 are hereby directed to comply the order very strictly failing which for non-compliance of the Forum’s order, op nos.1 & 2 shall be prosecuted u/s 27 of C.P. Act 1986 and for which they shall be imposed fine and penalty.

          In this case op no.1 prayed for installment but this prayer of giving installment to the complainant is not entertained on the ground during pendency of the case, op did not pay the said amount but adopted dilatory procedure and for which therefore installment prayer is rejected and another factor is that as per C.P. Act when it is a summary procedure, then payment must be also in summary in nature to give prompt relief.

          Though this Forum is well aware of the fact that lengthy execution procedure as adopted at higher Forum has given the ops to drag the payment matter years together but this Forum wants to implement the true spirit of the C.P. Act with positive action to minimize the long drawn harassment in Execution proceeding basing on Consumer Philosophy and Ethics which is not at all practiced by Fora at all level in India which is unchallenged truth.