O R D E R
(Per Ms. Cynthia Colaco, Member)
The present complaint is filed under Section 12 of the Consumer Protection Act and in the said complaint it is stated as under:
1.That the Complainant is a proprietorship firm and run by the proprietor named in the complaint who runs the business of xeroxing and colour printing.
a. That in the month of September 2005 the Complainant agreed to purchase a colour copier/printer model "xerox work centre M 24' from the Opposite Party No. 2 , through the Opposite Party No.1. in terms of an undated letter addressed by him to the Opposite Party No. 1 which was received by the Opposite Party No.3. The terms of the said letter are mentioned in para 3 of the complaint. One condition being that the ‘machine would have a lifetime FESMA of seven years’.
b. That the Opposite Party No.1 delivered the machine, and agreement dated 05-11-2005 was signed by the Complainant and the representative of the Opposite Party No. 2, on the condition that the said agreement would stand renewed automatically for an additional period of two years, which fact was assured by the Opposite Party No. 1.
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c. That as per the agreement, the Opposite Parties Nos. 1 and 2, through the Opposite Party No.3 had to monthly enquire about the number of printouts taken for a given month which figure gets digitally recorded in the machine, updating the number of printouts taken, and based on the said reading a certain sum had to be paid on a monthly basis to the Opposite Party No. 2 who in turn were required to maintain the said machine.
d. That in the month of April 2010, five years after the purchase of the said machine, the Opposite Party No.2 was reluctant to entertain works of maintenance whenever called upon to do so by the Complainant, and contrary to the terms of agreement stopped the scheme of billing and even when enquiry of this fact was made telephonically the Opposite Party tried to ward off their responsibility.
e. That much against the commitment made the Opposite Parties Nos. 1 and 2, from 05-11-2010, deliberately abandoned the work of maintenance of the machine, which they were bound to do. That the toners booked during the maintenance i.e on 22-10-2010, which were needed for the regular use of the machine as also materials that could be needed from time to time were not supplied and also did not attend and/or repair the said machine to keep the machine functional, thereby putting the Complainant through hardships and severe monetary losses.
f. That the Complainant corresponded with the Opposite Parties about their deficiency in service which was deliberately done and caused severe inconvenience, hardships and monetary losses and addressed a notice dated 12-03-2011 to the Opposite Parties calling upon them to remedy the situation which notice was received by the Opposite Party No. 3. Notice addressed to the Opposite Party No. 2 has returned with the endorsement left. The acknowledgment card to the Opposite Party No. 1 has not returned.
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g. As no reply was received to the notice the complaint came to be filed praying :
(A) that the Opposite Parties be directed individually or jointly and severally repair the said machine in order to make it functional;
(B) that the Opposite Parties jointly or severally be ordered and directed to maintain the said machine for a period of two years, by way of warranty as per the agreement dated 5-11-2005 entered into and signed by the Complainant and the Opposite Party No.2. and to supply all the required materials which are required to allow the Complainant to operate and use the said machine;
C) to pay Rs.1,50,000/- along with 10% per annum, from April 2011, by way of compensation towards inconvenience, hardships, mental agony and monetary losses.
2. The complaint was presented on 10-06-2011 and admitted on 28-06-2011.The Opposite Parties were served and filed their written statement wherein they alleged as under:
i) That the Opposite Party No. 2 is Xerox India Limited engaged in the business of marketing their products and that the Opposite Party No.1 is a reseller of the Opposite Party No. 2 and not its service provider, the Opposite Party No. 3 who is an employee is an unnecessary party.
ii) That the Complainant is running a commercial establishment and is not a consumer under Section 2(d) (i) of the Consumer Protection Act 1986 and has relied on the Economic Transport Organization vs. Charan Spinning Mills (P) Ltd. And Anr.(2010).
iii) That the Complainant has not filed expert opinion or report or any independent expert as defined under Section 2(1)(a) with regard to alleged defects in the machine purchased.
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iv) That the Complainant after evaluating had purchased the said machine on 05-11-2005 along with Full Service Maintenance Agreement 'FSMA' entered into between the Complainant and the Opposite Party No. 2 only ,which was valid for a period of five years from the date of its execution, which expired on 04-11-2010. That it was assured to the Complainant that the agreement would be renewed automatically for additional period of two years by the Opposite Party No.1 was denied. That there was no privity of contract between the Complainant and the Opposite Party No.l. That there was no life time FESMA warranty on the said machine. That there was no contract between the Complainant and the Opposite Party No.1.
v) The Opposite Party No.1 denied that they along with the Opposite Party No.2 through the Opposite Party No.3 were required to enquire with the Complainant about the printouts taken for the month, and stated that the role played by him was to deliver the said machine to the Complainant.
vi) That necessary payments had to be made within seven days by the Complainant from the date of billing. That the Opposite Parties were obliged to maintain, service, repair the machine for the period of five years from the date of execution. That the machine was maintained in perfect working condition throughout the period of FSMA.
vii)That Opposite Party No.1 raised its invoices from the meter reading as provided by the Complainant; which he had stopped providing from May 2010 and availed of services without paying any service charges as per the terms of FSMA.
viii)That the Opposite Party attended to the complaint made by the Complainant on 10-09-2010 and on 02-11-2010 and from the
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Service Call Note it is seen that 39931 for black and white copies and 40531 for colour copies were taken by the Complainant, evidencing that the machine was in proper working condition. That there is no deficiency of service as alleged.
ix) That the services of this Opposite Party were availed from May 2010 without payment. That as the Complainant refused to provide details of meter reading it was not possible to generate bills. That the Opposite Party is entitled to raise the bills for services with respect to the unpaid amounts during the period of FESMA.
x) That the answering Opposite Parties are still ready to attend the complaint of the Complainant subject to the mutually agreed terms and conditions.
xi) That the Complainant is aware of the FSMA period and the terms contained therein and hence the said complaint is not maintainable as against the Opposite Party. That there is no deficiency of service as services were provided till 04-11-2010 as per the terms of FSMA, which is a period of five years.
xii) That the Complainant has not suffered any losses as alleged in para 12. That there is no specific defect in the machine that needs to be redressed hence the question of deficiency of service does not arise. That the Complainant is agreeable to attend to the complaint subject to mutually agreed terms and conditions.
xiii)That nowhere any specific defects in the machine have been mentioned. That there was no correspondence made except for the notice dated 12-03-2011, hence there was no deficiency of service on behalf of the Opposite Parties. I
xiv)That as per clause 9 of FSMA any dispute or difference was to be referred to arbitration under the Arbitration and Conciliation Act 1996 and the decision would be binding on both the parties.
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xv) That as no cause of action has arisen against the Opposite Party No.2 the said complaint be dismissed with cost.
3. The issues that are before us to be addressed are:
a) Has the Complainant proved that there was deficiency of service during the period of FSMA?
b) Was the agreement commencing on 05-11-2005 to 04-11-2010 to be considered as a five year agreement for the Model M-25, or that one of the conditions under which the machine was ordered to be purchased was 'lifetime warranty FSMA of seven years.?
c) Is the Complainant entitled to a compensation of Rs.1,50,000/- along with 10% per annum, from April 2011, by way of compensation towards inconvenience, hardships, mental agony and monetary losses?
d) Whether the Complainant has proved that he is entitled to an order directing the Opposite Parties jointly or severally to maintain the said machine for a further period of two years i.e. from 5.11.2010 to 4.11.2012 by way of warranty as per the agreement dated 5-11-2005 entered into and signed by the Complainant and the Opposite Party No.2.and to supply all the required materials which are required to allow the complainant to operate and use the said machine?
e) Whether the Opposite Parties prove that the complaint does not fall within the ambit and definition of the word consumer as defined under Section 2(1) (d)?
f) Whether the complaint is hit by the arbitration clause mentioned in clause 9 of the FSMA agreement dated 05-11-2005?
4. The issues nos. 1 and 2 are taken together since the same are interlinked and the material on record to establish them is also interlinked.
5. The complaint has relied on three letters written as also an email dated 1st January 1970. …8/-
“The letters are dated 07-06-2010, 22-06-2010, and 16-07-2010 and have all been couriered to “Mr. Rajesh Menon, Xerox India Limited, 302, Kensington Court, Plot No. 345, Lane No.5, North Main Road, Koregaon Park, Pune 4111 110, Maharashtra India.”
From the record it is seen that the letters were addressed to the address as shown in the cause title of the Opposite Party No. 3. From the tenor of the letters it further shows that the said Rajesh Menon was telephonically responding to the written mail. We therefore conclude that the said Rajesh Menon is an employee of Xerox India, even though, his designation is not stated anywhere.
6. All the three letters are addressed with regard to issues dealing with servicing of the machine. The first letter states that the engineer who attended and who replaced the engineer Eknath (who had earlier attended to the machine), stated that he was not the engineer for M-24, ( the current Xerox machine he was attending to). The problem specifically mentioned reads “…..called you regarding the same problem which existed and that the part of the machine fell off, and some noise is coming and that colour correction had to be done and that the noise coming had to be stopped. The second letter states that the machine was attended to by one Nilesh on 10-06-2010, who took prints to send to Pune. Further a service Note copy stating that some parts had to be replaced by the following week, however till the 22-06-2010 (date the letter was written ) the same had not been replaced. The third letter states that Nilesh had come on 02-07-2010 fitted the parts and informed that another part had to be changed.
The letter further states that the main problem faced is that if papers are fed through the feeding tray they get creased, which problem was not looked into and the machine was not fixed inorder to overcome the problem.”
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7. Further on record there is an e’mail dated Thursday ,1st January 1970 addressed by the Oppoaite Party No. 1 to the Opposite Party No. 2 in which it is stated as under:-
“ ……….Sub Reason: Long time taken to repair machine .
Customers voice: Customer has given so many reminders to the customer M/s Design Plus, Margao Goa, regarding the non functioning of the Xerox 24 since the last five to six months . There is no response from Xerox. The Engineers are going there but not able to sort out his problem. There has been a lot of written communication also copies attached regarding the same for which neither the dealer nor the customer has received any reply. Customer is planning to buy a new machine, now for which again there is no response from Xerox and the dealer being a Xerox partner here in Goa are facing the problem. The customer wants us to solve his machine problems ASAP or file a case in Court of spurious service. It is not only spoiling the name in the market for future business but also of Xerox India Ltd.
Agents remarks: Please take this case on your utmost priority and resolve the issue at the earliest.”
8. In the letter dated 15-10-2010, addressed by the Opposite Party No. 2 to the Complainant, the Opposite Party No. 2 states that the rated life of the equipment model is five years or eighteen lacs impressions, whichever is earlier. And further that since the machine is nearing the completion of five years the cost of supporting such equipment would be substantially higher in terms of spares usage and the performance would be inferior to newer equipment and that therefore they advise that the Complainant to consider the option of their trade in scheme, whereby they replace the old equipment with a new one in line with current requirements of features / copy print volume and further stated that the terms of the same could be discussed with them.
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9. From the service call note produced by the Opposite Party No. 2 dated 10.9.2010 it is found that the meter reading was ascertained to be 33198 and 36754 and the complainant signed the same service call note. The next reading on the service call note dated 02.11.2010 the meter reading shows 39931 and 40537 and the Complainant refused to sign the said note.
10. The Complainant in his letter dated 13.01.2011 has stated that as per the agreement dated 5.11.2005 the meter reading was black and white 41421, colour 42425, A3 17 cms 568 and total of 1 and 2 was 83846. The Complainant stated that at the time of the purchase of the machine he had demanded a seven year warranty on the machine and that the Opposite Party No.1 had agreed to the same, however in the agreement dated 5.11.2005 the warranty period was stated to be for a period of five years. This agreement was signed with the Opposite Party No. 2. He further states that the Opposite Party No.l did not inform him that the Complainant would have to pay extra to extend the contract for a further period of two years.”
11. The Complainant further sought to know who was paying for the loss and damage to his business from April 2010 till the date of the letter and stated that in order to get the correct picture of the situation the Opposite Parties would have to call for the engineers service call report. He further stated “ I have several service call reports signed by the engineers from April till date as to what mess and the way they have damaged my machine and requested that the contract be renewed since the machine is down and is completing ten months since the service is bad. However no such service call reports have been produced before the Forum.”
12. He further informed that he had received a letter from Mahindra Patil written on 15th of October and further stated that such a letter was not received by him earlier. He further inquired as to why the engineer
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attended to the machine on 19th November 2010 and changed three drums and further stated that he would get one more drum but did not return with the same. This letter was produced by the Complainant on 26.11.2014 in the Forum but the same is not signed by the Complainant nor there is anything to indicate that the same was delivered to the Opposite Parties. He annexed the copy of the letter dated 15.10.2010, described in para 8 above.
13. From the agreement on record signed by the Complainant and the Opposite Party No.2, it is ascertained that the same was for the period from 05.11.2005 to 4.11.2010.
The relevant clauses of the agreement further lays down as under:-
“B Service Charges.
5. In case the customer defaults or delays in payment of the abovementioned payments on their respective due dates , the customer shall be liable to pay on the defaulted amount, interest at the rate of two per cent per month or part thereof from the due date till the date of the actual payment as late payment charges.
6. shall allow, within his normal working hours, XIL representative or personnel duly authorized by XIL, access to the Equipment for meter reading for invoicing purposes. Any over or under estimation will be corrected on the next date invoice based on actual meter readings.
D 4. If the customer is in the breach of any or all terms hereof including obligation to punctually pay all charges, and such breach remains unremedied for 15 days ………., XIL may, during the currency of this Agreement summarily suspend the services till such breach is remedied or terminate this Agreement, notwith- standing anything to the contrary contained herein without being liable to the Customer in any manner for the same.
10. Timely payment of all charges by the Customer to XIL shall be the essence of this Agreement.”
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14. From the correspondence of the Complainant with the Opposite Parties more specifically the letters received by the Opposite Party No.3, at the address of the Opposite Party No. 2, it is made out that the agreement was honoured till March 2010 and there was no honoring of the agreement from April 2010 since the Opposite Parties and its employees did not attend to the machines promptly and immediately. Although the letters have been received by the Opposite Party No. 3 there are no replies made by the Opposite Party No. 3 nor by the Opposite Party No. 2 who is the employee of the Opposite Party No. 2. However the Complainant has categorically stated that the Opposite Party No. 3 would telephonically get in touch with him.
15. Thus the Complainant has proved that during the period from 05.11.2005 to 04.11.2010 there was dishonor of the agreement. However it is the contention of the Opposite Party No.2 that it is the Complainant who had not furnished to them the meter reading from May 2010 and consequently the Opposite Party No. 2 could not generate further bills for the period from May 2010 to November 2010.
As is set out above the Opposite Party No. 2 and their representatives under the agreement were entitled to go the place where the equipment was installed and get the meter reading done which the Opposite Party No. 2 nor its employees inclusive its representative the Opposite Party No. 3 did.
16. Thus the Complainant has proved the issue no.1 and the Complainant has proved that there was deficiency of service during the period of FSMA i.e. from the period of April 2010 onwards to 4th November 2010. The Complainant has failed to prove that one of the conditions under which the machine was purchased was with a 'lifetime warranty FSMA of seven years.
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17. With regard to the issue no. C which the Complainant had to prove is as under:-
C) Is the Complainant entitled to a compensation of Rs.1,50,000 along with 10% per annum, from April 2011, by way of compensation towards inconvenience, hardships, mental agony and monetary losses?
Now coming to the question as to whether the Complainant has proved that he is entitled to the compensation of rupees one lakh fifty thousand or any part thereof the Complainant has failed to establish what was his monthly income prior to April 2010 so as to enable the Forum to come to conclude on the same and further as per the engineers service report note it is found that the said equipment was working even on 10.9.2010 and even on 2.11.2010 and therefore we are unable to agree with the Complainant that the equipment was not workable between April 2010 to 4.11.2010 and the Complainant has not brought anything on record to make out a case as to what are the damages suffered by the Complainant . The amount of one and a half lakh nor any part thereof has been substantiated by the Complainant and therefore the Complainant is not entitled to any compensation as claimed for.
18. The Complainant is also not entitled to any order directing the Opposite Parties jointly or severally to maintain the said machine for a further period of two years i.e. from 5.11.2010 to 4.11.2012 by way of warranty as per the agreement dated 5-11-2005 entered into and signed by the Complainant and the Opposite Party No.2 and to supply all the required materials which are required to allow the Complainant to operate and use the said machine. The Opposite Party No. 2 in fact has placed on record in para 8 of its written version that they are ready to attend to the complaints of the Complainant subject to the mutually agreed terms and conditions.
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19. With regard to the issue ( E ) the Complainant has submitted that he is a proprietorship firm which belongs to the proprietor named in the
complaint and runs and operates the business involving works of xeroxing and colour printing as and by way of self employment. The Opposite Party have not brought any evidence on record to prove otherwise.
20. The Opposite Party has relied on Economic Transport Organisation Vs. Charan Spinning Mills & Anr 2010 (2) JT 271:2010 (2) Scale 427: 2010 (2) Scale 455: 2010 (4) Scc 144:2010(1) Supreme 658 which is not applicable to the present case .
21.Their Lordships of the SUPREME COURT OF INDIA in their judgment reported : 1995 AIR(SC) 1428 in the matter of Laxmi Engineering Works Versus Rs.G.Industrial Institute held as under:-
(ii) Whether the purpose for which a person has bought goods is a "commercial purpose" within the meaning of the definition of expression "consumer" in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case.
(iii) A person who buys goods and use them himself, exclusively for the purpose of earning his livelihood, by means of self-employment is within the definition of the expression "consumer".
22. In the matter of M/s Usha India Ltd vs. Mrs. Kajal Bhattacharya, decided by their Lordships in the National Commission in Revision Petition No. 4671 of 2008 on 08-01-2015 it has been held as under:
“5. Learned counsel for the petitioner vehemently argued that this is a case regarding commercial purpose. He has invited our attention towards the fact that the complainant is dealing in business. In her complaint, she has nowhere stated that it is for her personal use.
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6. We are unable to locate any substance in his arguments. The complainant and her husband are running the above said business to earn their livelihood.
The petitioner has failed to produce any evidence which may go to show that this firm has got a number of employees/labourers or they are not running it for their personal benefit. There lies no rub if a businessman transacts the business for his personal use only. This is a proprietorship firm. Consequently, this argument does not deserve any consideration.”
23. In view of what is stated above it is held that the Complainant is a consumer within 2(d) (i) (ii) of the Act and the issue E is decided in the negative.
24. With regard to issue No. F as to whether the complaint is hit by arbitration clause mentioned in clause 9 of the FSMA agreement dated 05-11-2005 we rely on the following decision in Ankur Roy Choudhury vs Golden Home Developers and others passed on 25/27.01.2015 it has been held by the State Consumer Redressal Commission West Bengal as under:
ORDER
“This order relates to hearing on the MA 146 of 2014 filed by Opposite Party Nos. 1 and 2 contending that the Opposite Party No. 1 is a partnership firm engaged in the business of development of land and construction of building. Pursuant to the development agreement dated 28/12/06 the OP No.1 was granted the right to develop the land in Mouza-Kumrakhalil. The Complainant executed an agreement for sale dated 26/06/08. The said agreement contained an Arbitration Clause under which any dispute and difference concerning any of the terms and conditions of the agreement was liable to be referred to the sole Arbitrator.
The learned Counsel for the ……….
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On this point the Learned Counsel for the complainant while opposing the Miscellaneous Application has submitted that according to the settled principle of law in spite of the Arbitration Clause in the agreement the complaint case is maintainable before the Consumer Fora. In this connection he has referred to the decisions of the Hon’ble National Commission in Rp 4012/2011, Rp 1301 of 2011, RP 1238/2013 (DLF Ltd vs. Mridul Estate (Pvt Ltd & Ors decided on 13-05-3013) ; RP No. 3720 of 2013 (NC)(Vatika Ltd vs. Smt Sudesh Bali (decided on 29-10-2013.)
We have perused the submissions made by both sides and perused the papers on record. The Hon’ble National Commission in the case of DLF Ltd vs. Mridul Estate (Pvt) Ltd & Ors (supra) has been pleased to observe that the remedy of arbitration is not the only remedy available to a grower rather it is an optional remedy and he can seek either reference to the Arbitrator or file a complaint under the CP Act 1986. It has further been observed that if the consumer chooses to file a complaint, in the first instance, before the Consumer Forum than he cannot be denied relief by invoking section 8 of the Arbitration and Conciliation Act. In the decision reported in 2008 CTJ954 (NC)(NCDRC) Bar Association (Regd) vs. Davinder Malhogtra & Ors.) it has been held that the Consumer For a in the country are bound to follow the decisions rendered by the National Commission in the consumer cases filed under the provisions of the C.P.Act 1986.Relying on the aforesaid decisions of the Hon’ble National Decision we are of the view that the complaint case is maintainable.”
In view of the above, issue No. F is decided in the negative.
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In the circumstances as discussed in the complaint the same is dismissed.
O R D E R
Complaint dismissed.
(Mr. Jayant S. Prabhu)
President
(Ms. Savita G. Kurtarker)
Member
(Ms. Cynthia A. Colaco)
Member
