By Smt. Padmini sudheesh, President<br /> <br /> Petitioner’s case in brief is as follows:<br /> <br /> The petitioner is running a Photostat shop under the name “Bhavana Photostats” for her livelihood and as a self employment venture. The petitioner had purchased a used DC 12 Colour Printer with Fiery (FU 2 DC 12 LP P.No.2137179883, LWO FIERY X 12 No. OL 00102636) from 2nd respondent for a mutually agreed price of Rs.8 lakhs. The petitioner had availed herself of a loan from M/s. Kerala State Financial Enterprises Ltd. for such amount for the above purpose and been making regular repayments towards the loan. 2nd respondent had originally purchased the said machine from 1st respondent who is the manufacturer thereof vide Invoice No.KOC/ORS/146 dated 10/9/2002. The full service maintenance agreement (FSMA) entered into by and between the respondents on the first purchase was made applicable to the petitioner with the consent of 1st respondent. It was so represented by 2nd respondent to the petitioner before such purchase. The petitioner had approached the 1st respondent before such purchase and ascertained from them their consent to extent the FSMA to the petitioner. Accordingly the 1st respondent has been rendering the periodical maintenance services as per the FSMA to the petitioner and the petitioner has been making payments of such maintenance bills to the 1st respondent and they have been receiving the payments. Subsequently all on a sudden the 1st respondent stopped service to the petitioner without any notice in the month of July 2005. Petitioner had paid the full annual charges to the 1st respondent in advance vide Invoice No.73903 dated 12/9/2004 under contract No.169223. The contract was valid upto 11/9/05. On enquiry of stoppage of service a reply was received that ‘certain payments are pending’. But there are no pending payments and the last payment was made by Cheque No.042925 dated 23/6/05 for Rs.42005/- drawn on M/s. Thrissur District Co-operative Bank Ltd., Thrissur. The petitioner informed the matter to the 1st respondent and reply received stating the service maintenance agreement was no more valid and stood cancelled, since the machine had sold to the petitioner. The stoppage of service is arbitrary and illegal. Lawyer notice sent. Reply was sent stating false contentions. No remedy. Hence this complaint.<br /> <br /> The Counter of 1st respondent in brief is as follows:<br /> <br /> 2. The complainant purchased machine for commercial purpose and conducting business hence Forum has no jurisdiction to entertain the above complaint. The 2nd respondent had purchased a machine Model-DC-12, SL No.2137179833 from 1st respondent and was installed on 12/9/02 at 2nd respondents premises in Cochin. FSMA Agreement was executed between the respondents and it is not assignable. No privity of contract with the petitioner. On 7/5/03 1st respondent received a request from 2nd respondent to re-site the machine at Bhavana Photostats. Since the request was for merely re-siting the same was done. On 7/7/05 2nd respondent forwarded a copy of the Sale Deed dated 7/4/2003 and informed 1st respondent that the machine was sold to Bhavana Photostats. On 13/7/05 a letter was addressed by petitioner for supply of consumables it has been replied that the service maintenance agreement is no longer valid. The 1st respondent never consented to FSMA to be applicable to the petitioner. 1st respondent had acted purely on the basis of the letter dated 7/5/2003 of 2nd respondent, where in they were informed that the machine was merely re-sited and no change in ownership of the machine was pointed out then. Therefore 1st respondent was under the impression that the owner of the machine was 2nd respondent and accordingly, 1st respondent was obliged to offer the services under the FSMA. Complainant has no right to insist on any service from this respondent. The services obtained was on fraud and misrepresentations. So the entire benefits to be repaid. Another re-conditioned machine is being operated in petitioner’s premises. The consumables supplied under the FSMA is being utilized to the reconditioned machine. This respondent never renders any periodical maintenance and never issued bills. Some amount is due from the complainant. Hence dismiss the complaint.<br /> <br /> The Counter of 2nd opposite party is as follows:<br /> <br /> 3. The 2nd respondent is an unnecessary party and no grievance is sought against this respondent. The complainant has purchased the said machine from this respondent and there is no warranty. 2nd respondent has purchased it from 1st respondent. 2nd respondent had sold the used machine to petitioner. 2nd respondent does not know whether the petitioner has service contract with the 1st respondent and the 1st respondent was catered the service needs of the petitioner. The payment of annual charges and the service between the petitioner and 1st respondent is unaware to the 2nd respondent. The 2nd respondent has not committed any deficiency in service. Hence dismiss against this respondent.<br /> <br /> 4. The points for consideration are :<br /> 1) Whether the complainant is entitled to get the service in terms of the FSMA ?<br /> 2) Whether the complainant is entitled to get compensation ?<br /> 3) Reliefs and costs ?<br /> <br /> 5. The evidence consists of exhibits P1 to P13 and R1 to R2. No other evidence.<br /> <br /> 6. The 1st point is whether the complainant is entitled to get the service in terms of the agreement executed between the respondents. The FSMA is an important piece of evidence is not produced by anyone. According to 1st respondent as per the said agreement the services are not assignable and immediately receiving the sale letter dated 7/7/05, the 1st respondent stopped the service. According to the petitioner the annual charges were paid by him but no document to show it. The respondents have no case that the amount is not paid by the petitioner. They never denied it. So they have to render services for the prescribed period. Exhibit P9 shows that the petitioner was ready to pay the bills if any remaining unpaid. It shows some services have rendered by the 1st respondent. Whatever may be the terms of service agreement, the 1st respondent was ready to serve the petitioner as per exhibit P4 and also bound to do it. If it is not done there is deficiency of service. To know the terms the agreement is not before us. From the records it can be seen that in the very beginning the machine was defective. As per the contract the 1st respondent had to provide service till 11/9/05. According to the petitioner services received till July 2005. Two months more is remaining. 1st respondent is responsible to resume the service for two months. This point is found against the 1st respondent. The 2nd respondent who is the dealer has not executed any service contract with the petitioner and no liability in this regard.<br /> <br /> 7. The next point is regarding compensation. For the mental agony suffered by the petitioner we conclude Rs.10,000/- as compensation.<br /> <br /> 8. In the result the complaint is allowed and the 1st respondent is directed to provide two months service as per the agreement and also to pay Rs.10,000/- (Rupees Ten thousand only) as compensation and Rs.500/- (Rupees Five hundred only) towards costs within one month. <br /> <br /> Dictated to the Confdl. Asst., transcribed by her, corrected by me and pronounced in the open forum this the 9th day of July 2008.<br /> <br />