Karnataka

Belgaum

CC/136/2014

Rajshree S Kakatkar. - Complainant(s)

Versus

Prasad Sakhalkar. Ikon Office Solution. - Opp.Party(s)

Raghuveer P

06 Apr 2015

ORDER

(Order dictated by Shri. V.S. Gotakhindi, Member)

ORDER

          U/s. 12 of the C.P. Act, the complainant has filed the complaint against the O.Ps. alleging sale of defective digital Canon Xerox Machine.

          2) O.Ps. appeared through counsel and filed their respective objection. The O.P.1 in his objection partly admitted and partly denied the contents of the complaint allegations and states that the complainant has purchased the machine for her commercial business and not for her livelihood. The O.p.1 further contents that on 18/2/2011 the complainant has purchased the machine and paid Rs.1,10,000/- and of which Rs.5,500/- was paid by the complainant immediately are false and baseless but the O.P. contended that she has purchased the machine for Rs.1,10,000/- and to this O.P.1 issued a invoice and also the O.P. contents that the complainant has availed the loan from Yashashri multipurpose co operative society and the said society have issued a cheque on behalf of the complainant to the O.P. on 21/3/2011 for Rs.1,04,500/- and O.P. passed a tax invoice on 21/3/2011. The O.P. further states that the machine had a replacement guarantee/warranty for a period of one year from the date of purchased. The O.P.1 further states that the machine gives 40 copies per minute output and contents that the complainant never complained about xerox machine hence question of giving replacement does not arise etc., The O.P.2 filed objection stating that he is not the manufacturer of the product and the import the various canon product into India and sale them directly or through the dealers / distributors under agreement. The O.P.2 further states that the O.p.1 is not neither the dealer / distributor of O.P.2 nor there is any relationship with the O.p.2. Hence, O.p.2 cannot be liable for the act or omission of sale by O.P.1 and the product involved in question is not imported by O.P.2. the O.P.2 further contended that there are number of instances wherein the machines are imported illegally and sold to 3^rd party in India and the original canon machine involved in this case raise the question of doubtful as no serial number is mentioned in the complaint which gives rise to serious concerned about genuine of the machine and the machine one sold to the complainant is old and refurbished machine. Hence prayed for dismiss the complaint.

          3) In support of the claim of the complaint, the complainant and O.Ps. have filed their affidavits and produced some documents.

4) We have heard the arguments of the complainant and O.Ps. have perused the records.

          5) Now the point for our consideration is that whether the complainant has proved sale of defective digital Canon Xerox Machine by the O.Ps. as well as deficiency in service and that she is entitled to the reliefs sought?

          6) Our finding on the point is in negative, for the following reasons.

:: R E A S O N S ::

            7) The complainant has claimed that digital Canon Xerox Machine bearing number 1R 400 Digital plain paper copies xerox machine was sold by O.P.1 for Rs.1,10,000/-  on 18/2/2011 and same was purchased by the complainant by raising loan from Yashashri multipurpose co operative society at 14% interest and the society on 21/3/2011 issued a cheque on behalf of complainant for Rs.1,04,500/- to the O.P.1. The complainant further contended that the O.P.1 at the time of sale gave one year guarantee / warranty including free on site service of the machine for a period of one from the date of purchase and further contended that the O.P.1 told and assured the quality of the brand canon xerox machine that the output speed of copying is 40 copies per minute and same is best in class. The complainant further states that within two months from the date of purchase the copying speed of the machine came down to 20 to 22 copies per minute and the quality of xerox copies were poor and this fact was brought to the notice of O.P.l and in the month of July 2011 the said xerox machine completely stopped working. The complainant further states that the O.P.1 approached the complainant time and again and repaired the machine and the complainant requested to replace the said machine as the same is defective and within a warranty period. The complainant further contended that in the month October 2011 after inspection done by the O.P.1 told that the machine will not be repaired further and it is having manufacturing defect and need to be replaced, but even after repeated request the O.P.1 did not replace the machine. The complainant further contended that as the society gave loan to purchase machine, the society was demanding to pay installments and also that the O.P.1 took the possession of the machine and on demand by the complainant provided temporary stand by xerox machine of Keosera branded xerox machine but the said stand by machine also stop working and the complainant intimated the same facts to the O.P.1 but the O.P.1 refuse to provide a service and stated that he would replace the new machine only when O.p.2 supplies to him. The complainant further contended that the O.p.1 is liable to replace the machine and the O.P.2 being a manufacturer of the said xerox machine is proper party and submitted that the complainant would earn extent of Rs.2,000/- per month if the machine would work properly but as the machine was defective the complainant suffered a loss to Rs.2,000/- per month in terms of loss of business from July 2011. The complainant further submits that left no option issued legal notice on 23/2/2013 to O.P.1 and the O.P.1 replied on 21/3/2013 and prayed to allow the complaint.

          8) The O.Ps. 1 and 2 on the other hand, appeared through counsel and filed their respective objection. The O.P.1 in his objection partly admitted and partly denied the contents of the complaint allegations and states that the complainant has purchased the machine for her commercial business and not for her livelihood. The O.p.1 further contents that on 18/2/2011 the complainant has purchased the machine and paid Rs.1,10,000/- and of which Rs.5,500/- was paid by the complainant immediately are false and baseless but the O.P. contended that she has purchased the machine for Rs.1,10,000/- and to this O.P.1 issued a invoice and also the O.P. contents that the complainant has availed the loan from Yashashri multipurpose co operative society and the said society have issued a cheque on behalf of the complainant to the O.P. on 21/3/2011 for Rs.1,04,500/- and O.P. passed a tax invoice on 21/3/2011. The O.P. further states that the machine had a replacement guarantee/warranty for a period of one year from the date of purchased. The O.P.1 further states that the machine gives 40 copies per minute output and contents that the complainant never complained about xerox machine hence question of giving replacement does not arise etc., The O.P.2 filed objection stating that he is not the manufacturer of the product and the import the various canon product into India and sale them directly or through the dealers / distributors under agreement. The O.P.2 further states that the O.p.1 is not neither the dealer / distributor of O.P.2 nor there is any relationship with the O.p.2. Hence, O.p.2 cannot be made liable for the act or omission of sale by O.P.1 and the product involved in question is not imported by O.P.2. the O.P.2 further contended that there are number of instances wherein the machines are imported illegally and sold to 3^rd party in India and the original canon machine involved in this case raise the question of doubtful as no serial number is mentioned in the complaint which gives rise to serious concerned about genuine of the machine and the machine one sold to the complainant is old and refurbished machine. Hence prayed for dismiss the complaint.

          9) The point to be considered is that there is no dispute that machine was sold by O.P.1 and purchased by the complainant on 18/2/2011 and the same is admitted by the O.P.1 and also that the O.P.1 gave warranty and guarantee of one year and also that the complainant has raised the loan to purchased the same and the said society as mentioned supra have issued a cheque in the name of the O.P.1 on behalf of the complainant and the O.P.1 also admits the receipt of the amount under the cheque. But the question that the xerox machine was defective and same was supplied by the O.P.1 and the manufacturer of the said machine is O.P.2. To this question, the answer and the contention taken by the O.P.2 that they are not the manufacturer of the said machine and only business that O.P.2 does is that the import this machines of Canon Company and sell them to the dealers/distributors. The O.P. No.2 has also contended that the said O.P.1 is neither the dealer nor distributor of the O.P.2 and they have not supplied the said machine to him. To this contention the complainant has not produced a single document or evidence to show that the O.P.2 are the manufacturers of the said xerox machine and that O.P.1 is a dealer of O.p.2. The O.p.1 has also in his entire objection and affidavit has not whispered nor stated that he has or is dealer or distributor of O.P.2 and also it is pertinent to note that the complainant has not proved neither by way of documentary evidence nor by bringing any witness before the forum to show that the O.P.2 is the manufacturer and O.P.1 is the dealer of O.p.2 and also that the complainant had handed over the said xerox machine in dispute for the purpose of service or repair to O.P.1 and there is no document to show that the O.P.1 has received the xerox machine for repair nor there is job card or sheet of document to show that the machine is left over with the O.P.1 for repair as contended by the complainant. The another point is to be considered is that as per the contention of the complainant the machine stopped working in the month of July 2011 but the complainant from the date of its defect till date of legal notice issued in the month of February 2013 to the O.P.1 has not produced any evidence to show that the complainant has taken the said machine for the repair with the O.P.1 and said machine in the position of the O.P.1. Upon that the O.P.1 has produced an F.I.R. and a paper publication to show that there was case registered against the said complainant, that she was printing documents illegally and there was raid by the government authority on her business premises that is at “Vijayraj D.T.P. and xerox centre” and found that the complainant was printing illegal documents for which she has no authority to print etc., The O.P.No.1 has produced paper publication which is in Marathi and also the copy of F.I.R. and complaint. The complainant neither defended true fact nor denied in her affidavit in this regard.

          10) Further it is to be noted that as contended by the complainant that the O.P.1 replaced the stand by machine by taking back the Xerox machine which was sold by the O.P.1 of canon company for the repair, for which the complainant neither produced any document to show that the xerox machine of Keosera branded Xerox machine was given as stand by nor there is piece of paper to show that the canon machine was handed over to the O.P.1. and it is to be noted that after going through the contents of legal notice issued by the complainant to the O.P.1 in non of the paras of the legal notice the complainant has stated that the O.P.1 has handed over the stand by machine to the complainant in place of the canon machine which was left with the O.P.1 for the repairs. Hence the contention of the complainant that the O.P.1 gave a standby machine is not proved and cannot be believed.

          11) The O.P.1 have relied upon the some of the decided cases by the Hon’ble National commission 2014 (3) CPR 117 (NC). Wherein the Commission has considered the point that commercial users cannot maintain a consumer complaint. In the present case on hand the complainant herself at para number 4 on page 4 of the complaint pleaded that she has lost Rs.2,000/- per month loss in business from July 2011 and nowhere in the complaint she has taken any contention that she has purchased a machine for her livelihood etc., hence considering the decisions quoted supra is much applicable to the facts on hand.

12) After going through the documentary evidence and also after observing the facts mentioned by the complainant and also the defence taken by the O.Ps. we are of the opinion that to decide the case on hand elaborate evidence is necessary to be recorded and also that the complainant has fail to put up a prime facie case before the forum and we are also of the opinion that after going through the facts putforth by the complainant there are some truths which has to be elaborately looked into to decide the case on merit.

          13) Considering the facts, evidence on record and the conclusion arrived at, following order;

ORDER

The complaint is dismissed. There is no order as to costs.

          The complainant is at liberty to approach proper court of law to redress her grievances.

(Order dictated, corrected and then pronounced in the open Forum on: 6^th day of April 2015)           

Member                    Member                                President.

gm*