SMT. RAVI SUSHA: PRESIDENT

The complaint has been filed by the complainant for getting an order to direct the opposite party to immediately send a service engineer to attend to the complaints of the printer.  In case it is not possible to repair and make the printer workable opposite party give back Rs.7,61,100/- the cost of the printer which was received by the opposite party.  The Opposite party has to pay an amount of Rs.5,00,000/- towards compensation and cost of the complaint and replace the old and used laptop supplied along with the printer with a new laptop and original software.

Case of complainant is that the complainant No.1 is a housewife and in order to start her own business she enrolled with the PMEGP and she decided to purchase a UV Direct to wall Inkjet Printer from the OP.  The complainants came to know about the product sold by the OP through the Social media and the 2^nd complainant contacted the OP for the purchase and the OP issued a quotation dated 07/09/2020 for Rs.7,61,100/- together for the product and accessories.  Thereafter the complainants approached the SBI for a loan for the purchase of the printer.  The bank sanctioned the loan based on the quotation and the loan account was disbursed to the account of the OP towards the consideration of the purchase of the product.  There was inordinate delay for the delivery of the product even after the receipt of the full consideration amount.  It took almost 4 months for the OP to ship the product. Finally when the consignment was received the invoice was for an amount of Rs.4,89,700/- only, where as the amount paid through the bank was Rs.7,61,100/-.  Thereafter base on the repeated requests from the complainants the invoice for the remaining amount was also issued by the OP.  The complainant received the product in a very bad and careless packing condition.  On 09/07/2021 the OP came along with his son for the installation but on that day itself the complainants realized that the product is defective.  The printer head along with the package was not working and the OP used a different printer head at the time of installation.  The specific case of the complainants is that after the installation the printer never worked and several complaints were lodged by the complainants before the OP over phone and otherwise.  Further the HP Pro book 6465b laptop supplied along with the product was a very old and used one.  Further the OP supplied only 200 ml of Head cleaning Ink against the original promised 1Litre.  Whenever the complainants pointed out the deficiency in service from the part of the OP, the OP was threatening the complainant that they will file the defamation case against the complainant, hence this complaint.

            After receiving notice OP entered appearance and filed version stating that the OP has produced a copy of the quotation and terms and conditions along with General sales/Warranty Terms and conditions submitted to the complainant No.1 dated 07/09/2020.  As per clause (13) of the quotation and clause (19) of General Terms and conditions, the complainant can approach the court of law only within the jurisdiction of Bengaluru.  The complainant cannot seek advantage of his own wrong doing.  The OP clarified everything at the time of installing the machine.  The OP has also sent a letter to the complainant on 20/07/2021 narrating all.  The OP clarified everything and installed the machine. The OP submits that there is no defect in the printer supplied to the complainant.  There is no warranty for the print head.  The OP submits that the machine UV Direct to wall Inkjet Printer supplied to the complainant is hypothecated to the SBI, Kannur and the said bank is not made a party to this complaint.  This OP had already issued letter dated 16/08/2021 to the SBI, Kannur Inter alia informing them of the mishandling of the printer by the complainant.  Further, this OP is an importer/supplier and is not a manufacturer of the printer.  The problem in the print head has been informed to the OP by the manufacturer and this has been conveyed to the complainant by way of letter dated 20/07/2021.  The complainant has not made any grounds and the complainant is not entitled for any relief as sought for in the complaint.  Further submitted that there is no warranty for the print head of the machine, the complainant has to replace the head and he has to pay for that, then only the said machine can run properly.  Therefore the OP prayed for dismissal of the complaint.

            Both parties led evidence 2^nd complainant filed chief affidavit and examined as Pw1.  Marked Ext.A1 to A12.  On the side of OP, the son of the OP, has filed his proof affidavit as power of Attorney and examined as Dw1.  Ext.B1 to B5 were marked.  After that the learned counsels of both parties filed their written argument notes and also made argument.

            The questions to be decided as

1. Whether this complaint is maintainable having territorial jurisdiction before this commission?
2. Whether there is any deficiency in service on the part of OP?  If so what relief can be given to the complainant?

The undisputed facts in this case are that the 1^st complainant purchased a wall inkjet printer from OP and paid Rs.7,61,100/- as the value of the product through State bank of India after availing a loan.  It is a fact that the quotation dated 07/09/2020 issued by OP for the product was of Rs.7,61,100/-.  It is also admitted that the OP came to the premises of complainant along with his son (Dw1) for the installation of the product. 

            Complainant alleged that on the installation day itself the complainants realized that the product is defective.  After the installation, the printer never worked and several complaints were lodged by the complainants to the OP over phone and otherwise 1) The printer head along with the package was not working and the OP used a different printer head at the time of installation.  2)Further the HP Pro book 6465b laptop supplied along with the product was a very old and used one.  3)Further the OP supplied only 200 ml of Head cleaning Ink against the original promised 1Litre.  4)Whenever the complainants pointed out the deficiency in service from the part of the OP, the OP was threatening the complainant that they will file the defamation case against the complainant.

            OP contended that this complainant is not a “consumer” as defined by section 2(7) of the Consumer Protection Act and they have no right to file the above complaint.  It is repeatedly stated at several places in the complaint itself that the complainant No.1 has purchased the wall printer to start a new business and for her business purpose.  The complainant had no case that she has purchased to printer to be used by her exclusively for the purpose of earning her livelihood by means of self employment.  Further contended that if the dominant purpose of purchasing the goods or service is for profit motive and this fact is evident from record, such purchaser would not fall within the definition of ‘consumer’.  Another reason is that the manufacturer of the printer, purchased by the complainant No.1 is a necessary party to the above case.  The specific case of the OP is that the printer is an imported by the OP.  But no steps are taken by the complainant to implead the manufacturer of the printer.  The complainant had no case in the complaint that this OP is the manufacturer of the printer.  Hence the complainant did not make any steps to get the manufacturer of the printer impleaded in this case as a necessary party in spite of the fact that the OP is not the manufacturer of the printer purchased by the complainant.  Whether the complainant has purchased the loan as per  the PMEGP (Prime Ministers employment Generation Programme Scheme) as stated in the complaint can be proved only by making the Banker who advanced loan to the complainant No.1 has a necessary party to the above case as contended by the OP.   No documentary evidence is also adduced by the complainant to prove this statement.  The evidence of Dw1 is not sufficient as he is not a competent witness to speak about this.  The OP submits that if the picture printed by the printer is having lines as alleged by the complainant, it may arise due to fault in printer head.  But there is no warranty for printer head.  The fact that there is no warranty for printer head is also admitted by Pw1 in cross examination by stating the “Printer head warranty ഇല്ല എന്ന് വിൽപന സമയത്ത് പറഞ്ഞിരുന്നോ? പറഞ്ഞിരുന്നു.” Another important aspect is no steps are taken by the complainant to prove the defects if any in the wall printer purchased.  Hence this complaint is liable to be dismissed of the reason also for not taking any steps to prove the alleged defects of the printer as set up by the complainant.  Further contended that the case of the complainant that the printer was delivered in faulty condition and they have got video and other photographs to prove the same. But none of them is produced by the complainant before this commission which shows that they are telling lies before the commission.

            With regard to 1^st plea of OP, that they have no right to file the above complaint.  It is repeatedly stated at several places in the complaint itself that the complainant No.1 has purchased the wall printer to start a new business and for her business purpose.  The complainant had no case that she has purchased the printer to be used by her exclusively for the purpose of earning her livelihood by means of self employment.

            The Hon’ble Supreme Court in Rohit Chaudary V M/s VIPUL Ltd, (submitted by the learned counsel of OP) held that If the dominant purpose of purchasing the goods or service is for profit motive and this fact is evident from record, such purchaser would not fall within the four corners of the definition of ‘consumer’.  Sec.7 (ii) of Consumer Protection Act 2019 defines that a consumer means any person who hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service  other than the person who hires or avails of the services.

            It would thus follow that cases of purchase of goods for consumption or use in the manufacturer of goods or commodities on a large scale with a view to make profit will all fall outside the scope of the definition.  It is obvious that the parliament intended to restrict the benefit of the Act to ordinary consumers purchasing good.  Either for their own consumption or even in use in some small venture which they may have embarked upon in order to make a living as   from large scale manufacturing or processing activity carried on for profit.  In order the exclusion clause should apply, it is however, necessary that there should be a close nexus between the transaction of purchases of goods and the large scale activity carried on for earning profit.

            Here, the 1^st complainant purchased goods by availing loan in PMEGP (Prime Minister’s Employment Generation Programme) under the ministry of Micro, small and medium enterprises which means purchased the product for self employment.  Further there is no evidence that 1^st complainant had no other source of income.  Hence from facts and circumstance of this case, the 1^st complainant purchased good not for the large scale activity carried on for earning profit.  So she become a consumer as per the definition under Consumer Protection Act.

            Another plea raised by the learned counsel of OP that 2^nd complainant, the husband of 1^st complainant, does not become a consumer. Sec.7 (ii) of Consumer Protection Act 2019 defines that a consumer means any person who hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services. 

            With regard to this point in 1991(2) CPJ 90(SCDRC Hariyana) In Dr. B S Sindhu V Secretary Post and Telegraph Department, it has been laid down that it is true that normally in the ordinary conventional field of law of contract, the doctrine of privity was paramount.  However, the definition of the ‘consumer’ in sec.1(1) (d) of the Act removes the constrains of that doctrine.  It distantly extends its ambit of protection to the lawful beneficiaries of services hired or the user of goods purchased.  Even where the is no direct contractual nexus between the person who hired out the services and the beneficiary who avails them with the approval of the original hirer the latter comes well within the beneficent provision of the statute..  It seems unnecessary to elaborate the matter of further on principle because the very language of the statute is precise and a clear pointer thereto.  It seems somewhat plain that apart from the original hirer, the subsequent beneficiary thereof is equally within the pale of the definition of a ‘consumer’.

Hence 2^nd complainant is also become a consumer under Consumer Protection Act.

            Next question to be decided whether there is any deficiency in service on the part of OP?

            On analyzing the evidence tendered by Dw1, he has admitted that they are importing items from abroad and they are supplying products in different States and similar complaints came from locations like selam, Hyderabad etc.  Name of the manufacturer is not mentioned anywhere, in the reply notice in the counter statement or in the chief affidavit of Dw1. Though the amount received was Rs.7,61,100/- as per quotation, the original invoice was issued for a lesser amount of Rs.4,86,700/- It is specifically admitted by Dw1 that  though on several occasions the complainant raised the complaint about the product the OP never come to the place of the complainant to attend the issues.  Only 200 ml of Head clean Ink was supplied instead of 1 litter, as promised by the quotation.  It is admitted by the complainant that as per clause 10 of Ext. B3, the parts of the Printer are covered by the warranty. 11) In Ext.B2 No where it is mentioned that the product going to deliver is an imported product.

            Another contention raised by OP is that the defect of the machine was due to the defect of printer head.  It is pleaded that as per Ext.B3 General Sales/warranty terms and conditions, “No warranty or guarantee is provided for the print head.

            In Ext.B2, it is seen that OP has given quotation to 1^st complainant.  The description show that supply of US  Ink Direct  to wall inkjet Printed with realings for Rs.6,45,000/-, which includes direct to wall Inkjet Printer with all accessories like rollers timing belt, Epson Dx7 print Head, Trachs 1.5mx4 sets, Relevant computer with software provide UV Inkcmyk 1litter each, Head cleaning solution GHST 18% id 116100 Total Rs.7,61,100/-.  Complainant’s allegation is that she could not use this machine for the purpose on the day of installation by the OP and his son (Dw1), the product shows defective.  The printer head along with the package was not working.  This allegation was not denied by the OP.  Their mere contention is, that printer head has not been provided warranty.  It is to be noted that without working printer head, the whole machine cannot be functioned.  InExt.B3 warranty terms, the parts of the printer are covered by warranty, which is admitted by Dw1.  Dw1 deposed that major part is printer head.  It is evident that complainant had made many complaints through letters over phone etc., but OP was not even cared to repair the machine, Dw1 admitted that after receiving complaints from the complainants. OP did not care to inspect the site and tried to repare the machine.  Dw1 admits that he is an expert, and loving special knowledge in maintaining and repairing the product.  He has admitted that even getting several complaints from the complaints that the product is not working, OP or his some never went them for repair work, instead of that they threatened the poor consumer by filing defamation case.  It is to be noted that along with this complaint on 24/09/2021, complainant had filed an entering application IA 222/21, for getting a direction to the OP to send a service Engineer emergently to attend the printer issues.  After hearing the petition, the commission allowed the said petition and the notice along with the said order in the petition and the direction was issued to OP.  The OP after receiving the said interim order, appeared in person from Bangalore to this commission. When we instructed him to go to the site of complainant and to get it repaired, he has taken adamant attitude not to comply the interim order of this commission in IA 222/21.  So we issued warrant against him and is still pending.  This is the attitude of the OP.  This type of attitude of a trader after receiving huge amount from the customer, especially by taking loan, cannot be entertained.

            Here, the OP tried to raise technicalities about the maintainability of this case.  Another contention of OP is that, this commission has no territorial jurisdiction to adjudicate this case, as there is a clause in Ext.B2 quotation that “all disputes will be at Bangalore jurisdiction only.”

            With regard to this aspect, the Consumer Protection Act 2019 clearly stated that section 34 (2) a complaint shall be instituted in a District Commission within the local limits of whose jurisdiction, - a) Opposite party or each of the OPs, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or b) any of the OPs, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such  case  the permission of the District Commission is given; or c) the cause of action, wholly or in part, arises; or d) the complainant resides or personally works for gain.  Since the complainant resides within the territorial jurisdiction of this commission.  So this commission has ample territorial jurisdiction to adjudicate this case.  Further OP raised a contention that complaint has defect of non-jointer of necessary party by not impleding the manufacturer of the product in dispute.  According to OP, he is only an importer of the product. With regard to this point, we have to look into the quotation and other documents given by OP to the complainant.  No where mentioned even in the warranty terms (Ext.B3) that, the warranty was issued by the manufacturer company by stating their name.  We can see that in Ext.B3 warranty terms and conditions, it is specifically stated that ‘Aditya Document Laminaators’ (OP here in) here in after referred to as the guarantor, shall guarantee good quality and proper functioning of the purchased device if used in the manner appropriate for the purpose thereof and in accordance with the operation manual, and shall provide warranty services.”

            Moreover the privity of contract is between complainant and the OP and the whole amount Rs.7,61,100/- was sent and received by none other than OP himself. After that, raising of this type of technicalities cannot be accepted.  The whole points raised by the OP are found and answered against the OP.  Hence we are of the view that the is gross deficiency in service on the part of OP and he is liable to redress the complainant as OP are using the money sent by complainant for his business purpose  this long period.  Here at this stage there is no meaning to order to get the machine repair because if the machine becomes defective again, the complainants again has to agitate another case.  Hence it is better to order to refund the amount given by 1^st complainant with interest.

            In the result complaint is allowed in part.  Opposite party is directed to pay Rs.7,61,100/- with interest @4% per annum from 01/07/2021 till the order date to the complainant.  Together with Rs.50,000/- towards compensation and Rs.10,000/- towards cost of the proceedings of this case.  Opposite party shall comply the order within one month from the date of receipt of this order.  Failing which the awarded amount as per the order till the order date ie. amount with interest as mentioned except the cost amount, will carry interest @ 9% per annum from the date of order till realization.   Complainant is at liberty to execute the order as per the provisions in Consumer Protection Act 2019.

Exts.

A1-Copy of Quotation dated 07/09/2020

A2- Copy of payment acknowledgment letter

A3- Copy of invoice No.ADL 345 dated 25/06/2021

A4- Copy of invoice No.ADL 352 dated 27/07/2021

A5- Legal notice

A6-Reply dated 09/09/2021

A7- Letter dated 20/07/2021

A8&A9- Letter dated 12/08/2021

A10- Letter dated 03/08/2021

A11- Copy of license

A12- Letter dated 03/01/2022

B1- Letter dated 20/07/2021

B2- Quotation

B3- General Terms and condition

B4- Letter written to SBI dated 06/08/2021

B5- Reply notice sent by OP.

Pw1-Complainant 2

Dw1- P/A holder of OP

     Sd/                                                                                   Sd/                                                       Sd/

PRESIDENT                                                                  MEMBER                                             MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forwarded by order/

Assistant Registrar