Order No. 28 Dt. 28.03.2018
The fact of the case in short is that one Manoranjan Mondal purchased one KONICA MINOLTA TA MFD BIZHUB-195 xerox machine on 26.09.2015 from the shop of opposite party under name and style PRISTINE situated at K.J. Sanyal119 / 176 Pirojpur under P.S. English Bazar, P.O. & Dist. Malda PIN – 732 101. And the petitioner / complainant it has been contended in the original application used to earn daily livelihood by the business with that Xerox machine. After some days of using that xerox machine on 13.10.2015 that xerox machine became disordered and accordingly the matter was informed to the O.P. and after inspection on 19.10.2015 the mother board of that xerox machine was taken by the opposite party but after expiry of 23 days from that date while the problem was not solved the petitioner informed the matter through mobile phone by KONICA toll free number at Delhi while the complaint was lodged by number KNCC20151106109 dt. 06.11.2015 and thereafter the mother board was returned to the petitioner but the machine functioned only for two hours and then again problem was communicated by number KMCC 20151119312 dt. 19.11.2015 but as the machine did not function so this instant case has been initiated fixing 19.11.2015 as the date of cause of action of this case. The petitioner has prayed for replacement of the damaged machine or for paying back of the price of the machine amounting Rs. 59150/- along with that a sum of Rs. 20000/- for the cause of loss of business for two months as well as another sum of Rs. 10,000/- as litigation cost totalling a sum of Rs. 89,150/-.
The O.P. on the other hand contested this case by filing a written version wherein the allegation as brought by the complainant has been denied stating inter alia that complainant never followed the principle on manner to handle the electric machine and as a result of which the said machine was non-functioning and moreover, some electrical defects were there lying in the premises where such machine was installed for which the opposite party is not liable and the case is liable to be dismissed.
Now on the basis of the pleadings of the parties the following issues/ points are fixed for determination:
- Is the case maintainable?
- Has there been any deficiency in service on the part of the O.P. as alleged ?
- Is the complainant entitled to get the relief/ reliefs as prayed for?
::DECISION WITH REASON::
Point No. 1
On evaluation of the evidence of the complainant and that of opposite party in the light of the respective pleadings of the parties we find that the purchase of xerox machine in question by the complainant from O.P. goes undisputed and established by Ext. -1 it is found that xerox machine costs Rs. 59,150/- in total which is well within the pecuniary jurisdiction of this District Forum and the opposite party admittedly deals in business for selling the xerox machine under the name and style PRISTINE also within the territorial jurisdiction of this Forum situated in Malda Town. The complainant has a right cause of action as per Provision of the Consumer Protection Act, 1986 before this Forum against the opposite party. This point is thus disposed of in favour of the complainant.
Point Nos. 2 & 3
Both these points are taken up together for the sake of convenience of discussion, observation and consideration to come to a conclusion.
It is evident from the Ext.-1, as mentioned earlier, that complainant purchased a xerox machine on 26.09.2015 from O.P. on paying Rs. 59,150/- which is further established by Ext. –B, the report of the technician who strived for detecting the problem over the said xerox machine and noted the same on the reverse side of the Ext.-1, the invoice beneath which complainant put his signature with date 17.11.2015. In the affidavit-in-chief complainant reiterated his case. On the other hand O.P.W-1 is the owner of pristine wherefrom xerox machine was purchased and he admitted in cross-examination that his company was informed about the non-functioning of Xerox machine and the company sent to an expert for repairing the xerox machine by removing its defects at the house of the complainant. O.P.W-1 admitted that he has no degree in respect of electrical matters and he also did not visit the place of installation of Xerox Machine at the house of the complainant and thus he has no personal knowledge about any electrical fault in the system of wiring in installation and running of that xerox machine. It is admitted by the O.P.W-1 during cross-examination that he is not the issuing authority of warranty card and thus he has not issued any warranty card with the product (xerox machine). This admission of O.P. justifies the truth of contention of the petition of complainant that he was not given the warranty card at the time of purchase of that Xerox machine. Ext.-B, is a document created by the said expert of the company but in cross-examination O.P.W.-1 categorically stated that said technical expert was not available to depose in this case and he has no capacity to call him as witness. Moreover, from Ext. –B itself which is in handwriting of that technical expert nothing is clearly conceivable. Only it is understood therefrom that Ext.-B that the machine was itself defective. In common thinking it is not taken for granted even beyond stretch of imagination that such a machine within few days of its purchase how become such defective which is not even repairable and this tantamounts to unfair trade practice and deception and fraud upon the complainant palpably done from the part of the O.P. which is no doubt deficiency in service as alleged by complainant with ulterior motive.
The case law as cited and referred by the O.P. side as decided by the Hon’ble National Consumer Disputes Redressal Commission (NCDRC), Circuit Bench at Kolkata, West Bengal in revision petition No. 5021 of 2008 and the principle as enshrined therein is not applicable here in this particular case.
Considering all facts and circumstances we find and are of the considered view that complainant has been successful in establishing that the Xerox machine as was sold to him by O.P. was nothing but a defective one. The point of deficiency in service against the O.P. is thus proved beyond shadow of doubt and as a result of which we have no hesitation to hold that the complainant should be compensated for deficiency of service from the part of the O.P.
All the points are thus disposed of in favour of the complainant / petitioner, hence, petitioner’s case succeeds.
Proper fee paid.
Hence, it is ordered
that Consumer Case No. 88/2015 be and the same is hereby allowed in part on contest against the O.P. with cost.
Complainant do get an award of compensation of Rs. 59,150/- towards the value of the Xerox machine and another sum of Rs. 10,000/- is awarded to the complainant in this case for cost of litigation, totaling a sum of Rs. 69,150/- (Rupees Sixty Nine Thousand One Fifty Only). O.P. is directed to pay the above awarded sum of Rs. 69,150/- by issuing one A/c, payee cheque in favour of the complainant within 30 days from the date of this order, failing which he shall be liable to pay interest @ 9% p.a. from this date until full realization of the awarded amount and petitioner shall be at liberty to put the decree in execution.
Let a copy of this order be given to the petitioner as well as to the opposite party free of cost at once.
