Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.310/24.08.2016
(old CC. No. 203 /13.07.2015)
Smt. Kaushalya Soni wife of Late Narootam Soni
Prop. M/s. Aastha Assaying & Hallmarking Centre
1733, 3rd Floor, Dariba Kalan, Chandni Chowk,
Delhi-110006 …Complainant
Versus
M/s Quantum Equipment Co. Ltd.
302/2214, Chanana Complex, Hardhian Singh Road,
Karol Bagh, New Delhi-110005.
Head Office: 301, Rajshree Plaza, Opp: Shreyas Cinema,
L.B.S. Marg, Ghatkopar (W), Mumbai-400086, India ...Opposite Party
Date of filing: 13.07.2015
[new Institution on: 24.08.2016]
Date of Order: 13.07.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Inder Jeet Singh, President
ORDER
1.1. (Introduction to dispute of parties) – The complainant had purchased Laser Diode Module Kit with Power Supply #S/N 27299 [Laser Compact M/c (Laser Marker) bearing serial no. LAG-27299-01] and Karat-meter ORA SUPER (Metal Spectrometer Measuring Head with High Resolution Detector & Installation Accessories) for a sum of 10,20,000/- including 2% CST {i.e. Rs.5,00,000/-+ Rs.5,00,000/-+ CST Rs.20,000/-}. The machine was not working properly and it seems to be having manufacturing defects in its Laser Head Port. The complainant handed over that machine for repairing (herein after referred as machine) to OP's head office at Mumbai under advices/ instructions. The OP failed to repair it, despite it was within warranty period and the said LHP/machine was kept by the OP for repairs and it was never returned after repairing. There is deficiency of services and unfair trade practice.
1.2. Whereas, the OP opposed the complaint that neither there was warranty period existing, when defects was pointed out nor there is any deficiency of services or unfair trade practice, since the machine was brought at Mumbai by the complainant for getting it repaired from the manufacturer in Italy, it was sent there for repairs at the cost of complainant. The complainant was informed of repaired machinery was ready for delivery, subject to payment of repair charges, which complainant failed to pay.
1.3 It is relevant to mention that earlier, there was an ex-parte final order dated 13.10.2015 (in CC No. 203/2015 being the original complaint number assigned to the complaint) presuming OP was served with notice and the Hon’ble State Commission Delhi set aside that ex-parte final order by holding that there service of notice was not establishing from record. That is why there is affidavit of ex-parte evidence.
However, after commencement of the proceedings again, the present complaint was assigned CC. No. 310/2016, while permitting the OP to join the proceeding, then reply was filed by the OP and it was followed by evidence of both sides. Thus all material will be considered for adjudication of the complaint.
2.1. (Case of complainant) – The complainant purchased the aforementioned machines against invoices no. QECL/12-13-126 dated 16.10.2012 (its copy is at page-15 of paper book). The said equipment/machine was under warranty of period of two years w.e.f. 16.10.2012 to 16.10.2014. During the use of machine, it was not working properly. There appears to be manufacturing defects in its laser head ports, the default was informed to OP at its branch office/address of Delhi. The concerned official of OP issued a letter dated 12.08.2014 on the letter head of OP under signature (letter is at page-16 of paper book) and handed it over to the complainant with advise to take the faulty equipment at their head office in Mumbai, with further advise it will be repaired at head office because of technical reason and the machine was under warranty. Immediately on 13.12.2014, without any delay, the complainant took the equipment at OP’s office in Mumbai at her expenses via air flight and bearing bearing loading and unloading charges. The equipment was handed over to the office at Mumbai, the complainant was asked to wait at least one day to locate the fault in machinery, thus on 14.08.2014, the complainant visited the office again and then it was advised that machine will be repaired and repaired machine will be given nearby 30.08.2014 (the letter dated 14.08.2014 and remarks of OP at Mumbai are at page-17 of paper book)
2.2. The complainant has been contacting the OP at its branch in Delhi on 30.08.2014 but OP sought more time to get the job done because of technical issue. However, the complainant has been running from pillar to post to get her machinery back in good running condition but all efforts went futile. The conduct of OP is apparent, they have not rendered proper and necessary services despite the machinery was within warranty period of two years from the date of purchase on 16.10.2012, which also find mentioned in the OP’s letter dated 12.08.2014 (at page-16 of the paper book).
2.3. Since complainant has not received repaired machine from the OP till date, she is suffering business loss despite the OP had given in writing under acknowledgment on 14.08.2014 that the repairing of machine will be given nearby 30.08.2014 as per discussion with the management, they did not strict to their own words. The complainant was constrained to send legal notice dated 29.01.2015 (at page 18-22) through her advocate, which was served on the OP but its reply (at page 23-27, 27A) is totally false and concocted while denying its liability. The complainant is 'consumer' within the meaning of Consumer Protection Act and she lost her income for want of availability of that machinery. That is why the complaint against OP to return repaired machinery, or in alternate for return price of that machine of Rs.5,10,000/- (being Rs. 5,00,000/- of price of that machine and Rs. 10,000/- as CST), apart from losses of Rs. 50,000/- per day and complainant claims such losses of Rs. 10,00,000/- besides costs of Rs. 25,000/-. The complaint is within limitation. The branch office of OP is situated in Karol Bagh New Delhi as such the present Consumer Forum/Commission has jurisdiction to try it.
3.1 (Case of OP)- The OP opposed the complaint that complainant had purchased the machine for business purposes and to earn profit, therefore, the complainant is not covered under the Consumer Protect Act, 1986. The District Consumer Forum lacks the territorial jurisdiction since the transaction took place between the complainant and OP at Mumbai. The OP is working for gain having registered office at Mumbai vis-à-vis the complainant admits that she has gone to Mumbai to handover the machine there. There is no deficiency of service or unfair trade practice.
The said machine was installed on 30.08.2012 and invoice bill was raised on 16.10.2012 after payment. The warranty period was for one year from the date of installation and it expired on 29.08.2013. Otherwise, when the machine was installed on 30.08.2012, it was tested Ok (i.e. all right) and it was also working properly in good condition (its report is at page 14 of paper book of OP). The complaint is mala-fide.
3.2.The OP denies the allegations of complaint as well as the machine was functioning properly during warranty period from 30.08.2012 to 29.08.2013, the complainant never raised any issue of manufacturing defect in the equipment during that period of warranty. In order to help the complainant, the OP called machine from complainant on 13.08.2014 and it was sent to manufacturer Lasit based in Italy and repair was to be done at the expenses of complainant, which she had agreed upon. The machine was got repaired from manufacturer in Italy at her cost but she failed to pay the repairing charges, for which email dated 21.12.2014 (at page 15) was sent to complainant. The complainant failed to performed her obligations and complaint was filed in order to extort money.
3.3. The OP denies that letter dated 12.08.2014 was issued by OP. It is forged and fabricated letter. The equipment/machine was not under warranty period of two years but it was for one year. Thus complaint is not maintainable and it is liable to be dismissed.
4. (Replication of complainant) – The complainant filed detailed replication and she reaffirms the complaint as correct. She also denies allegations of the written statement. Briefly, the machine/equipment was taken to Mumbai on advise and letter issued by OP from its branch in Delhi. The warranty period was of two years to be commenced from the date of purchased 16.10.2012. The complainant denies that machines was installed on 30.08.2012. The complainant had purchased the machine for own earning. she is consumer, she is covered and protected by Consumer Protect Act, 1986. The letters issued were by the OP, neither the same are forged nor fabricated. The complaint is bona-fide and she denies allegations to extort money under the complaint.
5.1. (Evidence)- The complainant led her evidence by filing her detailed affidavit, while relying upon the documents already filed with the complaint.
5.2. The OP led evidence by filing of affidavit of Dr. Bharat Bhushan, Regional Manager of OP and it is replica with document of written statement.
6. (Final hearing)- The complainant and the OP filed their respective written arguments. In addition Ms. Kanika Sawhney, Advocate for complainant made the oral submissions but OP failed to utilise the opportunity granted for making oral submissions. However, the case of both the parties will be considered on the basis of material on record.
7.1 (Findings)- The contentions of both the sides are considered, keeping in view the material available on record either in the form of pleadings or evidence (documentary and narrative ). It is also apparent from the case of both sides that many issues have been raised and in order to appreciate them, the same are taken point wise.
7.2.1. (Issue of territorial jurisdiction) - As per case of OP, the District Consumer Fora at Central District, Delhi lacks the jurisdiction as the machine was dealt and produced for repair at head office at Mumbai, that is why the jurisdiction of Mumbai is made out. Whereas, according to complainant, the branch of OPs located in Karol Bagh, New Delhi, which is within the area of Central District, Delhi. The present Consumer Fora/Commission has jurisdiction to try the complaint.
7.2.2. The answer of this issue is in the record itself. Firstly, the OP does not dispute its branch office at Karol Bagh, New Delhi. Secondly, paragraph 13 of the complaint also mentions that branch office of the OP is in Karol Bagh, which is not denied specially in paragraph 13 of written statement. Moreover, the, complaint can be filed in the District Consumer Forum, in whose area branch of OP is situated, as per section 11 (2) (a) of the Consumer Protection Act, 1986. Therefore, present Consumer Forum/Commission has jurisdiction to try the complaint since branch of OP is located in Central District, Delhi . This issue is decided against the OP.
There are both arrangement in the Act 1986 that jurisdiction of Consumer Forum can be invoked on the basis of branch or registered office of OP or on the basis of place where cause of action has arisen, the complainant has invoked the former option.
7.3.1. (Whether complainant is consumer?) - The complainant asserts that she is consumer, she suffered losses for want of repaired machine available to earn livelihood. But OP contends that machine was purchased for commercial activities, thus she is not a consumer. There is no more elaboration by the parties.
7.3.2. The documentary record and pleadings are enough to determine this issue. The complainant is proprietor of the firm, the machine purchased was as end user for earning livelihood and the complainant also estimates losses suffered. Thus, complainant is a 'consumer'. This issue is determined in favour of complainant and against the OP.
7.4.1 (reg. warranty period of machine)- According to complainant the warranty is two years from the date of purchase of machine on 16.10.2012 and it is upto 15.10.2014, which was also mentioned in the letter dated 12.08.2014 issued by the OP. Whereas, according to OP the warranty period was for one year from the date of installation of machine on 30.08.2012, as installed as per customer service report and in the letter of interest (LOI) the period of warranty was 12 months. The other rival plea is with regard genuine of letters being relied upon by the complainant. Both issues are inter-mingled, they are being taken together.
7.4.2. The OP has proved letter of intent (LOI) dated 19.07.2012 addressed to Mr. Narottam in respect of a machine worth of Rs.5,40,000/- apart from other expenses. This LOI was valid upto period of 30 days from the date of 29.07.2012. To say, the LOI upto 28.08.2012. The machine was installed on 30.08.2012, meaning thereby it was after lapse of date 28.08.2012 of LOI. On the other side, the tax invoice is of 16.10.2012 when two machines of Rs.5,00,000/- each [total amount is of Rs. 10,20,000/-] was purchased. A letter dated 12.08.2014 has been proved by the complainant, specifically mentions warranty period of two years from the date of purchased. The machine in question was purchased on 16.10.2012 against tax invoice. Moreover, this letter also communicates that the machine requiring repairs is still under warranty. This letter of 12.08.2014 is on the letter head of OP.
The OP has not led any evidence as to how the letter dated 12.08.2014 is forged and fabricated, when the letter is on its letter head bearing company seal and signature of OP. Therefore, the circumstances are establishing plea of the complainant that warranty period was two years from the date of purchased i.e. tax invoice dated 16.10.2012 and not for a period of one year from the date of installation.
7.5.1 (Repairs of machine)- According to complainant, the machine was handed over to OP at its head office in Mumbai after recommendation letter by OP’s office of Delhi. Whereas, according to OP the repairs sought was beyond warranty period and repairs was at the cost of complainant, for which she had consented to bear the repair charges. The repairs were got done from manufacturer in Italy.
7.5.2. It needs to relook at the documentary record. It is already held that there was warranty period of two years from 16.10.2012 to 15.10.2014. The equipment was brought to OP on 12.08.2014. This date of 12.08.2014, for getting equipment repaired, is within warranty period. The letter dated 12.08.2014 mentions specifically that equipment is still under warranty. Moreover, the Mumbai office took cognizance of equipment in reference to letter issued by office of OP at Delhi. The OP's office at Mumbai advised that the repair will be nearby 30.08.2014, as per discussion with the management. It emerges to aspects, firstly, by mentioning in the letter dated 12.08.2014 that equipment is still under warranty means nothing is to be charged for repairs of equipment, which is reconfirm by remarks in the letter dated 14.08.2014 by head office of OP at Mumbai, that the repairs will be nearby 30.08.2014 as per discussions with management.
Moreover, neither in the reply of OP to legal notice nor in the reply of OP to complaint nor in the evidence of OP, any amount of repairs are mentions to be asked from the complainant. There were number of occasions for the OP to ask the complainant to pay repair charges, if so agreed and the charges were actually payable by complaint, however, it was not asked. There is no material proved by the complainant that the repairs were at the cost of complainant during the warranty period or there was bill of repairs payable by the complainant out of her consent. There is also no record proved by OP showing repairs of equipment was got done from manufacturer in Italy. The OP has refrs email dated 21.12.2014 sent at Therefore, it is held that the circumstance proved by the complainant are in her favour of deficiency of services that despite there was warranty period and the equipment was taken for repairing but it was not returned. Moreover, the equipment was kept by OP and the same was not returned under the garb of repairs charges payable, which have not been proved by OP. It also amounts to unfair trade practice.
7.5.3. Under these circumstances, it is held facts proved are leaning in favour of complainant and she is entitled for relief claimed. The complainant sought machine, in alternate the paid /price of machine of Rs. 5,10,000/-. Since complaint pertains to year 2015, the technology diversifies and there is nothing on record either from the complainant side or from the OP side, about the feasibility of machine or repaired machine to cope with the situation. There may be further off-shoots with regard to satisfaction or non-satisfaction of functioning of machine from both sides, thus any order for machine or repaired machine would involve investment of energy, efforts and then to explore more avenues. Therefore, it is appropriate under these peculiar circumstances to order for payment of Rs.5,10,000/- in lieu of return of price of machine. The complainant is held entitled for amount of Rs.5,10,000/-from OP.
7.6.1. The complainant has sought interest @ 20% pa, however, considering facts & features of case as well as complainant was deprived of her machine, interest @ 8% pa would be justified for both ends; the interest will be from the date of complaint till realization of amount against the OP.
7.6.2. The complainant also claims amount of Rs. 10,00,000/- on account of losses suffered by her for want of availability of repaired machine, however, losses are not component under the Consumer Protection Act, therefore, this request of complainant is declined.
7.6.3 The complainant has also sought damages of Rs.50,000/- towards harassment, mental pain and agony. By considering totality of circumstances of case of both sides, that complainant had not been available the machine to earn her livelihood and it aggravated her agony, therefore, compensation are quantified as Rs 25,000/- apart from cost of litigation of Rs.10,000/-in her favour and against the OP.
7.6.4. Accordingly, the complaint is allowed in favour of complainant and against the OP to pay Rs. 5,10,000/- along-with simple interest @ 8% pa from the date of complaint till realization of amount; apart from to pay damages of Rs.25,000/- & costs of Rs.10,000/- to complainant.
OP is also directed to pay the amount within 30 days from the date of receipt of this order. In case amount is not paid within 30 days from the date of receipt of order, the interest will be 10% per annum on assured sum of Rs. 5,10,000/-.
8. Announced on this 13th July, 2023 [आषाढ़ 22, साका 1945].
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [Inder Jeet Singh]
Member President
