DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 166 of 21.06.2007<br /> Decided on : 17-08-2007 <br /> <br /> Gurvinder Singh S/o Gurdev Singh, V.P.O.Mehma Sarja, District.Bathinda.<br /> <br /> ... Complainant<br /> Versus<br /> Sattayam Computer, Amrik Singh Road, Backside Annapurna Mandir, Near Gole Diggi, District Bathinda.<br /> ... Opposite party<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Complainant in person.<br /> For the Opposite party : Sh. Sanjay Goyal, Advocate.<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT <br /> 1. Instant one is a complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') which has been preferred by the complainant seeking direction from this forum to the opposite party to pay him Rs. 4.00 Lacs for business loss.<br /> 2. Version of the complainant lies in the narrow compass as under :-<br /> 3. On 15.7.06 one Inkjet printer 1000 was purchased by him from the opposite party for a consideration of Rs. 2100/-. It was of inferior quality and was not functioning well. He came to contact the dealer from where it was purchased but he was not there. He tried to contact him on telephone given in the bill issued for sale of printer, but to no effect. He again tried that number and succeeded in contacting the dealer. Fault in printer was that its waste ink absorber/tank was full of waste ink and required cleaning. For that purpose, he came to the opposite party on 29.5.07 at a new place i.e. Amrik Singh Road, Near Gole Diggi, Backside Annapurna Mandir, Bathinda. Complaint was registered by the opposite party through its concerned person in the register. He (complainant) was assured that printer would be put in order and that this was a normal fault, under the terms of warranty. Allegation of the complainant is that printer was not set right from 29.5.07 to 2.6.07. He was being harassed. Functioning of the printer was disturbed. He could not set it right from anywhere else because its cost of repair was more than its purchase price.<br /> 4. On being put to notice, opposite party filed its reply through its partner Sh. Bhupesh Tangri taking legal objections that complainant has got no cause of action; he has not approached this forum with clean hands; complaint is false and frivolous; it is bad for non-joinder of manufacturer of printer i.e. M/s. Cannon India Private Limited and it has not been impleaded through proper person. On merits, it admits that printer was purchased by the complainant from it. Inter-alia its plea is that it has shifted its business from Kikar Bazar, Bathinda to Amrik Singh Road, Bathinda. A notice was displayed at the shop situated in Kikar Bazar, Bathinda where it was previously working. Shop has now been shifted at Amrik Singh Road, Backside Temple of Annapurna Temple. Had complainant ever visited the old shop, he might have come to know the shifting of the shop by it. Had he come, the neighbours must have told him about the new address. Moreover, it did not change its telephone number. Hence, complainant could contact it on telephone and enquire about the new address. Whole story has been concocted just to file the complaint. Complainant had contacted on 29.5.07 with printer and complaint was regarding waste ink absorber. He was told that printer would be checked by mechanic and he should collect it later on. It was checked by the mechanic who had observed that he (complainant) was using compatible ink instead of genuine canon ink. Hence he violated the terms and conditions of the warranty. Compatible ink is water based while ink of canon India Private Limited is oil based. Due to use of compatible ink, the waste ink absorber was not absorbing the waste ink. Waste ink tank was cleaned. Defect was removed. This fact was told to the complainant when he had come to collect the printer on 2.6.07. Moreover, warranty is provided by the manufacturer which has not been impleaded. Exaggerated claim has been made which itself exposes the bogus nature of the complaint. It denies the remaining averments in the complaint.<br /> 5. In support of his averments in the complaint, complainant has produced in evidence his affidavit (Ex. C-1), photocopy of visiting card (Ex.C-2), photocopies of prescription slips (Ex. C-3 to Ex. C-7), another affidavit of complainant (Ex. C-8), affidavit of Smt. Charanjit Kaur (Ex. C-9), affidavit of Miss. Tripatpal Kaur (Ex. C-10), affidavit of Sh. Kulwant Singh (Ex. C-11), photocopy of retail invoice dated 3.3.07 (Ex. C-12 ) and photocopy of retail invoice dated 15.7.06 (Ex. C-13).<br /> 6. In rebuttal, on behalf of the opposite party affidavit of Sh. Bhupesh Tangri, Partner (Ex. R-1), photocopy of one page of register (Ex. R-2) and photocopy of Warranty Terms and Conditions (Ex. R-3) have been tendered in evidence.<br /> 7. We have heard the complainant in person and learned counsel for the opposite parties. Besides this, we have gone through the record and written briefs of arguments submitted by the complainant and on behalf of the opposite party.<br /> 8. Some are the undisputed facts in this case. They are that complainant had purchased one Inkjet printer from the opposite party vide retail invoice dated 15.7.06 copy of which is Ex. C-13. It was brought to the opposite party on 29.5.07 and was admittedly received by the complainant on 2.6.07.<br /> 9. Arguments of the complainant are that his printer was accepted by the opposite party to clean is absorber and instead of returning it after two hours, He was asked to take it back after four days. His printer was tested in his presence and it was not working properly. Concerned person of the opposite party started quarreling with him. Printer was totally disturbed. Now its repair would be more than that of its price. He was using good ink for Inkjet printer for which bill copy of which is Ex. C-12 has been placed on record. Opposite party is accepting that warranty is provided by the manufacturer under the terms and conditions. He had dealings with the opposite party only and not with the manufacturer. He further submitted that complaint is not false and frivolous. On the basis of technical ground as well, opposite party is wrong doer. To substantiate his version he drew our attention to his affidavits Ex. C-1, Ex. C-8 and the affidavits Ex. C-9 to Ex. C-11 of Smt. Charanjit Kaur, Miss. Tripatpal Kaur and Sh. Kulwant Singh respectively.<br /> 10. Learned counsel for the opposite party argued that complaint is frivolous and meritless. There is no deficiency in service on the part of the opposite party. Complaint is bad for non-joinder of M/s. Canon India Private Limited. Complainant has not approached this forum with clean hands. He further argued that waste ink tank was cleaned and defect was removed. Complainant had come to collect the printer on 2.6.07 and it was delivered.<br /> 11. We have given our thoughtful consideration to the rival arguments.<br /> 12. One of the allegations raised by the opposite party is that manufacturer of printer namely Canon India Private Limited has not been impleaded as party and as such, complaint is not maintainable.<br /> 13. No relief has been claimed against the manufacturer. Admittedly printer was purchased from the opposite party. Complainant is the master of its complaint. He cannot be compelled to fight against a person against whom he does not want to fight. Moreover non-joinder or mis-joinder of parties cannot be made a ground for dismissal of complaint. For this, we are fortified by the observations of their Lordships of the Hon'ble Supreme Court in the case of Smt. Savita Garg Vs. Director National Heart Institute 2004(2) CPC 675.<br /> 14. Burden to prove the deficiency in service is upon the person who alleges it. In this view of the matter, we get support from the observations of their Lordships of the Hon'ble Apex Court in the case of Ravneet Singh Bagga Vs. K L M Dutch Airlines and Another 2000(1) CLT 233.<br /> 15. Question for determination is as to whether complainant has succeeded in proving deficiency in service on the part of the opposite party. We are constrained to remark that complainant is not happily worded. Complainant has himself placed on record prescription slips Ex. C-3 to Ex. C-7 from which it appears that he had some psychiatrist problem. As per version in the complaint waste ink absorber was full and required cleaning. This cannot be said to be a fault or defect in the printer. Complainant has made chart of the printer in his affidavit Ex. C-8 and has mentioned in it that when its waste ink tank is full with waste ink, printer instructs the operator in writing on its PC window that “your waste ink absorber is full of waste ink to clean contact the nearest authorised dealer or off printing and try again”. Complainant has further stated in his affidavit that it was normal fault to be removed by dealer under warranty terms. As per copy of the warranty terms and conditions Ex. R-3 standard warranty period is of one year on Inkjet Printer. Accordingly, complainant brought Inkjet printer to the opposite party on 29.5.07. After doing the needful, it was returned to the complainant as is evident from affidavit Ex. R-1. Affidavit Ex. C-1 & Ex.C-8 regarding alleged deficiency in service on the part of the opposite party stand amply rebutted with the affidavit Ex. R-1. No weight can be attached to Ex. C-9 of Smt. Charanjit Kaur, according to which printer has not been returned to her son after repair. Although complainant in his arguments has conceded that it was returned to him but in disturbed condition. Contents of the affidavits Ex. C-10 & Ex. C-11 are beyond pleadings of the complainant. In affidavit Ex. C-10 Miss Tripatpal Kaur states that dealer had agreed to clean the Absorber and return it within two hours. In the affidavit Ex. C-11 Sh. Kulwant Singh states that dealer had quarrelled after four days. These facts do not find mention in the complaint. No amount of evidence can be considered if it is beyond pleadings. Complainant alleges that opposite party disturbed the printer and he could not put it into order from anywhere else because its cost of repair is more than that of its price. Complainant did not get the printer examined from the expert to show nature of the problem in it. In the absence of expert evidence, bald affidavits of the complainant cannot fetch significance. Moreover, this version of the complainant is falsified from the fact that he has placed on record copy of bill Ex. C-12 according to which printer ink was purchased by him on 3.3.07. Neither in his affidavit nor in his complaint, he has mentioned that he has any other printer for which ink was purchased by him on 3.3.07. Hence the inference is that ink on 3.3.07 was purchased by him for his computer accessory of which is printer in question as well. In case printer was disturbed as argued by the complainant and was given in this condition on 2.6.07, question of purchasing ink on 3.3.07 did not arise as ink was purchased for running the printer. As per affidavit Ex. C-8, complainant was called by the dealer/opposite party after four days on telephone to take back the printer. This shows that opposite party was not negligent and was cautious enough to handover the printer to the complainant. Complainant admits that dealer had kept the record of printer in its register. Copy of one of the register is Ex. R-2 according to which printer of the complainant was received on 29.5.07. Its ink tank was full and was returned in o.k condition to the complainant on 2.6.07. Complainant has not pleaded and proved that there is defect is the printer which has not been rectified by the opposite party during the warranty period. Had their been pleading about specific defect in the printer and that defect would not have been rectified within the warranty period, deficiency in service could be considered . Evidence to this effect is lacking. Allegation of the complainant that opposite party disturbed his printer and he could not get it set right because it cost of repair is more than its price, has not gone beyond the stage of allegation.<br /> 16. Totality of the facts, circumstances and evidence discussed above, lead us to no other conclusion than the one that deficiency in service on the part of the opposite party is not proved. Moreover, complainant in his affidavits as well as in the written arguments claims damages on account of loss to his business. In our view compensation for business loss cannot be allowed by the Fora For this, we are supported by the observations of the Hon'ble National Commission in the case of Gauri Shanker Dokania & Company Vs. Ministry of Finance and others I(1992) CPJ 228 (NC). Similar view has been held by the Hon'ble State Commission of Uttranchal in the case of Bharat Sanchar Nigam Limited Vs. Rajesh 2004(1) CPC 505.<br /> 17. In the result, complaint being meritless is dismissed. Parties are left to bear their own cost. Copy of this order be sent to the parties concerned free of cost and file be consigned. <br /> Pronounced :<br /> 17-08-2007 (Lakhbir Singh )<br /> President<br /> <br /> (Hira Lal Kumar )<br /> Member<br /> <br /> (Dr. Phulinder Preet)<br /> Member<br />