JUDGMENT 5.10.2010 Justice Pritam Pal, President 1. This appeal by complainant is directed against the order dated 12.3.2010 passed by District Consumer Forum-I, U.T. Chandigarh whereby its complaint bearing No.1316 of 2010 was dismissed and it (complainant) was directed to pay Rs.5000/- to OPs towards litigation charges. 2. In nutshell, the facts as set out in the complaint are that the complainant was running the business of printing, advertising, publicity, branding, interior and exterior designing and in order to increase the quality and efficiency of printing, it purchased one HP Design jet 8000 printer from OP-1 on 16.4.2009 for Rs.6,96,000/-, out of which Rs.90,000/- were paid in advance and Rs.3,50,000/- were paid through cheque . The complainant had also given four post dated cheques for Rs.62,225/- each. After one month, the complainant noticed that there was some problem of fading in the printer which was brought to the notice of OPs but they did not bother to rectify the same despite many requests. However, OP No.1 asked the complainant to clear his cheques. The complainant then gave two cheques replacing the earlier cheque but still OPs took no steps to rectify the defects. Hence, alleging deficiency in service and unfair trade practice on the part of OPs, complainant filed complaint before the District Forum. 3. On the other hand, OP-1 contested the complaint before the District Forum by filing reply inter-alia stating therein that the complainant was running a commercial business and as such was not a ‘consumer’ under the Consumer Protection Act. All its four post dated cheques of Rs.64,225/- were bounced and thereafter it was asked to replace the same and still the fourth post dated cheque of Rs.64,225/- dated 12.8.2009 remained unencashed on account of insufficient funds and it was liable to pay the said amount of Rs.64,225/- and Rs.21476/- on account of ink purchased by the complainant and in order to avoid the said payment it had filed the complaint. It was pleaded that till the filing of the complaint before the District Forum, no complaint with regard to the alleged problem was received by OPs. The printer of the complainant had already consumed 22987 ml of ink and more than 4754 feet of material had been printed within seven months as it was being used for commercial purposes on large scale. Complainant had agreed to purchase the ink on payment but he did not make payment of ink. 4. OP-2 also filed reply before the District Forum raising the same objection that the complainant was running a commercial business and, therefore, was not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act. OP NO.2 admitted to have received complaints from the complainant regarding various defects and stated that most of them were resolved by replacing and servicing the unit to the satisfaction of the complainant. It was pleaded that there was no deficiency in service on its part and a prayer was made for dismissal of the complaint. 5. The District Consumer Forum after going through the evidence and hearing the counsel for parties came to the conclusion that the complainant had concealed material facts regarding the dishonouring of cheques and non-payment of the ink charges and there was no merit in the complaint. Accordingly the complaint was dismissed with costs of Rs.5000/- . This is how feeling aggrieved, complainant has come up in this appeal. 6. We have heard learned counsel for the parties and gone through the file carefully. The main point of arguments raised on behalf of the appellant/complainant was that the printer was under one year warranty and the non-payment of postdated cheques was not related with the warranty/machine performance. It was also submitted that complainant had specifically stated in the complaint as well as rejoinder that he would clear the payment but the learned District Forum had not considered this aspect whereas the printer required major repairs as its four heads out of six heads had already been changed and even the PCA which was the main part of the printer had also been changed, so it required replacement. However, learned counsel for OPs repelled the aforesaid arguments . 7. At the very outset, we would like to mention here that as the learned District Forum has rightly considered the point of commercial transaction and held the complaint maintainable within the purview of Consumer Protection Act, so we do not want to dilate upon the said aspect. So far as payment of the price of printer is concerned, it is admitted case of the complainant that certain amount was due from it. It was mentioned in para-6 of the complaint that all the amounts payable by it had been cleared and only a sum of Rs.64,225/- was left to be paid by it. However, a perusal of the file shows that the cheque of Rs.64,225/- dated 12.05.2009 was dishonored for want of sufficient funds and the second cheque dated 12.06.2009 was replaced by the complainant and the third cheque dated 12.07.2009 was also dishonored for insufficient funds. The last cheque dated 12.08.2009 also could not be cleared for want of funds. The complainant then issued two cheques one for Rs.34,225/- dated 30.08.2009 and the other for Rs.30,000/- dated 4.09.2009 but both these cheques again bounced on account of insufficient funds and still remained unpaid. Further, an amount of Rs.21476/- on account of payment of ink which was purchased by complainant from OP No.1 remains unpaid. In this manner, the complainant was defaulter in making payment of the printer whose replacement is being sought. 8 It is pertinent to mention here that the machine was purchased on 16.04.2009 and it was installed on 17.04.2009. The learned District Forum observed that the documents annexures C-4 to C-6 produced by the complainant alongwith rejoinder proved that the machine was in working condition. As regards Annexure C-7 to C-12, these related to the period after institution of the complaint and all these complaints were also attended to properly and the defects were removed by OPs. Further, it was mentioned in para- 5 of the reply of OPs that the complainant had already consumed 22987 ml of ink and more than 4754 feet of material had been printed within short period of seven months. The complainant is admittedly running his business with the help of this machine and its use on large scale proves that the machine was in working condition and complaints of the complainant were being attended to. Moreover, there is no expert evidence produced by the complainant to prove that the machine was having inherent manufacturing defect which could not be rectified. Thus, the District Forum rightly observed that complainant could avail service with regard to the machine in question from OPs under the warranty by making payment of outstanding amounts. However, keeping in view the peculiar circumstances of the case, we exonerate complainant from making payment of Rs.5000/- to OPs towards the litigation charges as awarded by the District Forum. 9. In the result, impugned order dated 12.3.2010 is modified as indicated above and appeal is hereby dismissed , leaving the parties to bear their own costs. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | , | |
