Present    : Smt.Seena H, President

               : Smt. Preetha.G. Nair, Member       

               : Smt. Bhanumathi.A.K, Member         Date of filing: 1/3/2005

                                                          (C.C.No.36/2005)  

M.M.Geetha,

D/o.M.M.Raghavan Nair,

Muthalappara,

Nenmmara Village,

Chittur Taluk,

Palakkad

(Adv.P.Vijayaraghavan)                                           -        Complainant

                                                                     V/s

1.Manager,

  Ambience I Net,

  First Floor,

  Olassery Shopping Complex,

  Chandranagar,

  Palakkad.

(By Adv.K.V.Sujith)

2.Regional Manager,

   Godrej & Boyce Manufacturing Co.Ltd.

   Prima Division No.20,

   Warehousing Centre of G.C.D.A.

   Gandhi Nagar, Kochi – 20.                           -        Opposite parties

 (By Adv.P.K.Mohanan & R.Padmaraj)

  O R D E R

          By  Smt.PREETHA G NAIR, MEMBER

Complainant purchased a photocopy machine from 1^st opposite party. The 2^nd opposite party is the manufacturer of the machine and 1^st opposite party is the supplier of the Photostat machine. She had purchased the Photostat machine by availing a loan from SBT, Nenmmara branch.  The machine was installed on 2/4/2002, soon after the installation of the machine it was brake down frequently. The 1^st opposite party’s man came to the complainant’s shop and repaired the machine. The photocopy machine was breakdown within the  guarantee period. The 1^st opposite party’s man charged the machine within the period due to the frequent machines break down. The complainant sustained a huge loss.  During the first year itself it broke down and subjected to repair. The 1^st opposite party charged for the periodical preventive maintenance during the warranty period. So the complainant has not been provided free service after installation. The complainant stated that she has pledged the property of her mother in a bank for purchasing the machine. The machine was repaired 19 times and on 22/4/2004 there is no response  from 1^st opposite party when called over phone. The act of opposite parties amounts to  deficiency in service. The complainant issued lawyer notice to 1^st and 2^nd opposite parties on 25/5/2004.  Then the 1^st opposite party sent a reply notice dated 17/6/2004 stating false allegations.  Hence the complainant prays an order directing the opposite parties to pay Rs.50,000/- as compensation  with 12% interest from the date of filing of the complaint and pay the cost of the proceedings.

Opposite parties filed version stating the following contentions.

The 1^st opposite party stated that the complainant is not a consumer under the definition.  She has purchased the machine for business purpose to earn profit out of it, and there is not even a whisper in the lawyer notice that it is for self employment. The complainant stated that 1^st opposite party is a supplier of Godrej Photo Copier.  Actually 1^st opposite party is the dealer of Godrej Photo Copier. 1^st opposite party admitted that the complainant has purchased a photocopier and the machine was installed on 2/4/2002.  The warranty for the  machine is for one year  or completion of 50,000 copies which ever is earlier.  It is totally false to allege that during first year itself it broke down and subjected to repairs.  During warranty period nothing was charged by 1^st opposite party for the periodical preventive maintenance. Photocopier being a dust sensitive electro mechanical device requires periodical preventive maintenance  to minimize breakdowns. More over there is no warranty for consumables such as Toner, Optic Unit, Roller, Development Unit, Drum, Plastic spares and other consumables.  It is totally false to allege that the machine in question was not working for the last 5 months, Free service was done by 1^st opposite party on 1/5/02, 23/5/02, 17/7/02, 15/10/02, 1/11/02, 21/01/03 and 25/8/03 and obtained service reports. The warranty period is over since 50,000 copies were over. The reading of the copy of 25/8/03 was 58,428 copies. There is no rate contract or Annual Maintenance Contract  between the complainant and 1^st opposite party. Since 1^st opposite party who changed toner  drum developer charged Rs.6,800/- but the complainant has paid Rs.3,000/- only. After that the complainant has allowed unauthorized persons to service the machine, due to that knob of the toner has broken. Even after the warranty  period and non payment of the dues the 1^st opposite party has extended service to the complainant on 8/4/2003, 4/11/2003, 10/12/03 and 3/5/04. The enhanced breakdown if any caused to the machine may be due to the service done by unauthorized persons.  The alleged non repayment of the bank loan by the complainant is caused not due to any fault of 1^st opposite party. It is false to allege that 19 times the machine was repaired, the difference between repair and service is seems to be unknown to the complainant. The complainant has not even paid the balance of the earlier service of Rs.2,000/- to 1^st opposite party.  It is false to allege that there is no response from 1^st opposite party on 22/4/2004 when called over phone.  On 3/5/2004 also 1^st opposite party’s technician inspected the machine.  There is no deficiency of service on the part of 1^st opposite party.  The technicians are highly qualified and trained.  The liability if any for compensation claimed rests squarely on the 2^nd opposite party.  Hence 1^st opposite party prayed that the complaint may be dismiss with cost.

The 2^nd opposite party stated that the complaint is barred by limitation under section 24 (A) of the Consumer Protection Act. The cause of action for the complaint is the manufacturing defect of the Photostat machine which was purchased on 2/4/2002.  The complainant stated that within one month of installation the machine broke down.  Therefore the cause of action if any has arisen as early as in the year 2002.  Since the complaint is filed only in the year 2005 the same is barred by limitation.  The Photostat machine is purchased for commercial  purpose.  Therefore the complainant is not a consumer as defined under section 2 (d) of Consumer Protection Act. The 2^nd opposite party was never informed of any such repairing done.  The service warranty period is for a period of one year from the date of installation or completion of 50,000 copies which ever is earlier. On enquiry made to the 1^st opposite party, it is informed that the machine never broke down within the warranty period.  It is also informed that no service charge is charged on the complainant during the warranty period for the periodical maintenance service.  The 1^st opposite party informed that an outstanding payment of Rs.2,000/- remains unpaid for more than a year by the complainant.  On receipt of lawyer notice the 1^st opposite party gave a detailed reply on 17/6/04. As 2^nd opposite party has no direct knowledge and also issued a reply after receiving feed back from the 1^st opposite party. No complaint was received by 2^nd opposite party during the warranty period. Hence 2^nd opposite party prayed that the complaint dismiss with cost.

Both parties filed affidavit and documents. Ext.A1 to A26 marked on the side of the complainant.  Ext.B1 to B9 marked on the side of the 1^st opposite party.  Complainant and 1^st opposite party was examined. Commission report marked as Ext.C1. Matter was heard.

Issues to be considered are

1)    Whether complainant is a consumer under the C.P.Act ?

2)    Whether the complaint is barred by limitation ?

3)    Whether there is any deficiency in service on the part of opposite parties ?

4)    If so, what is the relief and cost ?

Issue No.1 & 2

Opposite parties stated that the complainant has purchased the machine for business purpose to earn profit. At the time of cross examination of the complainant deposed that she was running the shop for her livelihood. Complainant has specifically stated that she was using the photo copier machine for her livelihood. At the time of cross examination DW1 himself has deposed that the machine was used for livelihood. Hence the complainant is a consumer.  2^nd opposite party stated that complaint is barred by limitation under section 24 (A) of the Consumer Protection Act.  The complainant stated that within one month of installation the machine broke down and the service man from 1^st opposite party repaired the machine.  1^st opposite party stated that on 5/5/2004 also the machine was serviced.  Ext.B1 to B9 shows that the service man of 1^st opposite party repaired and replaced the parts of machine. Ext.B9 dated 5/5/04 shows that the technician repaired the machine.  So the complaint is filed only in the year 2005 is not barred by limitation.  Hence the 1^st   and 2^nd issue answered in favour of the complainant.

Issue 3 & 4

Admittedly the complainant purchased the photocopier machine from 1^st opposite party and the same was installed on 2/4/02. In Ext.C1 Commissioner stated that the parts in the machine is not up to the specification as set out by the manufacture of such machine by experience  and the machine is in a bad condition. Further the Commissioner stated that drum, developer assembly, harness (full set), heater lamp, exposure lamp, scan motor, main motor and mother board needs to be replaced. The drum developer, heater lamp, exposure lamp and main motor is low quality and did not maintain to any standards of quality. Further Commissioner stated that the machine was kept well covered and the inner parts were found clean and dust free when opened. The 1^st opposite party stated that photocopier being a dust sensitive electromechanical device requires periodical preventive maintenance  to minimize breakdowns.

          The 2^nd opposite party filed I.A.No.282/05 for setting aside the Commission Report and also to appoint a fresh Commissioner to examine the machine.  The I.A. was dismissed and the 2^nd opposite party  filed revision before the Hon’ble State Commission. Then the Hon’ble State Commission  set aside the order and directed to consider the grounds raised in the application filed by the revision petitioner and to pass orders in accordance with law. But the 2^nd opposite party not pressed the I.A.No.282/05 during the pendency of the complaint.  The complainant was examined by opposite parties.  The 1^st opposite party stated that it is seems to be unknown about the difference between service and repair to the complainant.  Ext.B1 to B9 shows the service reports issued by 1^st opposite party. In Ext.B2 the service report dated 23/5/02 mentioned in summary that checked the M/C, Toner Catridge replaced. In Ext.B7 dated 25/3/03 mentioned in summary that cleaned scanner unit, developer changed. In Ext.B9 dated 5/8/04 mentioned in summary that spares to be replaced. In Ext.B1, B3, B4, B5, B6 and Ext.B8 the summary shows cleaned the spares of machine.  Totally the service men of 1^st opposite party repaired and serviced the machine within the warranty period i.e. in Ext.B2 dated 23/5/02 shows toner catridge replaced.   In Ext.A18 dated 25/3/03 shows counter is 58428. The service man of 1^st opposite party has repaired the machine on 22/5/03 and 4/11/03.

The 1^st opposite party  stated that   the complainant has allowed unauthorized persons to service the machine due to that knob of the toner has broken and requested them to do the service.  The 1^st opposite party has not produced evidence to show that the complainant has allowed unauthorized persons to service the machine. At the time of cross examination the 1^st opposite party deposed that machine hm§n¨Xn\ptijw frequent  Bbn tISv hcpIbpw, Fsâ  Company technician t]mbn Service sNbvXv sImSp¯n«pap­v. Black copy hcp¶Xv Machinesâ complaint sIm­pw Voltage fluctuation sIm­pw hcmw. No contradictory evidence was produced by the complainant.

The 2^nd opposite party stated that the  1^st opposite party informed that free service has been provided to the complainant and the reading of the number of copies printed using the machine as on 25/8/2003 was 58,428. No documentary evidence was produced by the opposite parties to show that the reading of the number of copies printed using the machine as on 25/8/2003 was 58,428.  Moreover Ext.B2 dated 23/5/02 shows the toner catridge replaced within  2 months from the date of installation.

The 1^st opposite party stated that there is no warranty for consumables such as toner, optic unit, roller, development unit, drum, plastic spares and other consumables. The 1^st opposite party has not produced the terms and conditions of warranty.  In Ext.A4 mentioned that warranty is 6 months or 50,000 copies which ever is earlier. No terms and conditions of warranty mentioned in Ext.A4.

In Ext.A19 dated 13/2/2003 the 1^st opposite party received Rs.1200/- towards cost of the toner. In Ext.A22 shows purchased toner black for Rs.1200/- On going through the available evidence the opposite parties given the machine has manufacturing defects.  The Commissioner also stated the defects of the machine and the cost of replacing the parts would come an amount  above Rs.50,000/- In Ext.A3 and A5 shows that the complainant has purchased the machine for taking a loan of Rs.1,25,000/- from State Bank of India, pledged the property of her mother. The 2^nd opposite party stated that never informed  them to any such repairing done. The complainant has purchased the machine in the year 2002. The Commissioner stated in the report that the machine has been used 100410 times.  The 2^nd opposite party is the manufacturer and 1^st opposite party is the dealer of the machine. The machine supplied by the opposite parties is a defective  one, which amounts to gross deficiency in service.

In view of the above discussions, we are of the view that there is deficiency in service on the part of opposite parties.  In the result complaint allowed.  We direct both opposite parties jointly and severally liable to pay the complainant an amount of Rs.50,000/- (Rupees Fifty thousand only) as compensation for damage and pay Rs.3,000/- (Rupees Three thousand only) as cost of the proceedings.  Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.

        Pronounced in the open court on this the  7^th day of January  2012

                                                                                Sd/-

Seena.H

President

                                                                                 Sd/-

Preetha G Nair

Member

                                                                                 Sd/-

Bhanumathi.A.K.

Member

                                                APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 – Delivery Chalan No.087 dt.2/4/02 issued by  1^st opposite party to

             complainant

Ext.A2 – Copy of Demand Draft for Rs.1,25,000/-  dtd.26/3/02 favour of 1^st

             opposite party

Ext.A3  – Copy of letter dtd 26/3/02  from SBT, Nemmara  sent to 1^st opposite

              party

Ext.A4 – Copy of Quotation  sent by 1^st opposite party to the complainant

             dtd.16/2/02            

Ext.A5 – Copy of Possession Certificate issued by Nemmara Village Officer

             dt.8/1/02

Ext.A6 – Copy of Service Report   dated 1/5/02

Ext.A7 –  Copy of Service Report   dated 18/5/02

Ext.A8 – Copy of Service Report   dated 24/8/02

Ext.A9 –  Copy of Service Report   dated 21/1/03

Ext.A10 – Copy of Service Report   dated 13/3/03

Ext.A11 – Copy of Service Report   dated 22/5/03

Ext.A12 – Copy of Invoice No.155 dtd.14/7/03 issued by 1^st opposite party

Ext.A13 – Letter dated 3/11/03 issued by 1^st opposite party

Ext.A14 – Copy of Service Report   dated 4/11/03

Ext.A15 – Copy of Service Report   dated 10/12/03

Ext.A16 – Copy of Service Report   dated 06/4/04

Ext.A17 – Copy of call estimation report dated 10/3/04

Ext.A18 – Equipment history card

Ext.A19 – Receipt No.301 dtd.13/2/03 issued by 1^st opposite party

Ext.A20 – Invoice No.06 dtd.22/5/03 issued by 1^st opposite party

Ext.A21 – Call estimation report  dated 13/3/03

Ext.A22 – Invoice No.233 dtd.13/3/03 issued by 1^st opposite party

Ext.A23 – Call estimation report dated 22/4/04

Ext.A24 – Copy of letter dated 29/4/04 sent to 2^nd opposite party by the

              complainant

Ext.A25 – Copy of Lawyer notice dated 25/5/04 sent to opposite parties by

              complainant’s advocate

 Ext.A26 – Reply to lawyer notice to complainant dated 17/6/04 on behalf 1^st

               opposite party

Exhibits marked on the side of the Opposite parties

Ext.B1 –  Service Report of the machine dated 1/5/02

Ext.B2 –  Service Report of the machine dated 23/5/02

Ext.B3 – Service Report of the machine dated 17/7/02

Ext.B4 – Service Report of the machine dated 15/10/02

Ext.B5 – Service Report of the machine dated 1/11/02

Ext.B6 – Service Report of the machine dated 21/1/03

Ext.B7 – Service Report of the machine dated 25/3/03

Ext.B8 – Service Report of the machine dated 8/4/03

Ext.B9 – Service Report of the machine dated 5/5/04

Commission Report

Ext.C1 – Commissioner Report

Complainant examined

PW1 – M.M.Geetha

Opposite party examined

DW1 – Suneesh.R

Cost Allowed

Rs.3,000/- allowed as cost of the proceedings.