By Sri. Jose. V. Thannikode, President:
The complaint filed under section 12 of the Consumer Protection Act to refund the value of the machine and cost and compensation due to deficiency of service and unfair trade practice by the Opposite Parties.
2. Brief of the complaint:- On 16.03.2012 the Complainant booked for a THOSHIBA E 2040C Multifunctional Digital Color System after giving an advance amount of Rs.1,00,000/- which is supplying by 1st Opposite party and for which copy contract is giving by 2nd Opposite Party. After that on 22.03.2012 the Complainant paid the balance of amount of Rs.1,96,514/- as per invoice No.KBS 681 to the Opposite parties and thereafter on 30.03.2012 the said machine is installed by the staff of 2nd Opposite party in the shop of the Complainant.
3. When the Complainant given the order, the 1st Opposite Party assured the Complainant that the copy contract will be given to A3 and A4 photo copies. That is the only reason why the Complainant booked, purchased and installed the machine in her institution. But at the time of installation the 2nd Opposite party's staff categorically stated that copy contract will not be given for A4 photocopies. So the Complainant contacted the 1st Opposite party and requested to solve this the issue and further requested to give copy of contract for A4 photocopy also.
4. Since the Opposite parties violated the terms, which is given by the 1st Opposite party at the time of order the Complainant contacted the 1st Opposite Party and demanded to solve the issues or to take back the machine, otherwise great financial loss may cause to the Complainant. So one staff of the 1st Opposite party came to the Complainant's office and understood the latches of Opposite Parties and given an undertaking with a letter on 27.05.2012 to take back the machine. So the Complainant taken the machine and kept the machine in the 2nd Opposite Party's office. On the same day the 1st Opposite party assured to Complainant that the value of the machine and losses will be paid to the Complainant very soon, but even today the Opposite Parties are not complied assurance. This act of the Opposite Parties are unfair trade practice. Thereafter the Complainant send a lawyer notice to the 2nd Opposite Party demanding to solve the issue on 04.07.2012, but instead of solving the issues they had send reply stating false allegations, and not solved the issues. Hence Complainant prayed before the Forum to direct the Opposite Parties to refund the value of the machine with 12% interest and Rs.1,00,000/- as compensation.
5. Notice were served send to Opposite parties and Opposite parties filed version. In the version, 1st Opposite Party denied all the allegation stated in the complaint and further stated that at the time of giving quotation itself all the terms and conditions of the copy of contract is clearly mentioned in the quotation and as per that condition only the machine was ordered and purchased.
6. He further stated that after few days of installation the Complainant told the 1st Opposite Party that he is not getting the business what he expected and requested to take back the machine in a lower price or else requested to give copy contract for A4 photocopy also as such as A3 photocopy. 1st Opposite Party replied that, after consulting with the 2nd Opposite party information will be given, but 2nd Opposite party not agreed for same. Hence the 1st Opposite Party prayed before the Forum to dismiss the complaint with compensatory cost to this 1st Opposite Party.
7. In the version, 2nd Opposite Party stated that the present complaint is false, frivolous, vexatious and blatant abuse of the process of the Hon'ble Forum and this is liable to dismissed. That the present complaint does not disclose any cause of action against replaying opposite party No.2 and this Opposite party unnecessarily arrayed before the Hon'ble Forum by the Complainant. The Complainant has absolutely no cause of action to sue against this Opposite party No.2. This opposite Party being an unnecessary party at this stage. The Complainant is liable to pay compensation to this Opposite party having unnecessary dragged in to Hon'ble Forum. The averment in para 1 to 3 the complaint not concerned with this Opposite party and therefore no comments are made by this Opposite party. It is admitted that this opposite Party has installed the machine to the premises of the complaint only as per the sale intimation/ directions by the Opposite Party No.1. This Opposite Party is ready and willing to make cure any mechanical defect to the machine within the warranty period because we know the technical know how about the installation of the machine. It is specifically denied by this Opposite party No.2. We are not entered with any copy contract with the Complainant in connection with this machine. This Opposite party not yet take back the machine from the Complainant till this date.
8. From the side of Complainant he filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and from the side of Complainant PW2, PW3 were also examined and Exts.A1 toA6 is marked. From the side of Opposite Parties 1st Opposite Party filed proof affidavit and stated as stated in his version, from the side of 3rd Opposite party no oral evidence is adduced. From the side of 1st Opposite Party. He is examined as OPW1 and Ext.B1 is marked with objection and Ext.B2 also marked. Ext.A1 is the invoice No.KBS681 issued by the 1st Opposite Party to the Complainant which shows the total value for Toshiba E Studio 2040C is Rs.2,85,000/-. Ext.A2 is the installation notice supplied by the 2nd Opposite party to the Complainant. Ext.A3 is a letter given by one Shinto George addressing nobody and it is disputed by the Opposite parties in the evidence and further submitted that it is a forged one with adjustment with that Shinto George. But in the letter it seems that the 1st Opposite party is ready to accept the machine with full satisfaction on 27.05.2012. Ext.A4 is the letter issued by one Shinto George to the Priyamol stating that the machine is accepted, for Kaligraph Business Systems. Ext.A5 series is the lawyer notice and postal receipt and which is issued by the Complainant's counsel to Advocate Mr. Vasan. Ext.A6 series is the Acknowledgment cards for Ext.A5. Ext.B1 is the quotation given by the 1st Opposite party to the Complainant's husband dated 09.03.2012 in which the terms and condition is stated as follows.
a. The price quoted for the configuration would be inclusive of all taxes.
b. The installation and training would be provided free of cost.
c. The payment has to be made 100% in advance in the form of Demand Draft.
d. The delivery of the machine would be done within 4-6 weeks of receiving 100%
advance and purchase order
e. The site condition for installation has to be inspected and approved by local HCL
Engineer before installation.
f. Warranty-
Option 1:- One year. (Excluding consumables)
Option 2:- Comprehensive Service Maintenance Contract (CSMC): Day one CSMC by HCL Infosystems Ltd., would cover the supply of all spares & consumables excluding Paper, Staple pins, Glue & Breakage of outer plastic parts/glass platen. The CSMC starts from the date of installation of the machine. The CSMC rate per impression would be Rs.9.0+taxes for A3color & Rs.0.80 +taxes for A3 B/W. Banner print would be charged as two prints. All applicable taxes for the CSMC would be charged extra as applicable.
g. Offer validity: 30 days
h. Please feel free to contact us for any clarification.
9. Ext. B2 is the reply to lawyer notice (ie Ext.A5) where in, it is stated that “Opposite Party No.1 is ready to comply all the conditions as per the quotation dated 09.03.2012 and also requested the Complainant to take back the machine, which is kept by the Complainant in the 2nd Opposite Party's Office”.
10. On perusal of complaint, version, documents and evidence the forum raised the following issues for considerations.
1. Is there any deficiency in service from the part of Opposite parties?
2. Relief and cost.
11. Point No.1:- In the complaint itself the Complainant stated that the copy contract is to be given by the 2nd Opposite Party. And in the Complainant itself the Complainant stated that such offer is made by the 1st Opposite Party. If the Complainant knows that the copy contract is to be given by the 2nd Opposite Party he could have insist the 2nd Opposite Party to assure the copy contract at the time of order and even at the time of installation. But the Complainant itself stated in the complaint that the 2nd Opposite party not ready to give copy contract for A4 photocopy at the time of installation. So if the Complainant not ready with this condition, the Complainant could not allow the 2nd Opposite Party to install the machine. More over the Complainant's witness ie PW2 deposed before the Forum that the “Thoshiba's quotation received and order placed, because it seems good and the conditions of the quotation is acceptable”. “My case is that
the 1st Opposite party is not complied the conditions in the quotation. The invoice is given as per the quotation” Question by the Opposite Party. “Is there any reason for not to producing the quotation containing the conditions before the Forum. Answer :- All the documents were given to my counsel. I understand that the said quotation is a vita documents in this case”.
Question:- Why that quotation is not producing before the Forum?
Answer - Next time will produce and further deposed that “The quotation given to me is now in the Akshaya center” (ie the institution of the Complainant) “PW1 also deposed that the vital document in this case is the quotation”. But 1st Opposite party produced the quotation and it is marked as Ext.B1 with objection. Since the Complainant not produced the quotation the Forum considered the Ext.B1 quotation. The terms and conditions of the quotation is as follows.
a. The price quoted for the configuration would be inclusive of all taxes.
b. The installation and training would be provided free of cost.
c. The payment has to be made 100% in advance in the form of Demand Draft.
d. The delivery of the machine would be done within 4-6 weeks of receiving 100%
advance and purchase order
e. The site condition for installation has to be inspected and approved by local HCL
Engineer before installation.
f. Warranty-
Option 1:- One year. (Excluding consumables)
Option 2:- Comprehensive Service Maintenance Contract (CSMC): Day one CSMC by HCL Infosystems Ltd., would cover the supply of all spares & consumables excluding Paper, Staple pins, Glue & Breakage of outer plastic parts/glass platen. The CSMC starts from the date of installation of the machine. The CSMC rate per impression would be Rs.9.0+taxes for A3color & Rs.0.80 +taxes for A3 B/W. Banner print would be charged as two prints. All applicable taxes for the CSMC would be charged extra as applicable.
g. Offer validity: 30 days
h. Please feel free to contact us for any clarification.
12. The main allegation of the Complaint in this case is that non compliance of the terms and conditions of the quotation by the Opposite Parties. Since the vital documents is in the complainant's custody and not producing it before the Forum is doubtful.
13. And as about the document Ext.A3 it is also not believable since it is not
addressed to anybody and the letter Head KALIGRAGH in both Ext.A3 and B1 is not matching and seals in the Ext.A3 and Ext.A1 is also not same.
14. Hence we are in the opinion that the Complainant failed to prove his case beyond doubt. The point No.1 is found accordingly.
15. Point No.2:- Since the point No.1 is found against the Complainant. No
question of relief and cost.
In the result the complaint is dismissed no order as to cost.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 28th day of February 2015.
Date of Filing:14.11.2012.
PRESIDENT: Sd/- MEMBER : Sd/-
MEMBER : Sd/-
/True copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:
PW1 Priya Complainant.
PW2. Suresh Babu Conducting Akshaya Centre.
PW3. Roy John Business.
Witness for the Opposite Parties:
OPW1. Biju Joseph Business.
Exhibits for the complainant:
A1. Invoice No.KBS 681 dt:22.03.2012.
A2. Installation Note.
A3. Letter. dt:27.05.2012.
A4. Letter. dt:28.05.2012.
A5 series (3 in Nos) Letter and Postal Receipts.
A6 series(2 in Nos) Acknowledgment
Exhibits for the opposite Parties.
B1. Quotation given by 1st Opposite Party.
B2(1) Copy of Lawyer Notice. dt:11.08.2012.
B2(2) Postal Receipt. dt:13.08.2012.
