By. Sri. Jose. V. Thannikode, President:-
The complaint is filed Under Section 12 of the Consumer Protection Act 1986 against the opposite party to rectify the defects of the printing machine or to replace and to give cost and compensation by opposite party.
2. Brief of the complaint:- The complainant herein is represented by her husband and they planned to buy a flex printing unit. On enquiries in the related market, the opposite party’s concern was recommended by many and she had contacted them. The price quoted by opposite party for the desired machine was attractive compared with the prices of similar branded available in the market and for the near proximity of service support, placed order with them for delivering a “Magnum 10 feet Printer with 8 heads”, which they agreed to supply for an amount of Rs.7,50,000/- and complainant gave Demand Draft for the same amount and the opposite party delivered the machine to the complainant on 27.07.2010. But the delivered machine had sticker exhibited as “XAASTAR”. When it was noticed to opposite party, opposite party had agreed that the machine supplied was the one ordered by her itself. Because of the frequent complaints, the Managing director as well as the Manager of opposite party's concern had personally visited, the installation and seen the same and were convinced the above complaint. During the panchayath elections held in the month of September, 2010 the complainant had received many orders but was unable to carry out the works due to the malfunctioning of the machine, The machine totally stopped functioning in the month of May, 2011 and unlike on previous occasions wherein the mechanics from opposite party's Kozhikkode unit had been employed, more expert mechanics from Guruvayoor and Ernakulam were sent to rectify the defect. The mechanics had worked for three days on the machine and replaced many of its parts including parts of motor board, cables and sensors. Thereafter for about a week the machine worked properly but again the printing error started and the mechanics suggested for further replacement of parts like main motor. In effect though almost all the parts of the machine supplied was replaced or repaired within a short span of its installation the quality of its performance never increased. It is pertinent to note that the same was happening with a machine supposed to provide self employment and livelihood for a person. The husband of the complainant and her son in laws had appraised the difficulties faced by them to the Managing Director of the opposite party in person in their office at Kozhikkode and there upon he had promised to replace the machine with a fresh one before 10-7-2011. As the opposite party had promised to take back the machine they wanted some repairs to be done to the same before being dismantled and transported which was also allowed by the complainant. The complainant and her family were in constant touch with opposite party regarding the delivery of the new machine and for a good part of the time they were positively responding.
3. As the promised day for delivery of the new machine, the complainant approached the opposite party. Then opposite party’s responses became evasive and on the last occasion they had stated that replacement of the machine is not possible as the warranty period had elapsed and asked my client to carry on with the old machine itself which is still not functional. Then only the complainant realized the malafide intention of opposite party's in buying time for replacement of the machine. The complainant had even removed the Aluminum fabrication of the shop room housing the machine for removing the old machine and making the replacement and the denial of the same from the opposite party was a shock to her. Because of the malfunctioning of the machine she had suffered heavy losses and because of nil returns from the business the loan repayments also have been badly affected. In fact the venture undertaken by the complainant to make a livelihood has turned out to be a night mare. All these had happened because of the inferior quality of the machine supplied by the Opposite party's concern and the concern is directly responsible for the mental agony caused and financial losses incurred by the complainant. Further the Opposite party has meted out corrupt and unfair trade practice on the complainant which is deplorable by any standards and which they are bound to compensate.
4. As it was impossible for the complainant to go ahead with the malfunctioning machine which is her sole source of livelihood and opposite party's refusal to replace the permanently impaired machine as promised is a corrupt trade practice and serious deficiency of service. Because of opposite party’s irresponsible actions the complainant had suffered great mental agony and financial losses which they are liable to make good. Under those circumstances the complainant had caused issuance of a Registered lawyer notice calling upon the Opposite party to deliver and install a new "Magnum 10 feet printer with 8 heads" within fifteen days of receipt of the notice and also pay Rs.2,00,000/- (Rupees Two lakhs only) as compensation to the complainant towards the damages caused due to malfunctioning of the machine, damages caused to the standing and reputation of her concern and also for the mental and physical agonies under went by her. The said notice was received by the opposite party on 4-8-2011 and got issued a reply through their counsel dated 7-9-2011 flatly denying the notice averments. It is most humbly submitted that the facts stated in the reply are not true and denied by this complainant. Because of the malfunctioning of the machine the complainant's works are stopped thereby causing loss in income on that count and on the other side the Credit with the bankers are steeping high.
5. The complainant she is entitled to get the old machine replaced with a new "Magnum 10 feet printer with 8 heads" free of cost. If by any chance the same is not possible for the Opposite party they may be directed to return to the complainant the purchase price of the machine Rs.7,50,000/- (Rupees Seven Lakhs and Fifty thousand only) with interest thereon at 18% per annum from 17-7-2010 till realization. The complainant is also entitled to get an amount of Rs.2,00,000/- (Rupees Two Iakhs only) as compensation towards the damages caused due to malfunctioning of the machine, damages caused to the standing and reputation of her concern and also for the mental and physical agonies under went by her due to the Corrupt trade practices of the Opposite party and Rs. 10,000/- towards the cost of this litigation.
6. Therefore it is most humbly prayed that in the interest of justice this Honorable forum may be pleased to summon the Opposite party hear him and pass an order directing them to get the old machine replaced with a new "Magnum 10 feet printer with 8 heads" free of cost or in the alternative the Opposite party may be directed to return to the complainant the purchase price of the machine Rs.7,50,000/- (Rupees Seven Lakhs and Fifty thousand only) with interest thereon at 18% per annum from 17-7-2010 till realization, direct the opposite party to pay an amount of Rs.2,00,000/- (Rupees Two lakhs only) as compensation towards the damages caused due to malfunctioning of the machine, damages caused to the standing and reputation of complainant's concern and also for the mental and physical agonies under went by her due to the Corrupt trade practices of the Opposite party and Rs. 10,000.00 towards the cost of this litigation otherwise the complainant will be put to great losses and hardships.
7. Notice was served to opposite party and version filed on 12.02.2012 stating that the above complaint is not maintainable either on law or on true facts of the case and is liable to be dismissed inlimine. The complainant has no right or locus standi to file the above complaint against this opposite party. There is no cause of action as against this opposite party. The husband of the complainant filed the above complaint without proper authority to represent the complainant. Hence he has no locus standi to file the above complaint and is liable to be dismissed on that ground alone. Further the complainant is not a consumer as defined under the consumer protection Act.
8. Without prejudice to the above contentions this opposite party denies all allegations and averments in the above case except those that are specifically admitted here under. It is true that the Complainant purchased a flex printing machine from the opposite party as alleged in the complaint. This Opposite party is the dealer of the imported flex printing machine and was supplied to many of the customers in Wayanad District and all over the state of Kerala. opposite party supplied the machine as agreed and was installed properly. The machine supplied to the complainant is in conformity to the order placed by her. The allegation in paragraph 3 of the complaint that her order was for the machine Magnum and one supplied to her is XAASTAR is not correct. XAASTAR is the name of the foreign company which manufacture the machine and the same is marketing under the brand name of the opposite party Magnum. Hence both the stickers will be there in on the machine. The further allegations in the complaint such as the printing result were not satisfactory, having no clarity and there were frequent printing error etc are all false and baseless. There is no printing error and the quality and clarity of the print were in conformity with the specifications. The allegations contra are all false and baseless. It is true that the periodical service were done by the technicians of the opposite party. The allegation that functioning of the machine were not improved even after several service also false and baseless. The further allegation that there are frequent printing errors and because of lack of printing clarity the complainant lost many printing orders etc are also false and baseless and is here by denied by the opposite party.
9. All allegations and averments in paragraph 4 of the complaint are false and baseless and is stoutly denied by the opposite party. There was no frequent complaint to the machine as alleged in the complaint and there was no occasion to visit the Manager or Managing director to visit the concern in connection with any complaint. There was no occasion to stop the work due to any complaint to the machine. Except the normal periodical maintenance no complaint reported to the machine as alleged in the complaint. The allegation that almost all part of the machine were replaced etc are all false and baseless and all such allegations are ill motivated. There was no occasion to have a discussion with the complainant or way of his representative by the managing director of the opposite party as alleged in Paragraph 5 of the complaint. The further allegation in the complaint that the Managing director of the opposite party had promised to replace the machine with a fresh one on or before 10-07-2011 etc are all false and baseless and is here by denied by the opposite party. The malafide intension of the complainant can be revealed from the said version. There was no reason occasion to make any such offer. All averments and allegations in paragraph 6 and 7 of the complaint also denied by this opposite party as the same are false and baseless.
10. The Opposite party provided free service to the complainant during the warranty period. The attempt of the complainant is to get a new machine after the warranty period. The complainant is not entitled for any relief as prayed in the complaint. Being a sophisticated electronic machine, the Machine supplied by the opposite party is expected to install in an Air Conditioned Room and the operator should be a qualified person. The power supply to the unit also proper. The voltage variation will also make complaints. Proper motor also to be used Operating the machine by a person having no technical knowledge and experience may cause technical errors. The complainant has not installed the machine in A/C room and allowed to operate the same by persons having no technical knowledge. There for on many occasions the machine shows technical errors. On all such occasions the technicians of OP provided immediate help to correct the same. Most of the periodical service were done in late night without making obstruction to the work as requested by the complainant. Even now the machine is working smoothly. By suppressing all these facts the complainant approached this honorable Forum with false and baseless allegations with ulterior motive. Being an electronic printer it requires periodical maintenance which not due to the defect of the machine. The complainant conveniently suppressed the facts that the unit is still functioning properly. The printing quality and function of the machine is still in conformity with the specifications.
11. There is no deficiency of service, negligence or unfair trade practice on the part of this opposite party. There is no merit or bonafides in the above complaint and is intended to harass the opposite party. Therefore the complainant is not entitled for any relieves as prayed for. At the same time the complainant is liable to pay compensatory cost to this opposite party for unnecessarily dragging into litigations.
12. Complainant filed proof affidavit and stated as stated in the complaint and examined as PW1 and Exts.A1 to A5 is marked. Ext.A1 is the Quotation given by the opposite party to the complainant in which description of the printer is mentioned as Magnum 10 feet Printer Quotation-1 and amount Rs.7,50,000/- and warranty; one year warranty from the date of purchase. Ext.A2 is the confirmation of delivery of machinery in terms of agreement given by complainant to North Malabar Gramin Bank, Mananthavady Branch dated 13.07.2010. Ext.A3 is the Job sheet dated 11.11.2010 prepared by opposite party for complainant’s machinery, wherein customer’s complaint column it is written as “Machine Not Working and also noted that within warranty period YES”. Parts replaced is 24V, 6A SMPS and service attended time 3.00 PM service finished time 5.30 PM and the complainant signed noting “Not satisfied”. Ext.A4 is the Lawyer Notice issued for complainant to the opposite party by Advocate C. K. Santhosh and Vinu Mohan, where in mentioned almost as in the complaint. Ext.A5 is the Reply Notice for Ext.A4 wherein, denied all the allegations of the complainant. Ext.C1 and Ext.B1 is also marked on 22.05.2013. Ext.C1 is the Commissioner Report filed by the Commissioner Wherein it is stated as “During the inspection, only Four numbers of print Head are found. The M/s Supplied Eight Nos of 360x360 dpi Xaar print heads as per quotation details and bank details, The missing ones may be removed by technicians, may be during servicing or repair. Facility for eight head is available in the head assembly. The Automatic Features of this machine like, advanced cleaning system, automatic rolling, ink filling ,reverse ,etc is not properly installed or not working. The machine is delivered to the parties on 13-07-2010 as per the document given to the bank. The Complainant provided 6 Nos of job sheets(copies). Job No.028, 013, 023, 207,217 and 372. From these documents, it is revealed that the first complaint is 4 months after installation. At that time, a part SMPS is replaced. Other job sheets showed complaints such as - Head complaint, head and Long cable complaint, color spreading, conveyor belt problem, head half firing, vacuum switch and printing complaint etc, All occurred during the warranty period itself. The M/s replaced the following parts- Long cable 5nos,Head 2 nos. The M/s Nitch provided 07 nos of job sheets( copies). Job.no.183,251,217,287,349, 300 and 372. The M/s replaced parts-MS42 driver l Nos, X motor and cables ,during warranty period. Some parts - SMPS, Firing board - which were replaced by the M/s, appeared as not new/ not same type of parts in the machine and some appeared as used or old parts X-motor, Printed circuit board (on the board a date 04-12-2000 is found to be written by somebody). The printouts and wasted flex shown during inspection had print errors and clarity and sharpness problem, may be due to print head and alignment errors and due to long cable problem”.
13. As per the Conclusion Report, the Commissioner concluded that “The Installation certificate, the supplied machine's detailed specification and user manual is not produced by the parties. Hence the condition of the machine at the time of installation, and accessories supplied by the suppliers and the correct specification of the supplied machine is not known. A new fresh and costly machine installed by a supplier, had more than 10 complaints against its working or running, during its warranty period. This shows that the machine is malfunctioning during the warranty period itself. The M/s replaced many main parts of the machine during the warranty period but still it is found malfunctioning and the printouts are not up to the satisfaction of the complainants or clients. The complaints are found to be repeating. Since this is a costly and delicate machine the problem may be due to some manufacturing errors or defect of the product and that is not yet completely rectified by the suppliers. Some main automatic features of this machine is not properly working and is done manually by the employees and this may also cause errors in the output”.
14. Ext.B1 is the Cash Receipt issued by the complainant to one Hotel Green Park dated 21.11.2011 for Rs.150/-.
15. On perusal of the complaint, version, affidavits and documents produced by the parties and deposition, Forum raised the following points for consideration:-
- Whether there is any deficiency of service on the part of opposite Party?
- Relief and Cost.
16. Point No.1:- On analyzing the complaint, version, affidavits, documents, deposition and arguments we are in the opinion that the brand name requested by the complainant and supplied by the opposite party is different is not at all a material fact since the complainant not made any protest at the time of installation. But the machine supplied by the opposite party should function properly at least for the warranty period. The documents produced before the Forum shows that the machine start complaint/malfunctioning after the installation of 100 days, and thereafter continuously till one year. In most of all the job sheet is signed by the complainant after endorsing “Not satisfactory”. The bounden duty of the opposite party is to clear all the defects of the machine at a time or taking sufficient time to the tune of full satisfaction of the complainant. But it was not done in any occasion and the Job sheet shows that, smps is replaced, Head complaint, Head and long cable complaint, colour spreading, converyor belt problem, head half firing vacuum switch and printing complaint, replaced parts MSS2 driver 1 Nos, X Motor and cables, this shows that the complainant could not use the machine continuously. In the conclusion the commissioner reported that “The machine is malfunctioning during the warranty period but still it is found malfunctioning and the printouts are not up to the satisfaction of the complainant or clients. The complaints are found to be repeating. Since this is a costly and delicate machine the problem may be due to some manufacturing errors or defect of the product and that is not yet completely rectified by the suppliers”. The opposite party has filed objection to the Commissioner Report is not sustainable since the opposite party can very well request for an Expert Commissioner at their choice who is having a technical knowhow about the machine and after the commissioner’s report also the opposite party can very well take steps to take out a commission if this commissioner having less knowledge or experience. More over if the opposite party have such contention that the machine should be installed in an Air conditioned room, and the operator should be a qualified person the power supply to the unit should also proper the voltage variation will make complaint the proper motor also to be used and operator should be having a technical knowledge and experience, it could have intimated to the complainant in writing early on any occasion of his repair or their periodical services but it was not done and the opposite party not objected the job sheet also.
17. In the cross-examination of Commissioner he deposed that “at the time of inspection the complainant not allowed the opposite party to operate the machine, since the machine is complaint”. In the re-examination he deposed that “at the time of inspection opposite party was not ready to operate the machine as on that condition but was ready to show the operation after repair”. If the opposite party was ready to show the operation of the machine, the opposite party can very well take a steps before the Forum to show the operation with the help of their technicians in the presence of a commissioner.
18. In the observations made above we came into a conclusion that the supply of a costly machine which is not even working properly for six months and not curing the defects of the machine if any within warranty period is a gross deficiency of service from the part of opposite party and complainant is entitled for the loss sustained to him and opposite party is liable to compensate the same. The Point No.1 is found accordingly.
19. Point No.2:- Since the Forum found gross deficiency from the side of opposite party, he is liable to replace the machine with new one or to refund the value of the machine ie Rs.7,50,000/- to the complainant with a compensation of Rs.25,000/- and Rs.10,000/- as cost of the proceedings to the complainant. In either case the complainant is directed to return back the disputed machine to the opposite party. The Point No.2 is decided accordingly.
In the result the complaint is partly allowed and the opposite party is directed to replace the old machine with a new one or to refund the value of the machine Rs.7,50,000/- (Rupees Seven Lakhs and Fifty Thousand Only) with a compensation of Rs.25,000/- (Rupees Twenty Five Thousand Only) and Rs.10,000/- (Rupees Ten Thousand Only) as cost of this proceedings to the complainant. In either case the complainant is directed to return back the disputed machine to the opposite party. This Order must be complied by both the parties within one month from the date of receipt of this Order. Thereafter the complainant is entitled for an interest at the rate of 12% for the whole amount.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 30th day of July 2014.
Date of Filing:29.11.2011.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the Complainant
PW1. Sunil Kumar. Flex Printing.
CW1. Hareendran Ullatitil. Lecturer, Government Poly Technic,
Meenangadi.
Witness for the opposite Party
OPW1. Muhammadali. Business.
Exhibits for the Complainant:-
A1. Quotation.
A2. Copy of Confirmation of Delivery of Machinery. Dt:13.07.2010.
A3(Series). Job Sheet(6 Nos).
A4. Lawyer Notice. Dt:25.07.2011.
A5. Reply Notice. Dt:07.09.2011.
C1. Commissioner Report.
Exhibits for the Opposite Party
B1. Cash Receipt. Dt:21.11.2011.
Sd/-
PRESIDENT, CDRF, WAYANAD.
