DATE OF FILING- 02.01.2010 DATE OF DISPOSAL-27.05.2014
O R D E R
Dr. N.Tuna Sahu, Member
1. The above named complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in service against Opposite Parties (for short O.Ps.).
2. The brief facts of the complainant’s case are that he purchased a Cannon copier machine bearing model No.D-680 from the O.P.No.1 by inviting bid/call for his official purpose on payment of Rs.90,484 through cheque on dated 31.3.2004. The said machine was being used under the custodial control of complainant for official use which became defective in the month of January 2009. The complainant called the service provider i.e. the O.P.No.1 forthwith to inspect the same and the O.P.No.1 inspected the machine in the premises of the complainant on 18.2.2009. It is also stated that the complainant as per the advice of O.P.No.1 shifted the machine to the service centre of O.P. No.1 and obtained a acknowledgment receipt from the service provider on the same date. It is also alleged that the O.P.No.1 on frequent approaches of the complainant suggested him to refer the case to Bhubaneswar Service Centre after retained with him from 18.2.2009 to 27.6.2009. The O.P.No.1 also addressed the complainant through a letter demanding Rs.12,000/- towards changing of mother board of the said machine. The O.P.No.1 retained the machine for a long period without any action for repairing hence the complainant approached the manufacturer i.e. O.P. No.2 through a registered letter and claimed to deliver the machine in intact manner on 31.7.2009 explaining the unfortunate dealing with the O.P.No.1 but the O.P.No.2 again dishonoured the request of the complainant and did not prefer to reply. The complainant again sent a reminder letter to the O.P.No.2 on 23.11.2009 but that was also not replied. As a result, the complainant sent an advocate’s notice to the O.Ps on 9.12.2009 but that also did not reap any result. It is also stated in the complainant the O.P.No.2 in his letter dated 11.08.2009 and 3.12.2009 has mentioned that the O.P.No.1 is not his authorized agent. Thus, the intentions of both O.Ps are to shifting responsibility and to avoid their liability. The O.P.No.1 falsely assured to the complainant to set right the machine but he did not do so which amounts to unfair and deceptive trade practice. Under the complains mentioned above, the complainant prays before this Forum that the O.Ps are jointly liable to refund the money as paid or to replace the copier by a defect free copier machine at their own cost and to pay a sum of Rs.1 lakh towards compensation due to irreparable loss and mental agony suffered for frequent harassment and negligence and to provide other relief as deems fit along with cost of the litigation in the interest of justice.
3. Notice was issued against the O.Ps and on receipt of the notice the O.Ps appeared before this Forum through their learned advocates respectively. The O.P.No.1 appeared before this Forum on 12.3.2010 through his learned Advocate Sri Nilakantha Das and Associates, Berhampur. The O.P.No.1 did not file his written version within the statutory period as a result set as exparte on 25.10.2010. However, the O.P.No.1 filed his written version/statement on 11.4.2011 with set aside petition which was allowed on 23.11.2011. Similarly the O.P.No.2 appeared before this Forum on 9.4.2010 through his learned counsel Sri Sriharsha Prasad Dash, Advocate, Berhampur, and filed his written statement on 3.11.2010. The O.P. No.1 did not prefer to file written argument in spite several opportunities allowed to him. The complainant filed his written argument on 18.4.2013 and the O.P.No.2 filed his written argument on 7.9.2011.
The O.P.No.1 in his written version/submissions stated that the allegations made in the complaint are not all true and the complainant is put to strict proof of such allegations which are specifically not admitted hereunder. It is submitted that the complainant College had purchased the alleged machine from the O.P.No.1 when the O.P. No.1 was the authorized dealer of O.P.No.2, but when the above machine went out of order by that time the O.P.No.1 was not their authorized dealer as the company has withdrawn and appointed some other farm as their authorized dealer. So the scope of the O.P. No.1 was limited to provide service to the complainant college. It was also noticed by the company to the complainant which is evident from the letter dated 11.8.2009. However, as a good gesture, the O.P.No.1 rendered service to the complainant at his level best and advised the complainant to make direct correspondence with the company for redressal of their grievance. Since, there was no role to play in settlement of the claim; the O.P.No.1 should not be alleged for deficiency in service or for non-settlement or delay in settlement of any free services as claimed. It is, therefore, humbly prayed that the Hon’ble Forum may be kind enough to delete the name of the O.P.No.1 from the complaint.
The O.P. No.2 in his written statement/argument stated that the O.P.No.2 never approached the complainant for selling copier machine in question and it was purchased by the complainant from O.P.No.1 after his complete satisfaction with the specifications and conditions of copier machine. Admittedly there was not complaint of whatsoever nature in the copier machine at the time of its purchase on 31.3.2004 and for approximately after 5 years the complaint was made in the year 2009 and this fact evidently establishes that the copier machine was not having any manufacturing defect. It is also stated that the complainant was provided a warranty of 3 months or 50,000 copies whichever is earlier upon the purchase of the copier and the warranty given by the O.P. No.1 had also expired as on the date of first complain during January 2009. It is further contended that there was no contract between the complainant and the O.P.No.2 for purchase or maintenance and since the complainant has used the copier machine approximately for 5 years there is no manufacturing defect and the complainant is not entitled for any claim from O.P.No.2. It is also argued that the O.P. No.1 was ceased to be the dealer of O.P.No.2 after the year 2005. However, on receipt of a complaint from the complainant, the O.P.No.2 vide its letter dated 11.8.2009 and 03.12.2009 requested the complainant to contact its authorized Service Centre at Bhubaneswar for necessary repair and also confirmed that the O.P.No.1 was not its authorized dealer as on that date. The complainant has never visited the Authorized Service Centre of O.P.No.2 hence there is no question of deficiency in service. It is further contended that the relationship between the O.P.No.1 and the O.P.No.2 was on principal to principal basis till 2005 and thereafter the O.P. No.2 has no relationship whatsoever nature with the O.P.No.1 and as such no liability can be fastened upon the O.P. No.2 for any alleged acts of the O.P.No.1. The complaint is based on false and misconceived allegations and the complainant deliberately concealed true and correct facts since the copier in question performed its function for 5 years after its purchase which evidently proves that the same is not suffering from any manufacturing defect. It is a well settled principle of law that ‘no one should be allowed to take advantage of his own wrong’. The present complaint is filed in clear defiance of the above principle of law as the complainant has neither given the machine to O.P.No.2 nor its authorized service centre for any service before filing the instant complaint despite being requested to contact the authorized service centre by the O.P.No.2. In support of his contention the O.P.No.2 has also cited a number of decisions in the cases like Bimal Prasshad Jain Vs. Chairman, Haryana State Electricity Board reported in 1993 CPC 407 (Haryana), Solidaire India Limited Vs. D.A. Mohan Kumar [I (1992) CPJ 177)] and Videocon International Limited Vs. K. Vijayan [1990(1) CPR 20]. Relying on the aforesaid decisions, in his contention it is contended that a defect in product cannot be determined without proper test by an expert and further no justification can be given in holding that there is defect in product without any expert evidence. So it is a clear abuse of process of law and the complaint is not maintainable against this O.P. No.2 and may be dismissed with cost in the interest of justice.
4. On the date of final hearing we heard the rival arguments of learned counsel for the complainant as well as for the O.P.No.2 and gone through the complain petition, written arguments and perused the case record and verified the documents placed in the case record. The O.P.No.1 was absent on repeated calls on the date of final hearing of the consumer dispute and he has even not filed his written argument despite several opportunities given to him.
On perusal of the case record and the documents placed before us, it is found that the complainant purchased the Cannon Copier Machine bearing Model No.D-680 from the O.P.No.1 vide his quotation dated 22.3.2004 placed in the case record as Annexure-A on payment of Rs.90,484/- vide money receipt bearing No.1 dated 31.3.2004. It is also a fact on record that the said amount was sanctioned in favour of the College by the University Grants Commission (UGC) towards purchase of equipments. The Cannon Copier was purchased through open invitation of quotations from six firms and Cannon was qualified for supplying the copier on the basis of lowest quoted price. On further perusal of the case record and after verification of the documents like quotation and the terms and conditions of the supply of the Cannon copier it is found that the warranty of the Cannon Copier was for 3 months or 50,000 copies which is earlier. As per the complaint, the Cannon copier was became defective in the Month of January 2009 and complain of the defective Copier was attended by the O.P. No.1 on 18.2.2009. On the suggestion of O.P.No.1, the complainant carried the copier to the service centre of O.P.No.1 which was received by him on the same day i.e. on 18.2.2009 through a letter of acknowledgement. It is also a fact on record that the O.P.No.1 remained silent for a long period and on 27.6.2009 through a letter informed the complainant to replace the mother board to remove/ rectify the Cannon copier. However, the learned counsel for the complainant during the course of argument of the case, vehemently argued that both O.P.No.1 and 2 are jointly and severally liable to replace the copier since O.P.No.1 is the dealer of O.P.No.2 and it is established from Annexure-A,B & C placed in the case record. It is also contended by the learned counsel for the complainant that O.P.No.2 has dented the efficacy of their own business affair and internal administration and it is an admitted fact that the O.P.No.1 is the authorized dealer of O.P.No.2 as is evident from para -1 of the written version submitted by O.P.No.1 but it is contended by O.P. No.2 that it was subsequently withdrawn which is not true. The additional amount demanded by O.P.No.1 to meet the expenditure for rectifying the defect is an unfair trade practice and deficiency in service. It is also contended that the O.P. No.2 in spite of repeated letters and advocate notice did not take any steps to rectify the cannon copier which amounts to deficiency in service on his part which is not disputed and denied. The question of law of limitation as raised by the O.P.No.2 is a misconceive one to compute the cause of action, as it is an admitted fact that the said defective machine is in the custody of O.P.No.1 as causes non-delivery of the same unlawfully being aware of the same by the O.P.No.2 who had not taken any step in this respect and moreover fully accommodated to support his fault by means of unreasonable manner to throw dust upon other as free from all encumbrance and due discharge of his liabilities by shifting his fault, while he has never speak of any assurance for the reconciliation of the matter, shown as unreasonable plea that the dealership of the O.P.No.1 is cut-down, however, the onus of proof lies upon them to produce credible and documentary support to defend his case. The learned counsel in support of his arguments also cited a number of decisions to strengthen his case like M/s Kores India Ltd Vs. Bhaskar Patra & Another: 100 (2005), CLT-9 (CDC), Brundaban Maharana Vrs. M/s Bharat Motors limited Corp. & Others : 101 (2006), CLT 43(CDC), The Post Master, Head Post Office, Puri & Another Vrs. Panchanan Panigrahi: 102 (2006) CLT, 15(CDC), Godrej General Appliance Ltd. Bhubaneswar Vrs. Amitav Pani: 101 (2006)CLT 34(CDC) and in the case of B.R. Sarkar Vrs.R.K.Choudhury : 2012(I) OLR(CSR) 513 etc and prayed to strictly evaluate the merit of the case and to pass order in the best interest of justice.
In reply to the above arguments of the learned counsel for the complainant, the learned counsel for the O.P.No.2 vehemently argued that all the arguments of the advocate for the complainant are directed towards O.P.No.1 since the Cannon copier was purchased from O.P.No.1. The copier was purchased during 2004 and defect was found during 2009, hence the warranty period was over since the warranty of the copier was for 3 months or 50,000 copies. No Annual Maintenance Contract (AMC) was made either with O.P.No.1 or O.P.No.2. It is also submitted that O.P. No.1 is not the authorized service centre of O.P.No.2 and ORICON System Pvt. Ltd, 84 Jharpada, Bhubaneswar, was the authorized service centre of O.P.No.2 and the defects of the copier were not within the knowledge of O.P.No.2. It is not possible or feasible for company to communicate all dealers that the dealership was cancelled. Moreover, O.P.No.2 is not aware about deficiency in service by O.P.No.1 and the machine was used for commercial purpose. So, the O.P.No.1 is not liable for any deficiency in service by O.P.No.1 since O.P.No.1 is not dealer of O.P.No.2. The learned counsel for the O.P.No.1 was absent on the date of final hearing and he has also not filed his written argument.
5. We have perused the above pleadings of the learned counsels for the complainant and as well as for O.P.No.2. We have also verified the documents on record like quotation, money receipt, terms and conditions of warranty, acknowledgement receipt of copier issued by O.P.No.1 and other documents relied on by the complainant as well as O.Ps in this dispute. On perusal of the case record, it is evident that the copier was purchased from O.P.No.1 on 31.03.2004 on payment of Rs.90,484/- which is beyond doubt or dispute as discussed above. It is also found that the copier was becomes defect during 2009 and O.P.No.1 received the copier from the complainant on 18.02.2009 for repairing and kept silence for a long period and informed the complainant for replacement of mother board of the copier machine on 27.6.2009. It is also found that the warranty period of the said copier was over since the warranty was for 3 months or 50,000 copies. There was no proof of extended warranty obtained by the complainant either from O.P.No.1 or O.P.No.2. In the light of the above discussions and taking into account to the above facts of the case and on merit of the case, in our considered view, the warranty of the Cannon copier was over on the date of defect of the cannon copier i.e. during January 2009 as noticed by the complainant. The O.P.No.1 received the Cannon copier for repairing from the complainant on 18.02.2009 as evident from the acknowledgment receipt issued by the O.P. No.1 placed in the case record as Annexure-B. However, the O.P. No.1 retained the copier up to 27.6.2009 and delayed repairing of the same without any action and informed the matter to the complainant on the said date. It is also a fact on record that when the complainant was informed about repairing of the copier on payment of Rs.11,000/-, the complainant did not respond to the same. However, on careful perusal of the case record, it has also come to our notice that the Cannon copier which was received by O.P.No.1 on 18.2.2009 for repairing yet to return to the complainant. It is illegal to keep the copier with O.P.No.1 till today without undertaking repairing work thereon. The same could have returned to the complainant with proper receipt from the petitioner. This fact is also evident from the written version of O.P.No.1 since he has not mentioned anything about return of the Cannon copier to the complainant and remained silent on it. Hence, in our considered view, the O.P.No.1 is liable to return the Cannon copier to the complainant in the condition it was received from the petitioner without any delay, since the complainant miserably failed to prove that the copier was defective during the warranty period. It is also beyond doubt that the warranty period of the Cannon copier was over when the copier becomes defective and there is nothing on record to prove that the complainant was availed extended warranty from O.P. No.1 or 2. So the O.P.No.1 and 2 are not liable to repair the Cannon copier free of cost. But, the O.P. No.1 neglected to return the Cannon copier to the complainant and forced him to file a consumer dispute against him to return the same. So, the O.P.No.1 is liable to pay the cost of the litigation to the complainant since the complainant has hired the professional services of an advocate to fight his case. Under these peculiar circumstances of the case, we feel that it is just and proper to award a moderate amount towards litigation cost to be paid by O.P.No.1 to the complainant. On further careful perusal of case record and verification of the documents placed on record, it is also found that there is no deficiency in service on part of O.P.No.2 in this consumer dispute. Hence, the O.P.No.2 is exempted from any liability whatsoever alleged against him by the complainant, since the complainant failed to prove that there was manufacturing defect in the Cannon copier.
In a sequel to the above discussions and in the light of the documentary evidence placed on the case record as well as taking into account to the peculiar fact and circumstance of the case, in our considered view the O.P. No.1 is liable to return the Cannon copier to the complainant in the condition it was received from the petitioner. Since, the complainant failed to prove his case against O.P.No.2, so the case against O.P. No.2 is dismissed due to devoid of any merit.
6. In the result, we partially allowed the case of the complainant against O.P.No.1 and dismiss against O.P.No.2. The O.P.No.1 is directed to return the Cannon copier to the complainant in the same condition it was received by him within two months of receipt of this order. The O.P.No.1 is also directed to pay a modest amount of Rs.3,000/- to the complainant towards cost of the litigation within the same period failing which the O.P.No.1 shall be prosecuted under the relevant Sections of Consumer Protection Act, 1986. The case is disposed of accordingly.
The order is dictated and corrected by me on this 27th May 2014 and the copy of the order to be supplied to the parties free of cost as per rule.
(Dr. N. Tuna Sahu) Member
I Agree (Mrs. Minati Pradhan)
Lady Member
