BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI Dated this the 27th day of April, 2009
Present: SRI.LAIJU RAMAKRISHNAN PRESIDENT SMT.SHEELA JACOB MEMBER SMT.BINDU SOMAN MEMBER
C.C No.69/2007 Between Complainant : Jessy Mathew W/o Innocent, Ottaplackal House, Ammus Ladies Centre, Opposite Govt. V.H.S.S, Thodupuzha P.O. (By Adv: K.M. Sanu) And Opposite Parties : 1. The Managing Director, Components and Devices, Manikath Chambers, Karimpatta Road, Pallimukku, Kochi-16. (By Adv: Unnikrishnan V) 2. Canon India Pvt. Limited, Neela Gagan Mandi road, Mehruali, New Delhi 40030 (By Adv: V.C Sebastian) O R D E R
SRI.LAIJU RAMAKRISHNAN(PRESDIENT)
The complainant is conducting a Photostat Centre at Thodupuzha in the name and style "Ammus Ladies Centre". The sales Manager of the 1st opposite party named one George approached the complainant and offered a Canon photostat machine for Rs.70,000/- and described that the machine can take 60,000/- copies from one drum unit and 10,000/- copies from one toner. Believing the words of the representative of the 1st opposite party, the complainant purchased the photostat machine from the opposite party. On 02/08/2005 a DD of Rs.70,000/- was given to the opposite party. On 04/08/2005 the staff of the 1st opposite party came to the complainant's shop and fixed a Canon IR 1600(No.F.142100, RSN 22530) in the shop. They also issued bill for Rs.70,000/- , users guide and installation report to the complainant. After one week, on 12/08/2005, the machine became defective. The copies were not clear and the matter was reported to the 1st opposite party. The staff of the 1st opposite party cured the defect with free of cost. After on 14/11/2005, 25/02/2005, 03/07/2006, 22/11/2006 and 2/12/2006, the same complaints were repeated. The opposite party charged Rs.561/- for each repairing. On 16/05/2006 the drum unit was changed and Rs.4,781/- was charged including the service charge for the same. On 2/12/2006 again the drum unit and tonner were changed and the opposite party charged Rs.6861/- including the service charge from the complainant. Again on 10/10/2005, 25/01/2006, 16/05/2006, 16/09/2006, 2/12/2006 and on 12/06/2007, the toner was changed and Rs.2,000/- each paid by the complainant. The complainant has taken only 55,000/- copies from this machine including the defective copies. The major portion of the printed copies were not clear. The machine became fully defective on 13/06/2007 and the matter was informed to the opposite party. But they never turned up for the repair of the same. The complainant revealed that the opposite party supplied a low quality machine to the complainant after giving description of a high quality machine. The complainant purchased the machine by availing PMRY loan for her livelihood. Because of the defect, the loan became due for Rs.22,530/-. The complainant issued notice to the opposite party through his lawyer on 28/06/2007. But the 2nd opposite party even never accepted the same. So the complaint is filed against the unfair trade practice of the opposite party and also for replacement of the defective photostat machine. 2. In the written version filed by the 1st opposite party, it is alleged that this Forum is not having jurisdiction to file this case. The photocopier was delivered to the complainant at Ernakulam and the consideration was also paid at Ernakulam. The photocopier was delivered to the key person of the complainant on 04/08/2005 and payment was received in full on the same day, both took place at Ernakulam. So the cause of action has arised fully at Ernakulam and not within the jurisdiction of this Forum. The installation and maintenance work only form part of the service rendered by the opposite party and there is no way binds the opposite party on the question of jurisdiction. The proforma invoice dated 25/07/2005 was given to the complainant's residence and he paid the consideration by DD at Ernakulam. Nobody from the office of the 1st opposite party approached the complainant to canvas any business nor did the opposite party ever authorize any of its employees for such acts. The complainant is not a consumer as defined in the Consumer Protection Act. The purchase of the machine was not exclusively for the purpose of earning the livelihood of the complainant by means of self employment. There was a sales Manager by name George Varghese for the opposite party. But he left from service in July 2007 and his present where abouts are not known to the 1st opposite party. On 13/08/2005, the customer support Engineer of the opposite party visited the shop of the complainant at about 4 PM and found that the machine was not suffering from any defect. Pertaining to the complaint call dated 14/11/2005 it was attended on 15/11/2005 at 5.45 PM. The machine was cleaned and it was acknowledged as working in good condition by the key person of the complainant as per customer service report dated 15/11/2005. The call by the complainant dated 25/02/2006, it was attended on 27/02/2006 at 1.50 PM and found that the complaint was due to dust complaint. The same had rectified and the machine was working satisfactorily, an amount of Rs.551/- was levied as service charge inclusive of service tax as approved by the key person of the complainant as the warranty period was over. The key person of the complainant has acknowledged the same on the customer service report dated 27/02/2006. Again on 05/07/2006 another complaint was attended and the defect was due to dust and moisture problem, it was rectified, an amount of Rs.551/- was levied inclusive of service tax. With regard to the complaint dated 22/11/2006, it was attended to on 23/11/2006 at 5.15 PM and found that the cartridge had to be changed and copy was not clear due to customer self servicing problem. The problem was rectified by substituting a new cartridge and cleaned the whole machine and an amount of Rs.551/- was levied as service charge. On 2/12/2006 again it was serviced and Rs.6,861/- was charged towards the drum unit, toner, VAT, service charge and service tax was levied. On 17/05/2006 again a service was attended by the 1st opposite party and an amount of Rs.4,781/- was charged from the complainant. The brochure was given to the complainant on 25/07/2005 along with the proforma invoice. The complainant has never demanded replacement of the machine nor did the machine become defective regularly as alleged. There is no deficiency in the part of the 1st opposite party.
The 2nd opposite party filed written version stating that the machine was sold to the complainant by the 1st opposite party who is the dealer of the 2nd opposite party. The relationship between the 1st and 2nd opposite party was on principal to principal basis. 1st opposite party was never an agent of 2nd opposite party. So the 2nd opposite party cannot be held responsible for the promises made by the 1st opposite party. The warranty was provided by the 1st opposite party. The warranty shall be for 50,000 copies or 90 days whichever is earlier, which is written in the proforma invoice itself. The machine was serviced free of cost for 90 days by the 1st opposite party as per the customer service report. The 2nd opposite party is not liable for the warranty exclusively provided by the 1st opposite party. There were no promises made by the 2nd opposite party to the complainant pertaining to the life of the drum of the machine. The 2nd opposite party is not aware if any wrong promises were given by the 1st opposite party and the 2nd opposite party is not liable for the same. The 2nd opposite party is not liable for the alleged misrepresentation if the 1st opposite party. There is no complaint with respect to any manufacturing defect in the machine or any of its parts purchased by the complainant. The machine had already given 22146 copies before the first drum was changed. The standard estimated life of one drum is 21,000 sheets. It is written in the 17th page of "Service guide for Canon copier" that the estimated life of a toner used in the machine is 7,850 sheets. The toners are not the parts of the machine and are the consumables, its replacement depends upon the usage by the customer. The 2nd opposite party is in the business of marketing and trading printers, copiers and multifunction devices through its wide network of dealers and has over the years to say that a company like Canon India Private Limited would ever indulge in such unfair trade practices as alleged by the complainant and the petition may be dismissed.
3. The point for consideration is whether there was any deficiency in service on the part of the opposite party; is so, for what relief the complainant is entitled to?
4. The evidence consists of the oral testimony of PW1 & PW2 and Exts.P1 to P11 marked on the side of the complainant and the oral testimony of DW1 and Exts.R1 to R.13 on the side of the opposite parties. 5. The POINT:- Complainant purchased a Photo copier machine from the 1st opposite party, manufactured by the 2nd opposite party. The machine become defective on many occasions and the demand for replacement was turned down by the 1st opposite party. The husband of the complainant was examined as PW1. PW1 deposed that, they availed a PMRY loan from Canara Bank Thodupuzha Branch, and purchased the Canon photo copier machine by paying an amount of Rs.70,000/- to the 1st opposite party for their lively hood. The sales representative of the 1st opposite party named Mr.George canvased the order and supplied the same in the shop of the complainant named Ammu's Ladies Centre at Thodupuzha on 4/08/05. Ext.P1 is the copy of the receipt of Rs.70,000/- issued by the 1st opposite party. But the machine became defective after one week, the 1st opposite party has repaired the same on 13/08/2005. The same complainant was repeated on 14/11/05, 25/02/2006, 3/07/2006, 22/11/2006 and on 2/12/2006. The service persons of the opposite party arrived and repaired the same. The service charge Rs.561/- each was recurred from the complainant by the opposite party every time. Ext.P2(series) is the copy of the customer service report of the opposite party on 13/08/2005, 27/02/2006, 25/07/2006, 23/11/2006, 2/12/2006. Ext.P5 is the bill issued for the service of the machine for Rs.4,781/-. Ext.P6 is another bill for Rs.6,300/-. The complainant has taken only 55,000/- copies till today including the unclear copies. No warranty was issued from the manufactures. Only 3 months warranty was given by the 1st opposite party at the time of repairs. As per the offer given by the representative of the opposite party, the machine should get 1,80,000 copies. The machine became defective on 13/06/2007, the opposite party never turned up for repair. The opposite party supplied old machine or low quality one. Lawyer Notice was issued for the replacement of the machine. The brosher also supplied later from Kohikkode agency. Recovery Notice was issued from the bank is marked as Ext.P11. One witness who is the owner the neighbor hood shop was examined as PW2, deposed that the machine was supplied by the representative of opposite party named one George and the machine is defective now. 1st opposite party was examined as DW1. As per DW1, the complainant is not a consumer as per the definition of Consumer Protection Act. The purchase of the machine was not exclusively for the purpose of earning the living hood of the complainant by means of self employment. The complainant was running the Ammus Ladies Store, before the purchase of the Photostat machine. So the machine is purchased for commercial purposes. The husband of the complainant approached 1st opposite party and purchased the machine. The machine was collected by the husband of the complainant. The machine was not having any defect on 13/08/2005, on the same day the call from complainant was KOT, (Key Operation Training) it was revealed from the customer Service report dated 13/08/2005. The machine is having a warranty of 3 months or 50,000 copy from the date of installation it is written in the proforma invoice issued by the 1st opposite party which Ext.R3. The complaint for the defect of the machine was reported to the 1st opposite party and 1st opposite party has duly repaired the machine. But the date of repair was on 15/11/2005, 27/02/2006, 5/07/2006, 2/12/2006, 17/05/2006, and on 4/04/2006. The respective copies of the customer service repair were marked as Ext.R8, R9, R10, R11, R12 and R13. The defect was caused due to dust, and not because of the mechanical problem. The warranty period of the machine expired after 3 months and the 1st defect reported only on 15/11/2005. The warranty period was expired. As per cross examination of the 2nd opposite parties learned counsel, the 1st opposite party deposed that the warranty is given by 1st opposite party and they are responsible for the same. It is admitted by the 1st opposite party that the machine was purchased for Rs.70,000/- by the complainant. But it is purchased for commercial purpose. But it is clear that the complainant availed PMRY loan for the purchase of this machine. The warranty card for the machine was not issued by the opposite party. It is only written in the Performa Invoice that “warranty is 50,000 copier or 90 days, which cover is earlier”. As per opposite party, the first defect was noted only on 15/11/2005. The date of purchase was on 4/08/2005. The defect of the machine is admitted by the opposite party. It is clear from R8 to R13 and Ext.P2(series). Only dispute is that whether the default is caused within the warranty period. As per opposite party the defect is reported on 15/11/2005. There was no defect on 13/08/2005, the service report states that it was key operation training. But PW1 deposed that they took only 55,000 copies from the machine including the unclear copies. So the 50,000 copies was not taken when the defect was started. It is the duty of the 2nd opposite party the manufacturer to issue warranty for the machine through 1st opposite party. But 1st opposite party never issued any warranty card and deposed that the relation between the 1st and 2nd opposite party is principal to principal relation, and 1st opposite party is responsible for the warranty. But the machine is now defective. But opposite party, is not ready to replace the same. It is a gross deficiency in the part of opposite party. As per PW1, the machine became defective after one week. The defect of the machine is also admitted by the opposite party. It is clear that the machine was defective in several occasions. The complainant purchased the machine by availing, PMRY loan and the bank issued recovery Notice against the complainant. So we think it is fit to replace the defective machine with new machine. Both 1st opposite party and 2nd opposite party are responsible for the same because 2nd opposite party is the manufacturer.
Hence the petition allowed. The 1st opposite party and 2nd opposite party are directed to supply a fresh copier machine to the complainant by taking back the old one, or pay Rs.70,000/- to the complainant as per Ext.R4 receipt. The opposite parties are also directed to pay Rs.2,000/- as cost of this petition to the complainant within one month of receipt of a copy of this order, failing which the amount shall carry further interest at 12% per annum from the date of default. Pronounced in the Open Forum on this the 27th day of April, 2009 Sd/- SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
Sd/- SMT.SHEELA JACOB(MEMBER)
Sd/- SMT.BINDU SOMAN(MEMBER) APPENDIX
Depositions : On the side of Complainant : PW1 - Innocent Kuriyan PW2 - Jaimon V.J. On the side of Opposite Parties : DW1 - Rajesh P.A. Exhibits: On the side of Complainant: Ext.P1 - Copy of receipt for Rs.70,000/- Ext.P2 series(a-f) - Copy of Customer Service Reports dated 13/08/2005, 15/11/2005, 27/02/2006, 05/07/2006, 23/11/2006, 02/12/2006 Ext.P3 - Copy of Installation Report Ext.P4(series) - Copy of Customer Service Reports. Ext.P5 - Copy of bill issued for the service of the machine for Rs.4,781/-. Ext.P6 - Bill for Rs.6,300/- Ext.P7 - Copy of complaint dated 11.09.2006 Ext.P8 - Copy of Reply letter dated 26.09.2006 Ext.P9 - Copy of Advocate Notice dated 13.07.2007 Ext.P10 - Cover with Acknowledgement card Ext.P11 - Copy of Recovery Notice issued from the bank. On the side of Opposite Parties : Ext.R1 - Copy of customer service report dated 04-04-2006 Ext.R2 - Machine Brochure Ext.R3 - Copy of Proforma Invoice issued by the 1st opposite party. Ext.R4 - Copy of Receipt for Rs.70,000/- Ext.R5 - Copy of Installation Report Ext.R6 - Machine Invoice dated 04-08-2005 Ext.R7 - Copy of Customer Service Report dated 13-08-2005. Ext.R8 - Customer Service Report dated 15-11-2005. Ext.R9 - Customer Service Report dated 27-02-2006. Ext.R10 - Copy of Customer Service Report dated 05-07-2006 Ext.R11 - Copy of Customer Service Report dated 02-12-2006 Ext.R12 - Copy of Customer Service Report dated 17-05-2006 Ext.R13 - Copy of Customer Service Report dated 04-04-2006
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