SRI.K. VIJAYAKUMARAN, PRESIDENT.

            Complaint claiming compensation costs etc.

          The averments in the complaint can be briefly summarized as follows:

          The complainant purchased  a cannon photocopier machine model No.6035 through the State Bank of Travancore, Chathannoor Branch as per invoice No.G/B/T/09 dated 28.7.2005 for  using at her shop room at Chathannoor.  At the time of purchase the first opp.party  made  the complainant  believe that the photocopier is  of very good quality and will be  defect free at least for 2 to 3 years.  6 months warranty or 50,000 copies whichever is earlier was also given.    A demand draft for Rs.96,500/- was issued to the opp.party towards the cost of the machine.  On 18.8.2005  the opp.party gave cheque No.472384 for Rs.26,500/- to the complainant  saying that the model available with the opp.party   costs only Rs.70,000/-.  On 27.8.2005 the operating buttons of the machine was found  not functioning.   On complaint of complainant the opp.party came to her shop and replaced the defective machine with another model [Model No.6030] assuring that the defect of the machine will be cured soon.   The replaced machine was also not functioning properly.  On intimation the opp.party replaced the above machine with another one of the same model which was also  not working properly.   On 12.12.2005 the opp.party brought the repaired machine originally supplied  assuring that the machine is perfectly alright.   After 2 weeks the machine  showed similar defect and the complainant informed the fact to the opp.party who did not care to attend the defect.  So the complainant issued an Advocate notice.  The opp.party has supplied the substandard and duplicate model to the complainant which is deficiency in service.  Hence the complaint.

          The opp.party 2 and 3 were impleaded as per order No. I.A.298/07 dated 27..11.2007.

          The first opp.party filed version contending as follows:

          The complaint is not maintainable as the complainant is not a consumer within the meaning of Sec. 2 [1] [d] of the Consumer Protection Act.     It is not specified in the complaint what is the defect of the machine.   Moreover the manufacturer of the machine is not made a party to the complaint and therefore the complaint is bad for non joinder of necessary party.   The complainant has purchased the machine availing loan from the SBT., Chathannoor Branch and therefore  until the loan amount  is repaid  the ownership of the machine will be on the State Bank and the complaint filed without the State Bank of Travancore  Branch Chathannoor branch is bad for none joinder of parties.   The complainant has purchased from the opp.party a 2^nd hand machine and the opp.party informed the complainant the  difficulties likely to  arise when a 2^nd hand machine is purchased.   The opp.party has collected Rs.45,000/- alone as prize of the machine.   Out of Rs.96,500/- the husband of the complainant was given Rs.25,000/-   as directed by the complainant by way of a cheque and Rs.26,500/- to the complainant by way of another cheque.  The machine became defective due to the operation of the same by persons having no sufficient knowledge regarding its operation and for want of timely maintenance.   The opp.party has done necessary maintenance as per the warranty and the machine is even now in  working condition.   The complainant has approached this Forum with malafide intention.   There is no deficiency in service on the part of the opp.party..

          The 2^nd opp.party remained absent.   The 3^rd opp.party filed  a separate version also contending that the complaint is not maintainable as against the 3^rd opp.party.   There is no specific  allegations in the complaint against the opp.party and opp.party 3 is impleaded without any cause of action and as such the complaint is bad for mis joinder of party.   The 3^rd opp.party has not sold the said photocopier machine to the complainant .  The machine sold by the first opp.party is a second hand  refurbished machine .   The 3^rd opp.party has already  stoped manufacturing of the said machine.   There is no privity of contact between the complainant and the 3^rd opp.party.  Hence the 3^rd opp.party prays to dismiss the complaint.

Points that would arise for consideration are:

1.     Whether there is deficiency in service on the part of the opp.party

2.     Reliefs and costs.

For the complainant  PW.1 is examined.   Ext. P1 to P7 are marked.

No oral or documentary evidence for the opp.party.

POINTS:              

As a matter of fact the purchase of  Photocopier Machine from the first opp.party by the complainant is not disputed.   The machine supplied by the first opp.party to the complainant is a 2^nd hand  machine is obvious from the warranty issued by the first opp.party infavour of the complainant..  In fact  the first opp.party has admitted in para 5 of his version that the machine is a 2^nd hand machine .

          The machine has not worked properly even during  the warranty period is obvious from the fact that the complainant has issued an advocate notice before the  expiry of the warranty period offered by  1^st opp.party.  The averments regarding the replacement of the machine  supplied with another machine for  repair of the original machine are not disputed by the first opp.party in his version.   There is no cross examination of PW.1. also in this regard   Therefore it can be inferred that the averments of the complainant in the complaint are true.   The 2^nd hand machine was sold to the complainant by the first opp.party without the knowledge and consent of  opp.party 3 and the complainant was also aware of the same is obvious from Ext.P2.  So  it cannot be said that there is any privity of contact between the complainant  and the 3^rd opp.party.   Therefore  the complainant cannot seek replacement of the machine from the 3^rd opp.party. 

          An expert was appointed  in this case who filed Ext. C1 report.   The  expert has also reported that the machine is not a brand new machine but a reconditioned one and that it was not sold through an authorized dealer.  He has  reported that  the machine at the time of inspection was not working and that it had 5 defects.  From the report of the expert it is clear that the machine is a defective one and for making it functioning so many items have to be replaced.     There is no assurance that even if the parts are replaced the machine would work trouble free.

          None of the opp.party   adduced any evidence.  Opp.party 3 has cross examined the complainant.  However opp.party 3 has not adduced any evidence.   The first opp.party who sold the machine to the complainant has not adduced any contra to establish that the machine supplied by them is a defect free machine especially in the light of Ext.C1 report filed by the expert.   From the evidence now before us we have no hesitation to hold that  the machine supplied by the first opp.party to the complainant is a defective one and as such there is deficiency in service on the part of the first opp.party.

          The complainant has admitted that a sum of Rs.26,500/- was refunded to her by the 1^st  opp.party.   Though the first opp.party would claim that he has paid Rs. 25,000/- to the husband of the complainant  as per her directions as per a cheque not even a scrap of paper  was produced to support that contention.   Therefore the contention of the opp.party that he has refunded 51,500/- to the complainant cannot be believed and the case of the complainant that Rs.26,500/- alone was refunded to her has to be accepted.   It has come in evidence that the manufacturing  of the type machine a sold to the complainant has been stopped by the manufacturer long back.  So the replacement of a new machine is out of question.  In these circumstances we  feel that the ends of justice can be met by directing the first opp.party to refund the complainant Rs.70,000/- after taking back the old machine supplied by him to the complainant.  There is deficiency in service on the part of the 1^st opp.party  Point found accordingly.

          In the result the complaint is allowed in part, directing the first opp.party to refund Rs.70,000/- to the  complainant after taking back the machine with interest at the rate of 9% per annum  from the date of complaint till payment.   The first opp.party also directed to pay Rs.5,000/- towards compensation and costs to the complainant.

Dated this the    31^st     day of March, 2011.

I N D E X

List of witness for the complainant:

PW.1. – Anhalatha

List of documents for the complainant

P1. – Invoice

P2. – DD

P3. – Warranty card

P4. – Receipt

P5. – Cheque

P6. – Advocate notice

P7. – Letter dt. 9..8..2005

List of witness and documents for the opp.party :NIL