Tamil Nadu

StateCommission

CC/86/2014

P. UMAPATHI - Complainant(s)

Versus

XEROX INDIA LIMITED, MANAGING DIRECTOR - Opp.Party(s)

R. BASKAR

01 Jul 2022

ORDER

 IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:   Hon’ble THIRU. JUSTICE. R. SUBBIAH                 :     PRESIDENT

                  Thiru R.VENKATESAPERUMAL                   :      MEMBER

 

C.C.No.86 of 2014

Friday, the 1^st day of July 2022

 

Complaint  filed on : 25.06.2014

Orders Pronounced on : 01.07.2022

 

P. Umapathi

Proprietor of A.V. Xerox

No.39, North Ayyanavakula Street

Near Anjaneya Koil

Villupuram

Tamil Nadu – 605 602.                                                 .. Complainant

 

- Vs –

 

1. Xerox India Limited

    Rep. by its Managing Director

    5^th/ 6^th Floor, Block I,

    Vatika Business Park

    Sector 49, Sohana Road

    Gurgaon 0124-2561930

    Haryana – 122 018

 

2.  B. Saravanan

     Service Engineer

     Xerox India Limited

     VDS House, First Floor

     41, Cathedral Road

     Chennai – 600 086

 

 

3.  T.N. Thiagarajan

     CA Manager

     Xerox India Limited

     VDS House, First Floor

     41, Cathedral Road

     Chennai – 600 086

 

4.  V. Arun Subbu Rangan

     Qtech Services

     3^rd Street  Thirumal Nagar

     Anjali Apartment

     Kosapalayam, Nellithopu

     Pondy.                                                          .. Opposite Parties

 

 

    Counsel for the Complainant         :  Mr. R. Baskar

    Counsel for the 1^st Opposite Party  :  Mr. A.R. Suresh (No representation)

    Counsel for the 4^th Opposite Party  :  Mr. V.Thirupathi (No representation)

                2^nd & 3^rd Opposite Parties      ..  Ex-parte

 

This complaint is coming before us for final hearing today, on 12.04.2022 and on hearing the arguments of the counsel for the appellant and on perusing the material records, this Commission made the following :-

 

O R D E R

R.SUBBIAH J., PRESIDENT

         This complaint has been filed under Section 17 of the Consumer Protection Act, 1986 against the opposite parties, claiming for the following directions to the opposite parties,

1. To pay a sum of Rs.27,45,000/- as compensation with interest at the rate of 12% per annum; and
2. To pay a sum of Rs.10,000/- as costs.

 

2.     The gist of the Complaint averments are as follows:  In order to establish a Xerox shop, the complainant was searching for a Xerox machine in good working condition.  Whileso, he came across an advertisement for the products of the 1^st opposite party, who is the manufacturer of Xerox machines.  He approached the 4^th opposite party, who had taken him to the 3^rd opposite party’s office, where he was explained about the usage and technical specifications of the printer machine model No. DC5252 bearing Serial Number 2253323119/ 3070011432.  Though it is a second hand machine, believing the words of the 3^rd opposite party he had purchased the same by availing loan from Central Bank of India, Villupuram vide Invoice No.972 dated 18.02.2010 for a sale consideration of Rs.18,20,000/-.  The 3^rd opposite party had promised to provide better service and maintenance of the printer machine by an Agreement dated 16.07.2010. The said agreement is valid for a period of 6 years and 4 months from 16.07.2010 or upto 75 lakhs copies, whichever is earlier.  At the time of Agreement, the meter reading was noted as follows :-

 Colour      ..      26,31,044 copies

Black & While ..    1,01,587 copies                          

Initially, upto February 2011, the service and maintenance of the opposite parties was regular.  During that period, the complainant was able to earn Rs.25,000/- per month.  Subsequently, the service of the opposite parties was irregular and failed to attend the complaints reported by the complainant.  The complainant was not able to run the printer machine and he lost many customers due to the delay in completing the work.  Eventhough there was no proper business he was regularly paying the monthly charges as agreed in the Agreement dated 16.07.2010, at the rate of Rs.1.60 + Tax per copy for Black and While print and Rs.5.50 + Tax per copy for Colour print, without fail.  But, due to the irregular service of the opposite parties, he incurred heavy loss.  Therefore, during August 2013, he shifted his business from Villupuram to Perambur, Chennai.  In this situation, the complainant was informed through an e-mail that some amount is due from him in respect of the printer machine.  Hence, the complainant made a payment of Rs.5300/- on 18.12.2013.  Thereafter, the 2^nd opposite party came and checked the machine.  The complainant was informed that some parts to a value of Rs.4.59 lakhs, have to be replaced.  The complainant was also asked to pay a sum of Rs.1,20,000/- for extension of service agreement for a period of one year.  Hence, the complainant contacted the 3^rd opposite party through e-mail for service of the machine, as per the agreement dated 16.07.2010.  But, the request of the complainant was rejected by the 3^rd opposite party through his e-mail dated 17.01.2014, stating that the agreement dated 16.07.2010 had expired on 12.11.2012 itself.  Actually, the said agreement is valid till 2016.  Hence, the complainant issued a legal notice dated 14.03.2014 to the opposite parties calling upon them to take back the printer and replace another one, with same specifications.  But, there was no response.  Hence, the complainant sent another legal notice through e-mail.  Although the notices were received by the opposite parties, there was no reply for the same.  Therefore, the present complaint has been filed by the complainant, for the reliefs stated supra.

 

3.  The opposite parties 1 and 4 have filed their version, stating that the complainant is admittedly a Proprietor and is running a shop in the name and style of M/s.A.V. Xerox.  Hence, he is not a consumer.  The machine is used commercially by the complainant and not for personal use or to earn livelihood.  Therefore, the complaint is not maintainable before the Consumer Forum.  The complainant had purchased a second hand printer machine, Model No. DC5252, Serial Number 2253323119/ 3070011432 on 18.02.2010 from the 1^st opposite party.  After seeing complete demonstration of its feature, functions and applications, the complainant being fully satisfied with the machine, bought the same. Thereafter, the complainant and the 1^st opposite party entered into a Free Service Maintenance Agreement dated 16.07.2010 for service of the machine.  The period of maintenance agreement was 6.4 years from the date of first installation i.e. 13.11.2005  till the meter reading of the machine shows 75 lakhs copies, whichever is earlier.  The machine was re-installed in February 2010, at the complainant’s place.  The date of first installation was 13.11.2005.  Hence, the said agreement expires on 12.11.2012, from the date of first installation.  After purchase, the machine was in constant use by the complainant and regularly serviced by the service engineers of the 1^st opposite party.  The machine was running smoothly for a period of two years and whatever glitches arose during its normal usage were removed by the 1^st opposite party.  Suddenly, in December 2013, the complainant contacted the service team of the 1^st opposite party for shifting and installation of machine from Villupuram to Perambur, Chennai.  Though outstanding dues were pending by the complainant, in good faith, the 1^st opposite party shifted and installed the machine at Perambur, Chennai, for which the complainant paid the mutually agreed shifting and installation charges and also the outstanding dues in the month of December 2013.  Subsequently, no servicing of the machine was done for a period of almost 1½ years since July 2012.  Hence, the 1^st opposite party as per its policy and under Clause 4 & 5 of the General Terms of the Free Service Maintenance Agreement, categorised the machine under “Suspension of Services and Supplies”.  The machine was kept under ‘SSS category’ for about 18 months.  As per the policy of contract, when the machine is put under SSS category for a period more than 60 days, a trim check of the machine has to be conducted and whatever parts/ components are required to be replaced, the same has to be purchased by the customer.  So, to restart the functioning of the machine and perform its servicing, the service engineers of the 1^st opposite party did the trim check and found various errors and component break down in the machine.  Therefore, gave the details of defective components to the complainant.  However, the complainant refused to get the machine repaired and insisted for replacement of the machine.  Further, the complaint is liable to be dismissed on the ground that the complainant has not enclosed any report of an expert, as per Section 2(1)(a) of the Consumer Protection Act,1986.  Therefore, there is no deficiency of service on the part of the opposite parties and hence sought for dismissal of the complaint. 

 

4.  The 4^th opposite party also has filed a formal version and prayed for dismissal of the complaint.

 

5.    In order to prove the case, the complainant along with proof affidavit has filed 12 documents and the same were marked as Ex.A1 to A12.   The 1^st opposite party has filed proof affidavit but no documents were marked on the side of the opposite parties.

 

6.  Heard the submission of the counsel for the complainant and carefully perused the material available on record.   There is no representation for the opposite parties 1 and 4.

 

7.  Adverting to the averments made in the complaint, the main submission of the counsel for the complainant is that the printer machine sold to the complainant is a second hand one and was having un-rectifiable technical defects.  But, this fact was suppressed to the complainant.  Further, in the Free Maintenance Service Agreement it has been clearly stated that it is valid for 6.4 years or 75 lakhs copies.  The complainant purchased the machine on 18.02.2010.  Therefore, it is incorrect to state that the Maintenance Agreement was valid only upto 12.11.2012.  The opposite parties purposely failed to provide necessary service to the printer machine, when the maintenance agreement was in existence.  Therefore, certainly there is deficiency of service on the part of the opposite parties.  The printer machine purchased for a sum of Rs.18,20,000/-,  was used only for a period of six months.  By then, the opposite parties asked the complainant to pay a sum of Rs.1,20,000/- for renewal of maintenance agreement for a period of one year, while the FMSA was in existence.  When the maintenance agreement is valid for a period of 6.4 years or number of copies 75 lakhs, there is no question of paying a sum of Rs.1,20,000/- to the opposite parties for renewal of the Service Agreement.  Since the machine was kept idle for more than two years, it has become a scrap.  Hence, the complainant requested the opposite parties to replace the machine with the same configuration or to pay the compensation within the time stipulated in the notice.  But, the opposite parties refused to do so.  Therefore, certainly there is deficiency of service on the part of the opposite parties.  With regard to the contention raised by the opposite parties that the complainant is not a consumer, it is the reply of the counsel for the complainant that the complainant has not employed any person to operate the printer machine and the same was for his livelihood.  The complainant was earning only a sum of Rs.25,000/- per month.  After deducting the rental charges, electricity, stationery and printing material etc., he could get only a meager amount as income.  Therefore, certainly he is a consumer.  Hence, prays for the relief sought above. 

 

8.  Counsel for the 1^st opposite party, has filed a written submission stating that the complainant is not a consumer.  Therefore, the complaint has to be rejected under Section 12(3) of the Act.  The complainant had purchased a second hand printer machine on 18.02.2010 from the opposite parties, after complete demonstration of its feature, functions and applications and being fully satisfied with the condition of the machine.  The machine was in constant use of the complainant and was regularly serviced by the service engineers of the 1^st opposite party.  The machine worked for a period of almost two years from the date of installation at the complainant’s place and whatever glitches arose during its normal usage were removed by the 1^st opposite party.  The machine was last serviced in July 2012 but the complainant has not made any payment for the same.  It is pointed out that as per the Free Service Maintenance Agreement, the complainant has breached the terms and conditions of FSMA.  He further submitted that the complainant has not filed any report of an independent expert as required under Section 2(1)(a) of the Consumer Protection Act, 1986, with regard to the alleged defect in the machine.  Thus, the opposite parties sought for dismissal of the complaint. 

 

9.  On analyzing the submission made by the counsel on either side, we find that the case of the complainant is mainly on two grounds. (1) Whether the complainant is a consumer; and (2) Whether the complainant had established his case that there is deficiency of service on the part of the opposite parties.   With regard to the first question, it is the submission of the opposite parties that the complainant will not fall within the purview of definition of the ‘Consumer’ since he was using the machine for commercial purpose.  But we find that it is the specific case of the complainant that he has not engaged any other person for operating the machine and he was earning only a sum of Rs.25,000/- per month for his livelihood.  Prima facie, the factual aspects of the case would show that the complainant is running a Xerox shop only for his livelihood.  Hence, the case will fall within the purview of ‘Consumer’.  The next question that falls for consideration is whether the complainant had established his case that there is deficiency of service on the part of the opposite parties.  The main contention of the counsel for the complainant is that the printer machine is a second hand one and it was having unrectifiable technical defects. Suppressing the same, the machine has been sold to him.  Yet another submission of the counsel is that the Free Service Maintenance Agreement is valid for 6.4 years or for 75 lakhs number of copies.  Therefore, the statement of the opposite parties that the FSMA is valid only upto 12.11.2011, is not correct.  Inspite of the existence of the Agreement, the opposite parties have not come forward to service the machine.  Furthermore, they were insisting the complainant to pay a sum of Rs.1,20,000/- to extend the service period.  But it is to be seen that the machine purchased by the complainant is not a new one and it is only a second hand machine.  Though the complainant had stated that the machine was sold to him by suppressing the fact that it has unrectifiable technical defects, he has not chosen to prove the said allegation by way of any tangible evidence.  Therefore, merely by relying upon the pleadings of the complainant, this Commission cannot come to a definite conclusion whether the machine was sold to him suppressing the fact that it is a second hand machine with unrectifiable technical defects.  With regard to the validity period, it is the case of the complainant that as per the FSMA its validity is for 6.4 years or 75 lakhs number of copies whichever is earlier, but, the opposite parties had denied servicing the machine by wrongly stating that the Agreement had expired on 12.11.2011.  Whereas, it is the reply of the opposite parties that since no service was done for a period of almost 1½ years from July 2012, the 1^st opposite party, as per its policy and under clauses 4 and 5 of the General Terms of FSMA, had put the machine under the category of “Suspension of Services and Supplies”.  The machine was put under SSS category for approximately 18 months.  As per the policy of the 1^st opposite party, when a machine is put into SSS category for more than 60 days, a trim check of the machine has to be conducted and whatever part/ components are required to be replaced, the same has to be purchased by the customer only.  Therefore, to restart the functioning of the machine and perform its servicing, the service engineers of the 1^st opposite party did the trim check of the machine and found various errors and component break down in the machine.  When the details of defective components were given to the complainant, he refused to get the machine repaired and insisted for replacement of the machine.  The said facts were duly communicated and explained to the complainant vide email dated 17.01.2014 and 10.02.2014.  Thus, it is the stated by the opposite parties that since the machine was put under “Suspension of Services and Supplies” for nearly 18 months as per the FSMA, service of the machine could not be done.  Therefore, with regard to the services of the machine, there is a serious dispute of facts between the parties, which cannot be decided by this Commission in a summary manner, by merely relying upon the documents.  Hence, it would be appropriate for the parties to approach the concerned civil court.  Further, we find that there is no report of independent expert to prove the case of the complainant that there were un-rectifiable technical defects.  

 

10.  Considering all these aspects, it is found that the complainant had miserably failed to establish his case that there is deficiency of service on the part of the opposite parties.  Therefore, we do not find any merit in the complaint and the complaint is dismissed.

 

 

R. VENKATESAPERUMAL                                                                R.SUBBIAH

MEMBER                                                                                     PRESIDENT

 

 

 

DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT

 

Ex. A1      18.02.2010   Invoice for purchase of Printer Machine                       

Ex.A2       16.07.2010   FSMA Colour Produce Service Agreement

Ex.A3       03.12.2010   Invoice series for payment of monthly

                   to              charges for usage of printer machine

               06.07.2012

              

Ex.A4       18.12.2013   Counter foil for payment of usage charges

Ex.A5       16.01.2014   Copy of email to customer care of 1^st opposite party

Ex.A6       16.01.2014   Copy of email to 3^rd Opposite Party     

Ex.A7       10.02.2014   Copy of email to 2^nd Opposite Party

Ex.A8       14.03.2014   Legal Notice to the opposite parties

Ex.A9                        Return covers of Opposite Parties 1 to 3

Ex.A10     15.03.2014   Acknowledgement of 3^rd Opposite Party

Ex.A11      21.04.2014  Legal notice to the 1^st Opposite Party on

                                       Correct address

Ex.A12      25.04.2014  Acknowledgement for 1^st Opposite Party

 

 

 

DOCUMENTS MARKED ON THE SIDE OF THE OPPOSITE PARTIES

 

                                                 Nil  

 

 

R. VENKATESAPERUMAL                                                                R.SUBBIAH

         MEMBER                                                                          PRESIDENT

 

 

Index :  Yes/ No

AVR/SCDRC/Chennai/Orders/July /2022