State Consumer Disputes Redressal Commission
Stephen Roger Afonso vs Chandras Pednekar on 21 November, 2023
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI-GOA
In the matter of First Appeal 83 of 2017 in Consumer Complaint
20 of 2011.
Before: Dr. Nagesh S. Colvalkar, Member
Adv. Ms. Rachna Anna Maria Gonsalves, Member
Mr. Stephen Roger Afonso,
Major in age, Age 44 yrs,
C/o Creative Computer Cell,
Shop No. 57,
Ponda Commerce Centre,
Tisk-Ponda Goa-403401. .....Appellant
V.
Shri. Chandras Pednekar,
Proprietor of
M/s Digitech Business Machines,
Shivnagar, Xeldem, Tilamol,
Quepem-Goa. .....Respondent
Adv. Shri. P. Wagle present along with Appellant in person.
Adv. Shri. S. Madkaikar present for Respondent.
DATE: 21/11/2023
JUDGEMENT
[per Adv. Ms. Rachna Anna Maria Gonsalves, Member]
1. This Judgement and Order arises out of appeal filed by Appellant against Judgment and Order dated 04/08/2017 passed by District Commission North at Porvorim-Goa in CC/20/2011.
12. The Appellant herein was the original Complainant and the Respondent was the Opposite party before District Commission, North-Goa.
3. The brief facts of the case:-
3(A) The case of the Appellant is that:
i. The Appellant is having a small shop carrying the business of computer typing, DTP, Computer prints, Xerox and other related works and purchased a photocopying machine model Canon 3050 from Mr. Chandras Pednekar, the Respondent.
ii. That with changing technology, new products entered market in the field of photo copying and Respondent approached the Appellant in order to sell and new machine in digital photocopying and that on being convinced with the office price the Appellant agreed to buy the machine at a cost of Rs.48,000/- on the condition that Respondent would maintain the machine on per copy basis for a certain period i.e. for 5 years.
iii. That, as per the information, provided by Respondent, that the machine had the features of connecting to the computer and on the day of the installation of the machine the Respondent could not connect the same, having tried every possibility. Also that initially the machine was performing well, without the connectivity to computer and there were no major problems, but new major problems began developing, after a month or so, apart from not getting connected to the computer, which the Respondent could not resolve and that the Appellant was put to great misery and humiliation.2
iv. That Respondent, after a month and a half, finally agreed to take the machine back but did not return the Appellant money. It was only after a period of 3 months, that the Respondent brought another offer and, this time, for a refurbished Canon 1180 colour photocopying machine at an agreed price of Rs.92,000/- which the Appellant agreed, partly in order to recover his previous money and on the same condition that Respondent shall maintain the machine on per copy basis with the agreed cost.
v. That payments were, made in cash for Rs.90,000/- by the Appellant vide receipt no. 101 on 04/05/2010 as advance balance in the form of DD No. 063688 drawn on HDFC Bank for Rs.83,000/- vide receipt no. 102 on 13/05/2010 drawn on the firm's name i.e. Digitech Business Machines and that the machine was delivered after 2 weeks by Respondent after full payment of the agreed amount of Rs.92,000/- as per the quotation Ref. No. CP/DBM/266 dated 04/05/2010 and that the maintenance contract was given to Respondent with as per copy contract at Rs.4/- for colour and Rs.0.50/- for black copies, irrespective of the size of the paper as per the terms included in the contract were that the maintenance would be carried out by Respondent, which included repairing all spares, provided colour tonner packets, and any other for required for the maintenance of the machine excluding stationery, labour and electricity. Also that wastage shall be deducted from the counter by Respondent who also agreed to carry out the contract for 5 years from the date of supplying the machine.
vi. Although the Respondent delivered the machine on 21/05/2010, he failed to install the same on the same 3 day and was able to do so only on the fourth day i.e. 24/05/2010 that too after consultation with counterpart in Mumbai from where the machine was procured and since the day of installation till now, Respondent has not delivered the required quantity and always on the pretext that after printing certain number of copies the copy quality will improve, but the copy quality did not improve.
vii. Furthermore, that there were constant break downs and Respondent although having attended to the same and at several times keeping the down time of the machine for more than 48-250 hours i.e. 2-9 days, the Respondent managed to solve the problems only a few times, but not to the Appellant satisfaction and that since 25/06/2010 (more than 6 months) till date the machine is under total break down and is lying at the Appellant's workplace and utilizing his shop space, hindering his free movement and that the Appellant cannot buy a new machine as his money is blocked. That the Appellant's calls to Respondent have been avoided 95% of the time and has not been provided the services as and when required by Respondent ensuing a Legal Notice that was sent through his Advocate dated 06/09/2010, which the Respondent had acknowledged wherein the Appellant had asked for the machine to be taken on or before 15/09/2010 and that the money of Rs.92,000/- be refunded failing which compensation for the losses and goodwill lost @ Rs.300/- per day from the date of delivering of the said machine till full payment is made.
viii. It is stated by Appellant that the Respondent has by his negligence caused irreparable damage and loss to the Appellant, as well as harassment and mental agony.4
Being aggrieved, the Appellant came before the District Commission, North and prayed for the reliefs:
a) A sum of Rs.92,000/- towards the amount paid by the Complainant to the Opposite Party along with interest of 24% pm.
b) A sum of Rs.500/- per day from the date of installation of the machine till the final payment of Rs.92,000/- for the goodwill lost and as compensation to the mental strain and trauma caused to the Complainant during the period for continuously calling the Opposite Party to make repairs and the Opposite Party ignoring the calls of the Complainant.
4. Being aggrieved the Appellant had filed the Complaint before District Commission, North wherein the Complaint was dismissed by the Order passed by District Commission, North dated 04/08/2017.
5. As stated by the Appellant that the Order passed by the District Commission, North dated 04/08/2017, in its findings found no deficiency on the part of Respondent and that the Appellant had failed to prove his case and also that no cogent evidence was produced to establish his case and hence dismissed the Complaint.
6. The Appellants being aggrieved by the Order and Judgement dated 04/08/2017 in Consumer Complaint 20/2011, preferred the present appeal before this Commission on the following grounds:-
i. That the Impugned Judgment and Order is bad in law.5
ii. That the District Commission, North did not apply its mind in passing the Order and ought to have appreciated that Respondent has not filed evidence nor filed his Written Arguments in the matter.
iii. That the District Commission, North has mechanically arrived at the finding and in disposing off the Complaint hurriedly without considering that shop and business of the Complainant is petty business and purely to win the bread for his own family.
That the Appellant prayed:-
a. That the Records and Proceeding of Complaint No. 20/2011 from District Commission, North be called for.
b. That the Order dated 04/08/2017 passed by District Commission, North be quashed and set aside.
3(B) The case of the Respondent is:
1. That the Respondent's main business is to supply Xerox machine to the customer and to give maintenance on the conditions laid down therein.
2. That the Respondents has maintained a good relationship with the Appellant till today and it is the duty of the Respondents to provide good service to all.
3. At no point in time, did the Respondents force the Appellant to purchase and as stated by the Respondent that the Appellant was interested in the said new product as per the trend and at the insistence of the Appellant, that the Respondent had sold a new technology Machine (RC) to the Appellant alongwith the condition therein. The Machine was started and handed over to the Appellant and was running very well as 6 stated by the Appellant and at no point of time, after a month, developed a major problem and as such there arises no question of having put the Appellant to great misery and humiliation.
4. That the Respondent stated that upon the insistence of the Appellant that the machine with latest technology i.e. Common 1180 Colour photocopying Machine (re-
conditioned) was to supplied at an agreed price of Rs.92,000/-, the original price being more than 4 lakhs.
5. That the Appellant was fully aware of condition of full payment and hence the Appellant paid the entire amount and was issued receipts for the same by the Respondent and in terms of delivery of the machine in weeks time, which the Appellant was in the knowledge of.
6. That the quotation no. CP/DBM/266 dated 04/05/2010 and 27/05/2010, were given to the Appellant alongwith the conditions mentioned therein with respect to the specification of the machine, time of delivery, maintenance conditions of machine excluding the stationary, labour, electricity etc. and it was a known fact to the Appellant that the machine is a (RC) re-conditioned one and after having considered all the factors the Appellant purchased the same with the conditions in the warranty for per copy as agreed.
7. That the Respondent did not take any risk being a new technology, consulted with the counterpart in Mumbai and the machine installed was procured from Mumbai as stated by the Respondent.
8. That the Respondent stated that the machine is in the possession of the Appellant and the same is in a good and working condition and that the Respondent comes in contact with the same only at the time of 7 maintenance and that the Respondent regularly serviced the Xerox machine and the maintenance was perfect and to the satisfaction of the Appellant as there were no complaints to the said machine and the daily turnover was profitable to the Appellant.
9. In furtherance to the aforesaid, the Respondent had promptly attended to the Complaints of the Appellant and according to Respondent, the Appellant was to pay the Respondent per copy, an amount as agreed upon and that in order to avoid this, the Appellant began to raise, queries with respect to the functioning of the Xerox machine and having arguments with the Respondent.
10. That the Appellant being an old customer, the Respondent gave prompt attention to the Appellant and had never turned down any request of the Appellant.
11. The only problem with the Appellant's Xerox machine was in terms of the fault which could have been solved by the co-operation of the Appellant who had never come forward for the same and that the Respondent had informed the Appellant to get the machine serviced once from the Respondent's counterpart in Mumbai, to which the Appellant denied vehemently.
12. The Appellant was ready to get the person from Mumbai but at the cost of the Respondent to which the Appellant was reminded of the conditions that the labour charges were to be borne by the Appellant wherein there was difference of opinion between the Appellant and Respondent.
13. In terms of not replying to the notice the Respondent stated that it does not amount to admission of facts stated in the notice. Also that there was no contract to refund any amount and compensation sought as losses 8 and good will of Rs.300/- per day as stated by the Appellant in his notice. The letter dated 06/09/2010 on which the Appellant relied upon is absurd, also the Appellant has played fraud on the Respondent by adding last four paragraphs, wherein at the time of signing the letter only three paragraphs were written and this has shocked and surprised the Respondents at the same time, to read the last four paragraphs of the letter as they were false allegations against the Respondents and being inserted later on, after obtaining the signature of the Respondents in order to harass them, as the Respondents would never have signed the said letter and there were not conditions as to charging amount per day basis.
14. In terms of paying compensation of Rs.300/- and Rs.500/- the question does not arise at all as the Appellant has himself invited negligence on his part and the Respondent stated that the question of accepting the conditions which are very harsh, does not arise and are very much against the principle of Natural Justice and being an electronic device one cannot say as to what can happen to the same at the very next moment as various factors are dependent viz operating the same, electricity etc.
15. Additionally, that there is no negligence on part of the Respondents and hence the question of occurring irreparable loss to the Appellant does not arise and that being aggrieved, the Complaint was filed before District Commission, North and the Respondent prayed that the Complaint be dismissed with exemplary costs.
16. The Order passed by District Commission, North dated 04/08/2017 dismissed the Complaint on the ground that Appellant had failed to prove his case.
917. Further the District Commission rightly pointed in terms of non-placing of the report of an expert in support of the case of the Appellant as envisaged by section 13(2) of the act which in itself is a strong piece of evidence for the Appellant and that the very report of the expert has not been relied upon by the Appellant, thus giving rise to adverse inference in favour of the Appellant. It is pertinent to note that, the Advocate on behalf of the Respondent had also at the time of oral arguments raised the issue of the Complaint being filed in individual capacity rather than filing the same in the proprietorship concern and as the Appellant is carrying on the business can in no way be the consumer as held by the District Commission as there being a clear provision in the Act u/s 2 (d) (i) of the CPA states that "does not include a person who obtains such goods for re-sale or for any commercial purpose".
18. That the Appellant has filed the Complaint with a malafide intention to extort money from the Respondent and therefore the same be dismissed with exemplary cost.
4. Documents relied on by the Appellant before the District Commission, North.
i. The quotation dated 04/05/2010.
ii. DD issued in favour of Digitech Business
Machines.
iii. Receipt Nos. 101 dated 04/05/2010 and 102
dated 13/05/2020.
iv. Invoice dated 27/05/2010.
v. Letter of notice from Complainant and
Complainant's Advocate.
10
vi. Written Arguments and Affidavit-in-evidence of both parties.
5. Arguments were heard on behalf of Adv. Shri. P. Wagle for the Appellant and Adv. Shri. S. Madkaikar for Respondent.
Advocate for Appellant submitted that the Appellant was owner of Xerox shop and he had purchased refurbished machine from Respondent for Rs.92,000/- who had filed a Complaint before District Commission, North. He further pointed out to this Commission, paragraph 10 of the Impugned Judgment and Order, wherein the findings were recorded with respect to 'the photocopy machine purchased by the Appellant there was poor copy quality and the Respondent attended to rectify the said machine, but the copy quality did not improve and further submitted that the only reason why the Complaint was dismissed was 2 fold.
The District Commission, North concluded:-
i. That the Complainant is not a Consumer and ii. That the Complainant has not led any Expert Evidence.
He further added that the Judgment has not been assailed by the Opposite Party and that the conclusion drawn by District Commission, North, in terms of poor quality machine were in consonance with the Written Version of Respondent as seen in paragraph 18.
Also that paragraphs 10, 11 & 12 of the Impugned Judgment deals with why the Complaint was dismissed, wherein paragraph 12 discussed on the point of the Complainant not being a Consumer, as per section 2 (d)
(ii) of CPA, 1986, and further relied on Laxmi 11 Engineering works Vs P.S.G. Industries institute (1995 II CPJ I SC).
"Paragraph 24 (iii) which reads as under:-
'We must, therefore, hold that:-
(i) The explanation added by the Consumer Protection (amendment) Act 50 of 1993 (replacing) Ordinance 24 of 1993) w.e.f. 186-1993 is clarificatory in nature and applies to all pending proceeding.
(ii) A person who buys goods and use them himself, exclusively for the purpose of earning his livelihood by means of self-employment is within the definition of the expression "Consumer".
The Advocate further argued that admitted facts need not be proved and that the expert is not final authority to assist court and further demonstrated, what was reported by the Hon'ble Supreme Court in Vinod Premchand Rohida Vs M/s Skoda Auto India pvt. ltd. and Anr. 2021 4 CPR (NC) 132, wherein the Principle of Res Ipsa Loquitor was reported in paragraph 12 which reads as under:-
'The Appellant pressed the principle of "Res Ipsa Loquitor" for cause of fire being attributed to manufacturing defects in the car. The Principle of "res ipsa loquitor" has been judicially recognized in India Throughout. It has also been statutorily recognized under section 4, 113, 113-A, 114 & 114-A of Evidence Act, 1872, giving power of "may presume" to the Court. According to the Complainant as he has proved the incident of fire in the car during drive, initially from the side of engine although the car was almost new and well maintained. In the absence of any other probable cause 12 often, it has to be attributed to manufacturing defects in the car, applying the Principle of "Res IPSA Loquitor", means "thing speak for itself".' Therefore, concluding his arguments that on this count alone the Appellant is a Consumer and therefore entitled to reliefs and prayers before this Commission.
On the other hand Adv. Shri. S. Madkaikar argued on behalf of Respondent and pointed out that in paragraph 10 of Written Version:-
'The machine was started and handed over to the Complainant and the same was running very well as stated by the Complainant in paragraph 6 and at no point of time after a month developed a major problem and as such the question of putting the Complainant to great misery and humiliation does not arise.' Therefore pointing out that defect has to be placed on record and submitted that the Judgment and Order of District Commission, North, clearly mentioned that no documents placed on record to substantiate his case.
He argued, in terms of the Business of Appellant, where the District Commission, North pointed out that Appellant does not come under Consumer as seen in paragraph 12 "Laxmi Engineering Works Vs. P. S. G. Industrial Institute".
Wherein it reads as under:-
'(iii) but does not include a person who buys such goods for resale or for any commercial purpose. "Commercial" denotes "pertaining to Commerce" (chambers Twentieth Century Dictionary), it means "connected with, or engaged in Commerce, mercantile having profit as the main aim".13
"The National Commission appears to have been taking a consistent view that where a person purchases goods" "with a view to using such goods for carrying on any activity on a large scale for the purpose of earring "Profit" he will not be a "Consumer" within the section 2(d) (i) of the Act."
The Advocate further pointed out to this Commission that the Appellant had failed to show the poor quality of the copy also no expert report was relied and that the Appellant has not satisfied the Ld. District Commission.
On hearing the Arguments advanced by Advocates for both parties and on perusing the Evidence and documents placed on record, we observed the following:-
i. On reading the Complaint along with the Impugned Judgment and Order as seen in paragraphs 10, 11 & 12, it is very clear that the Appellant has not mentioned clearly whether he is a Consumer.
ii. That although the Advocate for the Appellant canvassed his arguments to substantiate along with citations that he is a Consumer, we find that nowhere in his Complaint and pleadings has he mentioned the expressions, 'self employment' or 'for the purpose of earning his livelihood'.
iii. The Judgment cited by the Appellant in the matter reported in Laxmi Engineering works Vs. P. S. G. Industrial Institute, 1995 3 SCC 583 where it was held that 'a person' who buys goods and use them himself, exclusively for the purpose of earning his livelihood by means of self-employment is within the definition of the expression "Consumer", and as such we find that are vital for the Appellant to fall under the definition of 14 Consumer are absent. Therefore considering the Judgment passed by the Hon'ble Supreme Court there is no question of interference in the Impugned Judgement and Order which is well written, and does not call for any interference. Hence we concur and pass the following:-
ORDER
1. The Appeal is dismissed with no Order as to cost.
2. Records and Proceedings to be sent back to District Commission, North.
3. Proceedings in the matter stand closed.
[Dr. Nagesh S. Colvalkar] Member [Adv. Ms. Rachna Anna Maria Gonsalves] Member Vs 15