State Consumer Disputes Redressal Commission
. Kodak India (P) Ltd. 2Nd Floor, ... vs . Spectrum Colour Lab. N4-243, Irc ... on 31 July, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA: CUTTACK FIRST APPEAL NO.166 OF 2008 From an order dated 29.01.2008 passed by the District Consumer Disputes Redressal Forum, Khurda at Bhubaneswar in C.D. Case No. 241 of 2006 1. Kodak India (P) Ltd. 2nd floor, Kalpataru Synergy, Opp. Western Express Highway, Vakola, Santacruiz (E), Mumbai-400 055, through its General Manager, Service & Support 2. Kodak India (P) Ltd., 115 Park Street Kolkata-700 016, represented Through its Regional Manager Appellants -Versus- 1. Spectrum Colour Lab. N4-243, IRC Village, Nayapalli Bhubaneswar, through its Proprietor Pradip Kumar Dash aged about 50 years, son of Dwarikanath Dash, Bengali Sahi P.O. Telenga Bazaar, P.S. Purighat, Cuttack 2. Kodak India (P) Ltd. (C & FA) C/O Rashmi Agency, Friends Colony, Bajrakabati Road, Cuttack 3. Kodak India (P) Ltd. (C & FA) C/O Exel India (P) Ltd.. Plot No.101/104-106, Ground Floor, At-Rudrapur, Pahal, Bhubaneswar, Dist. Khurda Respondents For the Appellants : Mr. S.M.Patnaik & Associates For the Respondents : Mr. A. Das & Associates, and Mr. A.K. Samal P R E S E N T : THE HONBLE SHRI JUSTICE A.K. SAMANTARAY, PRESIDENT, AND SHRIMATI BASANTI DEVI, MEMBER O R D E R
DATE: - 31st JULY, 2009.
Justice A.K. Samantaray, President.
This First Appeal is by the General Manager, Service and Support, Kodak India (P) Ltd., 2nd Floor, Kalpataru Synergy, opposite Western Express Highway, Vakola, Santacruiz (E), Mumbai and the Regional Manager, Kodak India (P) Ltd., 115-Park Street, Kolkata, who have assailed the order dated 29.01.2008 passed by the District Forum, Khurda at Bhubaneswar in C.D. Case No.241 of 2006. Respondent no.1, i.e., Spectrum Colour Lab, N-4/243, IRC Village, Nayapalli, Bhubaneswar through its proprietor Pradip Kumar Dash, was the complainant, the appellants were opposite parties 1 and 2, and respondents 3 and 4 were opposite parties 3 and 4 before the District Forum.
2. The complainant was an unemployed person and intended to set up a photo colour laboratory to earn his livelihood. Accordingly, he purchased a Kodak Mini Lab System 5000 E, Kodak-R-30 Film Processor and other accessories from opposite party no.2 on 30.03.2002 under invoice and set up such a laboratory at Nayapalli, Bhubaneswar in front of Indradhanu Market. After installation of the machinery, it was found to be defective on 16.05.2002 and the matter was brought to the notice of opposite parties 2 and 3. Thereafter, the printer channel did not function properly for which the print-outs were unclear. The complainant informed this to opposite party no.2 for repair of the machinery. Due to frequent break down in the printing processor Kodak Mini-5000 E and photo printer, the complainant was unable to carry on his work with the machine and sustained financial loss. He reported the matter to opposite party no.2 in writing. On receipt of the letter, the Assistant Manager, Sales and Marketing of opposite party no.1 issued a letter to the complainant on 13.06.2002 admitting the defect and intimated that he had already referred the matter to the General Manager, Service and Support to look into the same immediately. Again the complainant wrote to opposite party no.1 intimating about the defect, which was due to non-replacement of the defective parts. Thereafter the complainant issued FAX message and registered letter to opposite party no.1 about the defects noticed in the machine and the Service Engineer attended to the defects, but without any result. The complainant then intimated to opposite party no.1 that due to break down of the machine he had incurred heavy financial loss. As a gesture of goodwill, opposite party no.4 extended the period of warranty for six months more. The complainant again moved opposite party no.1 in writing intimating about the defects persisted in the machine, which were not fully repaired, according to the complainant, and he had to face financial loss. The complainant deposited Rs.47,500/- with opposite party no.1 towards annual maintenance charge for 2003-04 after expiry of the period of warranty through demand draft. The annual maintenance scheme was further extended for the year 2004-05 and the complainant deposited a further sum of Rs.57,775/- for the said purpose. For the year 2005-06, the opposite parties did not take any step for renewal of the annual maintenance contract, although the complainant wanted the same by intimating them in writing. On the contrary, opposite party no.2 wrote a letter to the complainant that Kodak Company was not taking contract for annual maintenance any more. However, if the complainant purchased spares worth Rs.70,000/-, the Company would give four visits free of cost. As the Company refused to give service on annual maintenance contract, the complainant sent Rs.70,000/- to purchase spare parts, but the Company failed to supply those in time. Without the spare parts, the machine did not function, for which the complainant issued a letter to opposite party no.1 stating that non-supply of spare parts and non-renewal of annual maintenance contract gave rise to financial loss to him. The complainant also wrote another letter highlighting the same grievance and opposite party no.4 intimated him that the spare parts were not available in India and those were required to be imported, for which they were unable to supply the spare parts. It was further stated that production of the machine was discontinued. The complainant then wrote to opposite party no.1 at Mumbai that the machine having become defunct, he was facing financial loss. Thereafter, the complainant filed the consumer complaint before the District Forum for refund of cost of the machine.
3. Opposite parties 1 and 2 contested the case before the District Forum by filing written version and raised the question that the complainant is not a consumer and as such the complaint is not maintainable. According to them, the complainant had set up the mini lab for commercial purpose and so he is not a consumer under the Consumer Protection Act. The complainant did not renew the annual maintenance contract for which the machine was not repaired. Since the warranty of the machine has expired, the opposite parties are not liable to repair or replace the same. There was absolutely no manufacturing defect in the machine and as such the cost of the same is not liable to be refunded. It is stated by these opposite parties that if any defect was found, opposite parties 1 and 2 were willing to repair the same again. As per the invoice, parties are subject to the jurisdiction of the courts at Mumbai and, therefore, the Forum in Orissa has no jurisdiction to entertain the dispute, and the dispute having been filed with mala fide and ulterior intention should not have been entertained at all.
4. Both the parties filed their affidavit evidence and the learned District Forum, after considering the same, allowed the complaint on contest as against opposite parties 1 and 2 and ex parte against opposite parties 3 and 4. The District Forum held opposite parties 1 and 2 liable severally and jointly and directed them to refund the cost of the machine, i.e., Rs.8,97,840/-, after taking back the machine from the complainant. Opposite parties 1 and 2 were also directed to pay compensation for mental agony amount to Rs.5,000/- and litigation cost amounting to Rs.2,000/-. The entire sum of Rs.9,04,840/- was directed to be paid by opposite parties 1 and 2 to the complainant within a period of one month from the date of communication of the order, failing which the amount was to carry interest at the rate of 9% per annum.
5. We have scrutinized the L.C.R. and minutely gone through the communications between the parties and the affidavit evidence as well as the respective stand taken by the parties in the complaint petition and the written version. Admittedly, the mini lab was sold by the opposite parties on 30.03.2002 and the same was installed on 24.04.2002 after door delivery of the machine on 09.04.2002 for a total price of Rs.8,97,840/-. We have found from record that the initial warranty was for one year and subsequently it was extended by six months, which expired on 22.10.2003. Thereafter, the complainant executed annual maintenance contract on payment of fee of Rs.47,500/-. The annual maintenance contract was renewed for the period 2004-05. Since there was change of policy, comprehensive maintenance in lieu of annual maintenance was introduced. The complainant agreed to such maintenance in 2005-06 for securing four free visits of the Company on purchase of spare parts worth Rs.70,000/-. Accordingly, the complainant tendered Rs.50,000/- towards supply of spare parts deferring payment of the balance of Rs.20,000/-. On 31.01.2006, the complainant, while complaining about 22 days delay in receiving the spare parts, requisitioned further supply of spare parts by his letter 13.03.2006. Few days thereafter, on 21.03.2006, the complainant extended thanks for putting the machine to proper functioning by deputing technician and personnel from China, who had verified the machine. Thereafter, on 23.06.2006, the complainant served legal notice on the allegation of non-supply of spares and non-availability of service as and when required. Opposite parties 1 and 2 intimated the complainant that sale of such type of mini labs had been discontinued. The further intimated that they were always ready to help the customers by importing spare parts from outside, which is really a time consuming process. We also come to find that on 10.07.2006, i.e., about 4 years after the use of the mini lab, the complainant demanded opposite parties 1 and 2 to take back the machine and refund the entire cost as the machine was of no use without availability of spare parts and assured timely service. The complainant, as we find, had also alleged that he was sustaining loss of Rs.25,000/- to 35,000/- per day and for that by his letter he had asked the opposite parties to settle the matter.
6. Learned counsel appearing for the appellants attempted to explain the fault in the machine complained of by the complainant during the four years time he had used the mini lab and submitted that setting of print channel is not a machine fault and this setting is always done as per the customers choice and local choice from time to time. This is a continuous process to update the condition as there is a change in the light source and chemical condition, which requires adjustment. The complainant is lacking the know-how in attending the routine job for the lab. It has no relation with the machine quality. He further submitted that the complaint made by the complainant by letter dated 25.07.2002 required temperature adjustment. It is a common thing to adjust temperature from time to time for proper quality depending on the chemical condition in the mother tank and this is not a fault. Similarly, the complainant in letter dated 05.08.2002 required only adjustment of the film processor for colour developer and bleach tank. Any machine device needs calibration. This pump adjustment is simply calibrating the output of replenisher, the reason is that replenisher is a dose of chemicals to restrengthen the working solution and it needs calibration every week to maintain quality. It was submitted vehemently that due to want of laboratory technician and lack of know-how, the complainant always depended on the field engineers of the manufacturing company for such petty job, and the complaint raised regarding faults in the machine were no fault at all and the same occurred due to want of technical know-how to handle the machine. Regarding the other defects, which were complained of by the complainant in his letter dated 09.09.2005, it was admitted by the appellants that the filter was required to be replaced, which has to be done every three months or even earlier, and this depends on the quality of water used in mixing of chemicals. Such petty job like change of filter should have been done by the complainant and the service of the service engineers or technicians of the company was not at all required. This has nothing to do with the quality of the machine or the printing machine.
7. On an over all perusal of the material on record and as submitted before us, we find that the complainant himself, without any expert opinion, has branded the mini lab to have manufacturing defect in it and has claimed its replacement and, if not, then refund of the cost price by taking back the existing one.
8. Admittedly, the mini lab was installed in 2002 and even after expiry of its warranty period the opposite parties extended the same by six months. Thereafter, the complainant has availed service through annual maintenance system on payment of the stipulated charges. Subsequently, when the annual maintenance system was discontinued by the opposite parties and comprehensive maintenance system was introduced in lieu thereof, the complainant entered into an agreement for the year 2005-06 and paid Rs.50,000/- out of the stipulated charge of Rs.70,000/-, which includes four free visits and cost of spare parts. Vide letter dated 21.03.2006 to opposite party no.1, the complainant himself has expressed his thanks for deputation of technician for putting the machine to proper functioning. This goes to show that the machine had no manufacturing defect and due to handling of the same without technical know-how, for fear of break down, even in case of petty matters like change of filter, frequent complaints were lodged with the opposite parties on the plea that the machine had gone out of order. Learned counsel for the appellants minutely explained the situation under which there were unclear print-outs and other such minor defects, which ungrudgingly the company had removed. By efflux of time, the complainant should have got his personnel or technical hands, who were handling the machine, to know the way to remove such minor defects, which he perhaps did not do and all through depended on the company engineers and technicians. At the cost of repetition, we would like to state here that there is absolutely no expert opinion to come to a finding that there was any manufacturing defect in the machine. This mini lab is a sophisticated modern machine, and due to improper handling or want of know-how about handling and getting rid of petty defects, the complainant has complained of defects in the machine to the opposite parties frequently. In the year 2006, soon after the machine was put to perfect order by the companys personnel, the complainant expressed his satisfaction about its functioning. Thereafter, however, he filed the complaint claiming replacement of the machine or refund of price thereof by the company apart from claiming compensation and cost of litigation.
9. Learned counsel for respondent no.1, who is the contesting respondent, could not satisfy us on the question of manufacturing defect upon which the complainant throughout harped in the complaint to substantiate his claim. The learned District Forum has also not considered the factual issues and has abruptly come to a finding that the machine was defective and as such it should be taken back or the cost thereof should be refunded to the complainant. Such observation and order without proper appreciation of the material on record is absolutely unsustainable.
10. In the result, therefore, we allow the appeal, set aside the impugned judgment and order dated 29.01.2008 passed by the District Forum, Khurda at Bhubaneswar in C.D. Case No.241 of 2006 and direct dismissal of the said consumer complaint.
Records received from the District Forum may be sent back forthwith.
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(Justice A.K. Samantaray) President ........
(Basanti Devi) Member SCDRC, Cuttack July 31, 2009/Nayak