State Consumer Disputes Redressal Commission
M/S Ess Dee Nutek Infinites Pvt. Ltd., vs Preeti Parganhia on 27 September, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
(A/11/3016)
Appeal No.735/2011
Instituted on 28.11.11
M/s Ess Dee Nutek Infinites Pvt. Ltd.,
A Company duly incorporated
under the Companies Act, 1956
Having its registered office at:
2nd Floor, Orchid Plaza,
Plot No.4, Rajya Sabha, Pitampura,
NEW DELHI - 110 034 ... Appellant.
Vs.
Preeti Parganhia,
Sole Proprietor of M/s R.B.Flex/M/s AARBEE Flex
MIG 30, Padmanabhpur,
DURG - 491 001 (C.G.) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Dhan Mohan Mishra, for the appellant.
Shri Anurag Thaker, for the respondent.
ORDER
Dated: 27/09/2012 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This appeal is directed against order dated 29.10.2011, passed by District Consumer Disputes Redressal Forum, Durg (hereinafter called "District Forum" for short) in complaint case No.126/2011, whereby the appellant herein has been directed to pay cost of the Flex Printing Machine Rs.9,09,000/- to the respondent / complainant and to take the machine back which was sold to the respondent. The appellant has further been directed to pay Rs.1,000/- as compensation // 2 // for mental agony and Rs.1,000/- as cost of litigation. There was further direction for payment of interest on the amount of cost of the machine, @ 7% p.a. from the date of filing of complaint till the date of payment.
2. It is not in dispute that a Flex Printing Machine model Multi Jet V was purchased by the respondent from the appellant. On 29.01.11 payment of cost of the machine was received and the machine was delivered to the complainant on 06.02.11 at Delhi through her authorized person Mr. Pravin Parganiha, which was brought to Durg, Chhattisgarh by him.
3. Case of the complainant before District Forum was that the engineer of the appellant Company tried to install the machine on 19.02.11 and the machine was installed on that date, but could not be made operational because there was some problem of ink pump. Thereafter, on 23.02.11, 25.02.11, 12.03.11, 26.03.11, 28.03.11 and 31.03.11 it was attended by the engineers of the appellant and some parts were changed, but the printing problem remained there, which shows that the machine was having manufacturing defect and so it was not working properly. A defective machine was supplied by the appellant, so by filing consumer complaint it was prayed that the appellant be directed to refund the cost of the machine which was paid // 3 // by the complainant and also to pay compensation for mental agony, financial loss and transportation charges of the machine for bringing the same from Delhi to Durg.
4. The complaint was resisted by the respondent and in the written version this preliminary objection was raised that the complainant does not come in the category of 'consumer' because the machine was purchased for commercial use. This objection was also raised that the District Forum was not having jurisdiction to entertain the complaint, because the appellant company is having its Office at Delhi and as per the agreement executed between the parties, in case of any dispute the matter was to be filed at Delhi. Apart from these preliminary objections, it has also been averred that the machine was properly installed on 08.02.11, but it was found that the site was not properly prepared by the complainant as per suggestions given by the engineer of the appellant on inspection of the site. As the machine was very sophisticated and delicate computerized machine, so it was required to be kept in a dust free room and to be operated by a well qualified trained operator. Other necessary requirements were also informed to the complainant, but the complainant failed to fulfill the operative guidelines of the machine, which was resulting in some problem here and there in the machine. One Mr. Ashish Verma was sent by the complainant for operational training and for that a // 4 // certificate was signed by the complainant on 12.02.11. The said person was given training. The machine was attended by the engineer of the appellant from time to time and Job Cards were prepared. It was always found that the site was dusty but even then proper actions were taken by the appellant's engineer. It has been averred that the complainant issued letter dated 26.02.11 and 13.03.11 apprising the excellence of the machine and the service provided by the appellant Company. Then on 26.03.11 a warning letter was issued by the appellant to the complainant and faults were pointed out in operation of the printer, but those faults were not removed. It has been reiterated in the written version that the complainant himself failed to operate the machine as per operational guidelines and operational training given by the appellant and so if some problems were there, then it was on account of conduct of the complainant but even then the machine was attended by the engineers of the appellant / OP, even after filing of the complaint and ultimately the complainant gave satisfaction certificate regarding operation of the machine. The appellant Company was also prepared to settle the dispute. It has also been averred that the complainant cleverly got shifted the machine from original place to some other place without intimating the Bank as well as the appellant Company, which was violation of the terms of the agreement and the warranty certificate, so the liability of the appellant Company came to an end. It has also been averred that for the // 5 // purpose of creating sympathy in the mind of the District Forum, proposal for compromise was sent by the complainant to the appellant, whereas the appellant had already sent a notice for appointment of Arbitrator and a proposal for compromise was also sent by the appellant but it could not be finalized. On the basis of aforesaid pleadings, it has been averred that the complaint was misconceived and was not maintainable. The machine supplied by the appellant was not having any manufacturing defect, so prayer was made for dismissal of the complaint with cost.
5. Learned District Forum had no agreed with the defence of the appellant and allowed the complaint by the impugned order.
6. We have heard arguments advanced by both parties and perused the record of the District Forum.
7. The first question for consideration is whether the complainant comes in the category of 'consumer' ?
8. In this regard, in the complaint it has been stated by the complainant that for the purpose of earning livelihood for herself and for her family, she obtained loan under Pradhan Mantri Rojgar Yojana for purchasing Flex Printing Machine. With the help of loan the // 6 // machine was purchased and she had also undergone training for that purpose. To counter it, learned counsel for the appellant has drawn our attention towards operational training certificate signed by both parties, which shows that the training was given to one Mr. Ashish Verma, R/o. MIG 30, Padmanabhpur, Durg and the letter was signed by both persons. As other details regarding said Ashish Verma has not been given by anyone nor the certificate is bearing any date, so much importance cannot be attached to this letter. The complainant has also filed, document No.4 of the complainant, which in fact is a letter of Branch Manager of Bank of Baroda for 'Sponsoring the Beneficiary for Undergoing EDP Training'. But some entries relating to details of institution where training was to be taken, have not been filled in the letter so this certificate also carries no force. In fact the certificates filed by both parties are incomplete and from these certificates it cannot be said that either the complainant or the person who has been named by the appellant had undergone that training. Therefore, on the basis of averments made in the complaint duly supported by affidavit of the complainant it can only be inferred that the machine was purchased by the complainant for earning livelihood for herself and her family by self employment and so she comes in the category of 'consumer'. In this regard, finding of the District Forum appears appropriate.
// 7 //
9. Second question for consideration is as to whether the District Forum Durg was having jurisdiction to entertain the complaint ?
10. From the cause title of the case, it appears that the appellant functions at Delhi, which also appears from the Invoice, document No.1 i.e. sale bill of the machine and which bears entries that machine was sold at Delhi and was handed over to representative of the complainant for onward transportation by road to Durg. But, the agreement executed between the parties in this regard document, Annexure R-3, contains the terms and conditions of sale of printer by the appellant to the respondent / complainant. In this agreement there is a condition that supply of machine would be at "delivery ex- godown of the seller - the cartage, handling, forwarding charges of the said machine shall be paid by Purchaser directly to the concerned agencies". Delivery was to be made from the warehouse of the seller after pre-delivery inspection of the machine and thereafter the seller was not supposed to be responsible for any transit damage from warehouse of seller to the site of the customer. Condition No.12 says that "after installation of machine at customer site and due operational training to the authorized staff of purchaser, he does not have any right / reason to make stop payment of any post-dated cheque / due payment for whatsoever the reason". This condition shows that the machine was required to be installed at the purchaser's site by the // 8 // engineers of the seller and then operational training was also required to be given to the authorized staff of the purchaser by the service engineer. Thus, the transaction of sale cannot be said to be complete unless the machine is installed and is made operational at the purchaser's site. Grievance of the complainant against the appellant was that the machine was not properly installed and was not made operational. This grievance provides cause of action to the complainant against the appellant at Durg also and therefore the complaint was maintainable before District Forum at Durg under section 11(2)(c) of the Consumer Protection Act 1986. We find that the District Forum has reached to a right conclusion in this regard.
11. The most important question which arises for consideration is as to whether the machine was having any manufacturing defect and there was any necessity of direction of refund of cost, if any, by the appellant to the respondent ?
12. Learned District Forum in this regard has held that Job Cards document Nos.8, 9, 10, 11, 12, 13 and 14 show that the machine was in warranty period and it was found defective by the engineer of the appellant and some parts were changed, so on the basis of these Job Cards this conclusion was drawn by the District Forum that the // 9 // machine was having inherent defects and that is why in spite of repeated repairs it could not be made functional.
13. We find that the aforesaid finding recorded by the District Forum was totally erroneous and contrary to the record.
14. The Job Cards which have been referred by the District Forum in the impugned order show that on 08.02.11 the machine was properly installed and it was printed in the letter that "the machine has been properly installed and working to the entire satisfaction of the customer as per agreement". This letter was signed by the complainant as well as Authorized Operative Staff of the appellant. But remark has been made by the complainant in this letter to the effect that "we will be satisfied after 1-2 months of proper working of Machine due to frequently appearing problems in Machine." This remark which was put by the complainant was quite unnecessary because the machine was installed on that very day and it was made functional so there was no reason of taking grievance that problems were appearing frequently in the machine and it shows that the complainant from the very beginning was of the mood to say that the machine was not functioning properly.
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15. It is also worth mentioning here that on 10.02.11 Confirmation of Installation was signed by the complainant and it has been confirmed that the "printer have been successfully working satisfactorily. In terms of purchase order and agreement dated 22.11.10." It has been certified that "successful installing and satisfactory print taken" and software mounting was also satisfactory. No note was put in this letter by the complainant. Warranty certificate was issued by the appellant from 29.01.11 to 09.02.2012, which is also available on record and the condition of warranty were inter alia that "ink tanks, ink pipes, printheads, ink pumps, pinch roller, pinch roller assembly, ink & air filter, all plastic and metal parts of the machine, floating sensors, carriage assembly, super structure / body machine are defined as consumable parts" and "during the warranty period the machine will be repaired free of cost for non-consumable parts". Thus the warranty was not applicable on consumable parts, which have been enumerated hereinabove.
16. The Job Cards on which the complainant has placed reliance and the Cards which have been filed along with the complaint, shows that on 19.02.11, this service guideline was given that 'keep the machine in room dust free' and the reported problem was 'machine installation'. It was found that there was in fact some problem in ink pump, which was not working. Otherwise installation of the machine // 11 // and machine booting was found OK. Then anther Job Card dated 23.02.11 shows that the ink board and Sr. power supply was replaced with new one, but the pump was not working. On 25.02.11 cartridge board was replaced with new one, the PJ software was reinstalled, head I/O board replaced, then ink pump was found working properly and the Job Card was signed by the complainant. In every Job Card this guideline was given that the machine was required to be kept in dust free room. Then again on 12.03.11 same instruction was given. At that time there was report of problem in I/O Board, which was mentioned to be replaced by the engineer with new one and it was found that every other parts were working properly but the print head was not functioning because encoder strip was not working. The encoder strip was also needed to be changed. Again on 26.03.11 problems were reported. Then encoder strip and raster replaced with new one and test print taken out. Installation was in progress at that time. Next Job Card is of 28.03.11 at that time head cable was changed with new one but head cable not working and it was replaced and test print was taken. On 31.03.11 test print was taken which was OK, but there was some print problem and it was found that new software is needed for proper working of the machine which was done and then the machine was found to be working properly.
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17. These are the only Job Cards relied by the complainant and on the basis of which the District Forum has reached to the conclusion that the machine was having inherent manufacturing defect. The Job Card merely shows that the consumable parts of the machine were having some problems here and there and when reported they were properly attended and were replaced and it was instructed every time to the customer that the machine be kept in a dust free room. The appellant right from the very beginning was instructing the complainant to keep the machine in dust free room in fact it was one of the condition of the agreement itself, executed between the parties. It has also been pointed out by the appellant to the complainant again and again that the machine be operated only by a trained operator who has attended the Operation Training and in fact it was one of the conditions of warranty also, but it appears that this condition was also not followed resulting in replacement of consumable articles again and again. All those articles, which were replaced by the engineer in the aforesaid Job Cards were consumable articles as per conditions of warranty and were not parts of the main machine. By letter dated 26.03.11 a warning was sent by the appellant to the complainant that 'the machine was installed on 08.02.11 and from the reports of the company's engineers during visit at the site it was found that the machine room is not appropriate as per the advice given by the appellant to the complainant again and again. It was not kept in dust // 13 // free room and this advice was not taken seriously'. It has been stated in the letter for the information of the complainant that due to dust "the machine can have several serious problems: 1. Ink supply will be interrupted and will damage the parts like pump, ink filter, heads; 2. Dust cause friction in movement of parts and also cause problem in connectivity which cause problem in data supply. Due to this, parts like encoder, motor, pulleys, Heads etc. can damage permanently; 3. Dusty Media effect printing quality and damage printing heads permanently etc." Similarly, it was also found that the machine was not being operated by a qualified and trained operator because it also results "into many serious operational, Software (Corrupt) Data transferring, exact color matching, speed and many other like and connected problems". So it has been reiterated that "Multijet V is sophisticated computer operated Digital solvent ink jet printer with sensitive pressure Ink settings it requires duly qualified B-tech (Printing Technology) operation with hands of knowledge about designing and color combination to extract peak performance from the printer." In the original agreement also these conditions were there.
18. Apart from it after filing consumer complaint before District Forum the complainant was again making contact with the appellant requesting to provide services and services were being provided by the appellant from time to time. The record of all Job Cards of Inspection // 14 // / Call / Service Schedule Visit, after filing of the complaint have also been brought on record before the District Forum by the appellant, which have not been referred by it and have not been considered properly by the District Forum. On 18.04.11 after filing of the complaint, the machine was attended by the engineer because there was some problem in the raster. The raster was replaced with new one but print problem was found there and fast print was taken which was OK and now it was found that the machine was working properly. This Job Card has been signed by both parties and at that time also requirement of keeping the machine in dust free room was again advised by the engineer. Similarly on 04.05.11 the machine was attended by the engineer and it was found that the machine was working properly and remark of the complainant was that "the complainant will satisfy after 1-2 months of proper working of machine but at that time good results were coming from the machine". The remarks of the engineer were that the room temperature was required to be maintained and earthing should be proper, which was also agreed by the complainant. Similarly, on next day i.e. 05.05.11, 300 sq.ft. prints were taken out and all were good and print results were satisfactory. This report was also signed by the complainant with same remark that she will be satisfied after 1-2 months of proper working of machine and on 06.05.11, 07.05.11, 08.05.11, 09.05.11 also hundreds of prints were taken from the machine of the complainant, // 15 // Job Cards were prepared and results were satisfactory but the complainant was every time giving remarks that she will be satisfied after 1-2 months of proper working of the machine. All these documents are available in the record of the District Forum from Annexure R-12/A to R-12/F. Finally on 10.05.11 again 2150 sq. ft. prints were taken out and the machine was working properly with satisfactory results and this report was also signed by the complainant without any remark. On 12.05.11 also 2425 sq. ft. prints were taken satisfactorily. Similarly on 13.05.11 2500 sq. ft. prints, on 14.05.11 3460 sq. ft. prints and on 16.05.11 2550 sq. ft. prints were taken and every time the machine was giving satisfactory results to the satisfaction of the complainant.
19. Thus, it is clear that the machine was working quite satisfactorily and the complainant was also fully satisfied, so there remains no reason to come to the conclusion that the machine was having some manufacturing defect, which necessitated refund of cost.
20. For the purpose of proving manufacturing defects, it was necessary for the complainant to bring on record evidence as opinion of some expert, who after examining the machine or object in question can certify on the basis of his experience and qualification that the machine or the object is having some inherent manufacturing defects, // 16 // which are not curable and either replacement of the machine or the object or refund of cost of the same are the only solutions. In the present case no such expert opinion has been brought on record by the complainant and merely Job Cards were referred by which consumable articles were replaced at the initial stage, when the machine was being made functional. Later on the machine started functioning with full satisfaction of the complainant for many days continuously. So there was no reason for coming to the conclusion that it was having some manufacturing defect.
21. In view of the aforesaid, we find that the District Forum has come to a wrong conclusion and so the order passed by it is not sustainable.
22. Thus, the appeal succeeds and is allowed. The impugned order is set aside and the complaint filed by the respondent / complainant before District Forum is hereby dismissed. No order as to cost of this appeal.
(Justice S.C.Vyas) (V.K. Patil)
President Member
/09/2012 /09/2012