State Consumer Disputes Redressal Commission
Amont Software & Equipment Pvt. Ltd., ... vs K.Mohan S/O.Kannaih Chittoor District ... on 26 September, 2012
BEFORE THE A
BEFORE THE A.P.STATE CONSUMER
DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
FA.No.656/2011
against C.C.No.17/2010 District Forum-II,
Tirupathi
Between
1. Amont Software & Equipment Pvt. Ltd.,
Rep. by its authorized
signatory
G-7, Sec.6, Noida, UP. ..Appellant/
O.P.1
And
1. K.Mohan
S/o.Kannaih
R/o.18-1-4/D2, Ramachandranagar
K.T.Road, Tirupathi. Chittoor
District
2. G.Syam Babu S/o.Mathaiah
Dileep Digitals and Printers
6-1-70/A/2
K.T.Road, Tirupathi
3. M/s.Aurosai Enterprises
Distributors for Andhra
Pradesh
Rep. by its Managing Partner
P.R.N.Gautham at No.6-3-850/1
Plot No.203, 2nd
floor, L.B.Road,
Ameerpet, Hyderabad-16. Respondent/
O.P.3
Counsel for the Appellant : Mr.R.Sridhar
Counsel for the Respondent
: M/s S.Prasada Rao R1 and R2
M/s A.Rajendra Babu-R3
QUORUM: THE HONBLE SRI
JUSTICE D.APPA RAO, PRESIDENT,
AND
SRI
S.BHUJANGA RAO, HONBLE MEMBER.
WEDNESDAY, THE TWENTY SIXTH DAY OF SEPTEMBER, TWO THOUSAND TWELVE Oral Order (Per Honble Sri Justice D.Appa Rao, President) *** This is an appeal preferred by the opposite party No.1 against the order of the District Forum directing it to pay Rs.12,50,000/- to the complainant together with interest at 9% p.a. from the date of complaint i.e. 10-2-2010 till the date of realization together with costs of Rs.2,000/-.
The case of the complainants in brief is that the appellant is the manufacturer of outdoor/Indoor flex printer and opposite party No.2 is its dealer. Complainant No.1 intended to purchase Digital printer for his co-brothers son, complainant No.2, from out of pensionary benefits of his father to eke out his livelihood at Tirupathi and consulted opposite party No.2 and on his advice purchased a printer for Rs.12,50,000/-. Though opposite party No.1 had agreed to deliver the printer at Tirupathi within 6 days from 13-3-2009 through Super India Cargo Movers, Noida, it arrived lately on 26-3-2009.
During unloading of the printer, it was observed that the packing material was torn out and damaged for which complainant No.1 had objected for installation of the machine more so when the wheels were also broken and they were welded. Opposite party no.2 assured to replace with a new machine if the unit sustained any damage.
On that complainant no.1 signed transport invoice and took delivery. The company engineer and his Assistant stayed there insisted to give an endorsement that the machine was in good condition despite his protest. For future problems, if any, he was advised to report the matter to Service Engineer at Chennai. While so, on 11-4-2009, the machine was found not working properly due to which, black colour was blocking. Though a service engineer was deputed on 30-4-2009, he could not solve the problem.
When he intimated to opposite party No.2, he deputed one Assistant who took 8 days and replaced the batteries, however, there was no improvement. When he complained again, he was directed to bear the flight charges of the service engineer and accordingly the amount was paid. He replaced the electronic board, additional filters, mother board, software in the machine even then the unit was not working well, to that effect, a certificate was given. Even the assistant expressed his inability to repair and gave a certificate to that effect on 02-6-2009. Later again on his complaint, opposite party No.2 received Rs.70,000/- and deputed one T.Ganesh, printer head set was replaced but to no avail. Thus from the beginning, he was facing trouble. The defects could not be rectified and arose within warranty period. On that he got issued notice claiming refund of Rs.12,50,000/- besides compensation of Rs.2,00,000/- and costs.
Opposite party No.1, manufacturer, resisted the claim. While putting the complainant to prove each and every fact, however, alleged that the transaction was for commercial purpose. The machinery was purchased in the name of M/s.Dileep Digitals and Printers. The complainants did not purchase in their individual capacity, therefore, the complaint is not maintainable. The business was run for profits, they employed several persons involving in large scale printing/designing. The digital printer was allotted Tax Identification number and it would be allotted by State authorities only to commercial establishments involved in sale, purchase, manufacturing and job work and the same is fortified in the particulars in the invoice dated 12-3-2009. No expert opinion has been placed to substantiate that the machinery was defective. The purchase being made at Noida, the District Forum has no jurisdiction, therefore, it prayed for dismissal of the complaint with costs.
Opposite party No.2, authorized dealer, equally resisted the case. While denying the various facts alleged in the complaint, it equally alleged that there was no defect in the machinery supplied. By the time it went to install the machinery, the premises was not ready, drainage works were going in the way. The machinery was kept by the said of the drainage canal on an uneven soil surface. Even after removal of package, the printer was in good condition but the wheels were stuck due to uneven surface, it was welded and the same was installed. Their instructor, Ganesh had trained the operators. It did not receive Rs.70,000/- through ICICI nor sent Ganesh for imparting training. Since the unit was purchased in the name of firm, M/s.Dileep Digitals and not in individual capacity, and it being for commercial purpose, the complainants cannot be termed as consumers and prayed for dismissal of the complaint with costs.
The complainant No.2 in proof of their case filed his affidavit evidence and got Exs.A1 to A14 marked, while the Vice President of opposite party No.1 filed his affidavit evidence and marked Exs.B1 and B2. The report of the Commissioner is marked as Ex.C1 The District Forum after considering the evidence placed on record, opined that the complainants have established that there was manufacturing defect in the printer. The complainant purchased it for eking out his livelihood and not for commercial purpose and directed opposite party No.1 to refund Rs.12,50,000/- with interest at 9% p.a. from the date of complaint i.e. 10-2-2010 till the date of realization and also costs of Rs.2,000/- to complainant No.2. Obviously it dismissed the complaint against opposite party No.2.
Aggrieved by the said order, opposite party No.1 preferred this appeal contending that the District Forum did not appreciate either facts or law in correct perspective. It ought to have seen that the machinery was purchased in the name of the firm M/s.Dileep Digitals and Printer and there is no proof that the complainants had purchased it for eking out their livelihood. At any rate, there is no evidence to prove that there was defect in the machinery manufactured by it. The District Forum ought not to have relied on the report of the Commissioner. It is not known as to the qualifications of the said expert. Moreover, he inspected after expiry of the warranty period. Importantly, the complainants did not operate the machine within 20-25 degree Celsius as specified in the brochure. There was no defect and deficiency in service and therefore prayed that the appeal be allowed by dismissing the complaint.
The points that arise for consideration are:
1) Whether there is any manufacturing defect in the printer supplied by the appellant?
2) Whether the complaint is maintainable under the provisions of Consumer Protection Act, 1986?
3) To what relief? It is an undisputed
fact that a printer manufactured by opposite party No.1 was purchased from the authorized distributor, opposite party No.2, for a sum of Rs.12,50,000/- vide Exs.A2 to A5 and A7. The first complainant had intended to purchase to benefit his co-brothers son, complainant No.2, a diploma holder in Computer Science for running business under the name and style of M/s.Dileep Digitals and Printer. Before considering the question whether the complainants firm is a firm or proprietary concern or whether it was to eke out livelihood, the fact remains that it was a commercial transaction and being used for commercial purpose. The printer arrived on 26-3-2009 and the same was installed within a few days at Tirupathi by the company engineers. The complainants allege that on 11-4-2009, they found that the machine was not satisfactorily functioning though they had followed the instructions given in the operating manual. The black colour was blocking. On intimation to opposite party No.2, one Manoj Bai had attended but could not solve the problem. On a complaint to opposite party No.2, one Ganesh replaced batteries but there was no improvement. The main complaint was that the unit was not continuously working for more than two hours. When he again informed the said fact to opposite party No.2, he directed them to pay travelling allowance by flight to the company engineer.
Accordingly he was deputed on 23-5-2009 and he along with one Ganesh from Hyderabad replaced the electronic board, additional filters, mother board, soft ware etc. still the problem persisted. However, Ganesh also could not rectify the problem.
On that a certificate was given on 02-6-2009 to that effect. A perusal of the documents shows that for the first time on when the problem reported, he found hanging, system restarted, blockage, Alignment, system problem, software setting problem, change new CPU, installed the software done some setting. It was rectified and found working evidenced under Ex.A10. Again on 22-5-2009 a complaint was made, the following remarks were made:
There was power supply, voltage not correct, and set tank level was not correct And also ink filters changed.
It was noted that it rectified the same and made an endorsement now the printer is working properly. The complainant had signed vide Ex.A11.
On 02-6-2009 when the complainant had complained of Back colour problem and Black Voltage problem the technician, Ganesh, noted Doing change head voltage setting.
30/5/2009 printing O.K. Problem solved. Next some blockages is yesterday 01-6-2009 and today 02-6-2009 Machine working fine (only starting 30 minute) pusaing problem (means blockage). On that the complainants gave registered notice on 23-12-2009 alleging that the opposite parties could not rectify the mistake and thereafter filed the complaint for refund of the amount on the ground that there was manufacturing defect in the machinery.
During the course of hearing at the instance of the complainant, an Advocate Commissioner was appointed to take an Expert Engineer and assess the machinery on a petition in I.A.No.50/2010. The Advocate Commissioner took an Expert Engineer i.e. V.Thirumalaiah, Polytechnic college Principal, Tirupathi. He noted the following conclusions:
1. In Pursuance of the Commissioners notice, I V. Thirumaliah Retd. Principal.
Govt. Polytechnic, Tirupati have attended the commission to inspect the Inkjet Printer TW 33 HB installed at Dileep Digital Printers at 6-1-70/A/2, K.T. Road Tirupathi on 24-7-2010 at about 5-30 p.m. along with commissioner and advocate for petitioners. I am also to inform that I possess B.E. (ECE) Degree and P.G. Diploma in Computer Application with sufficient knowledge in Electronics and Computers.
2. Physical examination revealed that the four inkjet printer heads are clogged with ink and the other circuit connections are intact. A test run was conducted after cleaning the heads, revealed that
1. No print was noticed on the flex sheet loaded.
2. The Print head are moving as pet the settings, back & forth within the set limits.
3. I submit that as per the information obtained from the Petitioners/Complainants. Problem is arising due to the printer not able to print properly after putting the printer to print for more than 2 hours. The same was reported to the supplier and the deputed service engineer has replaced mother board, software and other related electronic boards. Even after replacing the above parts, the machine is still in the same condition as it was before i.e., after approximately two hours of working, the printer is not printing some lines resulting in wastage of time, money, flex board, ink etc.
4. Conclusion The printer is not working properly (print is missing on some arbituary lines) after two hours of working which reveals that there is manufacturing defect with the mother board in executing the instruction as pet software loaded.
Further semiconductor devices are the heart of any electronic circuitry and these devices are temperature sensitive by virtue of their physical properties. If the temperature limits are exceeded, the semiconductor devices loose their properties and they just behave as an electrical bidirectional conductor and hence semiconductor devices cannot perform the actual, stipulated role in a circuit. The problem rising may be due to rise in temperature after working for two hours. Hence the printer fail after two hours can be attributed to the failure of mother board, indicating manufacturing defect. (emphasis supplied) No doubt the representatives of opposite parties 1 and 2 could not attend as the time was insufficient. Despite the request of the Advocate to extend some more time as he was not an expert, and requested time to procure expert from the company, the expert engineer (Principal) went ahead and noted the above conclusions.
The learned counsel for the appellant contended that right from day one, it insisted the premises was not conducive for running the printer as air conditioner was not installed. In Ex.A1, while giving specifications of the machinery, there was a categorical mention as to the working environment by maintaining the temperature between 20-25 degree Celsius.
Humidity 40- 60%. The expert engineer had categorically stated that if temperature limits exceed, the semi conductor lose their properties and cannot perform as per stipulations. He categorically stated that due to raise in temperature, after working for two hours, the printer failed and can be attributed to mother board. The complainant could not establish that the premises was made conducive for working environment of the printer. The manufacturer had categorically contended that since it was made to run beyond its stipulated temperature, it was not functioning properly. It cannot be attributed to be manufacturing defect. Except that problem which the complainant had complained, the expert did not find any other problem. When he was of the opinion that it was damaged due to high temperature, the manufacturer cannot be found fault with. We may also state that the Commissioner examined the machinery, after expiry of the warranty period. Since the expert himself stated that semi conductor was damaged due to heat, the complainants themselves have to replace it, since it is beyond warranty period, we may not be able to direct the appellant to replace it. The problems mentioned were rectified evidenced by Exs.A10 to A12. Had the complainant shown to the expert that despite taking precaution and maintaining temperature and made conducive the premises for working the printer and that the problem was not due to the temperature but due to inherent defect in the printer, undoubtedly the same could be directed to be replaced or the defect could be directed to be replaced. The Supreme Court of India in II 2004 CPJ 22 (NC) in EITCHER MOTORS LIMITED & ANR. v. PN.RANDIVE held that when any parts of a vehicle or equipment is replaceable and rectifiable, it cannot be stated to be having an inherent manufacturing defect warranting replacement of the entire equipment/vehicle of refund of the value.
Unfortunately, the District Forum directed the entire machinery to be replaced. In the first instance, we are of the opinion that there is no manufacturing defect in the printer as was opined by the expert taken by the complainant, which was excerpted above. Therefore, we do not agree with the opinion expressed by the District Forum in this regard.
Secondly the complainants filed the complaint in their individual names alleging that they purchased the printer in order to eke out their livelihood, Though they allege that they have purchased the printer from out of the pensionary benefits, the documents speak otherwise. Out of Rs.12,50,000/-, Rs.50,000/- vide Ex.A1 by first complainant, Rs.4,00,000/- was paid by one V.Giri Babu and Rs.1,00,000/- by second complainant vide Ex.A2, a sum of Rs.6,00,000/- was paid by one K.Vijayalakshmi by way of D.D. vide Ex.A8 and a sum of Rs.98,000/ was paid for supply of UPS and batteries vide Ex.A9. The complainants did not file the affidavits of the persons, who had paid the amounts on behalf of the complainants to state that they paid on behalf of the complainant in order to make the complainants to eke out their livelihood by purchasing the printer.
Be that as it may, the complainants for the reasons best known purchased the printer under the name and style of M/s.Dileep Digitals and Printer vide sale invoice Ex.A4, transport invoice, Ex.A5, receipt from Cargo Movers, Ex.A6, tax invoice Ex.A7 and the amounts that were paid by D.D. was on behalf of the company. When the complainants were complained that they were functioning under the name and style of M/s Dileep Digitals and Printers vide Exs.A10 and A11, the complainants did not file the complaint under the name and style of M/s.Dileep Digitals and Printers, the name under which the printer was purchased. They did not implead the said concern as a party though the entire transaction is made in the name of concern.
The complainants in the appeal filed endorsement issued by Commercial tax Department that K.Vijayalakshmi w/o.K.Moahn was the proprietor of M/s Dileep Digitals and Printers. It is not known why she did not file the complaint. They did not implead her or, allege that on her behalf, the complainants were doing business to eke out their livelihood.
At this juncture, it is useful to consider the decision in Birla Technologies Ltd. Versus Neutral Glass and Allied Industries Ltd. reported in CDJ 2010 SC-1177 In view of the findings of the National Commission that the goods sold by the appellant to the respondent/complainant amounted to goods and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1-8-2000. In that view, it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15-3-2003 by way of the amendment by the same Amendment Act, as it is nobodys case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondents livelihood by means of self employment. In that view, it will have to be held that the complaint itself was not maintainable in toto.
Exfacie, it looks as though M/s Dileep Digitals and Printers is the purchaser and the complainants filing the complaint in their individual names is bad under law. May be it is a technical plea. In view of the above decision, necessarily, the complainants have to plead facts in order to justify the filing of the case under Consumer Protection Act, 1986.
Since the complainants could not establish that there was manufacturing defect, we are unable to appreciate the order of the District Forum in directing for replacement of the entire machinery. Therefore, we do not agree with the finding of the District Forum.
In the result this appeal is allowed and the order of the District Forum is set aside and consequently the complaint is dismissed. However in the circumstances, no costs.
Sd/-PRESIDENT.
Sd/-MEMBER.
.
JM Dt.26-9-2012