National Consumer Disputes Redressal
Sapna Photostat vs Excel Marketing Corpn. & Anr. on 7 April, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.3668 OF 2006 (From the order dated 12.10.06 in Appeal No.139/05 of the State Commission, H.P.) Sapna Photostat Petitioner Versus Excel Marketing Corpn. & Anr. Respondents BEFORE : HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioner : Mrs.Shakuntala Khanna, in-person For the Respondents : NEMO Pronounced on 7th April, 2011 ORDER
PER MRS.VINEETA RAI, MEMBER The present revision petition has been filed by Sapna Photostat (hereinafter referred to as the Petitioner) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Himachal Pradesh (hereinafter referred to as the State Commission) in favour of M/s Excel Marketing Corporation & Another(hereinafter referred to as the Respondents).
The brief facts of the case are that the Petitioner who was the original complainant before the District Forum has alleged that she is an old lady engaged in Photostat work on a modest scale for self livelihood in her home in Shimla. For this purpose she had purchased a Photocopier Machine Model FT-4615 from M/s RPG Ricoh Ltd. with whom she entered into a service agreement for providing full service to the photocopier in respect of all the spares and consumables required for its running. In lieu of this service she was required to pay 29 paise per copy of the Photostat work done which was revised to 33 paise per copy. In February, 1999 M/s Ricoh India Ltd. informed the Petitioner that their authorized business associate i.e. Excel Marketing Corporation would henceforth provide full services in respect of the Petitioners machine and therefore, the petitioner was asked to enter into a fresh agreement with the Respondent and to make payments directly against the invoices raised by the Respondent. Consequently, a new agreement was sent to the Petitioner for approval which was signed by her and returned after doing the needful and the Petitioner continued making payments to the Respondent at the rate of 33 paise per copy.
According to the Petitioner, the services rendered by the Respondent, however, were unsatisfactory and erratic and when the machine went out of order in 2001, Respondent refused to repair it inspite of several requests whereas as per the agreement it was to be put in working condition, free of cost. Petitioner, therefore, approached the Respondents principal i.e. M/s Ricoh India Ltd. seeking their intervention in the matter following which the machine was repaired after a gap of 4 months during which period the Petitioner suffered in terms of loss of business, loss of customers and also reputation. The machine again went out of order and when the Petitioner approached the Respondent in 2002 for its repairs the Respondent refused to do so on the grounds that the DC and AC harness of the machine had been damaged by rats and that it would not be possible for Respondent to repair this at a cost of Rs.11,641/-. Respondent also contended that it had not entered into any service agreement with the Petitioner and that the earlier repairs had been done as a gesture of goodwill. It was further contended by the Respondent that the machine had been got repaired on some occasions by a third party. Aggrieved by this, Petitioner filed a complaint before the District Forum requesting that the Respondent be directed to repair the machine immediately and regularly in future and to also pay damages of at least of Rs.50,000/- to compensate her for the losses suffered because of inaction by the Respondent.
The allegations of the Petitioner were disputed by the Respondent who stated that in the first place the Petitioner was not a consumer in terms of Section 2(1)(d) of the Consumer Protection Act, 1986 since she was using the machine for purely commercial purposes. Further, there is no privity of contract between the Petitioner and the Respondent since Petitioner never returned back the agreement duly signed in acceptance to the Respondent; also no payment was made by the Petitioner to the Respondent which she was earlier making to M/s Ricoh India Ltd. and repairs to the damaged parts were done by a third party and not by the Respondent.
The District Forum after hearing both parties accepted the complaint. The operative part of the order of the District Forum is reproduced:
Our attention has been drawn towards Annexures C-13, C-14, C-15 and C-16 annexed with the rejoinder which are receipts of payments made by the complainant and received by the OP No.1 dated 06.06.99, 30.06.99, 16.07.99, 01.09.99 and 18.10.99. Annexures C-18 & C-19 are further receipts dated 02.12.99 and 14.02.2k. On the face of these documents it does not lie in the mouth of the O.P. No.1 to submit that it had not been providing any service and there was no agreement executed between the parties and that there is no privity of contract between the complainant and the said O.P. Not only this, the complainant has also placed on record Annexures C-9, C-10 and C-11 dated 18.12.2001, 01.05.2002 and 01.06.2k2 which prove in unequivocal term that the O.p.No.1 had been realizing the payments from the complainant in December, 2k1, May, 2k2, June, 2k2 and July, 2k2 which belies and falsify the stand of the O.P. No.1 that he had never at any stage entered into any service agreement with the complainant. As regards the O.P. No.2 no relief whatsoever has been claimed against the said O.p. and there is no need to refer to the reply filed by the O.P. No.2.
Coming to the defence that the complainant was not a consumer, the said defence is liable to be rejected on the ground that the complainant has specifically averred in her complaint that she being a senior citizen is engaged in Photostat work on a modest scale in her premises where from it can be inferred that the photocopier machine has been purchased for earning livelihood and the same is not used for earning profit on a large scale. Further, the stand taken by the O.P.No.1 in its reply is self damaging and self contradictory. It has been specifically submitted that the service engineer of the said O.P. had noticed that the AC and DC Harness has been damaged by the rats which does not constitute a consumer dispute. Once the stand of the OP No.1 that it was not providing any service to the complainant, there was no question of service engineer of the said O.P. visiting the complainant and inspecting the said machine. Though, it has been pleaded that the service was done on payment of charges but no receipt to that effect has been placed on record in the absence of which we are not able to accept the content on the raised on behalf of the O.P. No.1. Thus, taking into the entirety of the facts and circumstances of the case, we are of the view that the O.P. No.1 has indulged in a clear cut deficiency in service and unfair trade practice by not adhereing to the service agreement contract despite the fact that it had been receiving the regular payments from the complainant.
District Forum directed the Respondent to repair the photocopier machine of the Petitioner free of cost and put it in complete working order within a period of one month from the date of receipt of copy of this order along with Rs.5,000/- as damages and Rs.1500/- as litigation cost.
Aggrieved by this order, Respondent filed an appeal before the State Commission which accepted the appeal. The State Commission in its order has stated that it is not convinced by the reasoning of the District Forum that the business carried out by the Petitioner was for earning her livelihood because according to the State Commission there is evidence that it was being run as a regular business and thus, for commercial purposes. Therefore, Petitioner is not a consumer as per the Consumer Protection Act, 1986. Further, State Commission also concluded that the burden to establish that there was privity of contract between the parties was on the Petitioner who could not produce any evidence to support her contention in this respect.
Aggrieved by this order the present revision petition has been filed. Petitioner was present in-person. None represented the Respondents. However, since the service is complete the case is being disposed of ex parte.
Petitioner has stated that her husband who was her authorized representative in this case is unable to represent her any longer because he is under treatment for cancer in Mumbai. She, therefore, requested that the written statement filed by her before the Commission be taken into consideration as arguments presented on her behalf and the case be decided accordingly.
We have gone through the written statement and have carefully considered the evidence on record.
The State Commission had decided against the petitioner primarily on the grounds that she is not a consumer and that there was no privity of contract between her and the Respondent. Regarding the first point, Section 2(1)(d) of the Consumer Protection Act, 1986 makes it amply clear that if a person indulges in a commercial activity for the purposes of earning his livelihood by means of self-employment then he continues to be a consumer in terms of the Act. This definition of a consumer has been further fortified by judgments of this Commission as well as of the Honble Supreme Court in a number of cases and notably in Laxmi Engineering Work Vs. P.S.G. Industrial Institute AIR 1995 SC 1428, wherein the Honble Supreme Court has concluded that a person who carries on a business for the purpose of earning his livelihood through self employment is very much covered under the ambit of the definition of Consumer.
In the instant case, there is credible and ample evidence to confirm that the Petitioner was carrying out commercial activities for earning her livelihood. In this connection, it is on record that she was operating from her residence and had not hired any other employees to assist her.
Further, there is documentary evidence in the form of meter readings in the invoices produced before the District Forum which indicate that she had a modest business of doing an average of 17 photocopies per day which was about 510 copies per month. In view of these facts we agree with the District Forum that this was not a major commercial venture and was used by the Petitioner to earn her livelihood.
Regarding privity of contract between two parties, it is not in dispute that in the first instance there was an agreement between Respondent No.2 (i.e. M/s Ricoh India Ltd.) who had supplied the photocopier machine and the Petitioner. There is also documentary evidence to the effect that Respondent No.2 vide its letter dated 15.02.1999 had written to the Petitioner that henceforth in order to circumvent delays in service and providing spares and consumables, they are authorizing their sales and service agent i.e. M/s Excel Marketing, to enter into an agreement with the Petitioner directly. Petitioner was specifically asked to give her approval to this proposition by signing this letter which was duly done by her. Subsequently, a letter dated 24.04.1999 was sent by Respondent No.1 to the Petitioner acknowledging the new agreement and also confirming that her requirements pertaining to servicing, spares and consumables would be met by them. There is also evidence regarding the correspondence between the Petitioner and the Respondent in which the Petitioner had, inter alia, alleged that the Respondent was not abiding by the terms of the agreement and, therefore, she was forced to report this matter to M/s Ricoh India Ltd. to intervene. There is further evidence in the form of receipts/invoices that the Petitioner had been regularly paying the necessary fees to the Respondent and that the Respondent had inspected and even repaired the photocopier machine including replacing the AC Harness. Keeping in view these facts, the contention of the Respondent does not inspire confidence that there was no privity of contract between the parties. In fact, it was only belatedly on 13.02.2002 that the Respondent wrote to the Petitioner that there was no agreement between them and, therefore, it was not obligatory on their part to repair the photocopier free of cost.
For the above reasons, we are unable to support the conclusion of the State Commission on both grounds i.e. that Petitioner was not a consumer in terms of the Consumer Protection Act, 1986 and that there was no privity of contract between the parties.
On the other hand as discussed above, there is adequate and credible evidence on record including documentary evidence to support the findings of the District Forum on both these counts.
We, therefore, set aside the order of the State Commission and uphold the order of the District Forum in toto.
The revision petition is thus allowed by setting aside the order of the State Commission and upholding the order of the District Forum. The Respondent is directed to repair the photocopier machine of the Petitioner free of cost and put it in complete working order within a period of thirty days from the date of receipt of copy of this order along with Rs.5,000/- as damages and Rs.1500/- as litigation cost.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/