State Consumer Disputes Redressal Commission
M/S. Arihant Computers (P) Ltd.,50, 1St ... vs S. Sethuraman,No.1, East Mada ... on 29 April, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.S.Sambandam, B.Sc., MEMBER II F.A.322/2008 [Against order in C.C.307/2001 on the file of the DCDRF, Chennai (South)] DATED THIS THE 29th DAY OF APRIL 2011 M/s. Arihant Computers (P) Ltd., | Appellant / Opposite Party Rep. by Mr.Kothari, | 50, 1st Main Road, CIT Nagar, Nandanam, | Chennai 600 035. | Vs. S. Sethuraman, | Respondent / Complainant No.1, East Mada Street, | Srinagar Colony, Saidapet, | Chennai 600 015. | The respondent as complainant filed a complaint before the District Forum against the appellant/opposite party praying for the direction to the opposite party to pay Rs.10,000/- for causing mental agony and suffering, to pay Rs.1,750/- with interest at the rate of 24% from 22.4.2001 till the date of realization. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.07.11.2007 in C.C.307/2001. This appeal coming before us for hearing finally on 20.04.2011, upon hearing the arguments of the either counsels and perused the documents, as well as the order of the District Forum, this Commission made the following order: Counsel for the Appellant /Opposite Party: Mr.K.Venkatasubramanian, Advocate. Counsel for the Respondent/Complainant : Mr.S.Natarajan, Advocate. M. THANIKACHALAM J, PRESIDENT 1.
The opposite party is the appellant.
2. The respondent/complainant purchased a Lex Mark High resolution black print Cartridge from the opposite party on 22.4.2001 for the purpose of using it in his Lex Mark Printer, showing the used Cartridge for identification. Believing that correct Cartridge and a genuine product was given, a sum of Rs.1,750/- was paid. In the first week of June, when the new Cartridge was taken for use, it failed to fit in with the printer and therefore, replacement was sought for, which was refused by the opposite party, including costs also alternatively, contending there is no warranty, forgetting the fact, there is an implied warranty.
There is no condition, attached to the sale that the Cartridge should be returned within the specified period. The complainant was unable to use the Cartridge because of non-comparability and the opposite party by selling this kind of Cartridge committed unfair trade practice as well as deficiency in service. Hence, the complaint is not only entitled to for the recovery a sum of Rs.10,000/- for mental agony, but also a sum of Rs.1,750/- being the value of the Cartridge.
3. The opposite party/appellant admitting the purchase of Cartridge from them, by the complainant, resisted the case contending that once Cartridge was opened, it cannot be accepted for exchange, that the complainant having purchased wrong Cartridge, opened it on his own without verification, which cannot be termed, as unfair trade practice or negligence, denying that before purchase, the old Cartridge was shown, thereby praying for the dismissal of the complaint.
4. The District Forum by its order dated 07.11.2007, concluding that the opposite partys refusal to supply suitable Cartridge, to the complainant is a clear case of deficiency in service and therefore, he is entitled to refund of Rs.1,750/- on production of defective one, in addition to, a compensation of Rs.2,000/-, thereby issuing directions, which is under challenge.
5. As evidenced by Ex.A1 receipt, dated 22.4.2001, the complainant had purchased Lex Mark 17G0050 Ink Cartridge from the opposite party. The complainant, when attempted to use this Cartridge after exhausting the old Cartridge, it failed to fit in, because of change of pattern or model. At the time of the complainants attempt, to fix the new Cartridge, he opened the seal and then only he came to know the Cartridge is different, thereafter when he approached the opposite party for exchange, refused, resulting this complaint.
6. It is for the complainant to make out, that he had requested the opposite party, to supply a suitable Cartridge for his Lex Mark Printer, giving the code number if any, model etc., It is not the case of the complainant that he has given code, design number etc., whereas, it is the case of the complainant that at the time of the purchase, the complainant had sent a used Cartridge for proper identification of the product. If the used Cartridge had been shown, certainly there is no possibility for the opposite party, to supply a different one, that too, a defective one, which not even the case of the complainant, though recorded by the District Forum so. What was the design or type of Lex Mark Ink Cartridge is also not pleaded in the complaint though in the notice, the purchased of Lex Mark Ink Cartridge with identification number is given, which is in accordance with Ex.A1. From the pleadings itself, it is seen, the complainant had not directly purchased, he appears to purchase through somebody. Atleast after the purchase, when it was handed over to him, he should have verified, whether the required Cartridge was supplied/sold by the opposite party, which he failed. Even before the District Forum, he has not shown the used Cartridge or exhausted Cartridge, said to have been sent to the opposite party for identification.
Therefore, it is impossible to say, that the opposite party had sold a different Cartridge, though the complainant had sought for a specified Cartridge, for the use of his printer Lex Mark. From the facts available, we are of the considered opinion, it is purely the mistake of the complainant. It is not the case of the complainant that he had purchased the printer along with Cartridge, therefore, it is his duty to see that the Cartridge fixed in with the printer. The complainant had purchased the printer elsewhere and Cartridge alone at later point of time purchased, from the opposite party. Therefore, there is no possibility for the seller to know what is the printer used by the complainant, what is the design of the Cartridge used in the printer etc., This being the position, unfortunately the District Forum has recorded a finding, as if, the opposite party refused to supply a suitable Cartridge to the complainant and that should be construed as clear deficiency of service, which finding appears to be not based upon either on pleadings or on materials. The further observation of the District Forum that supplying/selling wrong Cartridge, amount to unfair trade practice and we do not find reason, on what source this finding was drawn.
7. When the complainant has not made out, what type of Lex Mark Ink Cartridge, he sought from the opposite party, it is very difficult to say, the opposite party has committed unfair trade practice or deficiency in service. In our considered opinion, when the cover was opened, seal was broken, exchange is not possible, since the opposite party cannot sell the same to anybody and no one will be willing to purchase, that too when the opposite party has not committed any wrong, except selling the Cartridge. Thus, in our opinion, the complainant without verifying the Cartridge, its suitability, removed the cover, opened the seal and when it does not suit fit to his printer, the opposite party cannot be held responsible, as if, they have supplied defective Cartridge, as incorrectly recorded by the District Forum, that too, when there is no proof, the old Cartridge was shown having specified number, but the opposite party has not sold the same. The Cartridge was purchased on 22.04.2001 and even as admitted in the complaint, it appears, he attempted to use the same in the month of June 1st week, that is after the lapse of two months. Therefore, the refusal on the part of the opposite party to pay the price, for the opened, seal broken Cartridge, we cannot fix the deficiency in service, that too, for the mistake committed by the complainant. The District Forum without properly analyzing the facts, has committed an error in passing an award, which is liable to be set aside.
9. In the result, the appeal is allowed, the order of the District Forum, Chennai [South] in CC No.307/2001, dt.07.11.2007 is set aside, and the complaint is dismissed. There will be no order as to cost throughout.
10. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellant/ opposite party duly discharged, since appellant succeeded, and there is no need to retain the FDR.
S. SAMBANDAM J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Ns/mtj/Bank