State Consumer Disputes Redressal Commission
Mr. Felix Menezes, vs Bee Electronic Machine Ltd., on 11 March, 2010
THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA Present: Smt. Sandra Vaz e Correia Presiding Member Smt. Caroline Collasso Member Appeal No. 71/2008 Mr. Felix Menezes, C/o G.R.A. Industries, Malbaroa Building, Near Navhind Times, Panaji-Goa. Appellant Original Complainant) v/s Bee Electronic Machine Ltd., Regd. Office: 266, Dr. Annie Besant Road, Opp. Passport Office, Worli, Mumbai 400025. The Manager, M/s Bee Electronic Machine Ltd., 6th Floor, Indraprastha Bldg., Nr. Govind Building, Panaji-Goa. Respondents (Original Opposite Parties) For the Appellant Shri A. Rebello, Advocate. and none present at the time of order. For the Respondent Shri S. Dessai, Advocate and none present at the time of order. Dated: 11-03-2010 ORDER
[Per Smt Sandra Vaz e Correia, Presiding Member]
1. The appellant is the consumer. He is aggrieved by the order dated 06-11-2008 passed by Consumer Dispute Redressal Forum (District Forum) North Goa in Complaint no:
24/2006, whereby his complaint was dismissed. The respondents are the opposite parties. The complainant purchased a copier machine from the respondents for Rs. 1,05,000/- . The machine started malfunctioning within the first six months leading the complainant to issue three communications during this period. Prior to that, the complainant visited the office of the respondents several times but to no avail. The respondents then took away the machine for repairs on 13-08-2004 and informed the complainant that it would be repaired and handed over at the earliest. However, this has not happened till date. The machine continues to be with the respondents. The complainant quantified his loss on this count at Rs. 78000/- and claimed the amount as compensation alongwith interest @ 21% p.a. till realisation.
2. Bee Electronic Machines Ltd is the respondent/original opposite party. They contested the complaint and raised preliminary objections on point of territorial jurisdiction and that the complaint was not maintainable under Sec. 22 of Sick Industrial Companies (Special Provisions) Act (SICA). The complainants claims regarding unsatisfactory functioning of the machine was denied, and it was pointed out that the machine had taken about 20000 copies and that complaint had been filed eight years after purchase, and was hence barred by limitation. Post 2002, there was no maintenance contract between the parties. The machine had been purchased for commercial purpose, and hence the complainant was not a consumer. Purchase of the machine by the complainant was admitted though it was clarified that the cost was Rs. 1,02,000/- and not Rs. 1,05,000/- as alleged. Verbal estimate of the cost of repair was given to the complainant, but the work was not commenced as there was no go-ahead from the complainant. Thereafter, the complainant was verbally asked to collect the machine but he did not respond. The legal notice sent by the complainant was not received on account of flux of the closure process etc.
3. The District Forum, upon considering the case of the parties, found no deficiency in service rendered by the opposite parties and that the opposite party stood covered under S. 22 of SICA, and dismissed the complaint.
4. We heard Ld Adv A. Rebello on behalf of the appellant and Ld Adv S Dessai for the respondents at length. We called for and perused records and proceedings of the lower forum and gave due consideration to submissions advanced by Ld Counsel.
5. The first question that arises for our consideration is whether Consumer Fora in Goa have jurisdiction to entertain and decide the complaint. It is the opposite partys case that they have permanently closed down their branch operations in Goa and for this reason the jurisdiction of consumer courts in Goa is ousted. We do not think so. The cause of action arose in Goa; the machine was delivered to the opposite partys branch in Goa as is evident from the latters communication dated 13-08-2004 on record. That being so, the opposite party not having any branches in Goa at the time of filing the complaint becomes irrelevant. Be that as it may, the opposite partys claim of closure of its Goa branch in August 2004 is questionable, since its Panaji branch acknowledged the legal notice sent by the complainant on 13-11-2004.
6. The second preliminary issue raised by the opposite party concerns the complaint being barred by limitation. According to the opposite party, the complaint was filed eight years after its purchase and hence it was barred by limitation. We are unable to agree with the opposite party on this issue either. The complainant is primarily claiming compensation for loss suffered on account of inability to use and operate the copier machine for reason of it being taken by the opposite party for repairs in August 2004 and not returned till date, as can be seen from the complaint and the legal notice. The complaint was filed in February 2006, well within limitation.
7. The third issue that arises for our consideration is whether the complaint is not maintainable in view of Section 22 of the Sick Industrial Companies (Special Provisions) Act 1985. The opposite party has consistently contended it was declared as a sick industrial company by BIFR under SICA and inter alia no suit for recovery of money would lie except with consent of the BIFR or the appellate authority, as the case may be. But SICA does not come to the rescue of the opposite party as it was repealed by the Sick Industrial Companies (Special Provisions) Repeal Act 2003, whereunder the authorities created under the Act i.e. BIFR and the appellate authority were abolished. The complaint was filed in February 2006, so where the complainant would be expected to go for consent? We did not find any merit in the opposite partys argument in this respect.
8. That brings us to the last issue that arises for our consideration of whether the failure of the opposite parties to return the complainants copier machine taken by them for repairs on 13-08-2004 constituted deficiency in rendering of services. The opposite party is harping on the fact that there was no contractual obligation on their part to repair the machine post-2002. But that is not the issue here. Admittedly, the machine was taken by the opposite party for repairs on 13-08-2004 with an assurance that it would be returned in proper working condition. There is a communication dated 13-08-2004 issued by the opposite party which speaks for itself. Admittedly, the machine has still not been returned to the complainant as on date. This, to our mind, clearly constitutes deficiency in services rendered by the opposite party to the complainant. Consequently, the opposite party would be liable to compensate the complainant for loss suffered. The opposite party claimed that the complainant was to blame for the delay and that several verbal requests to take back the machine were ignored. There is no substance in the contention. The opposite parties had an opportunity to set out their case in their response to the complainants legal notice, but they opted to remain silent. There is no excuse for holding on to the consumers equipment for over six years without being repaired.
9. Turning to the complainants claim for compensation, he has quantified his loss at Rs. 78,000/- being Rs.50,000/- for losses and Rs. 28,000/- for mental torture. Admittedly, the cost of the machine was Rs. 1,02,000/-. The opposite partys claim that the machine had taken around 20,000 prints in five years has not been specifically denied by the complainant. But, the fact remains that the machine was taken for repairs in August 2004 and has not been returned till date; as a result of which the complainant was deprived of its use. Considering all aspects of the matter, in our view, compensation amount of Rs. 20,000/- would meet the ends of justice. The opposite party would also be liable to return the machine to the complainant duly repaired and in working condition within a specific time.
10. In the result, the appeal succeeds. The impugned order dated 06-11-2008 is set aside. The opposite parties, jointly and severally, are directed to pay the appellant/ complainant an amount of Rs. 20,000/- as compensation within 30 days, failing which it shall carry interest @ 12% p.a. if paid thereafter. The opposite parties, jointly and severally, are directed to return the said copier machine to the complainant duly repaired and in working condition within 30 days from today. The opposite parties, jointly and severally, are further directed to pay the complainant an amount of Rs. 2500/- as costs of the litigation throughout. Order accordingly.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member