ALPACS REPROGRAPHICS SERVICES vs SHILENDRA BHANDARY

THIS appeal is directed against the order dated 1.8.1997 in O.P. No. 522/1996 on the file of the District Consumer Disputes Redressal Forum, Chennai (South).

THE appellant is the opposite party while the respondent is the complainant. Succinct facts may be related in order to understand the crux of the issue arising for consideration in this action.

The complainant, it is said, is an unemployed graduate. He, for the purpose of self-employment purpose, purchased a xerox machine, model NP 270 from the opposite party for a price of Rs. 83,000/- on 18.7.1995. After 1 months, the xerox machine so purchased developed some problems. It was duly intimated to the opposite party. The opposite party, in turn came and inspected the machine and took away the machine for effecting repairs. The opposite party, it appears, installed another Canon model No. 3225 xerox machine as a stop-gap arrangement till the repairs were carried out by the opposite party to the original xerox machine purchased by the complainant.

THE opposite party, the complainant would claim, failed to deliver the original machine which was taken by them for effecting repairs. This sort of a conduct on the part of the opposite party in not returning the original machine sold to the complainant, he would say, would amount to deficiency in service on their part. Alleging the factors as above, the complainant knocked at the doors of the Forum below praying for the issuance of the direction to the opposite party to deliver the Canon model NP 270 heavy duty xerox machine or in the alternative to pay a sum of Rs. 83,000/- with interest and compensation of Rs. 20,000/- and costs.

THE opposite party in pith and substance would contend as below : The complainant is not a consumer and he alone has to prove that the machine so purchased was for the purpose of self-employment. Only at the request of the complainant, a machine of a different model was installed in the premises of the complainant. As another machine was supplied to the complainant, there was no question of the complainant sustaining any loss. The complaint is liable to be dismissed. The Forum below after taking into consideration the materials placed on record, however, recorded a finding that there was deficiency in service on the part of the opposite party and ultimately directed them to refund the cost of the original machine purchased in Exs. A1 and A2 namely Rs. 83,000/- to the complainant within one month from the date of its order and take back the other xerox machine Canon model 3225 from the complainant. The Forum below also directed the opposite party to pay a cost of Rs. 500/- to the complainant. There was a further direction that the orders of the Forum below are to be complied within a month from the date of its order.

AGGRIEVED by the order as above, the opposite party resorted to the present action by engaging a Counsel of their choice namely learned Counsels Mr. C.V. Viayakumaran and T. Selvakumaran.

ON service of process, the complainant also entered appearance through a Counsel of his choice namely learned Counsels Mr. A. Muthukrishnan and V. Balaji. When this matter came up for hearing before us today, learned Counsel appearing for the appellant were called absent and no representation was made on their behalf. The fact that they were absent does not mean that we cannot dispose of the appeal on merits, of course, after hearing the arguments of learned Counsel Mr. V. Balaji, appearing for the respondent/complainant and on perusal of the materials placed on record. That is exactly what we have done in the instant case.

The one question that crops up for consideration is as to whether the order of the Forum below, on the facts and in the circumstances of the case, is sustainable in law.

THERE is no pale of controversy that the complainant purchased one Canon xerox machine model NP 270 from the opposite party on 18.7.1995 for a price of Rs. 83,000/-. It is also not in dispute that the xerox machine so purchased was given a guarantee for a period of 3 months from the date of its installation as evidenced by Ex. A2. It is also an admitted fact that the xerox machine so purchased developed some snags within 1 months of its installation and the opposite party also under the guise of effecting repairs, took the original xerox machine purchased by the complainant and installed in his premises another xerox machine of another Canon model 3225. THERE is also no dispute that the opposite party did not at all restore the original xerox machine taken from the premises of the complainant. The complainant would say that this sort of an act on the part of the opposite party would definitely tantamount to deficiency in service on the part of the opposite party. The opposite party in turn would contend in the version filed that the complainant is not a consumer and this apart what he would say is that he had supplied another Canon model 3225 xerox machine to the complainant and, therefore, it is there was no question of sustaining any loss. We have given anxious consideration to the projection of hues of views by the respective parties. True it is that though the complainant had taken up a stand in the complaint that he is an unemployed graduate and he purchased the xerox machine for the purpose of self-employment. Yet no material worth the name had been placed on record in proof of the same. Such being the case, we cannot give any sort of a credence to the stand so taken when especially the opposite party took up a stand in the version filed by them that the complainant cannot at all be construed as a consumer unless and until he was able to prove that the machine had been purchased for the purpose of his self-employment. But the sordid fact remains that even assuming for arguments sake that the xerox machine had been purchased for a commercial purpose, even then, the complainant, on the facts and in the circumstances of the case, has to be construed as a consumer falling within the definition as adumbrated under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 [for short, "the Act"] inasmuch as the machine so purchased developed defects within 1 months from the date of its installation, that is to say, within the period of warranty. Axiomatic proposition of law is that if the machine so purchased developed snags within the period of warranty and the snag so developed is not rectified by the person like the opposite party, it would definitely tantamount to deficiency in service on its part. The fact that the opposite party supplied a Canon machine of a different model in substitution of the original xerox machine purchased is of no help in advancing the case of the opposite party in stating that there was no deficiency in service on their part. The substituted machine, on the facts and in the circumstances of the case, must have to be construed only as a stop-gap arrangement. It is incumbent on the part of the opposite party to return back to the complainant, the original xerox machine purchased by him after effecting repairs and in case he was not able to return the original machine purchased, definitely, it would tantamount to deficiency in service on the part of the opposite party. Of course, we have recorded a finding of deficiency in service on the part of the opposite party for reasons altogether different from the ones as had been given by the Forum below. This Commission, as a Forum of first appeal, is possessed of all the powers as a Forum of first instance namely the Forum below. Therefore, the Commission is entitled to sift and scan the materials placed on record and for altogether different reasons arrive at a finding as the one as arrived at by the Forum below and that is what we have done in the case on hand. Such being the case, the finding recorded by the Forum below that there was deficiency in service on the part of the opposite party cannot at all be found fault with.

COROLLARY consequence flowing from such a finding is the issuance of a direction by the Forum below for the payment of cost of the xerox machine purchased namely Rs. 83,000/- to the complainant and take back the other xerox machine supplied by the opposite party. This sort of a finding as had been given by the Forum below cannot at all be found fault with. We, therefore, confirm such a finding. The Forum below also awarded costs in a sum of Rs. 500/- which we feel reasonable on the facts and in the circumstances of the case not calling for interference. We confirm this finding also. In fine, the appeal fails and the same is dismissed. We however make no order as to costs on the facts and in the circumstances of the case. We shall make it clear that the order of the Forum below as confirmed by us is required to be complied with by the opposite party within a month from the date of receipt of our order or otherwise the complainant will be at librety to invoke the provisions of Section 27 of the Consumer Protection Act, 1986. Appeal dismissed.