BABY THANKAPPAN COLOR LAB vs TRASIBA ELECTRONICS

THIS complaint is filed under Section 12 of the Consumer Protection Act, claiming a total compensation of Rs. 13,62,040/-.

THE allegations in the complaint are as follows : THE complainant is an S.S.I. registered partnership firm among family members and it is a small family enterprise consisting of Mr. Baby, the head of family, his wife Gracemma and son Ajay. THE firm bears permanent S.S.I. registration dated 28.2.1994 of District Industries Centre, Wayanad, as a small scale service establishment with Studio located at MP/IV/648, Mananthavady Panchayat. It is engaged in job work in photography. Its date of commencement is on 1.9.1983. THE complainant firm is represented by its proprietor Gracemma Baby. This business is the source of sole livelihood of the family, by means of self-employment. All the family members expend their capital, labour and expertise in the service unit. This studio has an average plinth area of about 800 sq. ft. THE premises was taken on rent stipulating monthly rent for Rs. 1,250/-. THE studio did only black and while photography. But since it has become obsolete and no business could be carried on with a black and white studio, it intended to have a colour studio. THE opposite party regularly carried out advertisements in Indian Photography and Cinematography Magazine, published from Bangalore. It mentions about an indigenous Hitech Printer Processor known as ''Trasiba FCS 600''. An advertisement of similar type is carried in back cover of the Indian Photography and Cinematography Magazine in its October, 1993 issue. THE said issue, carried on article of Abdulla Basha claiming as a Proprietor of Trasiba Electronics. November, 1993 and December, 1993 issues repeated the same advertisements. In October, 1993 issue which carried an article said Abdulla Basha is a qualified Electronic Engineer and also experienced in colour photography. The opposite party is a manufacturer and supplier of Transiba F.C.S. 600 Printer-cum-processor. The opposite party held out to the general public and also to the firm in particular a brochure, together with its technical specification stating a warranty that their colour printing machine was capable of : (a) taking 1200 prints per hour in R.A. 4 Chemistry; (b) that it was a world''s No. 1 in true colour reproduction; (c) that it was a battery operated processor to avoid wastage at the time of power failure; (d) that it was operative by Portable Generator capable of generating 2.5 kilowatts; (e) that anybody with reasonable literacy could operate. Trasiba FCS 600 easily, since no judgment is needed, according to the subject, colour and density of the negative to get good prints; (f) that the operator could print the entire roll with one combination of filters irrespective of the subject colour without trial and error method; and (g) that Trasiba FCS 600 accommodates any paper and chemistry according to the consumer choice, whereas imported machines use a very fast chemistry which is not locally available, making it obligatory to import the particular paper.

These representations were made in a form that purported to be a warranty/guarantee of the product of the opposite parties. Free installation and training were also advertised. The opposite parties carried out on articles containing these and several other claims, a photographic magazine intending it to be read by persons similarly situated.

BEING attracted by this advertisement the complainant firm placed an enquiry against which the opposite parties had sent a quotation dated 1.1.1994. The said quotation carried two clauses which were unacceptable to the complainant. That is that all claims and objections were subject to Madras Jurisdiction and that the machine carried a warranty of only six months. Quotation stated that it was valid only for 30 days with effect from 1.1.1994. The complainant did not place any order on the said quotation during its period of validity. In the meantime the complainant sought bank finance and submitted aproject report to the Bank. A total loan of Rs. 6,71,000/- was sanctioned of which Rs. 6,02,000/- of the bank advance. Under cash receipt dated 31.5.1994 and 26.7.1994 the complainant paid a total sum of Rs. 6,71,000/- towards purchase of the F.C.S. 600 Colour Printer. The opposite party brought the proposal to the studio at Mananthavady and installed it in the premises of the complainant. On 14.9.1994, inauguration was done by Dr. Jaya Thilak, Sub-Collector, Mananthavady. On erecting the machine, the following fundamental manufacturing defects were noticed : (a) The machine could only give 200 prints/hour in RA 4 Chemistry as against the guarantee of 1200 prints/hour in RA 4. The resulting prints were sub-standard, blurred inspite of the use of the best quality chemical and paper. (b) When 200 prints are printed, 30% give false colour resulting in loss of paper, chemical, electricity and labour. Rs. 2.50 is lost in every such print as it has to be reprinted. (c) During power failure, the Unit cannot be operated either by battery or by portable generator as guaranteed by the opposite parties. All the prints in the machine get damaged during that time, numbering approximately 20. These defects are against the public warranty/guarantee and they constitute unfair trade practice/consumer deficiency.

On 14.9.1994 itself the firm sent a letter to the opposite party complaining the defects. On 12.10.1994 the opposite party came to Mananthavady to repair the machine. He also came on 25.7.1995, 24.12.1994 and on 12.2.1995. Technicians also came, but they failed to correct the manufacturing defect. The firm wanted replacement of the machine and personally visited the office of the opposite party on 28.5.1995, 30.10.1995 and 22.7.1996. The firm also sent a notice through a Lawyer to the opposite party but without any effect. The individual partners of the complainant firm and the firm are the consumer of the opposite party and the machine was purchased solely for earning livelihood by means of self-employment. The said machine is operated solely by the members of the family. It is further averred that the machine cannot be operated economically. It is not giving good prints. The complainant''s firm has sustained heavy loss and the loan to the Bank is in arrears and they have initiated recovery proceedings. The machine is now shut down and cannot be used. The defects developed on 14.9.1994 itself. On these allegations the complainant claimed a compensation of Rs. 13,62,040/-. It is also stated in the complaint that the complainant firm filed O.P. No. 44/96 on 17.8.1996 represented by its partner Baby Thankappan and the opposite party took a preliminary objection that the firm is not properly represented. Hence the complainant filed M.P. No. 195/94 for impleading the wife of Baby. Thereafter the complainant therein filed a memo seeking withdrawal of the complaint with permission to file a fresh petition. After hearing both sides the Hon''ble Commission allowed the complainant to withdraw O.P. No. 44/96 with liberty to file a fresh complaint on the same cause of action.

ON receipt of notice the opposite party filed a version raising preliminary objections. It is stated that against the order passed by this Commission in O.P. No. 35/97, the opposite party has filed an appeal before the National Commission and it is pending there. It is further averred that complaint in O.P. No. 44/96 is dismissed and, therefore, the present complaint is liable to be dismissed. It is further stated the parties in the present O.P. No. 35/97 are different from that of the parties in the O.P. No. 44/96 which was dismissed on 8.8.1997 by this Commission. The order in O.P. No. 44/96 does not give any right to the complainant therein to add any new party as opposite parties. The complainant in the present O.P. No. 35/97 is only trying to do what he had failed to do in O.P. No. 44/1996 and is also trying to come with a fresh case on fresh cause of action and, therefore, the complaint is liable to be dismissed. The prayers are also different and, therefore, the present complaint cannot be construed to be one filed pursuant to the orders passed by this Commission in O.P. No. 44/96. ON this ground also the complaint is liable to be dismissed. It is further stated that the complainant in the present O.P. No. 35/97 is M/s. Baby Thankappan''s Colour Lab, a partnership firm and it is an unregistered firm under the provisions of the Indian Partnership Act and, therefore, under Section 65 of the Indian Partnership Act, an unregistered firm cannot sue in its name and as such the complainant firm is a legally extinct person and he cannot bring about any cause of action in a Court of law. The complainant in O.P. No. 44/96 was a proprietory concern M/s. Baby Thankappan''s Colour Lab with its proprietrix Mrs. Grasemma Baby wife of Mr. Baby as evidenced by Ext. P4, the S.S.I. Registration Certificate issued by the Department of Industries and Commerce, District Industries Centre, Wynad. In the present O.P. No. 35 of 1997 it is stated that the complainant is a partnership firm with its partners, namely, Mrs. Grasemma Baby, Mr. Ajayan and Mr. P. Baby, which became effective from 15.1.1994. It is further averred that the opposite parties have no privity of contract whatsoever with the partnership firm and that the earliest correspondence with M/s. Baby Thankappan''s Colour Lab is on 1.1.1994 on which date the opposite party issued their quotation No. 72 and it is pertinent to make submission that the alleged firm is non-existent on that date. Hence there is no cause of action against the opposite parties. Ext. P4 certificate reveals that the complainant is a proprietory concern with Mrs. Grasemma Baby as its proprietrix and Ext. P10 registration certificate issued under Kerala Shops and Commercial Establishment Act, 1960 dated 21.8.1993 reveals that Mrs. Grasamma Baby as the employer (proprietrix). There is no evidence of constitution of the complainant partnership and, therefore, the complaint is liable to be dismissed. The allegation that purchase is made for use to earn livelihood by means of self-employment is also denied. The firm is alleged to have been formed only on 15.1.1994. The loan was given as an industrial loan and the recitals in Ext. P9 does not indicate that the firm has been constituted solely for the purpose of earning livelihood by means of self-employment. What is clear is that it has been established to generate profit on commercial basis. Ext. P10 also reveals that the complainant is doing their business not for the livelihood. The opposite party is doing their business only at Chennai and they have got no branches anywhere in Kerala, and therefore, this Commission has no jurisdiction to entertain the complaint. No part of cause of action also arose within the jurisdiction of this Commission. The placing of order, payments made and taking the delivery of the machine all took place at Madras. It is also submitted that the sale of the machine took place on 26.8.1994 and nothing was heard thereafter from the complainant and the complaint was barred by limitation under Section 24-A of the Consumer Protection Act. It is also stated that the complainant cannot take recourse to the order passed in O.P. No. 44/1996 which was dismissed on 8.8.1997 as the same does not confer any rights on the complainant to file the fresh complaint. It is further contended that there is no merit in the complaint. A version also filed alongwith documents which were marked Exts. R1 to R7. The opposite party wanted the preliminary issues raised to be tried first before adjudicating upon the disputed questions of facts.

WE find that the present complaint was filed by M/s. Baby Thankappan''s Colour Lab by the partner P. Baby son of Sri Peter.

THE complaint in this case proceeds on the basis that complainant is a small family enterprise consisting of Mr. Baby, the head of family, his wife Grasemma and son Ajay and this concern is the sole livelihood of the family by means of self-employment. In paragraph 15 of this complaint it is stated that the complainant firm filed O.P. No. 44/1996 on 17.8.1996 represented by its partner Baby Thankappan and the opposite party took a preliminary objection that the firm is not properly represented, that therefore, the complainant filed M.P. No. 195/94 for impleading the wife of P. Baby and hearing both sides this Commission allowed the complainant to withdraw O.P. No. 44/96 with liberty to file a fresh complaint and that accordingly the present complaint is filed. We have given such permission to Sri Baby only who was described in O.P. No. 44/96 as the ''proprietor'' of M/s. Baby Thankappan''s Colour Lab. THE present complaint has been filed by Baby Thankappan''s Colour Lab and three others. It is stated that the complainant is an S.S.I. registered partnership firm among the family members. THEse allegations are quite opposed to the averments contained in the complaint O.P. No. 44/96 which proceeded on the basis that Baby is proprietor of M/s. Baby Thankappan''s Colour Lab. We also find in the S.S.I. registration certificate Ext. P4 produced by the complainant M/s. Baby Thankappan Colour Lab Studio is a proprietory concern. THE words partnership/Private Ltd./Public Ltd./Co-operative Concern are struck off and the word proprietor concern retained. Ext. P10 is a registration certificate issued by the Assistant Labour Officer. That certificate also shows that it is issued only to Smt. Gracemma and the establishment is only a proprietory concern. THE name of the employer is shown as Gracemma Baby. However, the complainant had heavily relied on Ext. P9 which purports to be a deed of partnership executed on 15th January, 1994. However, it is not registered. We find Ext. P4, S.S.I. registration certificate was issued on 28.2.1994. Even on that day it is not mentioned that Baby Thankappan''s Colour Lab Studio is a partnership concern. It appears even now the registration under the shops and establishment also stands in the individual name. THE complainant has no case that now the registration under the Kerala Shops and Commercial Establishment Act has been renewed showing Baby Thankappan''s Colour Lab Studio as a firm. It is also not disputed that the firm has not been registered. In the light of the materials produced here it would be difficult to consider that Baby Thankappan''s Colour Lab Studio is a partnership firm. Even according to the complainant the firm is not registered and the firm cannot sue or be sued in its own name. However, since all the alleged partners are made parties that defect may not result in the dismissal of the complaint. Further under Section 2(1)(m) of the Consumer Protection Act, even an unregistered firm comes within the definition of the person. The available materials only go to show that Gracemma Baby is the proprietrix of M/s. Baby Thankappan''s Lab. It is the definite case of the opposite party that the purchase was made for commercial purpose. The complainant would contend that by virtue of Explanation to Section 2(d), the complainant is a consumer as the purchase of goods was used exclusively for the purchase of earning livelihood by means of self-employment. The Supreme Court had occasion to consider this exclusion in Luxmi Engineering Works Ltd. v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC)=AIR 1995 Supreme Court 1428. It has been laid down therein that to bring within the ambit of the provision the complainant himself must use the goods exclusively for the purpose of earning livelihood by means of self-employment. For instance a driver who purchases a car and uses it to earn livelihood will come within the ambit of Explanation. The complainant in this case has stated that the machine purchased is operated by Gracemma Baby. Of course, the circumstance that one or two persons also assist the complainant to operate will not deprive her of the status of consumer. But that is not the case. There is no pleading that Gracemma is operating the machine and others are only assisting her. In the circumstances she cannot be considered as a consumer within the meaning of Section 2(d) of the Consumer Protection Act. On this ground alone the complaint is liable to be dismissed.

This complaint also cannot be considered as one filed pursuant to the permission granted by us in O.P. No. 44/96. Permission is only granted to Smt. Gracemma Baby. The averments made in O.P. No. 44/96 and in the present complaint are mutually contradictory as O.P. No. 44/96 proceeds on the basis that M/s. Baby Thankappan''s Colour Lab is a proprietory concern of Smt. Gracemma Baby whereas this complaint proceeds on the basis that it was owned by partnership. On the showing of the complaint the cause of action arose on 14.9.1994. The present complaint was filed on 22.8.1997, that is beyond the period of 2 years from the date of cause of action prescribed under Section 24A of the Consumer Protection Act. There is no application to condone the delay also. Therefore, the complaint should also be held as barred by limitation. It may also be mentioned that the complainant has not come with a clean hand as the averments in the complaint in O.P. Nos. 44/1996 and 35/1997 are diametrically opposited as indicated above.

IN the result we uphold the preliminary objections and hold that the complainant is not a consumer and that the complaint is barred by limitation. We accordingly dismiss the complaint. Complaint dismissed.