B.P.L LTD. vs N.RATHINASABAPATHY

THE facts leading to this Revision Petition are that the present Respondent who hereinafter will be referred to as Complainant, had filed a complaint against the present Petitioner"B.P.L Ltd., hereinafter referred to as Opposite Party, for the recovery of Rs. 80,743/-as refund of the price of the Xerox Machine plus Rs. 30,000/- as compensation and loss. According to the allegations in the complaint the Complainant had purchased the Xerox Machine from the Opposite Party which was installed in the business premises of the Complainant on 19th November, 1990. According to the Complainant the machine worked properly only for about 10 days. The Complainant lodged complaint with the Opposite Party who sent a Service Engineer/Mechanic on 1.12.90. The Service Engineer/Mechanic certified that the machine was not in proper working condition and the copies were coming in a dull manner. The Complainant has been using the machine since 8.12.1990 but clear copies are not coming out of it. The Opposite Party made many attempts to repair the machine but in vain. The Complainant requested the Opposite Party to refund the price of the machine but it has failed to do so. Hence the complaint was filed in March, 1992.

THE complaint was contested. It was admitted by the Opposite Party that on 1.12.1990 the Service Engineer/ Mechanic of the Opposite Party had visited premises of the Complainant on receiving a complaint of ''dull'' copies. Upon inspection the Service Engineer found that the Complainant had not added toner to the subject Photo Copier which had resulted in dull copies. The Complainant was advised not to use the Photo Copier to make any copy without filling toner and this fact was recorded in the work order dated 1.12.1990, a copy of which has been filed on the record. It is denied that the Service Engineer/Mechanic had certified that the machine was not in proper condition. The warranty for the subject copier expired on 19th May, 1991. Thereafter the, Complainant entered into an annual maintenance contract with an Authorised Service Centre of the Opposite Party for the period 20th May, 1991 to 19th May, 1992. The Authorised Service Centre effected preventive maintenance service and defect eradication service. The Complainant was called upon to inform if he was interested in entering into further annual maintenance contract as the first annual contract was to expire on 19th May, 1992. However, the Complainant chose not to enter into any further annual maintenance contract with any authorised service centre of the Opposite Party. At no point of time the Complainant had claimed the cost of the subject copier. The problem that arose in the subject copier was mainly due to negligence and improper handling of the Copier by the Complainant in disregard to the mode of operation as contained in the operation manual. As is seen from the Work Order dated 2.2.91 the Complainant was advised to keep the subject copier on a uniform level table and to leave the subject copier undisturbed as regards its level since it would affect the quality of the copies. Vide work order dated 30.3.1991 the Complainant was strictly instructed not to move the subject copier and to maintain the uniformity of level. Vide work order dated 9th May, 1991 the Complainant was advised to provide the exhaust fan for keeping the subject copier free from humidity. In all these work orders the aforesaid facts had been admitted by the Complainant by his counter signatures. As and when the Complainant made complaints those were promptly attended to and service was rendered in an effective manner which fact had also been admitted by the Complainant by his counter signatures on the work orders. The District Forum, Madras before whom the complaint was filed held that the machine was defective as many complaints had to be made from time to time. However, instead of ordering the refund of the price it remarked that the Complainant has used the Xerox machine for 15 months and had taken approximately 73,000 copies whether clear or in a dull manner and that shows that the Complainant has used the Xerox machine to a considerable extent. The District Forum, therefore, thought it fit to direct the Opposite Party to rectify the defects in the Xerox machine and return the same in a proper working condition and for the loss suffered by the Complainant the Forum awarded Rs. 20,000/- to him as compensation.

FEELING aggrieved the Opposite Party filed appeal before the State Commission, Tamil Nadu at Madras which held that the consideration for service to be rendered under the warranty period is obviously included in the sale price of the machine and in any case there cannot be an agreement including warranty without consideration. Consequently it was held that as the machine had failed to work properly even during the period of warranty and the Opposite Party has failed to rectify the same, there was deficiency in the rendering of service. About maintenance agreement it was held that even during that period of contract of maintenance, the machine was not functioning properly and there was, therefore, deficiency in service on the part of the Opposite Party. However, it was of the opinion that the compensation of Rs. 20,000/- awarded was on higher side. In the light of the above findings, the State Commission reduced the compensation awarded by the District Forum to Rs. 10,000/-. With that modification the appeal was dismissed.

FEELING aggrieved the Opposite Party has come before us by way of this Revision Petition. We have heard the Revision petitioner. The Respondent herein has not appeared. We are of the opinion that in the present case the Opposite Party cannot be held guilty of rendering defective service. It is not the case of the Complainant that during the period of warranty or during the period of annual maintenance contract complaints were not attended to promptly by the Opposite Party or Authorised Service centre. Thus it cannot be said that the Opposite Party has been negligent in rendering service. The State Commission appears to be wrong in holding that there Was deficiency in the rendering of service as the defects could not be removed. ''Defect'' in the goods is different from deficiency in ''service''. If, as held by the State Commission the defects in that machine could not be removed then, the State Commission ought to have held that the machine was defective and not that there was deficiency in the rendering of service. It is to be noted that even after the expiry of the warranty period the Complainant entered into a maintenance contract for one year with the Opposite Party''s authorised agent. Therefore, it is futile to say that the subject machine was defective. As appears from the various work orders, countersigned by the Complainant, the machine had been serviced to the satisfaction of the customer. The work orders show that the Complainant was not using the machine in a proper manner.

IN the light of the above discussion we hold that the Opposite Party was not negligent and deficient in the rendering of service. Consequently we accept the present Revision Petition and set aside the orders of the State Commission and the District Forum and dismiss the complaint with no order as to costs.