Chocklingam vs M Amba Shankar

THIS appeal has been filed by the complainant against the order dated the 5th August, 1993 passed by the State Consumer Disputes Redressal Commission, Tamil Nadu in O.P. No. 430 of 1992. By the impugned order the complaint filed by the appellant herein was dismissed. The complaint had been filed against opposite parties No. 1 to 3, Regional Sales Manager of Monotype India Ltd., its General Manager and its Managing Director, respectively.

ACCORDING to the allegations in the complaint, the complainants Company, Malandu Printers was a partnership firm originally formed on 24th February, 1983. In February, 1983 -84 the Company purchased Photo Type Setting machine etc. worth Rs. 10,15,093.40 from the opposite parties. The complainant was inducted as a partner in the said firm on 27th December, 1988. The other partners retired from the partnership on 9th February, 1989 and from the said date the complainant took the whole management of the Company. The said change was intimated to the opposite party No. 2, General Manager who vide letter dated the 28th February, 1989 assured the complainant that they would provide service and the best possible co -operation at all times. The machines earlier purchased were functioning on normal working condition when the complainant took management of the Company. The complainant wanted to run the machines more effectively and on the advice of the Regional Sales Manager of the opposite party, the complainant invested in U.P.S. (Undisturbed Power Supply) equipment worth Rs. 60,000/ - and installed the same. The opposite parties are the sole agents for selling, supplying and rendering after sales service of the above machinery in India. The complainant referred to the various pamphlets, booklets, product guides and advertisements published by the opposite party about the quality of the machines and about the after sales service and on the basis of those impressive proclamation the complainant was enthused to purchase the above machine (this allegation of the complainant does not appear to be correct because in 1983 he was not a partner of M/s. Malandu Printers and the previous partners of the said Company have not filed any document to show what impressed them to buy the machine). In May, 1989 the machine at Item No. 1 showed a fault on Prism Box Driver Board in the machine. It was reported to the Regional Sales Manager who took 27 days to rectify the same. The said fault was removed for which Rs. 2,909/ - was charged for service and replacement of parts. The complainant came to know that the delay in attending the repairs was due to the fact that most of the technicians dealing in the machines had deserted the opposite party -Company who did not appoint any suitable technician to rectify the defects. The complainant sent a letter to the manufacturer who is in West Germany. On 5th September, 1989 the same fault again appeared in the machine together with some other faults. The complainant reported the matter to the Regional Sales Manager who had earlier agreed that no charge would be made if the same defect re -occurs. The Regional Sales Manager informed the complainant that an Engineer would be sent by the General Manager. However, the General Manager sent a letter dated the 13th September, 1989 advising the complainant to purchase a similar machine to act as a back up machine to get enough spares or to invest sufficiently in its spares to attend to the defects in the machines. The complainant was also directed not to allow any freelance engineer to attend the machines, as the machines were very sophisticated having minute electronic system. At the same time the opposite party also told the complainant that they cannot keep a stand by engineer/technician to attend the machines in anticipation of the failure in the machines of the complainant. On going through the said letter, the complainant came to the opinion that the manufacturers in West Germany must have sent a copy of the complaint made by him to them to the opposite parties. The conditions imposed by the opposite party amounted to restrictive trade practice. The opposite party also refused to supply details of circuit drawings, diagrams, kits or providing training to the Engineer of the complainant to attend the machines which is contrary to natural justice. On 26th/27th October, 1989, another engineer was sent by the opposite party for rectification of the defects in the machines, but he returned back telling the complainant that he could not bring adjustment board and so he failed to carry out the repairs. On the repeated requests of the complainant a tenhnician was sent on 1st February, 1990 who rectified the defects after 4 months and 25 days. While the machines were thus running with the utmost efforts of the complainant a further defect occurred in machines mentioned at Items Nos. 1 and 2 on 5th June, 1990. This was reported to the 1st opposite party on the same day but he has failed to attend the defects. The opposite party claimed a sum of Rs. 10,000/ - for inspecting the machine and another sum of Rs. 8,500/ - towards the Engineers travel expenses and visiting charges. The opposite party also told the complainant that Malandu Printers had to pay the out standing balance of Rs. 12,125.84 on account of its debit notes for the year 1986. The opposite party said that unless the payment was made they will not attend to the service of the machine. It was further the case of the complainant that on 16th March, 1991 the General Manager sent a letter stating as follows : ''We are clearing all our Berthold spares on first come first serve basis. Keeping the future needs of our esteemed customers in mind, we maintained a large quantity of spares which we kept on selling as and when they were required by the users. Since the technology is changing day by day, you may also be thinking of modernising your set up. But no one can afford to transfer a working machine to their warehouse. Your ultimate interest will be to sell off this machine at a very reasonable price.''

THE complainants case is that even if the spare parts are so purchased there would be no one to fix the same in the machines. The opposite parties are the only authorised and responsible persons in India to undertake any service or attend to any defect in the machines sold by them. The opposite party also informed the complainant vide letter dated the 6th April, 1991 that there was no service agreement when the machines were sold and they could not be held responsible for non -working of the machines or for anyloss suffered by the complainant. According to the complainant the opposite parties are bound to provide after sales service for all times to come and for failure to do so the opposite party is guilty of negligence and deficiency of service. The complainant limited his claim in the complaint for Rs. 10 lakhs though according to him he was entitled to Rs. 16,41,514.25, the details of which have been given in the complaint.

ON being noticed the opposite party contended that the machineries have been purchased for commercial purpose and the complainant is not a consumer within the meaning of Section 2(1)(d)(I) of the Consumer Protection Act, 1986. It is admitted that the three machines were purchased by the partnership firm in 1983. It is further averred that these machines have been made full use of by M/s. Malandu Printers without any fault or complaint from June, 1983 to 15th May, 1989 when the 1st complaint was recorded on the service report. The period of warranty was for one year and it expired in June, 1984 and thereafter there was no service contract and thus any complaint regarding the working of the machinery or claim for compensation is barred by limitation. The purchase of the U.P.S. equipment was suggested in order to over come the voltage fluctuations and frequent power failures. There is also no subsisting service contract between the complainant and the opposite party to maintain the machines. The machines are highly sophisticated system and had to be attended to only by competent qualified trained engineers. The first fault was reported only five years after the installation of the machines and the subsequent defects were only due to the fact that the machines have been attended to by freelance service personnel and the defects were invariably reported after those unqualified persons had tampered with the machines and in the process minor defect had been rendered complicated resulting in major problems and replacement. When the engineer of the opposite party visited the premises of the complainant on 27th November, 1989 the machine was found in working condition. But, the complainant refused to sign the service report. For inspection of the machine the engineers have to be deputed from Bangalore and their expenses have to be met by the complainant as there was no service contract. According to the opposite party a sum of Rs. 12,125.85 is still due from the complainant. The State Commission held that after the expiry of the period of one year warranty there was no liability on the part of the manufacturer or the supplier to attend to the repairs free of charge. But, unfortunately, the complainant had not entered into any service contract with the opposite party and therefore he cannot insist on free service. In the absence of the service contract the complainant cannot be said to have hired the services of the opposite party for effecting the repairs subsequent to the period of warranty. It was further held that the first defect was rectified after 27 days on payment of Rs. 2,909/ -. The second defect was found on 5th September, 1989 and that was also rectified. About the third defect it was held by the State Commission that the complainant did not pay Rs. 10,000/ - and inspection charges and Rs. 8,500/ - as visiting charges of the engineer before attending to the repairs and it was open to the opposite party to insist on payment of charges before attending repairs. As the complainant has not complied with the demands, the opposite party has not attended to the repairs and, therefore, the opposite party is not guilty of any deficiency in service. In view of the above findings the complaint was dismissed.

THE Counsel for the complainant was heard on 1st March, 1996. None had appeared for the respondent. The learned Counsel for the appellant was allowed to file written statement in supplementation of the oral arguments within two weeks from that date. However, upto this time no written arguments have been filed.

AFTER going through the record we find that the appeal has no force. Before proceeding further we make a mention here that the complainant has filed some documents to show that from the beginning when the machines were purchased at one time or the other some trouble or the other has been occurring in the machine. We are unable to understand for what purpose these documents have been filed before us when those were not filed before the State Commission. In case the machines were defective from the very beginning the complainant is not entitled to any relief, firstly on the ground that such costly machines were purchased by the partnership firm in February, 1983 for commercial purpose and secondly the cause of action about the defective machines has become long time -barred since the complaint was filed in 1992. The main grievance of the complainant appears to be that the opposite party respondent herein is the only Company which has the trained technicians, if any, and only they can attend to the repairs of these machines. The respondent has not refused to attend to the machines. They only demanded charges for servicing and charges for the visiting engineer. The complainant is not prepared to pay those amounts to the opposite party. We have not been able to understand how the complainant is entitled to free service after the warranty period of one year has long expired and when there is no subsisting contract of service between the parties.

ON the other hand, we find that the opposite party -respondent has been trying to help the complainant. The machines were purchased in 1983. The technology of the machines is bound to change after a couple of years as the science advances. Modifications are bound to be introduced in the machines. On that ground the opposite party had advised the complainant to purchase the back up machines. Later on it advised the complainant to purchase the spare parts, but they have not done so.

ANYHOW , as noticed above, the opposite party has not refused to carry out the repairs to the machines of the complainant, but the complainant is not prepared to pay their charges. It is not within the jurisdiction of the Forums constituted under the Consumer Protection Act to hold that the charges demanded by the opposite party are on the higher side. We have carefully gone through the order of the learned State Commission and we have no hesitation in confirming the findings arrived at by them. Accordingly, we do not find any force in the present appeal and dismiss the same. We leave the parties to bear their own costs. Appeal dismissed.