DYNAVOX ELECTRONICS LIMITED vs RAJIV GUPTA

THIS is an appeal against the order and judgment dated 4 October, 1995 passed by District Consumer Forum, Lucknow in Complaint Case No. 67/1994. The facts of the case stated in brief are that the complainant, being an unemployed youth, purchased one Canon plain paper photocopier machine from opposite party for his livelihood in the year 1993 for a sum of Rs. 1,35,000/-. As this machine had many defects, hence it used to remain mostly defective. On complaints made by complainant, this machine was replaced by a new machine on 22.10.1993, but the bill of the new machine was not given to the complainant. The complainant had also paid a sum of Rs. 10,000/- to the opposite party in cash on the same day at the request of the opposite party M/s. Dynavox Electronics Limited. Rest of the payment and adjustment was to be made after receipt of the bill. Thereafter the opposite party had tendered a bill of Rs. 1,45,000/-. Besides this/the opposite party was paid a sum of Rs. 20,000/- by cheque before the receipt of the bill. As a matter of fact, the machine which was replaced was priced at Rs. 1,45,000/- and hence the opposite party realised a sum of Rs. 20,000/- more as price of the machine. Therefore, the payment of Rs. 20,000/- was got stopped from the Bank. Hence the payment of this amount was not made to the opposite party.

THE machine which was replaced was also defective and was not working satisfactorily for which contact was made to the opposite party but he did not pay attention towards the complaints. THE complainant had therefore prayed for refund of Rs. 1,45,000/- alongwith interest and Rs. 20,000/- as damages. In the written version the opposite party has alleged that the first machine was not defective but it was replaced at the request of the complainant in order to maintain business prestige. The complainant had promised to pay Rs. 20,000/- by cheque, but this payment was got stopped and as the entire price of the machine has not been paid, the complainant has no right to file the present complaint. The machine is being said to be defective in order to save the complainant for not paying Rs. 20,000/-. This machine was purchased for commercial purpose and hence this is not covered by the Consumer Protection Act.

The learned District Forum, after perusing the entire evidence, came to the conclusion that the Forum had jurisdiction to decide the matter and the machine was not purchased for commercial use. At the time of purchase of the machine the complainant was unemployed youth. It further held that the machine which was replaced was defective and could not be repaired in spite of several attempts being made. Therefore, it allowed the complaint and ordered for refund of Rs. 1,45,000/- with interest at the rate of 15% per annum till the date of payment. The machine was ordered to be returned back. A sum of Rs. 500/- was also awarded as cost. The compliance was to be made within 45 days of the order.

AGGRIEVED against this order, the appellant has come in appeal and has challenged the correctness of the order passed by the learned District Forum. We have heard learned Counsel for the parties. The first question which has been raised by the learned Counsel for the appellant is that the machine was purchased for commercial use and not for earning livelihood by the complainant. In the present case there is a definite statement of complainant that he was an unemployed person and had purchased the machine for his livelihood. On the other hand there is no evidence from the side of the appellant that the complainant had not purchased the machine for earning his livelihood but for commercial purpose. Therefore this plea of the appellant cannot be believed. The complainant as a matter of fact has been able to establish that the machine was purchased by him for earning his own livelihood.

EVEN if for the sake of argument it is presumed that the machine was purchased for commercial purpose, even then if the machine becomes defective within the warranty period, then the supplier is required to rectify the defect or change the machine if the same is not put to normal working in spite of several attempts. This position has been established by the decision of the National Commission which have been mentioned in the case of Bose Printing House v. Manu Enterprises Limited & Anr., II (1998) CPJ 383. In this case it was held by the National Commission that even if a machine was purchased for commercial purpose, and if the machine is not working properly during the warranty period, then the complaint is maintainable under Consumer Protection Act. Now we come to the main controversy on which there is a dispute between the parties regarding the defect in the machine which could not be repaired by the appellant in spite of several attempts. It will be necessary to mention certain facts in order to appreciate the facts of the case. The first machine was purchased on 24.4.1993 for Rs. 1,35,000/-. It was installed on 28.4.1993. Several servicing were done but as the machine was not working satisfactorily it was replaced by the appellant. According to the appellant the machine was replaced not on account of the defective working but on account of keeping in view the prestige of the Company. This fact could not be established on record. The documents on record clearly goes to show that there were defects in the old machine on account of which it was not working satisfactorily and hence the machine was changed. A false plea has been taken by the appellant in order to suppress the fact that the machine was not defective and was working satisfactorily. It cannot be believed even for a moment that a particular machine which is working satisfactorily with no defects in the machine, will be changed by the Company. Thus this plea deserves to be rejected outrightly. After writing several letters and after making payment of Rs. 10,000/-, the complainant got a new machine delivered and installed on 22.10.1993 within about six months after the installation of the previous machine. After the receipt of the machine the complainant wrote a letter on 15th July, 1993 for sending the bill for record. The installation was done as mentioned in the earlier part of the judgment on 22.10.1993 for which a photostat copy is available on record to show that machine at that time was working satisfactorily. Copy of letter dated 21.10.1993 is on record which goes to show that a sealed drum was told to be given but the same has not been received so far. It further mentions in the next para that the drum be changed as good copies are not coming out of it. On 4.11.1993 another letter was written by the complainant mentioning therein that the machine which was installed again is having defects as the drum is not giving proper xeroxing of the documents. There are spots on the copies which are xeroxed which is due to defective drum. It further mentions that this defect was pointed out to the Company for which Company had promised to rectify. Another letter is dated 1.12.1993 which shows that the drum has not been fitted as yet and the machine is not working properly. Sometimes the machine produces a noise of gears. By letter dated 7.12.1993 the complainant informed the appellant to send the bill upto 16.12.1993 failing which they will stop payment of the cheque. Thereafter the bill of this machine dated 27.10.1993 was furnished to the complainant for Rs. 1,45,000/-. There is a copy of service report dated 26.10.1994 which shows that there is a paper jamming problem which was removed. Another service report dated 1.11.1993 shows that there was some cleaning problem. A letter dated 6.12.1993 written by the appellant shows that the drum has been changed in the plain paper copier. There is another service report dated 4.2.1994 which shows that there is some problem of consumption of toner, paper jamming and paper guide plate is also defective. It has been mentioned in the note that the toner consumption problem has not been rectified which will be done on Monday. Then there is another service report dated 8.2.1994 that still there is problem of toner consumption on higher side. This was checked from the description of the work done. It is not clear as to whether the defect was removed or not.

THUS from this correspondence we find that the second machine which was supplied as replacement of the first machine to the complainant was also defective from the very beginning and it had also some manufacturing defects on account of which in spite of several services being done to the machine, it continued to have problems and could not be rectified in a way that it may work properly even for some time. There was problem from time-to-time in this machine due to which the work of the complainant was hampered. The complainant had purchased this machine for earning his livelihood and if the machine develops problems so often, then it cannot be said that the machine is working properly and there is no manufacturing defect.

IN the present case as already observed in the earlier part of the judgment, the drum of the machine was changed by the appellant and the other drum was fitted in the machine which was given as a replacement. In the case of Dynavox Electronics Ltd. v. Kalipada Panjal & Ors., II (1996) CPC 352, decided by the West Bengal State Commission, it was held that if the machine required frequent servicing, then it can be presumed that it is defective. Same view was taken in the case of Vice-President, HCL Limited v. Umesh Consultancy Service & Ors., I (1998) CPJ 353, decided by Punjab State Commission. In this case a photocopier was purchased which was defective from the very beginning and many letters were written for replacement of the machine, but same was not replaced and attempts to repair the machine also failed. On these facts it was held that order for replacement of the copier was justified. This case applies fully to the facts of the present case. In the case of Maman Singh v. Sipani Automobiles Ltd. & Ors., III (1994) CPJ 270, decided by Delhi State Commission, it was held that if a defective machine is supplied then, the consumer is entitled to get refund of the price of the article, interest on the capital and other incidental charges and damages on various counts.

In the case of M/s. Remington Rand of India Ltd. & Ors. v. Pioneer Typewriter Co., I (1996) CPJ 317 (NC)=1996 (2) CPR 112, it was held by the National Commission that a partnership firm which had purchased a paper photocopier was defective from the very beginning, then the order of the State Commission directing for replacing of the defective machine by a new one and for damages, etc. is perfectly justified. In the same way in the case of Amtrex Ambience Ltd. v. M/s. Alpha Radios & Ors., I (1996) CPJ 324 (NC)=1996 (2) CPR 171, decided by the National Commission it was held that an air-conditioner which was purchased had developed defects and the opposite party was unable to restore its normal functioning during the warranty period, then the order of the State Commission awarding damages and directing appellants to remove all the defects in the system ''and maintaining warranty for one year from the date of the order suffers with no illegality. Similar view was taken in the case Kody Elcot Ltd. v. Dr. C.P. Gupta, I (1996) CPJ 7 (NC), it was decided by the National Commission that where the machine developed some defects after some time and the opposite party could not rectify the defects even after trying to do so and were promised to be rectified in future, it shows that the performance of the equipment is not satisfactory and the complainant is entitled for compensation, etc.

THUS a perusal of all these cases goes to show that if a machine is not working properly during the warranty period and could not be repaired during this period, then the complainant is entitled to get replacement of the machine or to get back the amount which he had invested alongwith interest and damages. Moreover, it cannot be a defence of the opposite party that the warranty period has expired. THUS we find from the decided cases and the facts on record, and hold that if a defect in the machine arose during its normal working and it could not be repaired or defect removed by the supplier/manufacturer or if the machine was supplied in a defective condition, then the purchaser is entitled to get the entire amount of cost of machine. The photostat machine was returned by the complainant to the appellant before this Commission on 18.3.1998. On the same day an order was passed by this Commission that a sum of Rs. 1,45,000/- which was deposited by the appellant in the name of the President, District Forum be refunded to the respondent in accordance with the rules. We have been informed that this amount was refunded to the complainant. But later on a controversy arose about the amount of interest of Rs. 42,412/- as the interest on the draft was withdrawn by the appellant without any authority or order of the Commission. Therefore, the Commission ordered for deposit of this amount alongwith interest at the rate of 18% per annum from the date of its withdrawal. This order was not complied with by the appellant Dynavox Electronics Ltd. and a writ petition was filed in the Hon''ble High Court and stay of the execution of warranty of arrest was obtained on 1.11.1998 in Writ Petition No. 3537/1998 (MB) filed at Lucknow. It was stated by the complainant at that time that the Hon''ble High Court passed an order directing the, appellant to pay Rs. 42,000/- to the complainant. Copy of this order was not available with the Counsel and he undertook of file the same later on. This is incorporated in the Commission''s order dated 26.11.1998. The order passed by this Commission dated 8.12.1998 goes to show that a draft of Rs. 42,412/- dated 2.12.1998 in the name of State Commission for Consumer Protection was filed in terms of the Hon''ble High Court''s order. On this learned Counsel for the complainant raised an objection that the order of the Hon''ble High Court was to be complied within 10 days and as such when no compliance was made, the said order stood vacated. On this the appellant prayed for one week''s time. Extension was applied for by the appellant which was refused on the ground that only Hon''ble High Court can extend the time which was granted by it. The execution proceedings were therefore ordered to take place as the compliance of the Hon''ble High Court''s orders was not done with within the time granted by the Hon''ble High Court. On 4.1.1999 it was ordered that the draft which was lodged with the Commission should be returned to the appellant and the amount should be paid to the complainant by means of a draft or local pay order in the name of the complainant.

ON 27.1.1999 prayer of Mr. R.K. Gupta, Advocate was filed on behalf of the appellant and it was tried that the orders already passed by this Commission should be reviewed and the matter be reopened. This prayer of the appellant was rejected for modification of order dated 18.3.1998 which was passed about ten months back. It was prayed that the amount may be deposited in the form of FDR. It was ordered that the amount be paid to the complainant. So the matter lingered on and the warrant of arrest was issued. Ultimately on 28.1.1999 pay order for Rs. 42,412/- in the name of the complainant was delivered to the complainant. This is how the appellant tried its best to delay the payment of the amount and to harass the complainant. All these factors are to be taken into consideration when granting compensation to the complainant for torture and mental harassment at the hands of the appellant. We have also mentioned that a sum of Rs. 55,000/- lying in the District Forum is also to be paid to the complainant. Thus we find that the order passed by the learned District Forum was perfectly right. As the entire amount has already been paid to the complainant and only a sum of Rs. 55,000/- which is still lying in the District Forum is to be ordered to be paid to the complainant. For causing delay and mental torture and harassment etc. we also direct that the appellant shall pay a sum of Rs. 10,000/- to the complainant and will also pay a sum of Rs. 5,000/- as cost of this appeal. ORDER

THE appeal is dismissed. THE entire amount representing the price of the photostat machine alongwith interest awarded by the learned District Forum has been returned to the complainant by the appellant. THE appellant shall also pay the cost imposed by the learned District Forum and shall also pay a sum of Rs. 10,000/- as compensation granted by the Commission alongwith Rs. 5,000/- as cost of this appeal. THE F.D.R. of Rs. 55,000/- lying with the District Forum in the name of complainant shall be paid to the complainant by the District Forum. This order shall be complied with within a period of two months from the date of this judgment.

LET copy of this order be made available to the parties as per rules. Appeal dismissed with costs.