HCL INFOSYSTEMS LTD. vs ANITA TRIPATHI

THIS appeal is directed against the order dated 18.11.1999 passed by the District Consumer Disputes Redressal Forum, Durg (hereinafter referred to as ''District Forum'' for short) in Complaint Case No. 257/98 whereby the complaint was allowed against opposite party Nos. 1 and 2.

FACTS not presently in dispute are that the appellant is the manufacturer of the photocopier purchased by the complainant on 20.4.1996 under Pradhan Mantri Employment Scheme, after obtaining finance of Rs. 95,000/- from the opposite party No. 3. Brief facts as narrated in the complaint are that the complainant had purchased a photocopy machine on 20.4.1996 under Pradhan Mantri Employment Scheme, after obtaining finance of Rs. 95,000/- from the opposite party No. 3. Opposite party No. 2/appellant is the manufacturer of the said machine. As per the complainant the machine was defective. Stabiliser of the said machine developed defect on 25.4.1996. On complaint the opposite party No. 1 assured that they will replace the stabilizer within two three days but did not replace the same for months. Nearly after about seven months the said opposite party demanded Rs. 9,000/- for replacing the stabilizer. The complainant had however paid Rs. 4,500/- but despite replacement of stabilizer the machine did not function properly. The opposite party told that toner has developed defects. Thereafter it was told that the drum had developed defects and the opposite party demanded a sum of Rs. 6,000/- from the complainant. The complainant paid a sum of Rs. 3,000/- and promised to pay the remaining amount afterwards but due to non-availability of relevant parts the machine could not be repaired. It is further averred that the said machine is lying in defective condition since 28.9.1996. The complainant had claimed refund of price from the opposite party Nos. 1 and 2. As the machine was purchased after obtaining finance from the opposite party No. 3, the complainant had also prayed for staying the recovery of loan by the opposite party No. 3, Bank.

The opposite party Nos. 1 and 2 had averred in reply that during warranty period they had provided due service to the satisfaction of the complainant. The complainant has been filed after the period of warranty hence the same is not maintainable. It was further averred that instead of personally working on the machine the complainant used to let out the machine to others with the intention of earning profit, hence the complainant is not the consumer within definition given in the Act. It was also averred that the persons who operated the machine had no experience regarding the machine and further that the maintenance was not proper and all this resulted in technical problems in the machine. It was also averred in reply that at the time of purchase the complainant was told that in case of any technical defect in the machine, she will inform the manufacturer and will use only the material/parts manufactured by the company whereas the complainant instead of using material/parts manufactured by the company has used the material manufactured by other companies. It was further averred that no expert report regarding manufacturing defects in the machine has been filed. The opposite party Nos. 1 and 2 had prayed for dismissal of the complaint.

THE opposite party No. 3 in their reply averred that the complainant is claiming refund of price of the machine from the opposite party Nos. 1 and 2 and the opposite party No. 3 had only finance the money under Pradhan Mantri Employment Scheme. Under the circumstances they are not necessary party to the proceedings and prayed that they may be discharged from the proceedings. The learned District Forum discharged the opposite party No. 3 and had allowed the complaint against the opposite Party Nos. 1 and 2. Aggrieved by the said order the opposite party No. 2 had preferred this appeal.

IT is averred in the memo of appeal that the order is patently illegal, arbitrary and has been passed ignoring the ''Customer Call-cum-Service Slips'' containing the endorsement of the complainant regarding satisfactory performance of the machine. IT is further averred that direction regarding replacement of ''drum of photo copier'' also has been issued without considering the circumstances that necessitated change of drum. IT was required to be changed only because there was a lot of dust and dirt. The defects in functioning stabilizer have also been wrongly attributed to the appellant, though the stabilizer was neither manufactured nor sold by the appellant. IT is further averred that the photocopier requires proper handling and maintenance and that is why the appellant insists to the purchaser of photocopier for taking Annual Maintenance Contract for proper maintenance along with replacement of genuine parts, if need be. The learned District Forum has erred in deciding that the photocopier was defective since its installation though no expert evidence is placed on record. The complainant took out large number of photocopies as may be ascertained from the meter reading, hence it cannot be said that the machine was defective from the very beginning. The alleged mal-functioning of machine has developed due to improper handling and non-use of genuine consumables. During pendency of appeal the appellant had on 26.2.2004 filed an application under Order 41 Rule 27, C.P.C. for taking various documents on record, filed as per list, as additional evidence. The reason as stated in the application for not filing the same before the District Forum or with the appeal is that the said documents were not with the appellant but were left with other documents due to shifting of the office of the appellant. The respondent No. 1 vehemently opposed the application and submitted that the reason for not filing the documents earlier is false, the complaint was filed in the year 1997 and the appellant is filing their own documents after lapse of so many years, hence the application be dismissed. After hearing learned Counsel for both the parties on the said application we are of the opinion that although there is immense delay in filing the documents, yet the same appear to be relevant for due disposal of appeal, hence the application is allowed and the documents are taken on record. Final arguments heard. None appeared before us for respondent Nos. 2 and 3. Learned Counsel for the appellant has filed written arguments also.

LEARNED Counsel for parties took their respective stands as taken before the District Forum. Main thrust of learned Counsel for the appellant was on the fact that though the complainant had purchased the said photocopy machine under Pradhan Mantri Employment Scheme for self-employment yet she had let it out to various people.

THE first question to be considered by us is whether the complainant did not use the machine for self-employment? In this regard the learned Counsel for the appellant drew out attention to the documents filed by the appellant during appeal and submitted that some of the customer slips demonstrate that the name of customer is different, this goes to prove that the complainant was not using the machine for self-employment but had let out the same for gaining profit as such she is not a consumer. It is observed that all the Customer-call-Cum Service Slips do not relate to the machine of the complainant/respondent No. 1. It is noticed that the model for the machine of the complainant is 1310 and the number of the machine is K.B. 566064. However, it is noticed that only a few of the Customer Call-cum-Service Slips filed by the appellant relate to the machine of the said description and the counter reading is also not very high as the learned Counsel for the appellant tried to demonstrate.Customer Call-cum-Service Slips filed as document Nos, 3, 4, 8, 9, 11, 12, 14 and 15 appear to relate to the machine of the complainant. However, it is noticed that Customer Call-cum-Service Slip dated 27.6.1996 filed as document No. 8 though relates to the specifications of the complainant''s machine but the name of customer is mentioned as Anjali PCO (Creative Invest). Perusal of the Customer Call-cum-Service Slips further reveals that slips of dates both prior and subsequent to 27.6.1996 are in the name of the complainant. Customer Call-cum-Service Slip dated 2.5.1996 is also in the name of the Creative Invest but the same does not bear number of the machine. Customer Call-cum-Service Slips filed as document Nos. 1, 2, 5, 6, 7, 10 and 13 appear to relate to some other machine as in some of them a different number is mentioned, while in others machine number is not mentioned. Under the circumstances, it is not possible to conclude that the machine was let out by the complainant to someone else. The next question to be considered is as to whether the defects arose when warranty period had elapsed? The learned Counsel for the appellant also submitted that warranty for the photocopy machine was for the period of three months or 50,000 copies whichever was earlier and as the machine was purchased on 20.4.1996, warranty extended only upto 19.7.1996 or 50,000 copies whichever was earlier. He also filed photocopy of the warranty on sale of the photocopy machine 1310 relating to other persons but has failed to produce the document relating to the complainant. It was submitted by the learned Counsel for the respondent No. 1 that the defects developed in the machine during the warranty period itself as has been averred in the complaint. It appears from the Customer Call-cum-Service Slip dated 25.4.1996 that there was some problem in the machine. Then on 29.4.1996 some one from the company was called and he tried to rectify the problem. Customer-call-Cum Service Slips filed as document Nos. 1 and 6 (as per list) Machine Sl. No. K.B. 676746 in the name of Electronic Power Control showing counter reading of 77,213. Similarly document No. 2 relates to Machine Sl. No. K.G. 571863 in the name of Amba STD PCO, showing counter reading of 54,536 whereas the maximum counter reading of the machine of the complainant is 18,168 shown in the Customer Call-cum-Service Slip dated 1.8.1996 filed as document No. 3. On the strength counter reading shown in the Customer Call-cum-Service Slips of other consumers the learned Counsel for the appellant tried to convince us that the period of warranty was over as more than 50,000 copies were taken out from the said machine. Such a practice is deplorable. It is observed that problem in the photocopy machine was faced by the complainant from the very beginning when counter reading was just 41 as per Customer Call-cum-Service Slip dated 25.4.1996 and other subsequent slips. It appears from perusal of record that the complainant made repeated correspondence wherein the complainant had requested for repairing the machine urgently. We are of the opinion, that in case a defect develops during warranty period and the same is not rectified, warranty period cannot be said to have expired. In the circumstances, we do not find any force in the argument of the learned Counsel for the appellant that warranty period had lapsed.

It appears that the complainant could not use the machine and had to face a lot of financial problem as she had obtained finance from the opposite party No. 3 and had to pay interest over the amount of loan. In the circumstances we are of the opinion that order of the learned District Forum is just and proper and there is no need of any interference with the same. The order of the District Forum is affirmed. This appeal is dismissed. The appellant shall bear their own cost and shall pay Rs. 1,000/- to the respondent No. 1 towards costs of this appeal. Appeal dismissed.