KOREN BUSINESS SYSTEM LTD. vs PATEL SOMABHAI CHHAGANLAL

THE complainant Patel Somabhai Chhaganlal filed Complaint Case No. 377/1994 before the learned Consumer Disputes Redressal Forum, Mehsana on 17.11.1994. He alleged that he was carrying on business of taking out copies of documents on a xerox machine. He placed order for one such machine with the first opponent on January 20, 1992 [though the complainant has mistakenly stated the year 1991]. THE machine was supplied as per the agreed price of Rs. 61,000/-. It was the complainant''s case that he had paid Rs. 60,000/- out of the price of Rs. 61,000/- but he then altered saying that Rs. 5,000/- remained outstanding and he was ready to pay the said outstanding amount. It was his case that the machine in question was defective in the matter of performance. He was not able to take out copies as required by him. He has alleged that the machine was not giving out copies according to its capacity. THE copies which he was taking out were either very dark or very illegible. He also alleged that there was warranty card issued by the opponent giving warranty for a period of three months or 30000 copies whichever event occurs earlier. According to him the Engineer from the opponent Company visited the complainant''s shop and made report about his visit. In spite of such report, the opponent Company did not give response with regard to the machine in question by repairing it or replacing its parts. This resulted to the complainant loss of Rs. 60,000/- being the price alleged to have been paid by him. He has alleged that there were problems such as output problem, fuse problem, output voltage problem etc. He has finally alleged that the opponent Company neither repaired the machine nor replaced the parts thereof. He was, therefore, required to file complaint praying for replacement of the machine in question or return of price paid by him - Rs. 60,000/- with interest @ 18% p.a. THE opponent resisted the complaint as per the opponent''s communication dated 19.12.1994 addressed by the opponent No. 1 Company to the learned Forum. It has been asserted that out of the price of Rs. 65,000/-, the complainant paid only Rs. 60,000/- and with a view not to pay balance consideration, the complainant has filed the complaint. It has been asserted that the cheques which were given for payment of even Rs. 60,000/- were in the first place returned with the endorsement "not arranged for" or "insufficient funds". According to the opponent Company the copier machine was installed on 25.1.1992. Standard warranty period of three months or 30000 copies whichever was earlier was also set out in the warranty card. THE warranty period expired on 24.4.1992 and yet the opponent Company continued to provide services to the complainant till up to 1.2.1993 [almost one year]. During this period the complainant had taken out 81495 copies. THE warranty period as well as the warranted copies were already over. Thus, there was no reason for the complainant to file the complaint or that the complaint being entertained after nearly three years of using the machine by the complainant. THE opponent Company has also asserted that the complainant must have taken out more than 150000 copies during the period. According to the report received by the opponent Company, the complainant had been taking approximately 7000 to 8000 copies every month on the machine. Coupled with such circumstances, correspondence that ensued between the parties was also enclosed with the reply. It has been asserted that in spite of the promise given by the complainant, the complainant failed to make payment of the outstanding amount. It has finally been submitted that on 1.2.1993 when the Engineer was last deputed, the counter reading was 81495 [81495 copies must have been taken out]. THE Engineer found that there was nothing wrong with the machine. Only Teflon roller was worn out and it needed replacement. Taflon roller is a rubber roller which was not covered under the warranty. THE opponent also addressed further communication dated 14.8.1995 to the learned Forum requesting the learned Forum to direct the complainant to make payment of the outstanding amount of Rs. 5,000/-. THE opponent has also addressed further communication dated 24.1.1997 in reply to the counter filed by the complainant. It has been specifically alleged that the complainant''s intention was not good and the complaint was filed with a view to black mail the Company on the pretext that the machine was not working satisfactorily.

AFTER considering the pleadings, the learned Forum came to the conclusion that the complainant was a consumer, that the opponents displayed deficiency in service by not replacing the machine or the spare parts therein and that the complainant was entitled to the relief of replacement of the machine and in the alternative repayment of Rs. 50,000/- with running interest @ 18% p.a. from 20.1.1992 till payment. The complaint was accordingly granted with no order as to costs. It is this decision that has been subjected to challenge in this appeal. We have heard the learned Advocates appearing for the parties. It has been submitted that the complainant could not be said to be consumer in the eye of law. The learned Forum has answered the question in favour of the complainant. It has not assigned any reason. According to the complainant''s own case, he was carrying on business of copying or selling copies of the documents by taking them out on a xerox machine. Thus, the commercial purpose for which he purchased the machine has been set out in the complaint itself. The complainant has not made any averment to the effect that he purchased the copies for self employment. However, it has been submitted on behalf of the complainant that the complainant was unemployed and, therefore, he purchased machine for providing employment to him and for the purpose of maintaining his family. In support of this submission Mr. N.R. Bhavsar, learned Advocate for the complainant has today placed on record a copy of the summons received by the complainant from Civil Court, S.D., Mehsana in Special Civil Suit No. 407/2000 filed by the Indian Bank against the complainant. The complainant has been described as defendant No. 1 in the suit. It has been asserted by the Bank that all the three defendants of the suit had prayed for loan of Rs. 50,000/- for purchasing xerox machine. They executed necessary documents on 10.1.1992 and the loan was sanctioned in favour of defendant No. 1. Defendant Nos. 2 and 3 agreed to stand as sureties for the said loan and they executed necessary surety documents in favour of the Bank. As there was default in payment of the loan, the Bank filed the suit for recovery joining defendant Nos. 2 and 3 as sureties for the loan given to first defendant. Now, on a reference to this suit which is filed on 29.11.2000, it can be seen that there is no averment in the copy of the plaint placed in this appeal showing that loan was granted for self employment under any scheme for unemployed persons floated by the Bank. As a matter of fact, this was not the case of the complainant before the learned Forum. The case of the complainant was he was carrying on business of taking out and giving copies of documents on a xerox machine and he purchased the xerox machine in question from the opponent Company. If that is so, on the complainant''s own say it was for commercial purpose for which he had purchased the machine in question. In view of the complainant''s own facts, he could not be said to be a consumer in the eye of law.

Assuming that the complainant is treated as a consumer in the eye of law, it is clear from the service reports which were presented by the opponent Company before the learned Forum that on 29.2.1992, the complainant had already taken out 6201 copies. The service was attended to by the opponent Company along with complaint of paper jamming constantly being attended to on 11.3.1992, complaint was attended to along with service and there were 7807 copies already taken out by the complainant. The complaint which was presented by the complainant was of paper feeding and wrinkle problem. Once again, the complaint was attended to and service was given. On 5.6.1992 there was a problem of paper feeding and wrinkle presented by the complainant. In spite of the fact that the period of three months was over, the opponent Company gave free service and problem was attended to. It has been noted that by 5.6.1992, 25092 copies were already taken out by the complainant. On 10.8.1992, 40451 copies were already taken out. Service was attended to along with the alleged problem of black spots coming out in the copies. On 6.11.1992 60416 copies were taken out and alleged problem of paper feeding and paper jamming was attended to. It is for the first time recited that the quality of the copy was not good. Once again the problem was attended to and service was given free. On 22.1.1993, the complainant had already taken out 79201 copies and there was no problem noted in the service report and yet free service was given. On 1st February, 1993, complainant had already taken out 81495 copies and reference has been made to paying of courtesy visit to the consumer with a note that at the consumer''s convenience service contract might be given. This is what transpired between the parties till up to January, 1993. In this background the payment history on the side of the complainant is not clear. He had issued two cheques for payment of Rs. 60,000/- and they were not cleared in the first instance. It is not true that ultimately payment of Rs. 60,000/- was made but still Rs. 5,000/- remained outstanding from the complainant to the opponent Company. If there was any basic defect in the machine, the complainant would not have operated the machine so continuously and so beneficially as can be seen from the service reports recording the number of copies taken out by the complainant. There is no averment in the complaint that the machine remained or was left useless at any given point of time. Even on the date the complaint was filed, more than two years after the expiry of the warranty period or condition, the complainant has not come out with the averment that the machine stopped working totally. The complainant has not produced any report or Panchnama with regard to the machine having stopped working at any point of time even during the pendency of the complaint. In that view of the matter, there appears to be some substance in the grievance of the opponent Company that the complaint was filed by the complainant with a view to avoid payment of outstanding amount of Rs. 5,000/-. On a correct and proper appreciation of the facts and circumstances which are not in dispute, the grievance of the opponents about filing of complaint with a view to avoid payment clearly appears to be substantiated. In our considered opinion, the learned Forum appears to have overlooked this factual aspect of the matter. The complainant has not produced any statement of accounts about the alleged loss which he might have sustained. In fact he has used the machine and taken out as many as 81495 copies till up to the last visit of the Engineer of the opponent in February, 1993. It has, therefore, legitimately to be inferred that the complainant has gone on using the machine not only up to March, 1993 but also thereafter till up to the date of the filing of the complaint and possibly, till date. Hence, the finding of the learned Forum that there was deficiency in service on the part of the opponent Company in respect of the allegations made by the complainant cannot be accepted. In above view of the matter, the complaint deserved to be dismissed. In the aforesaid facts and circumstances of the case, this appeal has to be allowed. Following order, therefore, has to be passed. ORDER Impugned order dated 11.2.1998 rendered by the learned Consumer Disputes Redressal Forum, Mehsana in Consumer Disputes Case No. 377/1994 is hereby set aside. The complaint is dismissed. This appeal is allowed, with no order as to costs. Appeal allowed.