MALWA CONSUMER STORE vs MODI XEROX LIMITED

XTHIS is an appeal directed against order dated 23.1.2003 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as the District Forum) in Complaint Case No. 52 of 1999. The District Forum dismissed the complaint on the finding that the appellant failed to prove any manufacturing defect, deficiency in service or unfair trade practice on the part of the respondent.

A colour laser printer manufactured by Modi Xerox Ltd. for printing documents was ordered to be purchased by the appellant on 11.5.1998 with a deposit of a sum of Rs. 2,05,000/- as an advance. The balance amount of Rs. 50,000/- was to be paid after installation of the colour laser printer at its premises. The colour laser printer was to be installed within 15 days of the order placed by the complainant but it was installed belatedly on 11.6.1998. The complainant paid the balance amount of Rs. 50,000/- to the respondent. On the date of installation itself, the complainant found the TP Kit missing for which payment of additional amount of Rs. 8,000/- was made. The grievance of the complainant was that the colour laser printer posed several problems right from day one. These problems have been mentioned in the impugned order in Para 1 as (a) to (f). The defects could not be removed by the respondents and as such the complaint was filed in the District Forum on the ground of manufacturing defects in the said colour laser printer and deficiency in service on the part of the respondents. The complainant sought refund of the amount of Rs. 2,05,000/-, the price of the colour laser printer aforesaid and a direction to the respondents to take back the laser printer from him. The complainant has also claimed interest @ 18% per annum from the date, the amount was deposited. The complainant prayed for costs of Rs. 1,00,000/- as damages for mental harassment and loss of business.

The respondent appeared before the District Forum and filed joint written statement wherein preliminary objection regarding the non-maintainability of the complaint under the provisions of Consumer Protection Act, 1986 (for short hereinafter referred to as the C.P. Act) on the ground that the complainant was not earning his livelihood by self-employment and in that capacity, he cannot purchase the colour laser printer about which the complaint has been filed. In this connection, it was averred in the written statement that the complainant was a large concern having six employees working in it. The complainant besides doing the business of colour laser printer was also commercially engaged in selling readymade garments, electronic goods (i.e. emergency light, watch, calculator, walkman etc.), decoration items, perfumes, bags, blankets, carpets, quilts, etc. etc. and also doing service of electronic gadgets and had installed a computer, printer and providing computer related services. The complainant could not said to be a consumer by any stretch of imagination or a person engaged in self-employment for earning livelihood.

THE other preliminary objection raised was about the complaint being bad for mis-joinder of O.P. No. 1 neither the Head Office or Registered Office of O.P. No. 2 i.e. only one of the offices of Modi Xerox Ltd. having no link or nexus with the alleged cause of action mentioned in the complaint case. It was further contended that the complainant had concealed material facts deliberately from being mentioned in the complaint and as such, the complaint was liable to be dismissed. It was denied that the goods purchased by the complainant suffered from manufacturing defect. THEre was no deficiency in service on the part of the O.Ps. nor the goods purchased suffered from any defect. On merits, it was contended that the order for the purchase of C-55, colour laser printer was placed with O.P. No. 2 on 6.5.1998 and not on 11.5.1998 and the equipment was installed on 12.6.1998 and not on 11.6.1998. It was denied that any assurance was given regarding the installation of the colour laser printer within 15 days of the placing of the order. THE O.P. No. 2 was only selling C-55 colour laser printer manufactured by M/s. Xerox. THE printer was installed as and when the same was received from M/s. Xerox, Netherland. THE balance payment of Rs. 50,000/- was paid by the complainant on 19.8.1998 after having been fully satisfied with the performance of the equipment over period of two months. It was submitted that the complainant had only purchased the aforesaid colour laser printer from O.P. No. 2 but as a promotional and goodwill gesture, the complainant was supplied a scanner free of cost. THE T.P. Kit was not a part of laser printer but an additional accessory of the scanner and the scanner was functional and operational even without the T.P. Kit. THE T.P. Kit was not a part of the deal of purchase of colour laser printer but was subsequently supplied free of cost to the complainant only with a view to show excellent services provided by O.P. No. 2. It was further submitted that the said equipment was warranted against manufacturing defects arising out of faulty design, materials and workmanship during the warranty period, excluding consumables such as toner, drum, developer etc. It was denied specifically that the colour laser printer was not functioning properly from 12.6.1998 i.e. the date on which it was installed. The complainant has certified the satisfactory working of the printer even on 12.6.1998. The allegations regarding the defects mentioned in the laser printer were vague and generic and did not reflect any manufacturing defect. The dark or brown print, it was alleged, can be due to wrong selection of contrast through the computer or incorrect selection of colours through software. The print defect was attributable to the negligence of the complainant and in not maintaining a stable environment for the printer. Regarding the message of paper jam, it was explained that the same could be due to dirt on sensor or fluctuations in voltage of the electricity or the printer was not properly closed or the paper feed tray was not inserted properly or paper was not as per specification. The message regarding the toner collected to be replaced is not a defect in the printer and it only requires the toner collected to be replaced with a new unit.

REGARDING the defect "e", it was mentioned that image fix (Windows 95 Post Script Only) is a feature of C-55 colour laser printer which is only operational with a computer having Widows -95 Post Script Driver. As per Image Fix feature, the colour setting for taking print out through RGB bit mapped images only is done automatically. The visual results are subjective to quality of scanned document. It was further mentioned that this feature will not work with CMYK Image or applications that use their own internal drivers as Adove, Page Maker and Corel Draw. As the system of the complainant was also equipped with Adove Post Script in which the said feature is not applicable. Regarding defect (f), it was contended that the computerless printing through server is not a basic feature of the C-55 colour laser printer purchased by the complainant but is an option as clearly mentioned in the brochure which is to be opted/exercised by the complainant. The complainant has not opted to install Media Server with his equipment and thus cannot avail the feature of computerless printing in his colour laser printer. The O.Ps. contended that the complainant due to lack of knowledge in operating the aforesaid C-55 colour laser printer, computer and printing technicalities was facing the above mentioned minor operational difficulties and problems inspite of necessary user training provided at the time of installation. The O.P. No. 2 had also supplied the user guide with the said colour laser printer wherein all such operational defects, their causes and their remedies have been elaborately mentioned and which was a self-sufficient guide. The O.P. No. 2, it was alleged, carried out routine maintenance on the equipment on 23.10.1998 and the test run carried out was satisfactory and duly endorsed by the complainant. The complainant was not maintaining a proper site requirement for the optimal use of the printer and had been advised repeatedly by the engineers of O.P. No. 2. On 23.10.1998, the complainant was advised to change the drum of the printer which was damaged due to improper environment. The complainant instead of doing the same made false allegations regarding the non-functioning of the colour laser printer vide letter dated 26.10.1998. The said letter, however, did not mention any specific defect. The complainant filed affidavit of Shri Bhagwan Dass Singla in support of the averments made in the complaint case. Shri Anil Mehta, Technical Support Manager of Modi Xerox Limited also filed his affidavit as an expert along with his Inspection Report appended as Annexure ''R'' and documents as Annexures R-1 to R-5. O.Ps. also filed affidavit of Shri Rajesh Jain, Customer Service Manager, Modi Xerox Limited annexing there with documents Annexures R-6 to R-10.

WE have heard the learned Counsel for the appellant and the learned Counsel for the respondent and have carefully perused the impugned order and the record of the case.

IN pursuance of the order passed by the District Forum on 16.7.1999, the inspection of the colour laser printer was carried by Shri Anil Mehta, Technical Support Manager-Printers, Modi Xerox Limited and he gave his report which has been placed on record as Annexure ''R''. IN his report he gave his opinion that the printer was fully operational as is evident from various print outs taken during the aforesaid inspection. The standard test pattern generated which is used for identifying a variety of print quality defects like streaks, density problem etc. was showing image of varying densities and colour but no print defects as is desired of a good colour printer. The copy of the test pattern was annexed as Annexure R-4. Similarly Annexure R-5 is used to set the density and to determine if the colours are balanced properly. The print is also suggestive of proper balance of colours and total colour print worthiness of the printer. This inspection was carried out in the premises of the complainant and in the presence of Shri Bhagwan Dass and the sample printouts were also taken in their presence. Though the results are good as expected from a good printer, the complainant refused to sign on the satisfactory report on the plea that he would like to consult his lawyer. In the last para of the report, Shri Anil Mehta, mentioned as under : "Finally in my observation a controlled dust free environment, as mentioned in the brochure (Annexure R-2) for the colour printer and good operational skills for the operator and the use of recommended consumables (paper, toner etc.) can give the desired output from the C-55 Printer to the satisfaction of the complainant."

The District Forum has held that the complaint was not maintainable under the Consumer Protection Act as the complainant was not a consumer. The goods were purchased for commercial purpose which is excluded from the purview of the Consumer Protection Act as provided by Section 2(1)(d)(i) of the Consumer Protection Act. So far as the Explanation which has been appended to Section 2(1)(d)(i) is concerned, the complainant is not covered thereunder as the complainant is engaged in various other business referred to above and earning livelihood therefrom. The District Forum held that it could not be said that the goods in question were purchased by the complainant for earning livelihood by self-employment. Shri Bhagwan Dass, Proprietor of Malwa Consumer Store could not deny and dispute the fact that Malwa Consumer Store was dealing in other business also and earning livelihood therefrom. The learned Counsel for the appellant drew our attention to the averments made in para 10 of the affidavit of the complainant Shri Bhagwan Dass Singla, wherein, he deposed that he was a self-employed person and has no other concern or branch or any manager to handle the existing business. The statement of the complainant is clearly negatived by the fact that the complainant-Malwa Consumer Store is engaged in other business also which has been mentioned above. The District Forum, in our considered opinion, has rightly held that the goods were purchased for commercial purpose and the complainant was not saved by the Explanation appended to Section 2(1)(d)(i) of the Consumer Protection Act.

SO far as the grievances of the complainant regarding manufacturing defect in the colour laser printer is concerned, the evidence placed on record by the O.Ps. clearly go to show that the goods did not suffer from any manufacturing defect. The defects which were pointed out by the complainant and which have been dealt with in detail by the District Forum were more due to the ignorance of the use of the colour laser printer itself. Even the inspection report, which we have referred above, negatives the contention of the complainant. The learned Counsel for the appellant drew our attention to the averments made in Paras 16 to 18 of the affidavit dated 22.9.1998 of Shri Bhagwan Dass Singla through whom this complaint has been filed. In para 16, the deponent Shri Bhagwan Dass Singla deposed, inter alia as under : "16. That it is a fact that the C-55 colour laser printer, was a new machine and the complainant-deponent lacked the experience and knowledge to operate the above said machine. But the service personnel of the respondent No. 2 who are claimed to be fully trained were also at the receiving end when it came to operate the scanner and the printer...."

PARAS 16 and 18 relate to the defects which are alleged by the complainant in the colour laser printer. The learned Counsel for the respondent, in reply to the submissions made by the learned Counsel for the complainant, contended that the complainant in his affidavit and particularly in Para 16 admitted about his lack of experience and knowledge to operate the colour laser printer due to which he faced the problems which he has tried to highlight in his affidavit. Besides it, it was contended that PARAS 10 to 18 of the affidavit of Shri Bhagwan Dass Singla are beyond the pleadings as contended in the complaint case and as such it should not be taken into consideration. Even if, we taken into consideration the averments made therein then in the light of this report of Shri Anil Mehta, we find that the District Forum has rightly concluded that there was no manufacturing defect or deficiency in service on the part of the O.P. The problems arose due to the lack of knowledge and experience on the part of the appellant/complainant to operate the printer. Besides it, the learned Counsel for the respondent drew our attention to document (Annexure R-2) which is the brochure of the company regarding the colour laser printer. On the reverse of this Annexure, under caption "Exclusive Convenience Features" at Serial No. 3 ''Image Fix'', there is a clear mention that it requires Windows 95 in the computer. The complainant, it was contended by the learned Counsel for the respondent, did not have Windows 95. Under the heading "Options" in the said document (Annexure R-2), Media Server is to be used, which was not taken by the complainant. The learned Counsel for the respondent drew our attention to Para 2 of the Inspection Report which we have earlier mentioned and which clearly negatives the contention of the appellant that the colour laser printer suffers from any manufacturing defect. Annexure R-3 is about the Printers Diagnostics and under the heading "Process Control Status", in the last Item "Calibration", it is mentioned ''OK''. Annexure R-4 is the various colours taken out of the colour printer as Test Pattern A 600 x 600. Annexure R-5 is about the density and colour balance adjustment. Shri Rajesh Jain, Customer Service Manager filed his affidavit on behalf of the respondent and controverted the allegations made in the complainant''s affidavit.

SHRI Neeraj Sharma, Advocate appearing as Authorised Agent for the appellant lastly contended that the District Forum opt to have followed the procedure as laid down under Section 13(c) of the C.P. Act by getting the laboratory report about the colour laser printer and instead the District Forum passed an order about the examination of the printer by SHRI Anil Mehta, Technical Support Manager of the respondent-company. In this connection, the learned Counsel for the respondent, drew our attention to the application moved on 16.7.1999 where it was prayed that the District Forum may appoint any independent expert to show that the said equipment did not suffer from any manufacturing defect and the status report prepared at the spot be taken on record. This was disposed of vide order dated 16.10.1999. The District Forum appointed the Service Engineer of the OP and allowed the parties to be present at the time of examination of the machine at the time, date agreed between the parties. Under these circumstances, it cannot be said that the District Forum has not followed the due procedure under the C.P. Act.

THE District Forum has at length considered the material placed on record and has rightly arrived at the finding that the complainant has failed to show that the said colour laser printer suffered from any manufacturing defect. THE complaint has rightly been dismissed as there was no deficiency in service or unfair trade practice on the part of the respondents. Resultantly, the appeal is devoid of merit and is dismissed. The District Forum left the parties to bear their own costs. The parties shall bear their own costs of appeal themselves. Copies of this judgment be sent to the parties free of charge. Appeal dismissed.