SANTOSH KUNDAN SINGH RAWAT vs HARSHAL BHANUDASRAO MAHALE

THIS is an appeal against the Order dated 13th August, 1992 passed by the State Consumer Disputes Redressal Commission, Maharashtra at Bombay, allowing substantially the complaint filed by the present Respondent No. 1 Shri Harshal Bhanudasrao Mahale against the present Appellant-Santosh Kundansingh Rawat and Respondent No. 2-Bruno John Gonsalves who had been arrayed in the complaint as Opposite Party Nos. 1 and 2. According to the allegations contained in the complaint, the Complainant for his own livelihood wanted to start a Copier Business in Pratap Nagar and he approached Opposite Party No. 1 to purchase a Xerox copier machine who furnished him a quotation pf a ''Canon 270''Xerox machine for a consideration of Rs. 1,75,000/-. It was told by the Opposite Party No. 1 to the Complainant that the machine would be a second hand machine from which about 4000 to 5000 copies could have been received per day in any country other then India. It was pretended that the Opposite Party No. 1 was going on to supply an imported machine to the Complainant. Opposite Party No. 1 also assured the Complainant to give guarantee for three months from the date of installation and warranty for one year. Relying on the said statements made by the Opposite Party No. 1 the deal was finalised for Rs. 1,55,000/-. The Complainant paid Rs. 1,35,000/- to Opposite Party No. 1 by Pay Order dated 14th January, 1992 and Rs. 40,000/- by a cheque dated 13th January, 1992. It is further alleged by the Complainant that it was understanding between the Complainant and the Opposite Party No. 1 that Rs. 20,000/- had been paid in excess and will be refunded to the Complainant. According to the Complainant, in order to adjust the arrangement, the payment of amount by cheque was stopped and a fresh cheque for Rs. 20,000/ - was given to the Opposite Party No. 1. The machine was supposed to be delivered to the Complainant on 15th January, 1992 but anyhow it was delivered on 26th January, 1992. At the time of delivery of the machine the Opposite Party No. 2-Bruno John Gonsalves who is a technical expert was invited by Opposite Party No. 1 to inspect the machine and it was okayed by him for its purchase. After installation of the machine, on 3rd February, 1992 the Complainant approached Opposite Party No. 2 for maintenance contract for service of machine as per instructions of Opposite Party No. 1. who had given a guarantee. Opposite Party No. 2 was to look after the machine. The machine started giving trouble within 15 days from the date of installation. The Complainant made a complaint with Opposite Party No. 2. Opposite Party No. 2 checked the machine and did the needful for running the machine. Even after the first complaint and first service the machine started giving trouble. According to the Complainant due to frequent break down in the machine he became doubtful about the life, performance and genuineness of the machine he has purchased and opted for expert''s opinion about all these things. The report of the expert disclosed that the machine is an old one and assembled in India and life expectancy cannot be guaranteed. The Complainant went to the Opposite Party No. 1 and requested him to take back the machine and refund the total amount/price paid for the machine. When Opposite Party No. 1 did not comply with the request of the Complainant, the Complainant filed a complaint praying that the opposite party No. 1 be directed to refund the full amount of consideration i.e. Rs. 1,55,000/-along with 18% interest till the date of realisation plus Rs. 5,000/- for loss of business/earnings. He also claimed Rs. 10,000./- as damages for cheating and fraud and further sum of Rs. 10,000/ - for mental tension and agony.

THE complaint was contested by Opposite Party No. 1. He took preliminary objection to the effect that the machine had been purchased by the Complainant for commercial purposes and it was used for that purpose and therefore, he was not a ''consumer'' as defined in the Consumer Protection Act, 1986. It was admitted by Opposite Party No. 1 that he had furnished a quotation for supply of a Cannon NP 270 Copier and the price was quoted as Rs. 1,75,000/-. The quotation was given to one Mr. Rajesh Mahale who was sent to opposite party No. 1 by one Shri Aware who is brother-in-law of the Complainant. It is further case of the Opposite Party No. l that he had informed the said Shri Rajesh Mahale in clear and unambiguous terms that the photo copier machine proposed to be sold was second hand. He denied the allegation that he ever represented the Complainant that near about 4000 to 5000 copies could be taken out on the said machine in some country outside India. He never represented on pretended that he was going to supply an imported photo copier machine to the Complainant. He never gave any assurances of any warranty or guarantee. The averments made by the Complainant are baseless, unfounded and to create grounds for litigation in order to avoid payment of the balance amount of Rs. 20,000/- payable by the Complainant to him and for which he has been pressing hard upon the Complainant for the last over two months. The price of the machine was quoted as Rs. 1,75,000/- and the deal was finalised for the same amount. The delay in the delivery of the machine was due to the fact that the Complainant had stopped payment of the cheque of Rs. 40,000/- on the ground that he had not sufficient funds in his accounts and had persuaded him to accept the amount of Rs. 20,000/- and got the delivery of the photo copier machine and assured to make the payment of remaining amount within one month. The Complainant himself had invited Opposite Party No. 2 at the premises of Opposite Party No. 1 to verify and inspect the condition and quality of the machine and he got it thoroughly inspected before finalising the purchase and making payment. Opposite Party No. 1 does not have any contact or introduction with the Opposite Party No. 2. Opposite Party No. 2 was also requested by the Complainant in the presence of Opposite Party No. 1 to install the machine at his establishment and to take care of its regular maintenance. Opposite Party No. 1 denied that the trouble, if any, arising in the machine was due to any defect in the machine. The Complainant had approached Opposite Party No. 2 and requested him to give a maintenance contract for the regular maintenance of the machine in working condition. Opposite Party No. 1 was not a party to any such contract nor he gave any instruction to Opposite Party No. 2 to look after the machine. Service reports make it abundantly clear that there is no technical fault in the running of the machine and frequent problems complained of are due to improper operation of the machine by the Complainant. It appears that the Complainant did not know proper procedure for operating such sensitive electronic photocopier machine. Any mistake in operation stalls, the functioning of these machines. Even a variation in voltage may cause adverse effect on its mechanism if suitable protection is not provided. The Complainant has been using the machine to its full capacity and during the first two months he took out 11,000 copies. Such a machine require regular maintenance especially when it is a second hand one. The Complainant never came to Opposite Party No. 1 nor requested him to take back the machine on receipt of the alleged report of the expert. On the other hand Opposite Party No. 1 had been visiting the Complainant''s shop for demanding the unpaid amount out of the price of the machine. Sometime during the month of March, 1992 when Opposite Party No. 1 visited the shop of the Complainant, the Complainant expressed his inability to make the payment and shrewdly suggested that the Opposite Party No. 1 might refund the amount paid by him and take back the machine and thus the Complainant wanted to enjoy the use of the machine free of cost for two months since it purchase by him. Opposite Party No. 1 refused to heed to the complaint of the Complainant and insisted upon the latter to make the payment otherwise he would institute legal action for recovery of the amount unpaid. As a counter to that threat the Complainant has filed this complaint. Opposite Party No. 2 pleaded that he was invited by the Complainant to inspect the photo copier machine proposed to be purchased by him and had informed him that the price of the machine was Rs. 1,75,000/-. The Complainant also requested him to install and demonstrate the functioning of the photo copier. Opposite Party No. 2 agreed to offer his services for consideration of Rs. 2,000/-. The Complainant agreed to make the said payment within a week and took him to the premises of Opposite Party No. 1 where the machine was kept. Upon the request of the Complainant/ Opposite Party No. 2 inspected and evaluated the condition of the photo copier and in his opinion the said machine though second hand was found to be in satisfactory working condition. Opposite Party No. 2 clearly explained about the internal condition of the machine to the Complainant before the machine was delivered by Opposite Party No. 1. Opposite Party No. 2 only had opined that the machine was in satisfactory workable condition and would not require any major expense for repairs. After the machine had been installed by him at the premises of the Complainant the latter requested him to look after the maintenance of machine regularly. Opposite Party No. 2 offered to enter into maintenance contract with the Complainant for maintaining the photo copier machine for a period of one year. The Complainant was required to pay an amount of Rs. 2500/- to Opposite Party No. 2 in addition to Rs. 2,000/- for inspection and maintenance being the cosideration for said agreement. However, in view of good business relations, the Opposite Party No. 2 did not insist upon the payment of consideration in advance and relied upon the Complainant''s assurance to pay after three months. Opposite Party No. 2 offered its periodic service for the maintenance of the machine. Opposite Party No. 1 has signed a contract of maintenance only as a witness and was not a party. Opposite Party No. 2 was never instructed by the Opposite Party No. 1 to look after the machine. The Complainant did not know the proper procedure for operation of the various functions of the machine purchased by him and the paper jam was due to mistake in the operating procedure by the Complainant. In spite of Opposite Party No. 2''s advice the Complainant did not supply electricity to the machine through a ''Servo'' Voltage Stabilizer. There was no mal-function or defect in the machine. Opposite Party No. 2 did regular preventive maintenance of the Complainant''s machine. The quality of the copies has been found to be considerably good and the machine was not having any mechanical defect in one and a half months. Nearly 9000 copies have been taken out on the said machine by the Complainant in one and a half month. This Opposite Party referred to various inspection reports also.

THE State Commission held that Opposite Party No. l practised unfair trade practice in selling a machine other than the machine which was ordered and that too a defective machine. According to it, the complainant wanted a ''Canon Xerox Machine'' purportedly an imported machine with imported components, whereas in this case, the Opposite Party No. 1 sold to the Complainant although styled as imported machine, with second hand renovated, reconditioned components and that too of Indian make and it was further held that the goods in question sold to the Complainant were defective within the meaning of Section 2(f) of the Consumer Protection Act. It was urged before the State Commission on behalf of the Opposite Party No. 1 that the Complainant had asked for an old machine. It was remarked that even assuming that statement as correct, the Complainant wanted an imported machine with 100% imported components. After perusing expert''s report, the State Commission remarked that the said machine consisted of worn out and old parts. Accordingly, the State Commission directed Opposite Party No. 1 to refund to the complainant the price of the xerox machine, i.e., Rs. 1,55,000/- along with interest as compensation @ 18% p.a. from the date of payment till realisation within a period of two months from the date of receipt of the order. It was further ordered that after the receipt of the full amount of the price with interest the complainant shall return the xerox machine to Opposite Party No. 1 Feeling aggrieved, the Opposite Party No. 1 has filed the present appeal before this Commission.

IT was argued on behalf of the appellant that the State Commission has decided the case on the wrong assumption that the complainant wanted a new imported machine and this finding is not supported by any affidavit of the complainant. We think that this argument has force. In para No. 3 of the complaint, the Complainant has clearly stated that Opposite Party No. l furnished a quotation for supply of a Canon NP-270 Xerox machine for a consideration of Rs. 1,75,000/- and he was told by Opposite Party No. 1 that the machine will be a second-hand one. Thus, it is clear that the Complainant wanted a second-hand machine and not a new one. In the complaint it is also not alleged that the Opposite Party No. 1 represented that the Xerox machine which he was selling was an imported machine. The only allegation made by him is that the Opposite Party No. l had represented that about 5,000 copies can be taken from the machine in any other country than India and thus he was made to believe that the machine which was shown to the complainant was an imported machine. From the statement attributed to Opposite Party No. l, which has been denied by it, the complainant might have assumed that the machine was going to be an imported one. However, no such specific representation was made by the Opposite Party No. l. There is no evidence on the file to show that unfair trade practice had been practised by the Opposite Party No. 1. After receiving the quotation, the complainant called Opposite Party No. 2 Shri Bruno Gonsalves, who is the proprietor of M/s. Copier Services as an expert and he inspected the machine. Though the complainant in his complaint has stated that both the Opposite Parties were in collusion we are not satisfied with that assertion. When the complainant was going to purchase a second-hand machine of the value of Rs. 1,75,000/- it is reasonable to expect that he would have got it examined by some expert of his own choice. It is the case of the Opposite Party No. 1 that the Complainant himself had contacted Opposite Party No. 2 to inspect the machine before purchase and installation and had got it examined. It is an admitted fact that the machine was delivered on 26th January, 1992. Copy of the maintenance agreement entered into between the complainant and the Opposite Party No. 2 is at page 31 of the file. That contract was to operate for a period of one year from the 25th of January, 1992 to 24th January, 1993. Thus even before the purchase of the machine the complainant had entered into a maintenance contract with Opposite Party No. 2 It was Opposite Party No. 2 who had installed the machine at the premises of the Complainant and had demonstrated its working. Service report dated 26th January, 1992 is at page 33 of the paper book. On that report the Complainant has signed under the endorsement "we certify that the service has been satisfactorily completed". We may mention here that such an endorsement appears on every maintenance memo to which the complainant has appended his signatures. The State Commission has skipped over this part by remarking that the signatures of the Complainant on such invoice was a mere formality.

ON 3rd February, 1992 the complainant lodged a complaint with the Opposite Party No. 2 about the jamming of paper in the machine. That complaint was rectified by cleaning the machine and the working of the machine was again demonstrated. The machine, it appears, worked satisfactorily for more than a month and on 1lth March, 1992 maintenance of the machine was carried out by the Opposite Party No. 2. That maintenance memo is at page 35 of the paper book. On 17th March, 1992 the Opposite Party again rectified one complaint of the jamming of the paper vide maintenance memo at page 36. At page 37, there is another maintenance memo dated 26th March, 1992. It only speaks about cleanlines of some assemblies in the machine. In none of these memos there is any mention of replacement of any part.

THE State Commission has placed much reliance upon the inspection report made by some other agency, i.e., Copier Point pointing out 19 defects in the machine. This report is addressed to the complainant. The person who made that report has not sworn any affidavit nor has he been examined as a witness. It is not clear which machine he had examined. Another thing to be noted is that the said report is dated 24th February, 1992. As noticed earlier, even after the receipt of that report, Opposite Party No. 2 had been performing its service under the maintenance contract entered into between it and the complainant. Surprisingly enough in none of these maintenance memos there is any mention of the rectification of the defects pointed out in the report by Copier Point. On the other hand, we find that on 30th March, 1992, the complainant wrote a letter to Opposite Party No. 2 mentioning that the machine had not been attended since previous day afternoon and the workload is quite high and the machine is under breakdown. Opposite Party No. 2 was asked to attend to the machine immediately. The Service Report about that complaint is at page 41 of the paper book. The complaint was rectified and it was remarked "the machine was working OK". This report is also counter signed by the Complainant or his representative. The last service report is dated 24th April, 1992 and it is at page 42 of the paper book. Some portion of the report is not legible but it is remarked "copy OK". It may be mentioned here that up to 24th April, 1992 the Complainant had taken out 18,312 copies from the machine, i.e., within a period of less than three months. When the machine is admittedly sold as a second-hand machine, it follows without saying that it was a used one. The Complainant never filed any report to the Opposite Party No. 1 to the effect that any part of the machine had been replaced at the time when the sale was made. Even the inspection report dated 24th February, 1992 does not show that any major parts like PCB, Drum, roller etc. were replaced. According to that report only a component named'' resistance'' was replaced. According to the Opposite Party No. 1 that component is a negligible minor component which needs periodic replacement.

ANOTHER thing to be noted is that it is not the case of the Complainant that the machine is not working even now or it is lying in a breakdown condition. The respondent No. 2''s case is that on 20th April, 1992 he had written a letter to the Complainant in which he denied to give further guarantee of the machine, as payment of Rs. 2,500/- was remaining due to him from the Complainant. The Complainant replied on 21st April, 1992 that he was ready to pay the balance amount, but the machine should properly work atleast for a month. This fact is mentioned in the additional affidavit filed by the Complainant which is at page 50. It is further to be noted that according to that affidavit the Complaint was filed by the Complainant on 9th April, 1992 and on 14th April, 1992 the Complainant asked Opposite Party No. 2 to attend to the machine and the latter attended the machine and replaced some parts. Perhaps by that time the Opposite Party No. 2 had not come to know about the filing of the complaint.

WE do not want to prolong the discussion and make this order a very lengthy one because the above discussions clearly show that there is nothing on the record to show that the Opposite Party Nos. 1 and 2 had practised any unfair trade practice or any misrepresentation was made to the Complainant about the quality of the machine. The Complainant has not produced any documentary evidence to show that after the receipt of the inspection report dated 24th February, 1992 made by M/s. Copyer Point he made any complaint to either of the Opposite Parties about the alleged defects in the secondhand machine. Even in the present complaint the Complainant nowhere challenged that both the Opposite Parties were in collusion. Opposite Party No. 2 has filed an affidavit stating that it was the Complainant who had called him to inspect the machine before taking delivery of the machine. Thus, there is nothing on the file to show that the affidavit filed by the complainant should be given preference over the affidavits filed by the Opposite Parties. On the other hand circumstances show that the Complainant''s story cannot be given much credence.

IT is further to be noted, as has been rightly pointed out by Opposite Party No. 2, in its inspection report no major defect or replacement of parts has been pointed out by M/s. Copyer Point. Despite the advice from Opposite Party No. 1, the complainant did not arrange for the supply of proper electricity to the machine. It may be due to frequent power failures, the machine might be mal-functioning. Except for complaints of frequent paper jamming, no inherent defect in the machine has been pointed out by the Complainant. In the light of above discussions, we accept the present appeal and set aside the order passed by the State Commission and dismiss the complaint filed by the Complainant. The appellant shall be entitled to costs of the present appeal which we assess at Rs. 3,000/-.