SHEELA BERNARD vs PHIL SYSTEM LTD

-THE appellant is the complainant in O. P. 84/1999 in the file of CDRF, Kottayam. The case set up by the complainant was turned down by the Forum.

IT is the case of the complainant/appellant that she purchased a Minalta Photo Copier from the second opposite party who was the dealer for a total consideration of Rs. 1,35,000. The manufacturer is the 1st opposite party. The machine was installed on 27. 5. 1995 and within one week the machine developed defects. Frequently the defects have to be rectified. Thereafter on 19. 1. 1996 the complainant entered into Meter Charge Maintenance Agreement (hereinafter to be mentioned as MCMA) with the opposite party on payment of Rs. 10,000. As per the complainant she has to pay paise 30 per copy to the respondent and it was undertaken that the repairs, servicing and replacement of parts, if necessary, will be executed free of cost by the opposite parties. Thereafter also the machine was found to be defective as there appeared black stripe and white patches on the copies, etc. resulting in wastage of paper. The service of the machine by the respondents were not timely or adequate. The machine cannot be worked subsequently. The opposite parties, i. e. M/s. Phil Systems Ltd. , has filed a joint version contending that the complainant is running a business concern and hence she cannot be termed as a consumer within purview of Section 2 (1) (d) (i) of the Consumer Protection Act, 1986. It is also contended that the proceeding is barred by limitation. According to them servicing was done promptly. It is also contended that a sum of Rs. 2932. 80 is due to the opposite parties vide the MCMA. The evidence adduced consisted of testimony of P. W. 1 Ext. A1 to A13, DW 1 and 2; Ext. C1.

As already mentioned above the Forum dismissed the complaint on the ground that the complainant cannot be treated as a consumer as she is running a business concern by name S. N. Enterprises. She is also having a telephone booth, as well as electronic typewriter and photostat machines and staff. It was found that the contention of the opposite parties that the matter is barred by limitation cannot be upheld as the last dated repair vide Ext. A10 series i. e. the records of service done by the opposite parties is dated 19. 5. 1998 and the complaint was filed on 29. 1. 1998. All the same the Forum found that there is deficiency in service on the part of the opposite parties as they have not rectified the mistakes as the machine is totally defunct. P. W. 1 the father of the complainant who is also Power of Attorney holder has testified with respect to the averments in the complaint. He has also proved Exts. A1 to A13, the documents including Power of Attorney with respect to the purchase of the impugned photo copier, MCMA Agreement and the copies of service reports of the machine. D. Ws. 1 and 2 employees of the opposite parties have testified as to the case set up by the respondents that they will not be liable to provide the relief claimed i. e. replacement of the machine or rectification of its defects free of cost and return of Rs. 10,000 collected as per MCMA with 18% interest and compensation of Rs. 30,000 and costs.

WE find that as per Ext. A6 the warranty period is 90 days. It is the expiry of the period of warranty that Ext. A6, MCMA was executed. It can be seen from the MCMA that Rs. 10,000 was collected as per the terms of the agreement i. e. to pay at the rate of paise 30 per copy to the respondents with a minimum of 5000 copies per month. At the time of execution of the MCMA the charges occurred at about rate till the execution of the MCMA was collected. After granting the concession of Rs. 2,568, Rs. 10,000 was paid to represent the above amount. It is also specified in the agreement that both parties will be entitled to terminate the agreement by serving 60 days'' written notice. It is further mentioned that after 10 lakh copies are made the consumer shall produce the machine at the company for overhauling and that the period for overhauling would take from 15 to 20 working days and that the entire cost for overhauling, for replacement of parts, etc. shall be borne by the customer. It was brought out in evidence that 2,68,286 copies were taken in the machine till the date of complaint. Further the complaint was filed after 3 years and 7 months of the date of installation. It is evident from Ext. C1 report of the Commissioner that the machine is not in working condition. It is reported that the photo copies taken were full of black stripes and white patches and that the dark/light adjustments were not working. It is mentioned that the defects may be caused by a defective PC drum, heat roller and defective delivery system also. The photo copies taken in the above machine produced would show that the observation of the Commissioner is exactly correct. The Commissioner inspected the machine in the presence of both the parties. It was also brought out that the machine is not being used for some time and that the date of last service is 15. 5. 1998. It is mentioned in the cross-examination of P. W. 1 that at the time of filing the complaint the copies taken are 2,68,286. Evidently it can be seen from MCMA Agreement that the machine had life span till 10 lakh copies are taken. It is thereafter overhauling and replacement of parts are envisaged. The fact that the machine cannot be operated is not disputed. Hence it stands established that the machine had defects and it cannot be repaired even. Hence we find that as held by the Forum below, there is deficiency in service on the part of the opposite parties.

THE condition that the complainant is not a consumer has been raised by the Counsel for the respondent. In support he has relied on the decision reported, P. V. Abraham v. Copytron Service and Another, II (1995) CPJ 205; and Laxmi Engineering Works v. P. S. G. Industrial Institute, II (1995) CPJ 1 (SC)=air 1995 SC 1428. It is also contended that there is no pleading in the complaint to the effect that the complainant is running a business exclusively for her livelihood as a matter of self-employment. The decision in Vimal Chandra Grover v. Bank of India, II (2000) CPJ 11 (SC)=iv (2000) SLT 202= (2005) 5 SCC 122, was relied on, to assert that in the absence of specific plea such a contention cannot be entertained. On the other hand, the Counsel for the complainant has contended that prior to the amendment of Section 2 (1) (d) (ii) even commercial outfits were entitled to seek relief if there is deficiency in service. The clause "but does not include a person who avails of such services for any commercial purpose" was incorporated as per Amendment Act 62 of 2002 with effect from 15. 3. 2003. Hence till the commencement of the above amendment there was no distinction between outfits conducted for commercial purpose or for purpose of earning livelihood by means of self-employment. Evidently the present proceedings were initiated prior to the commencement of the above amendment. It has been vide Birla VXL Ltd. v. National Insurance Co. Ltd. , III (2003) CPJ 111 (NC)=2003 CTJ 662 (CP) (NCDRC) that the amendment has got only prospective operation. The decision in Gulab Industries Pvt. Ltd. v. Rng Suiting Limited, IV (2003) CPJ 147 (NC)=2004 CTJ 346 (CP) (NCDRC) is relied on to contend that even such a consumer can claim relief in case the service rendered was defective. We find that evidently the complaint lodged with respect to the deficiency in service and the complaint has been filed much prior to the commencement of the Amendment Act 62 of 2002 which came into force on 15. 3. 2003, hence the complainant is governed by the pre-amendment provision. In the circumstances irrespective of the fact whether the complainant is a consumer or not, the complainant is entitled for reliefs under the Act. The objections in this regard raised by the respondents cannot be sustained and is hereby overruled. As far as the reliefs claimed are concerned it has to be noted that the complainant has used the machine to the full and up to three and half years. Hence the claim to replace the machine as such cannot be allowed. The machine at the time of purchase was priced at Rs. 1,35,000. In the circumstances we find that the reliefs have to be modulated taking into account the above aspects as well. In the circumstances it is held as follows: The finding of the Forum that the complainant is not a consumer and is not entitled to reliefs under the Act is set aside. The respondents/opposite parties are directed to pay damages to the tune of Rs. 50,000 to the complainant with interest at 12% per annum from the date of complaint. The complainant is also entitled for a sum of Rs. 2,500 towards costs. The amount is to be paid within 2 months from the date of receipt of this judgment failing which the amount of damages orderd will carry interest at 18% from the due date. Appeal allowed.