VISHWA JYOTI PRINTERS vs MOLINS OF INDIA

THE short facts giving rise to this consumer dispute are that the complainant M/s. Vishwa Jyoti Printers is a SSI Printings Unit in Nagpur doing the printing business. THE complainant purchased the printing machine from the opposite party M/s Molins of India Ltd., who are having their manufacturing unit in Punjab. THE complainant alleges that the opposite party offered very attractive machine with the assurance of good quality and assured number of 3600 to 7200 impressions within an hour with one year warranty period. According to the complainant, the assurance was given to the complainant by Mr. Virendra Kumar, Assistant Marketing Manager of the opposite party about the machine with good prints to the tune of 3600 minimum to 7200 maximum per hour. THE cost of the machine was stated at Rs. 1.25 lacs. Believing the assurance of the Marketing Manager, the complainant arranged for the loan from their bankers and purchased the said machine, for a consideration of Rs. 1,22,350.90. THE invoice No. 432 dated 25.11.88 showing the break up of the payment is placed on record. THE machine was installed at the premises of the complainant between 12.12.88 to 16.12.88. After the complainant started working on the machine the paper feeding of the machine was not giving proper results as a result of which the work was stopped. No. 4 button was also not working. THE printing work of the complainant was, therefore, stopped. A written complaint dated 22.12.88 was, therefore, lodged by complainant with the manufacturer at Punjab. Some efforts were also made by the mechanics of the opposite party to set the machine in order from time to time. THE work memos of repairing the machine dated 13.1.89, 10.6.89, 5.8.89, 21.8.89 and 11.10.89 duly signed by mechanic are placed on record. According to the complainant, despite the repeated repairs within the warranty period of one year the printing machine was not giving the assured results of printing which were advertised by the opposite party. Thus the complainant alleges that the machine was defective. It is also alleged that there was no proper service, as expected during warranty period. THE complainant further alleged that he was put to a loss of Rs. 50,000/-. THE complainant, further alleged that he served a legal notice to the opposite party through Shri Vijay Daga, Advocate, dated 10.9.1989 claim ing the compensation of Rs. 50,000/- for the loss, suffered by the complainant as a result of deficiency in the service of the printing machine. THE notice was not replied by the opposite party. Ultimately, the complainant presented this complaint to this Commission on 10.8.90.

THE notice u/Sec. 13(2) of the Act was sent to the opposite party on 6.9.90. No version was filed by the opposite party in reply to the aforesaid notice. THEreafter, the complaint was posted for final hearing on 26.2.91 at Nagpur. A notice of the same was sent to the opposite party which was received as is clear from the acknowledgement placed on record. On the date of hearing, the opposite party was represented by one Shri S.D. Samant, Assistant Manager, Co-ordination with a request to adjourn the case for four months till June, 1991. In view of the long delay on the part of the opposite party, in not filing the version within the statutory period of 30 days and the legal mandate to dispose of the Complaint within 90 days we rejected that application and adjourned the complaint on the next date i.e. on 27.2.19, to enable opposite-party to defend its case. On 27.2.91, Shri S.D. Samant filed an affidavit on behalf of the opposite party denying the allegations made by the complainant. Besides the affidavit no other documents were placed on record by the opposite party. Considering the allegations made by the complainant and its denial in the affidavit of Shri S.D. Samant, the following points arise for our consideration: (1) Whether the complainant is a consumer within the meaning of the Consumer Protection Act, 86? (2) Whether the complainant is entitled for compensation for the loss caused to him due to the deficiency in the service of the machine?

As regards the first point we find that there is a letter dated 8.11.88 showing the acceptance of order by Molins of India Ltd. from complainant, duly signed on behalf of Molins of India Ltd. On front page of that order, there is a written description of the machine with the assurance of its performance. It is reproduced below: - "1. No-Molins-Rota-Print TTR-2 Table top Off-set Printing Machine, suitable for 3600- 7200 iph complete with 1/4 HP motor suitable for operation on single phase 220 Volts Supply." The price, terms of payment and delivery are also noted on that page. On the reverse side of the said order, conditions of sale are printed.

Condition No. 8 under the head ''Guarantee'', is reproduced below: - "MOI''s liability in respect of any defect in or failure of goods supplied, or for any loss, injury or damage attributed thereto, is limited to making good by replacement or repair defects which, under proper use appear therein and arise solely from faulty design and materials or workmanship, one year from the date of and materials or workmanship, one year from the date of the machine is despatched and the termination of which periods of liability on MOI''s parts ceases." The aforesaid guarantee clearly fastens the liability on the manufacturer to replace or repair the defects of the machinery in question within a guarantee period of one year. In the instant case, since the machine was to be despatched within one month, from the acceptance of order dated 8.11.88, and the machine was received on 12.12.88, the guarantee period was available to the complainant till December, 1989. But the first complaint dated 22.12.88 was made within less than a week''s period from the date of the receipt of the machine. The machine was repaired from time to time on the complaint made by the complainant. The work memos of repairs are placed on record. The work memo dated 16.12.88 shows that the working is satisfactory but result regarding the metal plate awaited. Complainant sent another letter dated 6.6.89 a copy of which is placed on record which shows that the machine was stopped working while doing the printing job and as much as 5 deficiencies in the working of the machine are noted therein. Prior to that, the complainant has sent two letters dated 10.2.89 and 31.5.89 complaining of the deficiencies in the said machine. In work memo, dated 10.6.89, at Sr. No. 5, the remarks show that the machine is not achieving 7200 impressions per hour. In another work memo dated 11.10.89, it is stated that after carrying out repairs of two days i.e. on 9 and 11th October, 89, only 3805 impressions were found in 52 minutes. Still it lacked achievement of 7200 impressions per hour. All these work memos in original are placed on record duly signed by the engineer and technician of the opposite party. They clearly show that the printing machine in question was not giving the results as per the promise held out by the manufacturer. Thus we find that the printing machine in question did not conform as regard its description represented by opposite party through its Assistant Marketing Manager, Shri Virendra Kumar.

Section 36-A(1)(i)(ii) of the M.R.T.P. Act, 1969 are reproduced below: - (1) The practice of making any statement, whether orally or in writing or by visible representation which - (i) falsely represents that the goods are of a particular standard, quality, grade, composition which - (ii) falsely represents that the services are of a particular standard quality or grade. Under First part of the Section 36-A it is laid down that if the manufacturer adopts any of the aforesaid practice to promote his sales and causes loss or injury to the consumers it amounts to "unfair trade practice."

Section 2(1)(c), (i) of the Consumer Protection Act states that in a complaint the consumer can make the allegations about the loss or damage suffered by him as a result of any "unfair trade practice" adopted by any trader. Section 2(1)(q) of the Act is the definition of a "trader" which includes "manufacturer". Considering the combined effect of the aforesaid provisions we are of the view that opposite party indulged in "unfair trade practice" within the meaning of Section 36-A of the M.R.T.P. Act and therefore the complainant is a "consumer" and his complaint for claiming the loss on account of unfair trade practice adopted by opposite party is maintainable. 3.A. In the affidavit of Shri S.D. Samant, it is contended that the complainant is not a consumer within the meaning of Consumer Protection Act, 1986 as he has purchased the machine for a commercial purposes. It is admitted fact that, the machine in question was purchased for commercial purposes. A consumer has two rights available under Section 2(1)(d) of the Act. The first right u/Sec. 2(1)(d)(i) is in relation to the goods which he purchases for a consideration but that right is not available if the goods are purchased for resale or for any commercial purposes. A consumer has second right in Clause (ii) of the said Section in relation to the service for consideration. The complainant in this case has the right to get the free services from the opposite party in relation to his machine to keep it working free of cost within the guarantee period of one year. In other words, even if the complainant has purchased the machine for commercial purpose, his right to get free service from the manufacturer during guarantee period is not extinguished, as there is no such prohibition in Clause (ii) of Section 2(1)(d) of the Act It is, therefore, clear that the complainant was entitled to get the free service from the opposite party to keep the machine in working condition, within guarantee period. It is useful to refer to the definition of deficiency appearing in Section 2(1)(g) of the Act. Under the said definition, any shortcoming or inadequacy in the quantity, nature, and manner of performance which is required to be maintained or has undertaken to be performed by a person in pursuance of the contract in relation to any service amounts to ''deficiency''. Coupled with the second right of a consumer, in relation-to the services for consideration which were promised by the opposite party there was positively a ''deficiency'' in the service of the opposite party, which they have undertaken under a contract, to perform in relation to the machine in question, within the guarantee period. Having failed to perform the requisite services as per the agreement, the opposite party failed in its promise to keep the machine working within the guarantee period. The complainant has stated in his affidavit all these facts and claimed that he suffered a business loss of Rs. 50,000/- on account of the deficiency in the service of the opposite party as per the agreement. The legal nonce sent by the counsel of the complainant dated 10.9.1989 has claimed the amount of Rs. 50,000/- for the loss of the deficiency in the performance of the machine. The opposite party kept quiet and did not reply to the said notice. Even in affidavit of Shri S.D. Samant, there is no denial of the allegations made in the complaint about the deficiency in the machine. From the above discussion, we are clearly of the view that the complainant is a consumer in relation to the services of the machine within a guarantee period and, therefore, also the complaint is maintainable under the provisions of the Consumer Protection Act.

As regards the second point, we have found the complainant has quantified the loss of Rs. 50,000/- as his printing business was affected because of the mal-functioning and non-functioning of the printing machine. The work memos clearly show that on number of occasions, the machine was not working arid had stopped working. The reasonable inference which can be deduced from proved facts is that the complainant did suffer a loss during the guarantee period. The opposite party had undertaken to keep the machine in working condition by carrying out necessary repairs. It seems that despite the repairs made by the opposite party, the machine could not achieve the promised results. Therefore, the complainant has claimed the refund of the entire price with 14 % p.a. interest of the price of machine as he was not satisfied with its performance. However, in view of the fact that the complainant had purchased the machine for a commercial purpose his request for the refund of the price cannot be accepted. However, since the complainant has a right to get the free service within the guarantee period under the agreement, and which was not properly carried out by the opposite party, the other right of the complainant as a consumer of services survives in this complaint. It is clearly found from the facts and circumstances of this case that the complainant was put to a loss of Rs. 50,000/- and therefore, he is entitled to get the compensation for the loss caused to him on account of the deficiency in the service of the opposite party. We are, therefore, satisfied that the relief claimed by the complainant for getting the compensation for the losses on account of the deficiency in the service requires to be granted. The loss has been quantified as Rs. 50,000/- which is no more controverted in the affidavit by the opposite party. In the result, we pass the following order: - ORDER

THE opposite party do pay to the complainant an amount of Rs. 50,000/- as compensation towards the loss caused to him with 14% p.a. interest from the date of complaint i.e. from 10.8.90 till the realisation. THE amount of compensation together with interest be paid by the opposite party to the complainant within a period of 30 days from the date of receipt of this order failing which the amount of Rs. 50,000/- shall carry enhanced rate of interest of 18% p.a. to be counted after 30 days from the receipt of the order till realisation. Order accordingly.