SANTOSH KUNDAN SINGH RAWAT Vs. HARSHAL BHANUDASRAO MAHALE

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.