1.Mrs.Sangeeta Dilip Shinde, )
R/at : 288, Navi Sadashiv Peth, )
Near Navi Peth Talim, )
Pune – 411 030. )… COMPLAINANT

:VERSUS

1. M/s. B.E. Electronics, )
89, New Sadashiv Peth, )
Lal Bahadur Shastri Road, )
Ganjave Chowk, Pune – 411 030. )
)
2. Manager, Sharp Business System (India) Ltd., )
214/221, Axcel Tower, 31, Nehru Palace, )
New Delhi – 19. )… OPPOSITE PARTIES

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Per :- Mr. Gaikwad, President Place : PUNE

// J U D G M E N T //

[1] This is a complaint, alleging deficiency in service on the part of the Opposite Party – M/s. B.E. Electronics, who is a dealer in photo copier machine. The relevant facts are as under :-

[2] The Opposite Party No. 1 is the dealer in photo copier machine. The Opposite Party No.2 is a manufacturer of the said machine. The Complainant wanted to purchase the said machine in order to augment her income. She therefore went to the Opposite Party No.1 on 24/10/2002. She was assured that the machine bearing No.AR-5015 is of a good quality, performance and good xerox print. Believing on the assurance given by the representative of the Opposite Party No.1, the Complainant went for purchasing the said machine. She had made the payment of Rs.1,33,426/- by borrowing a loan from Bhagini Nivedita Sahakari Bank.

[3] There was some tone problem to the machine on 29/10/2002. The Opposite Party No.1 had replaced the said machine by new machine. Despite this, the problem continued. The Complainant submits that she had made repeated requests to the staff of the Opposite Party No.1 for carrying out the repairs and for removal of the defects. These requests were not complied with by the Opposite Party No.1. Certain superficial repairs were carried out on 13/11/2002. Again, the toner problem continued. The machine was within the period of warranty. The toner cartridge was fully exhausted by 27/5/2003. The Complainant had placed the order for the same, which was supplied to her after about (10) days from placing the order. The problem of toner and certain other parts of the machine again developed on 7/6/2003. The machine was taken for repairs by the Opposite Party No.1 on 21/6/2003.

[4] The Complainant submits that she has to wound up her business. In addition to that she is compelled to pay the interest to the banker. She has sustained a loss of Rs.30,000/-. The machine is still in the custody of the Opposite Party No.1. The same is not yet repaired and appears to be beyond the repairs. Hence the Complainant prays that the amount of price of the machine be given to her and that she be awarded certain compensation. As such, the Complainant has prayed that cost of the machine and compensation be awarded to her at Rs.1,83,426/-.

[5] The complaint was taken on sine-die list in the month of June-2006. It was taken out of sine-die list in the month of March-2007. It appears that the notices to the parties were sent. The Complainant was duly served with the notice. After realizing the notice to both the Opposite Parties have been properly served, the Complainant was called upon to advance her arguments. Earlier an application was filed on behalf of the Opposite Party No.1, contending inter-alia that the Complainant is not a “consumer”. The said machine was purchased by the Complainant for commercial purposes.

[6] This Forum by order dtd. 30/11/2007 was pleased to allow the said complaint. Both the Opposite Parties namely, the dealer and the manufacturer were directed to refund an amount of Rs.1,33,426/- together with interest thereon @14% p.a. W.E.F. 24/10/2002. In addition to that both the Opposite Parties were directed to pay the cost of Rs.1,000/- to the Complainant.

[7] The Opposite Party No.1 – Dealer had carried matter before the Hon’ble State Commission. By an order dtd.20/10/2008, the State Commission was pleased to allow the appeal filed by the present Opposite Party No.1 only. An opportunity was given to the dealer. The written statement, that may be filed by the dealer, was directed to be taken on the record on 24/11/2008. This Forum was directed to dispose of the present complaint within three months from the date of first appearance of the parties before this Forum. At the same time, the order that was passed against the Opposite Party No.2 – Sharp Business System (India) Limited was confirmed as it has not filed the appeal challenging the award dtd.30/11/2007. It therefore appears that so far as the Opposite Party No.2 is concerned, the award passed by this Forum on 30/11/2007 has become final and conclusive U/Sec. 24 of the Consumer Protection Act, 1986.

[8] The Opposite Party No.1 – Dealer has however filed an exhaustive written statement coupled with voluminious documents. The plea of want of jurisdiction as the machine in question was purchased for commercial purpose is reiterated. It is also pleaded that during the period when an application U/Sec.9-A was filed before this Forum and the same was taken up for hearing by this Forum on 24/2/2006, simultaneous proceedings was pending before Hon’ble Board for Industrial & Financial Reconstruction (BIFR), New Delhi. The said B.I.F.R. was seized of the matter. The BIFR has declared the Opposite Party No.1 as a Sick Industrial Company U/Sec.3 (1) (o) of the Sick Industrial Companies (Special Provision) Act, 1985. A reliance is obviously placed on Section 22 of the Sick Industrial Companies Act, contending inter-alia that the jurisdiction of this Forum is specifically ousted.

[9] With reference to the merits of the case, it is pleaded that the Complainant was given a stand-by machine on 24/10/2002. She had placed the order for machine of AR-5015 Mech. The said machine was eventually supplied to the Complainant on 13/11/2002. It had a warranty of three months or yield of 50000 copies. The warranty period has come to an end on 12/2/2003. During the periodical check-up of the machine, the representative of the Opposite Party No.1 had noticed that the Complainant had taken 4240 copies as on 12/2/2003. A warranty period had come to an end. The toner was found falling on or about 15/4/2003. By then, the meter reading showed that the Complainant had taken 10923 copies from the machine. The Complainant was requested to purchase new toner cartridge, which she had accordingly purchased. When the machine was entrusted in the custody of the Opposite Party No.1, it was seen that by then, the Complainant had taken out 17000 copies. There was certain problem with Laser Supply Unit. That problem was removed by the Opposite Party No.1. The Complainant was requested to take the delivery of the machine. The Complainant is unwilling to co-perate in this regard. Number of attempts by the Opposite No.1 to the Complainant had not been responded properly. Even in the personal visits made by the representative of the Opposite Party No.1, it was transpired that the Complainant was out of station. It is therefore denied that the machine in question has any defect.

[10] We have heard Learned Advocate, who have appeared on behalf of the parties. From the pleadings, it can be gathered that there are two preliminary points raised in the complaint. One obviously is about the jurisdiction of this Forum. The other is also about the jurisdiction of this Forum but under the provisions of Section 22 of Sick Industrial Companies Act of 1985.

[11] We shall deal with the later point first. The said Section 22 inter-alia provides that no suit for recovery of money or for enforcement of any security against the Industrial Company shall lie or be proceeded with further, except with the consent of the Board. The Opposite Party No.1 has already placed on the record the copy of the order passed by the Hon’ble Board at Exh.”A”. The Company is therefore declared as a sick unit. That order has become final. Any modification in the order passed by the Board is not brought to our notice. The Opposite Party No.1 is therefore a sick unit under the provisions of Sick Industrial Companies Act of 1985. The consequences of the declaration made by the Board, amongst other, are provided U/Sec. 22 of the Sick Industrial Companies Act. The said provision is already produced. The Complainant had filed her rejoinder but has not brought on the record that any leave or permission of the Board was obtained by her for prosecuting the present complaint against the Opposite Party No.1. We are therefore inclined to hold that the complaint as such is not maintainable without there being an order of the Board authorizing the Complainant to prosecute her complaint before the Forum.

[12] Now despite the fact that we have come to the conclusion that the jurisdiction of the Forum is barred, for the sake of completeness to the judgment and in order to avoid the order of remand that may be passed by the Superior Court, we shall proceed to deal with the other technical plea and the merits of the case.

[13] The other technical plea has no substance. It is the contention of the Complainant since inception that in order to increase her family income, that she had purchased the said machine. At the same time, the Opposite Party No.1 has refrained from commenting on the personal background of the Complainant. That background is not known to the Opposite Party No.1. The Complainant states that for supporting her family, she had purchased the said machine. We have prima-facie no reason to disbelieve her. At the same time the fact that said machine in question is purchased under the name of her firm, of which she is proprietor will not make any change. The Complainant has satisfied that she had purchased the machine by borrowing the loan from the Bank. The same was purchased for augmenting the income of the family. The machine in question was probably operated by the Complainant herself. There is no evidence in this regard. We are therefore inclined to hold that the Complainant is a “consumer”, within the meaning of Consumer Protection Act, 1986.

[14] This takes us to the merits of the case. Certain facts may be stated. The machine was purchased on 24/10/2002. By then, the stand-by machine was provided to the Complainant. She had placed the order for Model AR-5015. It was made available to the Complainant on 13/11/2002. Till then, the contention of the Complainant is that the earlier machine had certain tone problem. It was an old machine. It was replaced by the new machine of which, the Complainant had placed the order. The Opposite Party No.1 has produced on the record the necessary documents showing that the new machine was delivered to the Complainant on 13/11/2002.

[15] The machine had warranty of three months or 50000 copies. In other words by 12/2/2003, the original warranty has come to an end. By then, during the periodical supervision of the machine, it was transpired that the Complainant has taken out 4240 copies from that machine. Thus, in any case, warranty had expired on 12/2/2003. There is no question of providing new spare parts to the machine. The Complainant had thereafter realized that the toner was falling. It was checked on 15/4/2003. The meter reading showed that the Complainant had taken 10923 copies by 15/4/2003. In other words, the Complainant had taken more than 5000 copies during the period of two months starting from 12/2/2003 to 15/4/2003. The Complainant alleges that she wanted to purchase new toner cartridge. She had placed order but it was supplied after about 10 days. We shall have to bear in mind that the order itself was placed after warranty period had come to an end. There was no liability prima-facie on the part of the Opposite Party No.1 to substitute new toner cartridge. The Complainant was expected to purchase the same, which she accordingly did. Admittedly, on 21/6/2003, when the machine had taken about 17000 copies, the defect in Lessor Supply Unit was dignosed. It is a common ground that after 21/6/2003, the machine is still in custody of the Opposite Party No.1.

[16] It is in the context of the aforesaid facts, we shall have to determine if there is any defect to the machine. The discussion made hereinabove would prima-facie go to show that the record maintained by the Opposite Party No.1 is chronological in nature. The periodical service was provided to the Complainant and the meter reading was taken and the Complainant’s signature was obtained at the relevant place. The fact that during this period of four months from 12/2/2003 to 21/6/2003, the Complainant had taken the copies of about 60000 papers would indicate that prima-facie there was no such mechanical defect to the machine. The machine was quite in working condition. The defect, if any, was diagnosed only after the period of warranty had come to an end. We are therefore inclined to hold that the contentions raised by the Complainant that there was toner problem etc. had not been substantiated by sufficient documentary evidence. On the other hand, the plea taken by the Opposite Party No.1 inspires the confidence of this Forum.

[17] In the result, therefore, we are inclined to hold that the complaint as against the Opposite Party No.1 is liable to be dismissed. On behalf of the Complainant, number of authorities have been placed on the record. The Hon’ble National Commission or the State Commission as the case may be having regard to the facts and circumstances of the cases, before them respectively had proceeded to pass the order directing the manufacturer and the dealer to replace xerox machine or air conditioner or even the car as the case may be. The facts in the present case are quite distinct and separate. We are therefore inclined to hold that on the facts of the present case, the complaint as against the Opposite Party No.1 is liable to be dismissed as the leave or permission of the Board was not taken. Similarly, even on merits, the complaint is devoid of any substance.

[18] Before we part with the case, we shall only observe that the order passed by this Forum as against the Opposite Party No.2 on 30/11/2007, has become final and conclusive, as the Opposite Party No.2 had failed to prefer an appeal before the State Commission. The Opposite Party No.2 is found to be liable to pay the amount as per the award passed by this Forum on 30/11/2007. It is mentioned by the Opposite Party No.1 in its written statement that the development which was made pursuant to the order passed by the Hon’ble State Commission on 20/10/2008 had been brought to the notice of the Opposite Party No.2. Despite this, there is no positive action on the part of the Opposite Party No.2. The award dtd.30/11/2007 has become final and conclusive as against the Opposite Party No.2.

We therefore proceed to pass the following order :-

// O R D E R //

The complaint is hereby dismissed as against the Opposite Party No.1.

There is no order as to costs.