D.O.F: 16/07/2015
D.O.O: 16/01/2019
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.188/15
Dated this, the 16th day of January 2019
PRESENT:
SRI.ROY PAUL :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
Medical Officer , : Complainant
Primary Health Centre Adoor,
Urdoor .P.O., Kasaragod.671543
And
1. Managing Director, : Opposite Parties
.Divya Buisiness System Private Limited.
T.C.3/2734, Kamala Nilayam, Pattam Junction,
Kavadiyar P.O., Thiruvananthapuram-695004.
(Adv: Sathyanarayana Alva. K)
2. Managing Director,
Kerala Medical Services Corporation Limited,
Thykad P.O.,Thiruvananthapuram-14
ORDER
SRI.ROY PAUL :PRESIDENT
This complaint under section 12 of Consumer Protection Act has been filed for an order directing the opposite party to provide a new Xerox machine along with compensation and cost to the complainant
The case of the complainant in brief:-
The opposite party No: 1 had sold a Xerox Machine to the PHC Aadoor on 26/8/13 with 3 year warranty. Thereafter in the month of March 2014 opposite party No: 1 has installed a toner worth Rs. 4725/- in the machine. The opposite party No: 1 made the complainant to believe that the said toner is genuine one. But after the installation of the toner the machine showed malfunctioning and opposite party No: 1 could not rectify the defects. Thereafter the HCL engineer checked the machine and found that the toner issued by the opposite party is not genuine one. As per the direction of HCL the opposite party No: 1 engineer also visited but he also could not rectify the defect. Due to the deficiency of service and unfair trade practice on the part of the opposite party the complaint has suffered much hardship, mental agony, inconvenience, loss of time and money. Hence the complaint.
The opposite party No: 1 and 2 entered appearance before the Fora and submitted their written version. Opposite party No: 1 contended that the complainant is not maintainable before this Fora. Opposite party No: 1 had distributed a Laser Printer All in One (Xerox) at PHC Adoor with 3 year warranty starting from on 26/08/2013, the date of installation. The opposite party No: 1 supplied genuine toner, there was no complaint about the toner when it was replaced. The computer on booting also found that “genuine toner”. Thereafter as per the complaint of the complainant on inspection the toner was found refilled by 3 rd person and found leaking from machine for which opposite party No: 1 is not responsible. Since the printer was kept unused it may cause problem to the machine for which opposite party No: 1 is not responsible. There is no deficiency of service or unfair trade practice on the part of the opposite party No:1. The complaint may be dismissed with cost. The opposite party No: 2 the Kerala Medical Service Corporation filed their version contenting that there is 3 years warranty for the machine. The toner is out of warranty the purchase of toner and dispute arose up on it is a matter between complainant and opposite party No: 1, the opposite party No: 2 has no role in the said dispute. The complainant who has purchased the toner is entitled to get appropriate remedy against to the distributer. Opposite party No: 2 has produce some documents which are relevant in this transaction.
On the basis of the rival contentions in the pleadings the following issues were framed for consideration.
- Whether there is any deficiency service on the part of the opposite party?
- Whether the complaint is entitled for any reliefs?
- Reliefs and cost?
The evidence consists of the oral testimony of Pw1, Pw2 and Exts A1 to A4 documents marked on the side of the complainant. There was no evidence adduced from the side of the opposite parties.
ISSUE NO: 1
The complainant adduced evidence by submitting his chief affidavit in lieu of his chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. He was cross examined as Pw1 by opposite party No: 1 and he relied on Ext A 1 to A4 documents also to substantiate his case. According to Pw1 since the opposite party No: 1 has supplied a substandard toner for the machine, the machine become useless. So there is deficiency of service and unfair trade practice on the part of opposite party No: 1. Another witness from the side of the compliant was also examined as Pw2. According to Pw2 after replacement of the toner by opposite party No: 1 the machine become faulty. The service engineer of HCL reported as per Ext A2 that the toner is not genuine. Hence the complaint may be allowed.
The learned counsel for the opposite party No: 1 vehemently argued that the toner supplied by opposite party No: 1 was genuine one, even as per computer booting it is stated that “genuine toner. There was no complaint about the toner when it was replaced. On inspection by the technician of opposite party No: 1 it is found that the toner was refilled by 3rd persons and found leaking from the machine for which the opposite party No: 1 is not responsible. Since the printer was kept unused it may cause problem to the machine for which the opposite party No: 1 is not responsible. So there is no deficiency of service on the part of the opposite party and complaint may be dismissed with cost.
On perusal of the pleadings documents and evaluation of the evidence tendered before the Fora we are of the view that this complaint is maintainable before the Fora since the complainant is competent to represent the institution where the subject matter machine installed by opposite party No: 1. It is in evident that there was no problem for the machine till January 2014. The new toner was purchased on 28/2/14 by spending Rs. 4725/- from opposite party No: 1 After inducting the toner the printer was not working properly. Since the opposite party No: 1 failed to rectify the said defect, after the information from the complainant, the HCL technician inspected the machine and found that the toner supplied by the opposite party No: 1 is not a genuine one. Ext A2 is the inspection report from HCL . Thereafter also the opposite party No: 1 was not ready to rectify the defect of the machine. Subsequently the machine become dead also. Pw1 and pw2 categorically deposed the same before the Fora. There was no rebuttal/contra evidence from the side of the opposite party. Apart to that admittedly there is 3 year warranty for the machine. This complaint has been filed within the warranty period also. From the fore going discussions and findings we hold that the defect of the machine arose after the replacement of the toner supplied by opposite party No: 1. As per Ext A2 report the said toner was genuine one. So we hold that it is the duty of the opposite party No: 1 to rectify the defects of the machine at free of cost under warranty. Since the opposite party No: 1 failed to do so there is deficiency of service and unfair trade practice on the part of opposite party No: 1. Hence the issue No: 1 found against the opposite party No: 1 and answered accordingly.
ISSUE No: 2&3
As discussed above the defect of the machine arose due to induction of fake toner, it is the duty of opposite party No: 1 to rectify the defect of the machine. Apart to that as per the warranty condition also the opposite party No: 1 is bound to rectify the complaint of the machine or to replace /refund the price. So we hold that the opposite party No: 1 is liable to rectify the defect of the machine at free of cost or to replace /refund the price of the machine. It is evident that due to non functioning of the machine the complainant has suffered much hardships, mental agony inconvenience loss of time and money. Considering the said facts we the Fora hold that the opposite party No: 1 is also liable to pay sum of Rs. 5000/- as compensation and Rs. 2000/- as litigation cost to the complainant to meet the ends of justice . Thus the issue No: 2 and 3 are also accordingly answered.
In the result the complaint is allowed directing opposite party No: 1 to rectify the defect of the machine at free of cost to the satisfaction of the complainant or to replace the machine with a new one or refund the price of the machine with interest @ 10% per annum from the date of order to the complainant within 30 days of receipt of the order. The opposite party No: 1 is further directed to pay a sum of Rs. 5000/-(Rupees Five thousand only) as compensation and Rs. 2000/-(Rupees Two thousand only) as litigation cost also to the complainant within the said 30 days. The complaint is at liberty execute the order as per the provision of Consumer Protection Act 1986.
Sd/- Sd/-
MEMBER PRESIDENT
Exhibits:
A1- Non Availability Certificate Dated: 05-12-2012.
A2- Service Call Note Dated: 01-07-2014.
A3- Availability Certificate Dated: 05-12-2012.
A3(a)- Letter Dated: 14-08-2014.
A3(b)- Letter Dated: 31-03-2015.
A4- Copy of the E-Mail .
Witness Examined :
PW1- Dr. Vivek. S
PW2- N.K. Purushothaman.
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
Senior Superintendent
Ps/
