BAHIRATHAN Vs. HCL INFOSYSTEMS LTD & ORS
LAWS(UTRCDRC)-2006-12-8
UNION TERRITORY STATE CONSUMER DISPUTE REDRESSAL COMMISSION
Decided on December 07,2006

Bahirathan Appellant
VERSUS
Hcl Infosystems Ltd And Ors Respondents


Referred Judgements :-

JAY KAY PURI ENGINEERS AND ANOTHER V. MOHAN BREWERIES & DISTILLERIES [REFERRED TO]
U.A. MD. ALI RAJA V. M/S. GODREJ PHOTO -ME LTD. & ORS. [REFERRED TO]
JAYANT KUMAR SAHU V. DR. PRASANNA KUMAR PATEL [REFERRED TO]
KALPAVRUKSHA CHARITABLE TRUST VS. TOSHNIWAL BROTHERS BOMBAY PRIVATE LIMITED [REFERRED TO]
EPOCH ENTERREPORTS VS. M V WON FU [REFERRED TO]
FORD CREDIT KOTAK MAHINDRA LTD VS. M SWAMINATHAN [REFERRED TO]
HAJIDAUD HAJI HARAN ABU VS. UNITED INDIA INSURANCE CO LTD [REFERRED TO]
U P STATE ROAD TRANSPORT CORPORATION VS. NON-DESTRUCTIVE TEST APPLIANCES [REFERRED TO]
C.P. MOOSA VS. CHOWGLE INDUSTRIES LTD. & ANR. [REFERRED TO]


JUDGEMENT

- (1.)THE complainant has filed this complaint for directing the opposite parties to refund Rs. 12 lakh, the price of the copier and to pay Rs. 6 lakh as compensation and further sum of Rs. 6 lakh towards compensation for the loss of business and Rs. 5 lakh as compensation for delay in fulfilling the obligation and Rs. 1 lakh towards the cost incurred by the complainant.
(2.)THE case of the complainant is as follows :
The complainant for his livelihood, he is self -employed and engaged in running Office Automation Service as a sole proprietor of his concern M/s. VST Office of Automation. The complainant out of his hard work and services has developed a large volume of clientele, which includes reputed corporate groups in and around Pondicherry. The opposite parties with whom the complainant has had business transaction worth about Rs.50 lakh by purchase of various models of xerox copying machines on previous occasions, approached the complainant during September, 2001 and offered to sell TOSHIBA FC 15 model copier. The complainant in order to enhance his quality of service agreed to purchase the said copier. The complainant purchased the said machine by paying Rs.12 lakh under invoice dated 31.10.2001. The opposite parties installed the copier at the business centre of the complainant on 14.12.01 and from the date of installation, the copier was not working properly. Spare parts were replaced on 15.11.2002 and 27.12.2002. The machine was down on 18.1.2003 and 21.1.2003. The complainant has an annual maintenance agreement with the opposite parties and under the agreement the opposite parties, even though were under an obligation to maintain the copier in good working condition, were not responding to the calls of the complainant. The copier was not working during long periods of time and caused loss and burden to the complainant. The complainant was losing his clients to his competitors since copier was not working. The copier machine was not working from 29.3.2003. The complainant requested the opposite parties on several occasions to attend to the copier. Only on 20.5.2003, the service engineer of the opposite parties attended and replaced the spare parts. In the meantime, the complainant issued legal notice on 12.5.2003 calling upon the opposite parties to restore the copier to its proper working condition or to replace the same with new copier of the same specification. The complainant also called upon the opposite parties to pay compensation of Rs. 3 lakh. The 2nd opposite party gave a reply informing the complainant that their technical specialist would be visiting on 18.5.2003 to make necessary arrangement. However, nothing materialised to make the machine work in a smooth manner. The technicians of the opposite parties failed to provide any fruitful service. The copier was reporting problems after problems. The correspondences between the complainant and the opposite parties would indicate the deficiency in service on the part of the opposite parties. Subsequently, the copier stopped working and on 18.12.2003, the complainant informed the opposite parties that the copier was not working for the past two months. The opposite parties attended to the calls of the complainant on 13.1.2004 and on 24.1.2004 and replaced the spare parts on 23.2.2004. But the copier was still down. The opposite parties did not solve the persistant problems faced by the complainant. The copier supplied to the complainant is defective. The complainant requested the opposite parties to return the price of the copier. In spite of several requests, the opposite parties failed to take back the defective product. The opposite parties refused to withdraw the product and return the price. They offered to replace the copier with another model costing about Rs. 6 lakh. The complainant did not agreed for that. The opposite parties have supplied and installed a defective copier which was not functioning in a proper and smooth manner and the copier stopped working from 14.3.2005. The opposite parties failed to provide proper and efficient service as per the annual maintenance agreement. The opposite parties are liable to return and refund the price of the copier. The opposite parties are also liable to pay compensation and damages for supplying a defective product. Hence the complaint is filed.

(3.)THE 4th opposite party has filed counter which is adopted by other opposite parties. The case of the opposite parties is as follows :
The opposite parties denied the averments that the complainant solely relied upon the business of running Office Automation Services as the sole proprietor for his self -employment. The complainant has been doing textile business for several decades under the name and style of VST Traders. The complainant has admitted in his document that his main business is textiles. That being the fact, the allegation that the complainant is solely engaged in the business of running Office Automation Service for his self -employment is only a concocted story. Since the complainant is a famous textile businessman in Puducherry and since the complainant is not relying upon the business of running Office Automation Service for his livelihood, the complainant is not a consumer. Therefore, the complaint is not maintainable. The complaint is also barred by limitation as it has been filed after lapse of more that five years from the date of alleged defect in the machine. The complainant has stated in the complaint that the machine failed to perform from the date of installation i.e., 14.12.2001. But, in the later part of the complaint, it is stated that the copier stopped working from 14.3.2005. The said inconsistent stand taken by the complainant clearly reveals the falsity of the complaint.

HCL INFINIT Ltd. is only a supplier of the copier machine and the manufacturer is TOSHIBA Corporation. The complainant has attributed manufacturing defect to the copier machine. But he has failed to implead the manufacturer. Hence, the complaint is liable to be dismissed for non -joinder of necessary parties. The complainant is the authorised sales agent of HCL Limited for Puducherry, Karaikal, Cuddalore, Villupuram and Thiruvannamalai and the complainant has been selling Toshiba Digital Photo Copier and EPABX machine supplied by HCL. The complainant has been appointed as authorised Sales Agent of the opposite parties on 1.10.2003 and the complainant has entered into a separate agreement with the opposite parties on 1.10.2003 for distribution of the products supplied by the opposite parties. If at all the complainant was not satisfied with the services of HCL and the performance of the colour copier bought in 2001, the complainant would not have entered into contract with the opposite parties for selling its products. The complainant has issued notice on 12.5.2003. But, subsequently on 1.10.2003 the complainant has been appointed as authorised Sales Agent of the opposite parties. Being an authorised dealer of the opposite parties, the complainant was aware of the machine's specifications and capabilities and ordered the machine based upon his requirements. The complainant has signed the installation report after being completely satisfied on the quality of the system. It is false to say that the copier was not working properly from the date of installation. The complainant has not made any complaint till the expiry of one year from the date of installation. The colour copier carries a warranty period of 90 days and the same expired on 15.2.2002. The warranty does not include supply of consumables required for running the machine. During the warranty period, the complainant entered into service maintenance contract on 21.1.2002, from meter reading 0 to 10,000 for a period of one year or 10,000 copies, whichever is earlier. The machine crossed 10,000 copies in November, 2002 in excess of 2432 copies within the period of one year. But the opposite parties have extended the service beyond the agreement as a measure of goodwill. Subsequently, a second maintenance contract was entered into on 29.11.2002 for 10000 copies with provision for additional 3000 copies as wastage. The said contract was for the period from 1.12.2002 to 30.11.2003. The contract expired on 30.11.2003. But due to the long -term relationship, the opposite parties continued to service the machine beyond the contract period. The complainant has said in his mail dated 18.12.03 that the machine is not working for the past two months. But the Customer Call -cum -Service Slip dated 22.9.2003 would reveal that the machine was working as on 22.9.2003. The complainant has used the machine for more than 1400 copies during the period from September, 2003 to December, 2003. Hence, the allegation that the machine was down for two months is false. The customer call service slip dated 5.2.2005 will reveal that the counter reading has exceeded 13000 copies and the said document would reveal that the machine was in proper working condition on 5.2.2005. The above facts would reveal that the opposite parties have not committed any deficiency in service. In the light of the above facts, the complainant is not entitled to complain any deficiency in service on the part of the opposite parties. The alleged deficiencies and defects are due to the continuous use and wear and tear of the machine and not due to any defect in the machine. The opposite parties have regularly attended to the complaint of the complainant. It is well settled proposition of law that once a party to the agreement agreed to refer the disputes and differences to an Arbitrator nominated by the parties, no judicial authority can take cognizance of the dispute. Sections 5 and 8 of the Arbitration and Conciliation Act, 1996 bars the jurisdiction of the Court from deciding any dispute arising under the contract. As per Clause 16 of the terms of the maintenance contract, all disputes and differences shall be referred to Arbitration. Hence, the present complaint is barred by Sections 5 and 8 of the Arbitration and Conciliation Act. The complainant has had full use of the machine and has extracted more than its worth. The complainant has used the machine very heavily. Therefore, the complainant can not be heard to complain about the quality of the machine. The complainant has got other business such as VST Traders and has purchased this machine for commercial purpose. Hence, the complaint is liable to be dismissed.

No oral evidence was let in by the parties. On the side of the complainant, Exs. C1 to C74 were marked. On the side of the opposite parties, Exs. R1 to R7 were marked.



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