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M/s. Ess Dee Nutek Infinites Pvt Ltd v/s M/s Print Art Digital

    First Appeal No. A/11/341 (Arisen out of Order Dated 18/01/2011 in Case No. CC/08/798 of District Kolhapur)

    Decided On, 18 September 2012

    At, Maharashtra State Consumer Disputes Redressal Commission Mumbai

    By, MEMBER

    First Appeal No. A/11/341 (Arisen out of Order Dated 18/01/2011 in Case No. CC/08/798 of District Kolhapur)

Judgment Text

S.R. Khanzode, Presiding Judicial Member

1. This appeal takes an exception to an order dated 18/01/2011 passed in consumer complaint no.798/2008, M/s.Print Art Digital v/s. M/s.Ess Dee Nutek Infinities Pvt.Ltd. and others; by District Consumer Disputes Redressal Forum, Kolhapur. The alleged consumer complaint pertains to supply of defective Digital printing machine viz. ‘Nutek Skywalker 3208’ (herein after referred as ‘printing machine’) for a total consideration of Rs.20 lakhs. Forum upholding the contention of the complainant awarded compensation to the extent of part amount of consideration paid i.e. Rs.14,50,000/- along with interest @ 9% p.a. and further compensation of Rs.10,000/- and costs of Rs.2,000/-. Feeling aggrieved thereby opponent/supplier of the machine viz. M/s.Ess Dee Nutek Infinities Pvt.Ltd. (herein after referred as the ‘supplier’) preferred this appeal.

2. At the outset it may be mentioned that as per copy of the original complaint on record the supplier is shown as opponent no.1 while, opponent no.2 was one Mr.Tarun Dev Sharma and opponent no.3 was Mr.S.D.Sharma, who were respectively Director and President of the supplier Private Limited Company duly registered under the Companies Act. However, as it appears the complaint is contested only against the supplier and appeal is also filed accordingly only by the supplier company.

3. Undisputed facts are that printing machine which is quite sophisticated one and the one newly introduced in the market in the month of August 2007, was agreed to be purchased for a total consideration of Rs.20 lakhs by respondent /complainant M/s.Print Art Digital, which is a proprietary concern of Mr.Anil M. Chavan (herein after referred as the ‘complainant’), as per agreement dated 20/08/2007. Said printing machine was delivered on 25/09/2007 to the complainant at Kolhapur and was installed there by the supplier and made it functional. However, since the said machine was found not working as per the expectation, it was ultimately replaced by the supplier on 14/12/2007. However, after making functional the newly installed machine, it was also found defective and not working properly. Ultimately, after giving notice dated 26/11/2008, this consumer complaint was filed with a prayer to replace the defective machine or alternatively, to grant relief of refund of consideration paid of Rs.14,50,000/- with interest @ 13.75% p.a.; further compensation of Rs.3,00,000/- towards the loss and injury suffered by the complainant and compensation of Rs.1,49,200/- towards the transportation, octroi, material for installation of machine on two occasions and the costs of the proceedings were claimed.

4. The supplier resisted the claim as per their written version dated 08/04/2009. He did not dispute the contention of the complainant that complainant is a person carrying business of Digital indoor and outdoor printing and, exclusively, for the purpose of earning his livelihood by means of ‘self employment’. However, he denied there were any defects in the machine and the complainant has any actionable claim against it. Further, it is submitted that their agreement was subjected to an arbitration and the matter was referred to the arbitrator and, as such, Forum had no jurisdiction to entertain the consumer complaint. He also submitted that entire consideration was not paid and he has received only part consideration of Rs.12,50,000/- and not Rs.14,50,000/- as alleged by the complainant. The cheques issued towards the consideration were dishonoured.

5. Heard both the parties. Perused the record. Appellant tried to submit that the printing machine was purchased for business purpose and complainant is not a consumer. However, as earlier pointed out, complainant in para 1 of his complaint and those statements are not disputed for denial by the supplier in its written version made a statement to the effect that the business of Digital indoor and outdoor printing under the name and style of M/s.Print Art Digital is carried out by the complainant-Mr.Anil M.Chavan exclusively for the purpose of earning his livelihood by means of ‘self employment’. Thus, this case as covered under explanation of section 2(1)(d) of Consumer Protection Act, 1986 (‘Act’ for brevity) and, as such, complainant is a consumer within the meaning of the Act. The objection raised to this effect by the supplier, is therefore, devoid of any substance.

6. Objection of jurisdiction is not taken on the ground of pecuniary jurisdiction but it relates to the territorial jurisdiction. According to supplier as per clause 24 of the Agreement dated 20/08/2007, all the disputes between the parties shall be subject to territorial jurisdiction of Delhi Courts without any reservation and, therefore, forum had no jurisdiction. At the first instance, it may be pointed out that this is an additional remedy provided as per section 3 of the Act. Consumer Fora is not a court. Before the Consumer Fora it is not an adjudication but as a quasi judicial authority has to settle the dispute within the four corners of the Act. Referring to the quotation dated 04/08/2007 i.e. initial terms offered by the supplier to the complainant i.e. Digital printing machine in question and subsequent purchase order given accepting quotation on 06/09/2007 and which also mentioned the terms and conditions of the said purchase order, duly signed on behalf of the supplier and the complainant both towards the acceptance of those terms and conditions, as per term 9 of terms and conditions, the territorial jurisdiction is mentioned to Kolhapur jurisdiction. This is subsequent to the agreement dated 20/08/2007 referred earlier and on which the supplier relies. Since the offer made by the supplier to the complainant is reflected from the acceptance as per the purchase order dated 06/09/2007 and which was subsequently in time, we find that the clause referred to about reservation of the jurisdiction at Delhi Court (it must be construed also as the term referring to the dispute which could be taken to the Civil court and not Consumer Fora) is carried over by the subsequent terms and conditions agreed upon between the parties reflected from the purchase order dated 06/09/2007, supra. Therefore, the submission that only Delhi Court or Consumer Fora at Delhi has jurisdiction and forum at Kolhapur had no jurisdiction is devoid of any substance.

7. Issue as to territorial jurisdiction is to be settled in terms of section 11 of the Act. From the purchase order dated 06/09/2007 it is made clear and agreed by both the parties that printing machine was to be supplied at Kolhapur address of the complainant. Accordingly, the same is supplied at Kolhapur and even installed at Kolhapur by the supplier as per their Agreement. The delivery since given at Kolhapur, since the printing machine is installed and made operational at Kolhapur, part of cause of action arise at Kolhapur and, therefore, in terms of section 11(2)(c) Kolhapur District Forum has jurisdiction. For all these reasons, we find the objection as to territorial jurisdiction of the forum is devoid of any substance.

8. As earlier observed, objection as to jurisdiction is not related to pecuniary jurisdiction and, accordingly, not pressed before us in appeal.

9. Opponent also raised point of jurisdiction of Consumer Fora stating that as per the terms of the Agreement dated 20/08/2007, a dispute was referred to sole arbitrator and, therefore, Consumer Fora ceased to have jurisdiction. This submission is also devoid of any substance. It being an additional remedy as per clause 3 of the Act, presence of any arbitration clause does not take away jurisdiction of Consumer Fora. Besides that as earlier pointed out, what were the ultimate final terms settled between the parties in connection with purchase and supply of printing machine is to be seen from the final purchase order dated 06/09/2007 supra, and it does not contain any arbitration clause. Further, arbitration clause in Agreement dated 20/08/2007 refers to the dispute regarding interpretation of the clauses of said agreement. In a consumer dispute in respect of defective goods i.e. the issue before us, the submission appears to be not relevant since there arise no question to interpret any clause of the agreement dated 20/08/2007 so as taking away the jurisdiction of Consumer Fora. Apart from that copy of an award passed by the sole arbitrator dated 31/03/2011 is also placed on record in this appeal compilation. It shows that the point referred to said sole arbitrator relates to unpaid price by the printing machine supplied and it has nothing to do with the defect of the printing machine supplied. For all these reasons the statement made on behalf of the appellant that presence of arbitration clause and the arbitration proceedings take away jurisdiction of Consumer Fora is devoid of any substance.

10. In the instant case, as per the agreement between the parties, printing machine was supplied on the terms of differed payment. On receipt of part of consideration on 25/09/2007, the machine was actually installed and made operational on 27/09/2007. Said printing machine was found defective and replaced by the supplier on 14/12/2007. The replaced machine is also found defective within a fortnight of its installation and the fact was brought to the notice of the supplier. The defects noticed are also noted in job cards dated 15/12/2007-16/12/2007 and it is noted as under:-'Tested for speed in dial modes. Expected not to give more than 350 sft/hr. in normal quantity printing. Yet to be tested for bulk printing.'

11. Thereafter referring to the intermediate correspondence, on 17/01/2008 complainant had written to the supplier pointing out the defects in the machine and which reads as under:-'In continuation of letter dated 31/12/2007 we once again bring to your kind notice – that our machine is out of production, as we are facing the following problems

-1) Take up of media uneven – no belt, two of the pinch rollers broken, no tension bars.

2) Waste ink collecting tray – instead of regular tray, flat tea tray is supplied

3) Heater & fan cable not proper- short circuited of burning.

4) Head capping tray not supplied

5) Vinyl take up not possible- since back take up rollers in having only one way motion.

6) Bands on printing at regular intervals- sample collected by Mr.Kishore long back.

7) Heavy Noise in motion of the carriage board –even after lubrication

8) Inks spreading – all CYMK spreads out (smearing)

9) Speed is only 25% of the claim i.e.120-150 sft/Hr.

10) No suction in the bed- causing pop up of media while printing which rubs the carriage.'Further job card of 01/02/2008 & 02/02/2008 confirmed defects in following words:-'

11. Speed – Low –output 150/ sft/Hr.2. Still banding problem3. Vinyl Take up –Still problem'

12. List of complaints which continued are further communicated to the supplier by the complainant. All the above referred communications and particularly, job cards signed by the representative of the supplier are not in dispute. The supplier in vague terms stated that all the communications on which the complainant relies were not proved but considering the totality of the circumstances and, particularly, job cards which are the documents of supplier himself, we find no reason not to take into consideration above referred communication. These documents show that even the replaced machine is defective within the meaning of the Act. Fact that replaced machine ultimately turn dead is further reflected from the job card dated 20/06/2008. Therefore, considering the evidence of complainant corroborated by above referred communications and job cards, we find defects in the replaced machine are well established.

13. Since it is a case of differed payment, the supplier perhaps cannot raise an issue of applicability of warranty conditions for want of full payment. Furthermore, it is not the case that on complaint, supplier failed to attend those complaints. There were attempts made from time to time to repair but the machine failed to give any desired output, failed to run properly and give output of proper prints. These are the defects which per se indicate that the machine supplied was defective.

14. Since the defect in goods i.e. Printing machine i.e. replaced printing machine too is established and since as revealed further from the record, the printing machine introduced for

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the first time in India and supplied to the complainant itself is rather a defective product to order its replacement again may not be just and proper. 15. Therefore, it would be proper just to direct to refund part of consideration paid by the complainant and, of course, on returning said printing machine/making such payment to the complainant, the supplier could take into their possession the installed replaced machine. 16. It is also the contention raised on behalf of supplier that the replaced machine was not defective and the problems/defects surfaced are co-related with mishandling of the printing machine. There is no proof or evidence adduced on behalf of supplier to substantiate their such case. It is revealed from the material placed on record that the complainant himself had received proper training from the supplier to operate the machine in question. Job cards never mentioned that the defects noted were as a result of mishandling of the printing machine by untrained people. 17. Thus, the view taken by the forum adopting the course to direct refund of consideration received cannot be faulted with. For the reasons stated above, we find appeal devoid of any substance and, holding accordingly, we pass the following order:- ORDER Appeal stands dismissed. In the given circumstances, both the parties to bear their own costs.