The appellant as complainant filed a complaint before the District Forum against the respondent/opposite party praying for the direction to the opposite party to take old Canon Xerox machine and return the amount of Rs.66,000/- with compensation of Rs.50,000/- and to pay Rs.5,000/- towards costs. The District Forum dismissed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.04.05.2010 in C.C.68/2009.
This appeal coming before us for hearing finally on 15.02.2011, upon hearing the arguments of the either counsels and perused the documents, Written Argument of the appellant as well as the order of the District Forum, this Commission made the following order:
M. THANIKACHALAM J, PRESIDENT
1. The unsuccessful complainant is the appellant.
2. The complainant/appellant approached the District Forum, seeking direction to take old Canon Xerox Machine and return the consideration of Rs.66,000/-, with compensation of Rs.50,000/- alleging that the opposite party had sold a defective Xerox Machine, promising and giving warranty that it will work effectively, that the Xerox Machine failed to function properly from the day one of the inception, that should be construed as deficiency in service, thereby praying the above reliefs.
3. The opposite party denying the averments in the complaint, resisted the case, that the complainant had not purchased a new Xerox Machine, whereas, he had purchased a reconditioned Xerox Machine, knowing fully about its condition, offering to pay Rs.66,000/- including the accessories, out of which, he paid at the first instance of Rs.1,000/-, issuing three cheques for balance, out of three, one bounced, which amount was compensated by giving goods, and that the warranty period was only two months, that within the warranty period, the complainant has not reported any deficiency or defects in the Xerox Machine and therefore, it is not possible for them to return the value, taking back the old Xerox Machine since they have not committed any deficiency, praying for the dismissal of the complaint.
4. The District Forum considering the fact that the complainant failed to plead the correct case, as well as pleaded false case and further failed to prove the non-functioning of the Xerox Machine, within the period of warranty, came to the conclusion that though the case is maintainable, since deficiency or negligence was not proved, complainant is not entitled to any relief and in this way, the complaint came to be dismissed on 04.05.2010, which is impugned in this appeal.
5. Under Ex.A3, the complainant had purchased a Canon Copier Machine RC IR 400 [reconditioned] for Rs.66,000/-, by paying a sum of Rs.1,000/-, giving three cheques, for the balance on 18.8.2008. It appears, the Xerox Machine failed to function properly, and thus alleging, he approached the Consumer Protection Council, after three months or so, as seen from Ex.A1 and in the month of December 2008, as seen from Ex.A2, a communication from the Consumer Protection Council to the opposite party. Since the grievance of the complainant or the Consumer Council was not satisfied by the opposite party, case came to be filed, unsuccessfully.
6. The learned counsel for the respondent would contend that the complainant had purchased reconditioned Xerox Machine, which is in accordance with Ex.A3 also. But as seen from the complaint, it is alleged, that he had purchased a new Xerox Machine, which failed to function properly, thereby showing, the complainant has not come to the Consumer Forum, with clean hands, not properly projecting the deficiency if any disclosing the real fact. It is also admitted by the opposite party, in the Written Version that because of the fact that the complainant had purchased a reconditioned Xerox Machine, two months warranty was given. In the complaint, though we find averments that the Xerox Machine has not functioned properly, there is no mention about the dates, that is, from which date, it functioned not properly, whether any complaint was given to the opposite party, for rectifying the defects in Xerox Machine etc., In the absence of any report to the opposite party, within the period of warranty namely in this case two months, he himself came to the conclusion, placing reliance upon bare allegations that the opposite party failed to perform their duty properly, amounting to deficiency in service. The complainant has also not taken any steps to test the Xerox Machine, in order to inform what kind of defect it had, whether it is a reconditioned Xerox Machine or new one, thereby, the complainant failed in his duty to prove the negligence or deficiency of service, on the part of the opposite party, though he had purchased
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a reconditioned Xerox Machine. This being the position, the opposite party is not entitled to refund the amount, when they have not committed any breach of warranty or deficiency in service, as the same was not proved, as rightly recorded by the District. Thus, we find, there is no merit in the appeal and deserves to be dismissed. 7. In the result, the appeal is dismissed, confirming the order passed by the District Consumer Disputes Redressal Forum, Erode, in O.P.68/2009, dated 04.05.2010. No order as to cost throughout.