Biju Joseph vs Priyamol M. N. & Anr

Avm J. Rajendra, Avsm Vsm (Retd.), Presiding Member

The present Revision Petition has been filed by the Petitioner under Section ­­­21(b) of the Consumer Protection Act, 1986 (the “Act”) against impugned order dated 03.11.2017, passed by the State Consumer Disputes Redressal Commission, Kerala (‘‘State Commission’) in First Appeal No.378 of 2015. In this appeal, the Respondent No. 1/Complainant appeal was allowed, thereby set aside the Order dated 28.02.2015, passed by the District Consumer Disputes Redressal Forum, Wayanad, Kalpetta (“District Forum”) in Consumer Complaint No. 255 of 2012, wherein the Complaint filed by the Complainant (Respondent No. 1 herein) was dismissed.

There was a delay of 32 days in filing the present Revision Petition. In the interest of justice, the same is condoned.

For the sake of convenience, the parties in the present matter are denoted as per their positions in the Consumer Complaint before the District Forum. Priyamol M.N., Proprietor-Akshaya Kendra is identified as the Complainant (Respondent No. 1 herein). Biju Joseph, Proprietor-Kaligraph Business Systems is identified as OP-1 (Petitioner herein) & The Manager/M.D., HCL Info System Ltd. is identified as OP-2 (Respondent No.2 herein), in the present matter.

Brief facts of the case, as per the Complainant, are that he is the proprietor of Akshaya Kendra at Kottakkunnu, Sulthan Bathery. He purchased a Toshiba E-2040-C Photocopy Machine, a multi-functional digital colour system, from OP-1 for her livelihood. The installation contract for the machine was assigned to OP-2. A total of Rs.2,96,514/- was paid for the machine, with Rs.1,00,000/- paid as advance prior to the installation. OP-1 assured that a copy of the contract for the machine to produce A3 and A4 size photocopies would be provided by OP-2. However, upon installation, OP-2 refused to provide a copy of the contract for A4 photocopies, breaching the assurance given by OP-1 when order for the machine was placed. This failure to provide the promised copy contract has resulted in significant financial losses to the Complainant. Consequently, he requested for return of the machine and refund of the purchase price, which was agreed upon by OP-1 under the promise of refund and compensation for losses incurred. Despite receiving legal notice demanding refund and compensation, both OPs failed to comply. Consequently, the aggrieved Complainant filed a Consumer Complaint No. 255 of 2012 before the learned District Forum, seeking refund of Rs.2,96,514/- with interest at 12%, and Rs.1,00,000/- as compensation from both the OPs.

In their reply, OP-1 and OP-2 disputed the Complainant's claims and questioned his entitlement to a refund and compensation. Both OPs contended that, there was no assurance given to him to provide a copy contract for A4 photocopies either at the time of placing the order or thereafter. The Complainant failed to generate sufficient profit from operating the machine, returned it to OP-1 and making false claims. OP-1 relied on the quotation provided for purchase of the photocopy machine, asserting that it did not include any agreement to provide a copy contract for A4 copies. On the other hand, OP-2 contended that it was an unnecessary party in the matter and was only responsible for installing the machine and addressing defects within the warranty period. OP-2 further contended that it neither entered into any copy contract with the Complainant nor provided any assurance regarding such a contract. They refuted further claims.

The District Forum in its Order dated 28.02.2015, dismissed the Complaint on the grounds that the Complainant had suppressed material documents within her custody, and the document presented by her were deemed not credible. Consequently, the District Forum concluded that the Complainant had failed to substantiate her case.

Being aggrieved by the dismissal, the Complainant filed an Appeal No. 378/2015 and the State Commission vide order dated 03.11.2017 allowed the Appeal and set aside the order of the District Forum on the following grounds:-

“8. Perusing the records we notice that material pieces of evidence tendered in the case by both sides were not appreciated by the lower Forum and it has formed some conclusions mainly banking upon the contents of Ext.BI quotation. Definite case of complainant was that she was persuaded to purchase the photostat machine on assurance of first opposite party that copy contract would be given for A3 and A4 photostats. But that was not honoured and it caused her loss according to her. The fact that quotation given by first opposite party did not contain a specific assurance over giving of copy contract for A4 photostats has little significance if there are other pieces of evidence to establish that there was an assurance to provide such copy contract. Second opposite party has to give copy contract, that alone, is not decisive in examining whether there was assurance by the first opposite-party to give copy contract for A4 photostat when machine was sold. First opposite party examined-as PW1, admitted that Shinto George was his Sales Executive in the branch office from where complainant purchased the photostat machine. First opposite party contended that complainant had fabricated A3 and A4 colluding with one of his former employees but without naming him. Though he claimed Shinto George left his employment in May 2012 no material was produced that he was-not employed in his branch office when complainant returned the photostat machine and A3 and A4 were executed receiving that machine. A3 and A4 were executed by Shinto George, who, admittedly, was employed as sales executive at the time of sale of photostat machine to complainant. A3 would show that there was an assurance to give A4 copy contract also but later 2nd opposite party declined to provide such copy contract. Strangely enough the district forum has discarded the two documents A3 and A4 and even gone to the extent of holding that they are not genuine and acceptable ignoring the evidence of complainant and her two witnesses, especially, PW3 who had signed as a witness in A3 without stating any reason why such evidence tendered to prove those documents was not acceptable. The lower forum discarded A3, not believable since it was not addressed to anybody and also opining-that the letter head of kaligraph shown in A3 and B1 was not matching, and, seals in A3 and B1 are not the same. Such opinion and reasons stated to discard A3, to say the least, are palpably erroneous. Both Ext.A1 and B1 contain the letter head Kaligraph Business Systems but printed on different letters. Letter heads are typed differently is no ground to doubt the genuineness of A3 and A4. Seal impression in A1 differs from those appearing in A3 and A4 also appears to be incorrect, and in fact there was, no challenge in that line to complainant and their witness by first opposite party. A3 is proved by the evidence of PW3 who had signed in that document as a witness A3 and A4 are challenged by first opposite party as not genuine cannot be a ground to discard them especially were he has not tendered any evidence to substantiate his contention that Shinto George had left his service before execution of those documents. First opposite party has no case that Shinto George has some axe to grind against him to collude with complainant to make fraudulent documents to fasten him with liability. Evidence of first opposite party examined as OPW1 would show that he has not filed any complaint against Shinto George or any other employee imputing them of forging false documents. His assertion that Shinto George left his service in April 2012 cannot be believed and it has to be taken as only a lame excuse to wriggle out of the consequences arising from A3 and A4 documents, both of which are signed by Shinto George and affixed with the seal of first opposite party. The first opposite party has no case that the seal impression' in A3 and A4 was not made from the seal used in the branch office where photostat machine was sold and later returned by complainant and where Shinto George, admittedly, worked as sales executive at the time of sale of that machine. The evidence of complainant and. two witnesses clearly establish that Shinto George continued to be employed in the branch office of first opposite party at the time when the photostat machine was returned and there he executed A3 and A4 receiving the machine. Challenge against A3 and A4 as not genuine by first opposite party which was approved by the district forum, is. unworthy with any merit. There was assurance from the employees of first opposite party, when the photostat machine was sold to complainant promising of copy contract of A4 photostats is proved by the evidence of complainant and witnesses and A3 and A4. Employees of first opposite party are his servants and as assurance given by them is equally binding on him. First opposite party cannot escape from his liability when such assurance was broken, whatever be the reason thereof. In the proved' facts and circumstances of the case first opposite party has to refund the price of the photostat machine and also pay compensation to complainant for deficiency of. Service.

In the result, reversing the Order of dismissal of complaint by the lower forum, the first opposite party is directed to refund the price of the photostat machine i.e. Rs.2,96,514/- with compensation of Rs.50,000/- to the complainant within one month from the date of this judgment, if the sums ordered are not paid within the time fixed, it shall carry interest at the rate of 6% per annum from the date of this judgment till realization. First opposite party is also directed to pay cost of Rs.10,000/- to the complainant.

Appeal is allowed as indicated above.”

Being dissatisfied by the Impugned Order dated 03.11.2017 of the State Commission, the Petitioner/OP-1 filed this Revision Petition.

In the Revision Petition, the Petitioner/OP-1 mainly raised the following grounds challenging the Impugned Order dated 03.11.2017:

a. The State Commission failed to appreciate the District Forum’s finding wrt the credibility of documents provided and concluded that it lacked credibility as it was not addressed to any one and inconsistencies were noted in letterheads and kaligraph seals.

b. The State Commission overlooked the non-production of a vital document by Respondent before the District Forum containing the terms and conditions of the quotation issued by OPs.

c. The Respondent's main allegation was non-adherence with terms and conditions of quotation, particularly with respect to copy contract of A4, not disclosed in terms and conditions.

d. The State Commission's assertion that "Letter Heads are typed differently is not a ground to doubt the genuineness of A3 and A4" was challenged by the Petitioner who argued that the State Commission relied solely on documents A3 & A4 while passing the order, which was previously doubted by the District Forum.

e. The State Commission failed to consider the authenticity of the supporting documents submitted by OP and overlooked the evidence by the Respondent before District Forum, where he admitted having seen the terms and conditions of the quotation.

In his arguments, the learned Counsel for the Petitioner/OP-1 reiterated the facts and grounds of the case and contended that the District Forum dismissed the complaint as the Complainant failed to prove the case beyond doubt. Subsequently, on the Complainant’s appeal, the State Commission failed to adequately appreciate the facts, particularly as regards credibility certain critical records. He asserted the District Forum's finding that the evidence lacked credibility, is appropriate. The critical records relied upon by the State Commission were not addressed to anyone, and discrepancies were noted in the Letterheads and kaligraph seals. He argued that, while passing the order, the State Commission relied solely on the said two documents, doubted by the District Forum. Also, he asserted that the State Commission should have scrutinized the authenticity of supporting documents submitted by the Complainant, which allegedly favoured the case of the Petitioner. He highlighted that evidence provided by the Respondent at the District Forum, wherein he admitted to having seen the terms and conditions of the quotation. This should have been taken into account by the State Commission. He sought the entire records of the case to be reviewed and to set aside the impugned Order of the State Commission, along with costs.

The learned Counsel for the Complainant reiterated the main facts in the complaint and emphasized that the District Forum overlooked the crucial aspect that the Complainant was persuaded to purchase the Photostat Machine based on the assurance provided by the Petitioner. This assurance entailed the provision of a copy contract for both A3 and A4 Photocopies. The Counsel highlighted the submission of two vital documents viz. Exhibit A3 and A4, which were executed by Shinto George, a sales executive of the Petitioner. It was emphasized that the Petitioner's admission during examination, confirming Shinto George's employment, was significant. Despite the Petitioner's claim that Shinto George left his employment, no substantiating evidence was presented. Further, Exhibit A3, dated 27.05.2012, clearly indicated the assurance to provide an A4 copy contract. The Counsel contested the District Forum's dismissal of Exhibit A3, stating that doubts raised regarding the letterhead of Kaligraph and seals were unsubstantiated. Variations in letterheads and seals were not sufficient grounds to question the authenticity of the documents. Additionally, the Petitioner did not raise this issue before the District Forum, further weakening their argument. The evidence adduced by the Complainant and his witnesses established continued employment of Shinto George with the Petitioner.

Learned Counsel for Respondent No. 2/OP-2 reiterated the contentions of the reply before the District Forum and asserted that the entire case of the Complainant was predicated on the alleged assurance made by the Petitioner regarding the provision of copy contracts for A3 and A4 photocopies at the time of booking the machine. However, all allegations in the complaint were directed solely against the Petitioner, with no grievances raised against OP-2. The Complainant himself admitted during cross-examination that there were no complaints regarding the installation of the machine or any mechanical defects in it. He contended that both the lower forums duly recognized these facts and submissions made by the Respondent No. 2, affirming that there was neither any deficiency in service nor any cause of action disclosed in the complaint against OP-2. To support this argument, reference was made to the Hon’ble Supreme Court judgment titled Ravneet Singh Bagga v. KLM Royal Dutch Airlines (2000) 1 SCC 66. Based on this, the Counsel concluded that no cause of action or deficiency in service was demonstrated by the Complainant against OP-2.

I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties

The main issue for determination is whether, in the given circumstances, the Complainant is entitled for refund of costs towards the photocopy machine purchased with compensation and costs?

It is the contention of the Complainant that he was persuaded to purchase a photocopy machine form OP-1 based on the assurances given that a copy contract for A3 & A4 size photocopies would be issued. However, despite assurances, the copy contract for A4 size was not provided. This led to a disagreement between them wrt fulfillment of the terms of the contract. The Complainant contended that the failure of OPs to issue the promised copy contract for A4 size photocopies caused them financial loss. The quotation brought on record at Page No. 58 reveals that the Petitioner/OP-1 had forwarded a quotation for supply of a Digital Photocopier model Toshiba E-studio 182 with Networking (Digital Copier Printer & Scanner - A3) at a total price of Rs. 90,297/-. Additionally, another quotation was forwarded for supply of Toshiba e-STUDIO 2040C, which included product specifications with total amount Rs.2,96,514/-, accompanied by the following Terms and Conditions: -

The price quoted for the configuration would be inclusive of all taxes.

The installation & training would be provided free of cost.

The payment has to be made 100% in advance in the form of Demand Draft.

The delivery of the machine would be done within 4-6 weeks of receiving 100% advance & Purchase Order.

The site condition for installation has to be inspected & approved by local HCL Engineer before installation.

Warranty-

Option 1: One Year.( Excluding consumables)

Option 2: Comprehensive Service Maintenance (CSMC); Day one CMC by HCL infosystems ltd. would cover the supply of all spares & consumable excluding Paper, Power, Staple Pins, Glue & Breakage of outer plastic parts/glass platen. The CSMC starts from the date of the machine. The CSMC rate per impression would be Rs.9.0+taxes for A3 color & Rs.0.80+taxes for A3 B/W. Banner print would be charged as to prints. All applicable taxes for the CSMC would be charged extra as applicable.

Offer validity: 30 Days

Please feel free to contact us for any clarification.

The Complainant purchased the Toshiba E-2040-C Photocopy Machine from OP-1. The machine installation contract was assigned to OP-2. A total of Rs.2,96,514/- was paid to OP-1, with Rs.1,00,000/- as advance prior to the installation. The Complainant alleged that OP-1 assured him that the machine would produce both A3 and A4 size photocopies. However, upon installation it was not producing A4 size. This resulted in significant financial losses to the Complainant and he requested for return of the machine and refund of the purchase price, which was agreed by OP-1 with promise of refund and compensation for losses. However, OPs failed to refund the purchase price and compensate him. On the other hand, OP-1 and 2 disputed the claims and asserted that he is not entitled for refund or compensation. Both OPs contended that there was no assurance given with respect to for A4 photocopies either at the time of placing the order or thereafter. It is an afterthought of the Complainant. The quotation provided for purchase of the photocopy machine did not include A4 size copies. Examination of the records reveal that, the quotation brought on record reveals that the machine purchased by the Complainant from OP-1 is for printing of A3 size copies and the specifications stated in the quotation does not reveal that the same is designed for providing A4 size photocopies.

According to the Complainant, there was a deficiency in service on the part of the seller as, despite assurances given by OP-1 and its employees, A4 size photocopies were not printed. In the complaint itself the Complainant had asserted that copy contract for printing of A4 size photocopies is to be given by OP-2 and the offer was made by OP-1. If he was aware that the copy contract for A4 size is to be given by OP-2, he ought to have insisted OP-2 to provide for A4 size prints at the time of installation. However, the Complainant himself stated in the complaint that OP-2 was did not facilitate printing of A4 size photocopies at the time of installation on 30.03.2012. It is stated position that the requirement of the Complainant is to produce A3 and A4 size copies. When once A4 size was not getting printed, the Complainant ought not to have allowed installation or immediately rejected the same. However, the Complainant issued Legal Notice on 04.07.2012. Clearly, the Complainant was provided the machine that was chosen by him from OP-1. The main assertion is with respect to the machine purchased was absence of facility to print A4 size copies. Evidently, the machine was not designed to produce A4 size copies. However, it is a fact that the Complainant had paid full amount of Rs.296514/- to OP-1 in time and, being dissatisfied, about non production of A4 size copies, he returned the machine to OP-1 on 28.05.2012.

With due regard to the peculiar circumstances wherein while the deficiency in service is not established, it is undisputed that the Complainant had paid Rs.296514/- as consideration towards the said photocopy machine to OP-1 and returned the machine back to OP-1 on 28.05.2012. Thus, the Petitioner cannot be allowed to have both the machine as well as payment for the same.

Based on the discussion above, the order of the learned State Commission dated 03.11.2017 is modified as follows:

I. The OP-`1 is directed to refund Rs.2,96,514/- to the Complainant along with simple interest @ 4% per annum from 03.11.2017 (date of Order of learned State Commission) till the date of payment, within a period of one month from the date of this order. In the event of delay beyond one month, the simple interest applicable for such extended period shall be @ 9% per annum.

II. The order awarding Rs.50,000/- as compensation and Rs.10,000/- as costs to the Complainant are set aside.

All other pending Applications, if any, stand disposed of.