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Judgment
THIS is an appeal under Section 15 of the Consumer Protection Act, 1986 (for short the ''Act'') against the order dated 6.3.1998 passed in Case No. 397/ 95 by the District Consumer Disputes Redressal Forum, Bhopal (for short the ''District Forum'').
THE State Finance Commission constituted under Clause (1) of Article 243-1 of the Constitution of India read with Clause 3 of the M.P. Rajya Vitta Ayog Adhiniyam, 1994 (No. 3 of 1994) for review the financial position of the Panchayats and the Municipalities and to make the recommendations to the Governor as to the matters enumerated in Clauses 3 and 4 of the Notification No. 32-IV-B-FCC-95 published in M.P. Rajpatra (Extraordinary) dated 25.2.1995. THE term of the office was for a period of three years, which was extended upto31.12.1998. THE Commission purchased an electronic bilingual typewriter No. 46705 on 30.9.1994 for Rs. 33,440/- with a warrantee for a period of one year expiring on 30.9.1995. THE typewriter started giving trouble in its smooth working. THE complainant alleged that several complaints on telephone were made, but the authorised dealer of the opposite party did not pay any heed. THErefore, the complaints were sent in writing on 1.3.1995, 25.8.1995 and 12.9.1995 about the inherent manufacturing defects in respect of failure of memory and printing process, symboling and setting disturbance at the time of changing the wheel. THE complaints were attended by the mechanic of the appellant on 6.3.1995, 4.9.1995 and 15.9.1995. At the first occasion failure of the working of the machine was due to loose connections which were rectified. At the second and third, the power modules were changed. Inspite of this the machine d id not work smoothly and properly. THE complainant made a demand for change of the machine which was refused. Hence a complaint under Section 12 1of the Act was filed. In reply a preliminary objection that the complainant is not a consumer under Section 2(1)(d) of the Act, was raised as the machine was purchased for commercial purpose. On merits it was submitted that it is because of the power failure or fluctuation in electricity, the machine was not working properly, therefore, power modules were changed twice. Complainant gave satisfaction notes as and when machine was attended. THE machine was not working properly due to mishandling of the machine by the employees of complainant. The complainant in support of the allegations made in the complaint filed the correspondence of 20 documents made between the complainant and the opposite party and also filed affidavit of the then Deputy Secretary and also examined Krishna Soni the trained typist. The opposite party in sup port of defence version filed five service reports and satisfaction notes and other correspondence and affidavit of G. Arul, Branch Manager (Service) of the Godrej Company. The District Forum after considering the material and documents on record found the allegations in the complaint established and held that the machine was beyond repairs, hence, ordered for replacement of the machine and also ordered for compensation for inconvenience Rs. 2,000/-. The costs of Rs. 500/- was also awarded.
Mr. V.G. Palandurkar, learned Counsel for the appellant con tended that the order of the District Forum is illegal. The complainant was not consumer as the machine was purchased for commercial purpose, therefore, the complaint ought to have been dismissed. The machine was attended from time to time as and when the complaints were received and even the parts of the machine including power modules were changed free of costs. The machine was not working properly because of the irregular electric supply and mishandling of the machine by the employees of the complainant. The machine was sold after its complete testing. The allegations that the authorised dealer of the appellant did not attend the machine and did not behave properly is incorrect. The blame of irregular electric supply and mishandling of the machine by the employees, in the absence of expert evidence, cannot be thrown on the manufacturer or its authorised dealer. Counsel cite a decision of the National Commission reported in I (1991) CPJ 145 (NC), Mis. Lohiya Starlinger Limited v. M/s. Zenith Computers Limited, and an unreported decision of this Commission in Appeal No. 4/91, M/s. Commercial Agency v. Chirongilal & Ors., decided on 30.9.1991.
SHRI Nitin Nandgaonkar, Deputy Secretary of the respondent submitted that the complainant did not purchase the machine for the commercial purpose, but for the office use of State Finance Commission which was constituted for review of the financial position of the Panchayats and the Municipalities and to make the recommendations to the Governor as to the matters enumerated in Clauses 3 and 4 of the M.P. Rajya Vitta Ayog Adhiniyam. To achieve the object not only this machine and other machine, computer and other items were required. The complainant was not earning any profit what to say of large profiteering. Within a short period of purchase of the machine in the warrantee period the machine started giving trouble. On written complaints the machine was attended and their mechanic used to take a satisfaction note from the typist. But the machine did not work smoothly even for some reasonable period. The opposite party has not produced its record which would have shown the defects. Non-working of the machine caused great inconvenience in public work and in discharge of public duties. The District Forum after appreciation of material on record rightly passed the order for change of machine. First we shall deal with the contention whether the complainant was a consumer or not The complainant-State Finance Commission was constituted by the Governor of the Madhya Pradesh, in pursuance of provisions of Clause (1) of Article 243-1 of the Constitution of India read with Clause 3 of the M.P. Rajya Vitta Ayog Adhiniyam, 1994 for discharge of the functions and duties to review the financial position of Panchayats and Municipalities and after giving its findings in the manner prescribed in Clauses 5 and 6 as to matters enumerated in Clauses 3 and 4 of the notification. It is not necessary to burden this order by extracting the said provisions. From a bare look to the provisions it is clear that the commercial purpose is not involved by any stretch of imagination. There was no profit earning what to say of large scale earning profit. The electronic typewriter was not purchased either for resale or to make profit by giving the typewriter for hire to others. The typewriter remained in the custody of the complainant and was used for doing the work of the State Finance Commission. The allegations of the deficiency in service are made in the complaint about the typewriter so purchased. The use of typewriter was not for any commercial purpose. Therefore, the District Forum rightly entertained the complaint. To say so, we place reliance on a decision of the A.P. State Consumer Disputes Redressal Commission in case of Net Work India Limited v. Gudipudi Hanumantha, II (1993) CPJ 674 (A.P. State Commission).
COMING to merits, we may state when a new electronic typewriter is purchased, a purchaser expects that it would work smoothly without giving any trouble at least for a couple of years, in any case, under the warrantee period. But when an electronic typewriter requires frequent and extensive repairs within a short span and under the warrantee period, it cannot be said to be a new and functional. The complainant has given details in his complaint. There is a long correspondence. At three occasions the complaints were attended. Inspite of that the machine did not work smoothly and properly and the defects continued. In the circumstances, 1the finding of the District Forum that the machine is incapable of its repairs, which could not be rectified, even after repairs or replacement of parts, cannot be said to be illegal. However, the submissions of the learned Counsel for the appellant that the order ought to have been in accordance with Section 14 deserves consideration. For the reason also that the learned Counsel for the appellant in answer to the query by us agreed that the machine will be examined by their expert and the defects would be removed even by change of parts and that the warrantee shall be extended for a further period of one year, in case the defects are not rectified, the machine shall be replaced by new one. In view of the statement of the learned Counsel for the appellant it would be just and proper to modify the order of the District Forum that the appellant shall remove and rectify the defects in the machine and will change the necessary parts within a period of 30 days from handing over the machine to the appellant''s authorised dealer at Bhopal and will extend the warrantee for a further period of one year for its proper and smooth working. Inspite of removal of defects or change of parts, if the machine does not work properly, the appellant shall replace the machine by a new one. 10 As the State Finance Commission is going to be wound-up because of the expiry of its term the machine will be repaired or changed by the appellant in the Department of State Government to which its assets and liabilities are transferred. 11. In the circumstances we also set-aside the order of award of compensation. 12. Accordingly, the appeal shall stand disposed of with no order as to costs. Appeal stands disposed of.