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RAJASTHAN STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, JAIPUR
Honble Mr. Justice S.K.M. Lodha, President;
Damodar Thanvi and Mrs. Saria Khan, Members
DYNAVOX ELECTRONIC (P) LTD., NEW DELHI––Appellant
versus
B.J.S. RAMPURA JAIN COLLEGE, BIKANER––Respondent
Appeal No. 4 of 1989—Decided on 5.5.1989
Counsel for the Parties :
For the Appellant :Mr. Pradeep Mehta, Advocate.
For the Respondent:Mr. R.L. Jain, Lecturer, Authorised agent of respondent.
A party who seeks the assistance of the Court is not entitled to approbate and reprobate or blow hot and cold as it is sometimes put.
Headnote:
CONSUMER PROTECTION ACT, 1986 - SECTION 11(2), 13(2) - JURISDICTION - DEFECTIVE PHOTOCOPIER - APPOINTMENT OF TECHNICAL EXPERT - ESTOPPEL - ACQUIESCENCE - ELECTION - BREACH OF CONTRACT - REPLACEMENT OF MACHINE - COMPENSATION - CONSUMER DISPUTE - SETTLEMENT.
Fact of the Case:
A college purchased a Photo Copier machine from the opposite party. Despite repairs, the machine was not in working condition. The college filed a complaint with the District Forum seeking replacement of the machine or a refund. The District Forum appointed a Junior Copyist as Commissioner to inspect the machine and ordered the opposite party to replace the machine or refund the amount.
Finding of the Court:
The court held that the District Forum had jurisdiction to entertain the complaint as a part of the cause of action arose in Bikaner where the machine was supplied and installed. However, the court found that the District Forum erred in ordering the replacement of the machine as the complainant had accepted the machine and was estopped from raising an objection. The court also found that the report of the Junior Copyist was not sufficient to establish that the machine was defective.
Issues: 1. Whether the District Forum had jurisdiction to entertain the complaint. 2. Whether the Photo Copier machine was defective. 3. Whether the complainant was estopped from raising an objection to the machine. 4. Whether the District Forum erred in ordering the replacement of the machine.
Ratio Decidendi: 1. The District Forum had jurisdiction to entertain the complaint as a part of the cause of action arose in Bikaner where the machine was supplied and installed. 2. The Photo Copier machine was not defective as the report of the Junior Copyist was not sufficient to establish that the machine was defective. 3. The complainant was estopped from raising an objection to the machine as it had accepted the machine and used it for a period of time. 4. The District Forum erred in ordering the replacement of the machine as the complainant was estopped from raising an objection to the machine.
Final Decision: The appeal was allowed and the order of the District Forum was set aside. The case was remanded to the District Forum to decide the complaint afresh in accordance with the law.
Mr. Justice S.K.M. Lodha, President—By this appeal under Sec. 15 of the Consumer Protection Act, 1986 (Act No. 68 of 1986) (which for the sake of brevity will be hereinafter referred to as "the Act"), the opposite party-appellant questions the correctness of the order dated 17.1.1989 passed by the District Forum, Bikaner in Complaint Case No.7 of 1989.
2. For the sake of convenience, the respondent and the appellant will be referred to herein as the complainant and the opposite-party respectively.
3. The Principal, B.J.S. Rampuria Jain College, Bikaner sent a letter (complaint) to the District Forum Bikaner. It is dated 29.10.1988. It was a complaint regarding Photo Copier, Photostat, Maclaw Canon PC-24. It was stated in the letter that a Photo Copier machine was purchased by the complainant on 25.5.1988 from the opposite party; that it was repaired sometimes; but despite that the machine was not in workable condition; that various letters were addressed to the opposite party in this connection but did not yield the desired result; that the cost of the machine Rs. 70,000/- and that as it was not working properly, there was direct breach of faith and contract as per the guarantee and warranty. It was prayed that a direction may be issued to the opposite-party either to replace the machine Canon PC-24 or to refund the amount which was received by it. Photo copies of the letters and the telegram which were sent to the opposite-party from time to time, were also enclosed with the complaint Besides these, photostat copies of the customers service record, bills etc. were also submitted. The complaint was registered and a notice was ordered to be issued. In compliance of the notice, the representative Shri Pradeep Mehta of the opposite-party appeared and filed some documents (correspondence). It did not file version of the case in detail but in reply (letter dated 5.12.88) submitted that disputes regarding items sold are to be contested in Delhi Courts, Copies of invoices were also submitted alongwith it. It appears that the opposite party did not appear on 15.12.88 and it was ordered by the two members of the District Forum that the opposite party may be summoned by bail able warrant in the sum of Rs. 500/-. Thereafter the District Forum thought proper to appoint a commissioner for the inspection/examination of the Photo Copier machine. One Mahendra Kumar, Junior Copyist of the District Court, Bikaner was appointed as Commissioner and he was directed to submit his report before 5.1.89. It was stated in the order that Mahendra Kumar can take assistance of any other person, if he so likes. Shri Mahendra Kumar submitted his report regarding the Photo Copier machine, amongst others it is stated as under (English translation of Hindi version is given):—
"On examination it was found that the position of the machine was as follows:—
(1) Photostat Company's machine Model No. is P.C. 24, and machine No. is M/N. O/0029.
(2) When the machine was operated it was found that it was giving out defective papers.
(3) That the prints of the machine are not clear.
(4) That the rubber belt and spring are defective.
(5) That the machines maintenance is proper.
(6) That the mechanical condition of the machine can be told by the mechanic.
(7) On being examined, whatever defect came on the paper, photocopy taken out of the machine is attached with this report as proof."
Thereafter, the District Forum took certain documents filed by the complainant on record. By order dated 17.1.89, the District Forum directed the opposite party to replace the Photo Copier Machine Canon PC-24 by Canon PC-25 and install it or refund Rs. 62,500/- or refund the entire amount received by it from the complainant with interest @ 12% p.a. from the date of receipt of the amount, within two months. A direction was also given that for installation of the machine, the responsibility will be that of the opposite party. The District Forum also directed that the opposite party
