ORDER
S.N. Kapoor, J. (Presiding Member)
1. Petitioner was the opposite party before the District Forum, where the respondent/complainant had filed a complaint alleging deficiency in service on the part of the petitioner.
2. Basic facts of the case are not in dispute that the complainant purchased a Zenith Super PCxT System comprising T-1 microlaser for Rs. 1,64,000 in January 1991. It was the complaint of the complainant that the said system remained idle from 25.4.1993 onwards on account of non-supply of ‘toner’ by the petitioner. Correspondences were exchanged between the parties but when the matter was not getting settled, a complaint was filed before the District Forum, who dismissed the complaint. Aggrieved by this order an appeal was filed before the State Commission, which was allowed in following terms:
(i) The impugned order dated 28.1.2002 made by the District Forum-North Goa in complaint No. 227/94 is hereby quashed and set aside.
(ii) The complaint No. 227/94 on the file of District Forum, North Goa is partly allowed.
(iii) The opposite party is directed to pay to the complainant an amount of Rs. 1,180 per month from June 1993 till supply of the ‘toner’ for T1 Microlaser printer and ‘Drum’ and ‘Drum Cleaning Assembly’ within 30 days.
(iv) The opposite parties is directed to pay to the complainant an amount of Rs. 25,000 as compensation towards mental torture and agony undergone by the complainant within 30 days.
(v) The opposite party is directed to pay to the complainant an amount of Rs. 10,000 as costs of this litigation througout. Order accordingly.
3. Aggrieved by this order the petitioner has filed this revision petition before us. Vide our order dated 25.11.2004, the petition was limited to relief Nos. 3 and 4 given by the State Commission. The matter was contested by the parties. Vide our order dated 25.11.2004, we had also directed the petitioner to supply spare parts, toner, etc. which had not been delivered on demand, by the petitioner as ordered by the State Commission. As per affidavit filed by the petitioner when they sent this material to the respondent/complainant, they refused to take it.
4. We have heared the learned Counsel and gone through the record.
5. It appears, the State Commission has rightly held that no liability of ‘unfair trade practice’ could be fastened on the petitioner. We have very carefully gone through the definition of ‘unfair trade practice’ under Section 2(l)(r) of the Consumer Protection Act (CPA), 1986. At the relevant time, under no sub-clause of the definition of ‘unfair trade practice’ the petitioner could be held to be liable for indulging in ‘unfair trade practice’.
6. Insofar as the definition of ‘unfair trade practice’ is concerned, as it stands today it is given in Section 2(l)(r) of the Consumer Protection Act. It does incorporate the following provisions:
1(r) ‘unfair trade practice’ means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely-
(1) …
(2) …
(3) …
(4) …
(5) Permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or intends to raise or is intended to raise, the cost of those or other similar goods or services.
(Emphasis supplied)
7. If in order to force a person to enter into annual maintenance contract the respondent refused to sell the goods or to make them available for sale or intended to raise the cost of those goods or services, it would surely be unfair trade practice now. But, unfortunately, for the respondent this provision came into force with effect from 15th March, 2003 only. Subsequent amendment and enlarged definition of “unfair trade practice” in Sub-clause (v) of Clause 2(i)(r) would not be of any help to the complainant-respondent. For the aforesaid reasons no liability of unfair trade practice could be fastened on the petitioner.
8. The present case might be covered by present provisions of Sub-clause (b) of Subsection (nnn) which defines “restrictive trade practice” also for the petitioner insisted on Annual Maintenance Contract for supplying toner and spare parts, etc. It reads as under:
(nnn) ‘restrictive trade practice’ means a trade practice which tends to bring about manipulation of price or its conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include –
(a) …
(b) any trade practice which requires a consumer to buy, hire or avail of any goods or, as the case may be, services as condition precedent to buying, hiring or availing of other goods or servies.
9. But, this also came into force since 15th March, 2003. This provision being a provision of substantive law and not a procedural law being a provision. It could also not be made applicable with retrospective effect.
10. The petitioner sold its product, which carried a warranty of one year. Undisputedly in this case, the microlaser was purchased by the respondent/complainant on 14.3.1991 and by the time the toner was demanded on 25.4.1993, warranty had expired. After that it was for the complainant to procure the toner from any source including the petitioner. Even if it is accepted that the petitioner refused to sell toner that could not come under the then existing definition of ‘unfair trade practice’. The deal between these two parties came to an end after the expiry of the period of warranty, which in this case expired much earlier. It is also admitted position that there was no Annual Maintenance Contract between the parties and we have not been shown anything by the respondent that the petitioner was under obligation to supply toner.
11. The affidavit filed by the Manager (Legal) of M/s. Zenith Computers wherein it is stated that when the Company personally sent the spare part and also toner cartridge in compliance with the direction of this Commission, the complainant refused to accept these parts.
12. Be that as it may, we find that State Commission erred in fastening the liability on the petitioner. We are unable to sustain the order passed by the State Commission. It is set aside accordingly. The order of the District Forum is upheld.
13. However, even if now as a token of gesture in order to keep its reputation the petitioner makes an offer to supply those spare parts and the toner, the respondent would be well advised to accept the same, to make its machine workable.
14. The revision petition stands allowed in above terms.