Before the District consumersForum:Kurnool
Present: Sri K.V.H.Prasad, B.A., LL.B., President
And
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B.Com., LL.B., Member
Friday 5thth day of December, 2003
C.D.No.79/2002
K.A. Sattar,
S/o. Late K.Fakhruddin Saheb,
R/o H.No.69/243,
Joharapuram,
Kurnool. . . . Complainant represented by his
Counsel Sri Mohammad Ishaq.
-Vs-
- Gordrej Telecom Ltd,
9-12, Hanuman Nagar,
Boduppa,
Uppal, R.R District,
Hyderabad. .. . Opposite party
2.Mr. Prasanth Reddy,
Distributor,
ESSEM Communication,
3-4-613/1,
Narayanaguda,
Hyderabad. . . . Opposite party No.2 represented by
His counsel Sri C.Nagendranath
3. On line Tele Systems,
Shop No.5 and 23,
Bhupal Compelx,
Park Road,
Kurnool . .. Opposite party No.3 represented by
his Counsel Sri K.Jaffar.
O R D E R
1. This CD complaint of the complainant is filed under section 12 of C.P.Act, 1986, seeking a direction on the opposite party to take back the G.P.X 1000 Ultra telephone and pay back RS.5, 100/- cost price of the telephone to the complainant with 24% interest, RS.6,000/- as compensation and any such other relief or reliefs which the complaint is entitled in the exigencies of the case.
2. The brief facts of the complaint of the complainant are that the complainant purchased a GPX 1000 Ultra coin operated pay phone for RS.5, 100/- for eaking his lively hood, vide bill No.26 dt 19.3.2001 from the opposite party No.3, who is the dealer, and opposite party No.1 and 2 are producer and distributor, the opposite party No.3 also issued a warranty card bearing M/C serial No. 27410171. The complainant installed the said phone at Joharapuram near a hotel after 8 days of installation the said phone was not working and became in operative. The complainant took the said phone to the opposite party No.3 who repaired and returned to the complainant again after 4 days it became inoperative, once again the complainant took it to the opposite party No.3 who in turn repaired and returned to the complainant, like wise the said telephone became un -functional 4 to 5 times in a month. In April, 2001 the opposite party No.3 did not return the said phone for 15 days saying that he sent the said phone to the company for repair, the complainant not only suffered loss of income but also loss by paying rentals of RS.500/- to the Telephone Department every month, as the said phone became in operative . The complainant also came to know those similar phones of the said Company also failed and not working properly. The complainant there after approached the opposite party No.3 and requested to take back the said phone or return the cost price of the phone i.e RS.5,100/- but the opposite party No.3 gave a letter dt 6.12.2001 advising the complainant to approach consumers Forum. Being vexed with the attitude of the opposite parties the complainant got issued a legal notice dated 25.12.2001 to all opposite parties and all the opposite parties received the said notice but did not reply except opposite party No.3 and opposite party No.3 in his reply alleged false hood quite contrary to the earlier letter dated 6.12.2001.
3. The complainant in support of his complaint relies on the following documents Viz (1) bill dated 19.3.2001 for RS.5,100/- issued by opposite party No.3 to the complainant (2) office copy of legal notice dated 25.12.2001 issued by complainants counsel to all opposite parties (3) three postal receipts through which ExA.2 was sent to the opposite parties (4) reply of opposite party No.3 dt 4.1.2002 issued by its counsel for Ex A.2 (5) letter dated 6.12.2001 addressed by the opposite party No.3 to the complainant, in support of the above documents the complainant filed his sworn affidavit, hence the above documents are marked as Ex. A.1 to Ex A.5 for their appreciation in this case.
4. The opposite parties in pursuance to the notice of this Forum of this case the opposite party No.1 remained absent, even though the opposite party No.2 appeared through his counsel did not choose to file its written version and the opposite party No.3 appeared through his counsel and filed his written version (objection statement), stating that the complaint is not maintainable in law or on facts and denies all the allegations made in the complaint except specifically admitted, it admits the complainant brought the said phone complaining of repair regularly with a gap of 15 to 20 days from June 2001 to September,2001 and on each visit of the complainant the opposite party rectified and returned to the complainant vide its warranty card and as per the facilities assured by the opposite party No.1 who is the manufacturer of the said phone. Even though the said phone is in good condition the complainant alleges baseless allegations and the said phone is subject to wear and tear due to continuous use and there is no manufacturing defect but the complainant without any reasons with his adamant attitude demanded to replace the said phone the opposite party No.3 asked the complainant to pay RS.1, 800/- for getting new phone as there is no manufacturing defect in the said phone to which the complainant refused. After that the complainant issued a legal notice dt 25.12.2001 alleging false allegations and the opposite party No.3 gave reply to the said legal notice on 4.1.2002.
5. The opposite party No.3 further submits that the complainant is earning money by regular use of the said phone and it is used for commercial purpose hence beyond the scope of C.P. Act, 1986. Therefore this Forum, has no jurisdiction to entertain this complaint as it is a commercial transaction and prays for the dismissal of complaint against opposite party No.3.
6. The opposite party No.3 for its reliance filed the following documents Viz., (1) letter dt 10.4.2001 addressed by the opposite party No.2 to opposite party No.3 (2) office copy of letter dt 26.6.2001 addressed by the opposite party No.3 to opposite party No.2 (3) office copy of letter dt 26.7.2001 addressed by opposite party No.2 to opposite party No.3(4) office copy letter dt 27.8.2001 addressed by opposite party No.3 to opposite party No.1 along with courier receipt (5) office copy of letter dt 3.9.2001 addressed by opposite party No.3 to opposite party No.1 and are marked as Ex B.1 to B.5 for their appreciation in this case. The opposite party No.3 also filed his sworn affidavit in-reiteration of his complainant averments.
7. Hence the point for consideration is to what relief the complainant is entitled to the reliefs sought:?
8. The complainant alleges that he purchased a GPX 1000 Ultra Coin operated pay phone for RS.5,100/- from the opposite party No.3 for eaking his lively hood and immediately after 8 days of installation the said phone became inoperative, and opposite party No.3 repaired the said phone atleast 4 to 5 time in April and May 2001, and the opposite party No.3 also accepts that he repaired the said phone and returned to the complainant. Even then also the said phone was not working properly which resulted in suffering loss to the complainant. The Ex B.3, B.4 and B.5 in unit one goes to show that opposite party No.3 made an endeavour by writing letters to opposite party No.1 and opposite party No.2 to get the phone of complainant rectified, its also shows that opposite party No.3 has requested the opposite party No.1 who is the manufacturer of the said phone to send spare parts as there are many complainants regarding the non-functioning of the said phones, even then the opposite party No.1 did not made any affort to get the complainants phone repaired nor sent spare parts to opposite party No.3 to get the complainants phone repaired, more over the complainants phone was not working properly within the warranty period and the opposite parties are under the obligation to get the said phone repaired.
- The complainant could not be interested in damaging his own phone and would be the last person to do so the stand of the complainant is that he was making efforts to get his phone repaired but opposite party No.3 failed to do so, so the complainant requested to replace the said phone, but opposite party No.3 asked the complainant to pay RS.1,850/- to get new phone. Even when the defective phone was handed over to the opposite party No.3 and brought to the notice of opposite party 1& 2 the defects in the said phone continued and there was lot of correspondence between the opposite parties after that also the said defective phone was not properly repaired nor replaced the said defective phone with new one. Hence there is deficiency of service on part of the opposite parties for selling the defective phone to the complainant and no endeavour made to get the complainants phone repaired.
10 Therefore the complaint is allowed directing the opposite parties jointly and severally liable to take back the defective machine and pay the cost price of the phone i.e Rs.5, 100/- to the complainant with 6% interest from date of the complaint i.e 16.3.2002 till realization and RS.200/- as costs of the complaint in default the opposite parties are liable to pay the supra stated amount with 12% interest till realization.
Dictated to the Stenographer, Typed to the Dictation corrected by us, Pronounced in the Open Court, this the 5th day of December, 2003
PRESIDENT
MEMBER MEMBER
