D.O.F. 01.09.2008

                                                                                  D.O.O. 10.01.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri.K.Gopalan                :         President

                                      K.P.Preethakumari        :         Member

Smt.M.D.Jessy               :        Member

Dated this the 10^th day of January,  2010

C.C.No.191/2008

K.T. Sreejan,

Proprietor,

Sree Sankaracharya Computer Centre,

Rajiv Gandhi Road,                                              :         Complainant

J.S.Paul Corner, Kannur-1

 (Rep. by Adv. Haridas Thaikkandy)   

1.  Rex Rotary India Pvt. Ltd.,

     Building No.39/3644, Door No.1,

     Valanjambalam,       

     Cochin – 682 016.                                           :         Opposite parties  

(Rep. by Adv. C.P. Ajayakumar)

2.  Encore Marketing,

     2^nd Floor, Sharara Building,

     Behind Chemmannur Jewellers,

     Mavoor Road, Calicut.

(Rep. by Adv. Satheesh P.P)                                                             

O R D E R

Sri. K. Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing opposite parties to pay an amount of                 ` 1,66,500 with interest at the rate of 12% and cost of this proceedings.

          The brief facts of the case of the complainant are as follows :  Complainant has purchased  through his Purchase Manager a Panasonic LCD Projector with model No. IPTF 100 from opposite party 2 for an amount of ` 1,66,500 on 18.08.2007 which was delivered on 19.08.2007.  The authorized agent made believe that this model projector is the most suitable one.  The projector was installed on 19.08.2007.  It was tested on the same day.  Convincing that there was defect the same was returned and there after on 22.08.2007 opposite parties substituted it by supplying a new projector with Sl. No.  SD.7240124 dated 22.08.2007. The substitute projector also not fit for usage and on 04.12.2007 2<sup>nd</sup> opposite party have taken back the same for servicing and returned it after one week but the machine showed complaint again.  After continuous demand the machine was taken again by 1<sup>st</sup> opposite party for service on 27.02.2008 and the same is not been returned there after.  Complainant lost complete faith on opposite party and his service.  The deficiency on the part of opposite parties has made much difficulties and loss to complainant.  It affected the regular business of the complainant adversely.  Being a most reputed institute it is a matter of great concern which costs much mental agony.  Complainant sent lawyer notice calling upon to refund the amount of ` 1,66,500 with interest @12% or to replace the defective projector by a defect free projector within 7 days.  Though notice was received they have not sent any reply.  Since it was highly essential complainant could not wait much and purchased a new projector to safeguard the interest of his customers.  Now the complainant is not in need of fresh projector from the opposite party.  Hence the opposite party is liable to refund the amount.  Hence this complaint.

          In pursuance of notice opposite party 1 and 2 entered appearance and filed version separately.   The contention taken by opposite party No.1 in brief are as follows :  Allegation that the authorized person of opposite party has tested the working condition of projector and convincing its defect taken back the projector and on 22.08.2007 substitute another projector are all false.  The second projector installed only on the reason that the first projector while on transit damaged.  The first projector never installed in the premises of the complainant.  Due to the damage on transit it was another piece on same model installed and the complainant was satisfied with the project.  It is also false to say that opposite party 2 has taken back projector on 04.12.2007 and return back after one week and the machine shown always complaint etc.  Thus opposite party has taken back the projector for servicing as routine in nature by substituting another one.  Since this opposite  party is the sole servicing providers in the state of that product.  The clarity of the picture depended upon the camera installed in the premises and the length of the cable, quality of the amplifier etc.  It is also necessary to keep the reception counter dust free for the smooth functioning of the projector.  Thus opposite party received the projector for servicing and retained it as a lean over the outstanding amount of 3 projectors already sold.  If complainant is ready to pay the outstanding amount this opposite party is ready return the projector F 100.  At the time of last service, three projectors were working at the premises.  If the complainant so that the delay in reinstalling has not been adversely effected the regular business of the complainant.  After getting the lawyer notice opposite parties negotiated the matter but complainant was not emenable.  The hands of the complainant is not clean.  Outstanding amount if paid there will not be any complaint.  Three projectors were directly sold to complainant on credit basis in which ` 47,801 is still pending from the complainant.  Hence to dismiss the complaint.

          The brief facts of the contention of opposite party 2 are as follows : The complainant has purchased a Panasonic LCD projector from opposite party 2.  There is no such person named as Boban working as employee under opposite party 2.  Entire version in connection with the Boban is false.  The installation of project was done by the 1^st opposite party through Mr. Riyas, their employee. Opposite party 1 is liable to provide all concerned services to this complainant since warranty was offered by 1^st opposite party.  The opposite party 2 is not related to the maters come under the perview of installation, service replacement etc  since they are only the dealer of 1^st opposite party.  It is false to say that projector was tested on 19.08.2007 and returned the same convincing as  defective and replace it with new one on 02.08.2007.  It is true that a second projector was installed in the premises of the complainant due to the causing of damage to the first projector. The first projector was not installed in his premises.  2^nd opposite party has not taken the 2^nd projector for servicing.  Opposite party 2 is not aware that the machine always showing complaint and lack continuity in working and lack of quality.  It is also not known to him whether opposite party has taken the machine by 1^st opposite party for service on 27.07.2008 and has not been return till now.  The lawyer notice sent by the complainant was received and the same communicated to opposite party No.1.  Opposite party 2 had not sent any reply since opposite party 1 assured to contact complaint and thereby settle the matter.  Purchase of new machinery and its inevitability etc is a matter to be proved by the complainant.   Opposite party 2 did not come in any deficiency in service and hence dismissed the complaint.

          On the above pleadings the following issues have been taken for consideration.

1.           Whether there is any deficiency in service on the part of opposite parties.

2.           Whether the complainant is entitled for the relief sought in the complaint?

3.           Relief and cost.

The evidence consists of PW1, DW1, Ext.A1 to A3 and B1 to B2.

Issues 1 to 3:

          The case of the complainant is that he has purchased a Panasonic LCD projector as per invoice dated 18.08.2005.  Complainant alleges that the projector was returned on the same date of installment on 19.08.2007 due to complaint and the same was substituted by opposite party by supplying a new projector as per invoice dated 22.08.2007.   This projector also became unfit for usage and hence on 04.12.2007 opposite party 2 taken back the same to opposite party 1 for servicing and returned it after one week.  Complainant further alleges that since the new projector showed complaint of discontinuity and lack of clarity complainant demanded continuously and thereby it was taken by opposite party 1 for servicing on 27.02.2008 and not returned thereafter.  Since he lost his faith complaint sent lawyer notice which was not replied.  Since the projector has been inevitably required for the day to day functioning complainant purchased new projector.

          Per contra opposite party contended that opposite party 1 received the projector for servicing and the same retained as a lean over the outstanding amount of 3 projectors already sold to the complainant.  Opposite party says that if the complainant is ready to pay the outstanding amount they are ready to retain the projector F100.  Opposite party 2 took the stand that he has no liability since he his only the dealer.

          Ext.A1 is the copy of the lawyer notice.  Ext.A2(a) and Ext.A2(b) acknowledgement proves that Ext.A1 notice is properly served to opposite party 1 & 2.  Both opposite party 1 & 2 has not sent any reply.  The version of opposite party 2 is that he has received the notice but did not sent the reply since opposite party 1 assured him that they will sent the reply.  At the same time the version of opposite party is that they have received the lawyer notice and negotiated the matter with the complainant but complainant was not eminable to settle the matter, hence the projector has not been returned so far.   Thus it is clear that no written reply has been sent by anyone of the opposite parties so also opposite party 1 has not returned the projector so far. 

          Ext.A1 notice stated that the complainant has purchased a Panasonic LCD projector for a total sum of ` 1,66,500  and the same was connected to complainants office premises by opposite party 2.  On the same day machine was returned since authorized person was convinced of its defects on testing and substituted the projector on 22.08.2007.  The substituted machine showed complaints and after continuous demand opposite party 1 took the machine for servicing on 22.08.2007 and has not been returned it.  Ext.A1 and the pleadings makes it clear that complainant has purchased a Panasonic LCD projector for ` 1,66,500 and the projector was taken back for servicing but not returned so far.  Complainant adduced evidence by way of chief affidavit in lieu of chief examination in tune with the pleadings.

          PW1 in his cross examination deposed that “27.02.2008- opposite party 1 projector sIm­p-t]m-bn.  AXv XncnsI X¶nà F¶-XmWv ]cm-Xn¡v ASn-Øm-\-T.”  Opposite party 1 has admitted in his version itself that on 28.07.2008 he has received projector and he has informed that if the complainant is ready to pay the amount they are ready to return the project F100.  So the crex of the matter lies on the point where or not opposite party is entitled to retain the projector on the ground of paying outstanding amount 3 projectors already sold to the complainant.  Opposite party also adduced evidence by way of chief affidavit in lieu of the chief examination that it is not correct to say that he has taken back the projector installed 14.12.2007.  It was taken on 14.12.2007 for the purpose of after sale’s service in the usual course.  Ext.B1 marked through PW1 to proved that complainant is liable to pay Rs.47.801.  As per Ext.B1 there is a debt of 47,801.

          Eventhough opposite party No.1 has specifically pleaded that the projector was retained as a lean over the outstanding amount of 3 projectors already sold to complainant there was no whisper on the side of the complainant about it anywhere in the chief affidavit.  DW1 in his cross examination deposed that it is stated in the version that there is an outstanding amount of the price of one of the projectors out of the 3 that is already been purchased by the complainant. DW1 also deposed that opposite party 1 has sold 2 other projectors thereafter the delivery of the despatched  projector. 

          The analysis of the available evidence shows that there is no cogent evidence to show that the despatched project has manufacturing defect.  The case of the complainant is that the Panasonic LCD projector was delivered on 19.08.2007 and taken back on the same date which was substituted on 22.08.2007.  Complainant further alleges that the new projector be came unfit and opposite party 2 has taken back taken back the projector on 04.12.2007.  But opposite party 1 contended that it was taken for servicing and after one week the same was returned.   It is also alleged that the machine was taken back by opposite party 1 on complaint of complainant but it has not been returned.  It can be seen that the first machine was replaced after the 3^rd day.  Opposite party took contention that F 100 Panasonic LCD Projector replaced with new projector due to the damage on transit but complainant did not responded to this contention.  Thereafter the projector alleged to be taken back on 04.12.07 ie after  3½ months were returned back after one week.  Opposite party specifically answer to this action is that this projector is taken back after service as routine in nature.  It was not denied by complainant.  Complainant further alleges that due to continuous demand the machine was taken by opposite party 1 for servicing on 27.02.208 but it is not been returned.  Opposite party admitted that projector was received for servicing but opposite party contended that the despatched projector was retained as a lean over the outstanding amount of 3 projectors already sold to the complainant.  The content of this contention has been totally ignored and this aspect remained unanswered by the complainant which only leads to assume that there is truth in the contentions of opposite party 1.  The entirety of the analysis of available evidence makes it clear that the hands of the complainant remains not cleaned.  We are of considered opinion that complainant could not succeed in proving his case attributing deficiency in service on the shoulders of opposite parties.  Opposite party No.1 is liable to return the projector F100 on payment of the outstanding amount in connection with the alleged transaction by the complainant.  With these observations issues No.1 to 3 are found against the complainant.

          In the result the complaint is dismissed without any hindrance to the right of the complainant to get back the projector F 100 on payment of the outstanding amount.

          No order as to costs.

                                Sd/-                     Sd/-           Sd/-

President              Member      Member

APPENDIX

Exhibits for the Complainant

A1. Copy of lawyer notice dated 22.05.2008.    

A2(a).  Acknowledgment card dated 26.05.2008.

A2(b).  Acknowlegement card dated 26.05.2008.

A3.  General Power of Attorney

Exhibits for the opposite parties

B1.  Ledger Account from 01.04.2007 to 31.03.2008.

B2.  Power of Attorney.

 Witness examined for the complainant

PW1.  Rajesh

Witness examined for opposite party

DW1.  K.J. Francis Sales

Witness examined for Court

Nil

                                                                   /forwarded by order/

                                                                   Senior Superintendent