BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 240/2002

Dated : 16.08.2010

Complainant:

M/s. Kerala State Film Development Corporation represented by its Managing Director, Chalachithra Kalabhavan, Vazhuthacaud, Thiruvananthapuram.

(By adv. A. Abdul Kharim)

Opposite party:

Alan G. Bartley, M/s Bartley Electro Optics, 4, Water Works Avenue, Chennai – 600 010.

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 15.11.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and reheard the complaint. This O.P having been heard on 30.06.2010, the Forum on 16.08.2010 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant, a public sector undertaking governed by Government of Kerala, is conducting an Electro Optics Service, that complainant entrusted a 16 m.m camera and other accessories to the opposite party on 14.06.2000 to effect necessary service and repairs, that opposite party sent a proforma invoice to the complainant claiming Rs. 3,35,700/- being total spare parts and service charges which was received and accepted by the complainant and thus a contract was concluded by correspondence. It is submitted by the complainant that as per the said demands made by the opposite party complainant gave Rs. 2,00,000/- as advance to opposite party, that it was agreed to deliver the camera duly repaired within 60 days after completing the entire repair, that opposite party failed to comply with the said terms in the invoice. Opposite party sent letters dated 12.12.2001, 26.02.2002 to complainant agreeing to deliver the said equipments on 15^th March 2002. Even after repeated demands by the complainant opposite party did not deliver the same. Complainant sent advocate notice demanding to return the camera and other equipments with a sum of Rs. 2,00,000/-. Opposite party accepted the notice but not complied with the demand made by the complainant. Hence this complaint to direct opposite party to return the camera and other equipments or to pay the cost of the camera along with compensation and costs.

Opposite party filed version contending that complaint is not maintainable either in law or on facts, that complainant is not a consumer, that complainant is a registered company indulged in commercial activities for commercial gain. That as per the invoice dated 28.08.2000 30% advance is payable on the date of order, 20% payment ought to have been made before 28.10.2000, another 20% before 08.12.2000, that complainant neglected to pay the remaining amount as contemplated in the contract and opposite party was constrained to send reminders, that the camera given to opposite party for servicing and repairing is of the model ARRIFLEX-16-BC of late 1960s, it was a German made camera, thereafter the ARRIFLEX came out with SR series cameras in 1970s, the camera which was given to the opposite party is an outdated model for which spares are very rarely available, that opposite party was unable to purchase these spares. Opposite party expressed his desire to return the camera and advance amount, but complainant insisted that irrespective of the time frame the job should be executed only by opposite party as such the question of delay is immaterial, that other allegations levelled against the opposite party are denied. Hence opposite party prayed for dismissal of the complaint with costs.

The points that arise for consideration are:-

1. Whether the complainant is a consumer as stipulated in the Consumer Protection Act?

2. Whether there is deficiency in service on the part of the opposite party?

3. Whether the complainant is entitled to get back the camera repaired or entitled to compensation of Rs. 5,00,000/-?

In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P7. Opposite party did not file affidavit or any documents.

Points (i) to (iii):- The first issue to be considered for discussion is whether the complainant is a consumer of the opposite party. It is the stand of the opposite party that complainant is a registered company indulged in commercial activities for commercial gain, that the contract between the complainant and opposite party is purely commercial contract and has got nothing to do with the consumerism. It is further averred in the version by the opposite party that the transaction between the parties herein is not only commercial but also complicated and hence the dispute can only be gone into by a competent civil court. As per the provisions of the Consumer Protection Act consumer means any person who buys any goods or avails any service for consideration, but does not include a person who obtains such goods for resale or for any commercial purpose or does not include a person who avails such services for any commercial purpose. It is the very case of the complainant that Kerala State Film Development Corporation which is a public sector undertaking governed by Government of Kerala which entrusted a 16 m.m camera and other accessories to the opposite party to effect necessary service and repairs. As per Sec. 2 (b) of the Consumer Protection Act complainant means a consumer or any voluntary consumer association registered under the Companies Act or under any other law for the time being in force; or the Central Government or any State Government who or which makes a complaint; one or more consumers, where there are numerous consumers having the same interest and in case of death of a consumer his legal heir or representative. In view of the above definition the State Government can become a complainant. In this case the KSFDC is a public sector undertaking governed by Government of Kerala. A public sector undertaking like KSFDC governed by Government of Kerala availed the service of the opposite party to effect necessary service and repairs of 16 m.m camera. There arises no element of commercial purpose as intended by the legislation in the Consumer Protection Act. Moreover opposite party did not furnish any material to show that complainant is running the business for profit. In view of the above we find complainant is a consumer as stipulated in the Consumer Protection Act.

Admittedly, complainant entrusted a 16 m.m camera and other accessories to opposite party on 14^th June 2000 vide Ext. P1. As per Ext. P1 complainant had sent 16 m.m camera for inspection through Sri. L. Augustine, to opposite party and requested him to send his estimate specifying the nature of work to be done to make it in a perfect working condition. Ext. P2 is the copy of the proforma invoice dated 28.08.2000 issued by opposite party to the complainant specifying an estimate amount of Rs. 3.35.700/-. As per the terms printed in Ext. P2 30% advance payable with order, 20% after 20 days, 20% after 40 days and balance 30% before the delivery. Delivery period 60 days. Ext. P3(c) is the copy of the cash or cheque voucher dated 23.09.2000 showing payment of Rs. 1,00,000/- towards advance to the opposite party by the complainant. Ext. P3(a) is the cash or cheque voucher dated 26.03.2001 showing payment of Rs. 1,00,000/- towards camera repairing charges (2^nd installment) to opposite party by the complainant. Along with Ext. P3 (a) and Ext. P3(c) complainant has produced a copy of the counterfoil of Indian Bank showing the remittance of the aforesaid amount. Ext. P4 is the copy of the letter dated 26.03.2001 issued by Studio Manager to opposite party wherein it is seen stated that complainant had paid Rs. 2,00,000/- to opposite party and requested the opposite party to complete the work in all respects and camera may be got ready for delivery by 15.01.2001. Ext. P5 is the copy of the letter dated 12.12.2001 by the opposite party to the complainant informing him that the work on the said equipment will be completed by 31.01.2002 as per the details mentioned in the relevant proforma invoice. It is further stated in Ext. P5 that in the event of the work not being completed by the above mentioned date opposite party agrees to return the camera in its original working condition and also refund the advance payment made to them after deducting payment for work already completed with respect to the accessories of the camera. It is further stated in Ext. P5 that all commitments from complainant end with regard to payment of advance have been correctly made and the delay in delivering the equipment is entirely due to technical problems of opposite party's end. Ext. P6 is the copy of the letter dated 26.02.2002 issued by opposite party to the complainant informing him that opposite party has almost completed all the basic development work on the design and are in the process of receiving the components needed for the development shortly and assuring the complainant to deliver the equipment by 16^th March 2002. It is also seen requested by the opposite party to the complainant to make arrangements to release the balance amount payable on the 16^th March 2002 after the delivery of camera. Ext. P7 is the copy of the advocate notice addressed to the opposite party. Complainant has filed proof affidavit along with Exts. P1 to P7. Opposite party did not file affidavit nor did opposite party cross examine the complainant, nor did opposite party adduce documentary evidence to substantiate their contention in the version. It is crystal clear from Ext. P3 series that complainant had remitted Rs. 2 lakhs towards repairs charges of the aforesaid camera. Evidently by Ext. P5 and P6 opposite party agreed to return the equipment after repair. It is pertinent to point out that in the version filed by the opposite party it is seen averred that complainant neglected to pay the amount as contemplated in contract and opposite party was constrained to send reminders. There is no material to show that opposite party had sent reminders to the complainant to pay the remaining amount. Whereas in Ext. P6 nothing is seen whispered by the opposite party as to the payment of remaining amount. What is mentioned by opposite party in Ext. P6 is that equipment will be delivered by 16^th March 2002. it will be the final date and balance amount is requested to be remitted only after the delivery of the said equipment. In view of the above, the statement of the opposite party in version that complainant neglected to pay the remaining amount as contemplated in the contract is baseless and against facts. There is no document to show that opposite party had returned the said equipment in working condition after repair to the complainant. The specific case of the complainant is that opposite party did not return the aforesaid equipment as per the terms of the contract by correspondence. In view of the above discussion and of the evidence available on record we find that there is deficiency in service on the part of the opposite party in not returning the equipment after repair as contemplated in the contract by correspondence. The complaint is seen filed in the year 2002. Even after the lapse of 8 years opposite party did not return the said camera. No purpose will serve if opposite party is directed to return the said camera after a lapse of 8 years. Complainant has not furnished any material showing the price of the camera in dispute, nor has he mentioned in the complaint the date of purchase of the said camera. Opposite party never produced any material to show that camera in dispute is an outdated model. It is pertinent to point out that undisputedly, opposite party claimed Rs. 3,35,700/- towards spare parts and service charges and the same was accepted by the complainant, from which it can be inferred that the camera in dispute should be an expensive one. Admittedly, by Ext. P3 series, complainant paid Rs. 2 lakhs to opposite party towards advance payment for spare parts and service charges and camera in dispute is still in the custody of the opposite party. Opposite party did not return the camera after repair to complainant till date nor did opposite party refund the advance amount along with return of old camera to complainant. Though the amount of Rs. 2 lakh advanced and cost of camera entrusted by the complainant would exceed Rs. 5 lakhs, complainant limited his claim to Rs. 5 lakhs. In view of the above we are of the considered opinion that it will be expedient and justice will be well met if opposite party is directed to pay Rs. 5,00,000/- as claimed in the complaint.

In the result, complaint is allowed. Opposite party shall pay the complainant a sum of Rs. 5,00,000/- within 2 months from the date of receipt of this order, failing which the said amount will carry interest at the rate of 12% per annum. On compliance of this order, opposite party can retain the camera in dispute. Both parties shall bear and suffer their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 16^th day of August 2010.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

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O.P. No. 240/2002

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of letter dated 14.06.2000

P2 - Copy of proforma invoice

P3 - Copy of receipt dated 26.03.2001

P3(a) - Copy of cash/cheque voucher dated 26.03.2001

P3(b) - Copy of receipt dated 03.10.2000

P3(c) - Copy of cash/cheque voucher dated 23.09.2000

P4 - Copy of the letter dated 26.03.2001

P5 - Copy of the letter dated 12.12.2001 issued by the opposite

party to complainant.

P6 - Copy of the letter dated 26.02.2002 issued by the opposite

party to the complainant.

P7 - Copy of the advocate notice addressed to the opposite party

and acknowledgement card.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT

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