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. 240/2001
Dated : 16.02.2011
Complainant:
M/s Sobha Communications represented by its proprietor C.Santhosh Kumar, Palayam, Thiruvananthapuram.
(By adv. V.S. Bhasurendran Nair)
Opposite parties:
Global Tele Systems Limited, G2-Manoj-Industrial Estate, 4-A, G.D. Ambedkar Marg, Wadala, Bombay-400 031.
(By adv. V.J. Mathew)
CANN LINKS “Raj Tilak”, T.C. No. 26/1783 (UR-3), Uppalam Road, Statue, Thiruvananthapuram.
(By adv. K.S. Gopinathan Nair)
This O.P having been taken as heard on 21.12.2010, the Forum on 16.02.2011 delivered the following:
ORDER
SMT. BEENAKUMARI.A: MEMBER
Complainant has purchased a brand new Global Muratec Fax Machine (Model GM-840) for a sum of Rs. 21,000/- on 25.05.2000 from the 2nd opposite party who is the authorized dealer and agent of the 1st opposite party. The 1st opposite party is the manufacturer of the above said Fax machine. Complainant who is running a communication centre, purchased the above fax machine and used by him exclusively for the purpose of eking out of livelihood by means of self employment. Unfortunately from the very beginning, the above said fax machine had developed complaints as there is some serious manufacturing defect to the said machine. The desired result was not achieved. The main defect of the said fax machine is that the fax transmission is too much delayed thereby the customer has to pay increased charge based on the pulse rate. It is needless to say that if more time is taken for transmission, more will be the pulse rate shown in the machine, which will cause higher charges for the customer. The delay in transmission is a very serious manufacturing defect as far as a fax machine is concerned, which was noticed from very beginning. When the above defect was noticed, the matter was informed to the opposite parties, and the technicians from the 2nd opposite party's office several times attended the machine, but could not rectify the mistakes since it is a very serious and substantive manufacturing defect. The technicians of the 2nd opposite party promised to replace a trouble free machine in good condition to the complainant, as the present fax machine supplied by the opposite party is having serious manufacturing defects and the said defect is beyond repair. The customers are making complaints that excess charge is being collected by the complainant for fax messages send from the complainant's communication centre. The delay in transmission and taking too much time for transmission is causing financial loss and hardships to the customers by recording excess charge. It is pointed out that there is hectic competition in this field. Customers will prefer only the centres which will charge lesser amount. Because the manufacturing defect in the above fax machine supplied by the opposite parties, the customers are avoiding the complainant's communication centre, thereby the complainant is suffering huge loss and also their reputation is being affected. The business of the complainant is running in loss also. Apart from the above defects there are other manufacturing defects also by getting wrong information and wrong signals. The opposite parties have collected excess price for the above fax machine from the complainant. In fact the price fixed for the above machine is only Rs. 14,000/-, whereas the opposite parties have collected an amount of Rs. 21,000/- from the complainant, which is an unfair trade practice adopted by the trader, whereby the complainant has suffered loss and damage. There is defect in the fax machine and deficiency in service of the opposite parties as they failed in replacing the fax machine as promised. There is serious manufacturing defects to the above said fax machine. The opposite parties have charged price in excess of price fixed for the above machine. The complainant has reported the above complaint to the opposite parties several times. Even though the technicians of the 2nd opposite party promised to replace a new trouble free fax machine to the complainant, so far they have not complied with their commitment. Because of the above defects of the machine, the complainant has suffered mental agony and also sustained financial loss in business apart from loss of reputation. The complainant estimates the above damages to the tune of Rs. 10,000/-. The complainant is entitled to get back the excess price of Rs. 7,000/- from the opposite parties. The complainant has issued a registered notice on 19.05.2001 to the opposite parties, for which also there is no reply or response. Hence this complaint.
In this case the 1st opposite party accepted notice of this complaint, but they never turned up to contest the case. 2nd opposite party, Cann Links entered appearance and filed version. The main contention of the 2nd opposite party is that the machine is purchased for commercial purpose, therefore the complainant is not a consumer as defined under Se. 2(1) (d) of the Consumer Protection Act, 1986. They stated the purchase cost of the fax machine was Rs. 18,300/- and the 2nd opposite party has not collected any amount apart from the actual cost of the machine. If there is manufacturing defect, it is the duty of the manufacturer to replace the machine, not the 2nd opposite party. They have also stated that they are ready to inform the matter to the 1st opposite party if there is any manufacturing defect.
Complainant has filed chief affidavit and produced 3 documents as part of his evidence which were marked as Exts. P1 to P3. As per the request of the complainant this Forum appointed an expert commission to examine the disputed fax machine and file report. Commissioner filed the report which was marked as Ext. C1 and the commissioner was examined as CW1. 2nd opposite party has not produced any evidence nor turned up to cross examine the complainant. Hence the affidavit filed by the complainant stands unchallenged.
Points that would arise for consideration are:-
Whether there has been deficiency in service or unfair trade practice from the side of opposite parties?
Whether the complainant is entitled to get the reliefs?
Points (i) & (ii):- Complainant purchased the fax machine for Rs. 21,000/- on 25.05.2000 from the 2nd opposite party. 1st opposite party is the manufacturer of the said fax machine. The complainant purchased the machine for eking out his livelihood by means of self employment. Due to the defect of the fax machine he could not use it. The main defect of the machine is that the fax transmission will be delayed and the customers had to pay increased charge based on the pulse rates. The complainant alleged that this defect is due to the manufacturing defect of the machine. The technician of the opposite parties attended the machine, but the defect could not be cured. But the opposite parties are not ready to replace it with a new defect free one. To prove his contention he has filed proof affidavit and produced 3 documents which were marked as Exts. P1 to P3. Ext. P1 is the order form dated 25.05.2000. Total price of the machine is Rs. 21,000/- as per this document. Ext. P2 series are the copy of lawyer's notice and its postal receipt and acknowledgement card. Ext. P3 is the copy of warranty card. As per this warranty card the machine has one year warranty. From the documents adduced by the complainant we find that the defect occurred within the warranty period. The date of lawyer's notice is 19.05.2001. and moreover the opposite parties did not contest the case. The allegation of the complainant is that the fax machine is defective one and the main defect of the machine is delay in transmission and this delay was due to manufacturing defect. To ascertain the defect of the machine, this Forum appointed Mr. Udaikrishnan as the expert commissioner. He examined the fax machine in dispute and filed report which was marked as Ext. C1 and the commissioner was examined as CW1. In the report he stated that “huge faxing time taken by the machine is due to the machine having logical errors and needs to be corrected for any use”. He also deposed before this Forum at the time of examination that “ടി machine-ന്റെ defect manufacturing defect ആണ്”. The opposite parties have not challenged the report of the commissioner nor did they cross examine CW1. Hence Ext. C1 stands unshaken.
From the evidences adduced by the complainant, we find that the complainant has established his case beyond doubt. Hence the complaint is allowed.
In the result 1st opposite party is directed to refund the value of the machine i.e; Rs. 21,000/- to the complainant with 9% annual interest from 25.05.2000 till the date of realization. The 1st opposite party shall pay Rs. 3,000/- as the cost of the proceedings to the complainant. Time for compliance one month from the date of receipt of the order failing which the amount shall carry 12% annual interest from the date of order.
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 16th day of February 2011.
BEENAKUMARI. A : MEMBER
G. SIVAPRASAD : PRESIDENT
S.K. SREELA : MEMBER
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O.P. No. 240/2001
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - C. Santhosh Kumar
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of the order form dated 20.05.2000.
P2 - Copy of lawyer's notice and its postal receipt and
acknowledgement card.
P3 - Copy of warranty card.
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
NIL
V COURT EXHIBIT
CW1 - Udaikrishnan. B
C1 - Commission Report
PRESIDENT
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