By Smt. C.S. Sulekha Beevi, President,

1. The Complainants are aggrieved that a PCO monitor and coin box phone purchased by them has defects. It is stated that the goods were purchased for earning livelihood. It is the case of complainants that believing the representations of the sales executive of opposite parties they purchased a PCO Monitor, coin box and two ordinary telephones for Rs.13,200/-. Second opposite party installed the instruments at the stationary shop of the complainants on 15-2-2006. The warranty offered was for 12 months. Within two weeks the PCO Monitor developed snags. The display disappeared at times, sometimes when the display worked the bill print out did not function. The machine also failed to show daily call report. As regards, coin box the number buttons did not work properly. Though the call attempted by inserting the coin was not completed, the coins were lost inside and not rejected. These defects were reported to opposite party. But there was no response. Since the defects appeared intermittently and opposite party did not turn up for repair, the apparatuses were taken by complainant to the office of second opposite party at Tirur on 10-3-2006. As it was difficult to manage the STD booth without a proper working system complainants had requested to repair and return the apparatuses at the earliest. Opposite party informed that the mechanic has to come from the company and that he visits only once in a month. On 17-4-2006 when complainants contacted second opposite party it was informed that the apparatuses are send for repair. For one reason or the other even after repeated requests the apparatuses were ready after repair only on 26-4-2006. Complainants were ignorant to install the instruments and had to pay Rs.250/- to the Service engineer of second opposite party who installed the instruments on the next day. Two hours later the PCO Monitor again became defective when complainants tried to feed the paper for the purpose of billing the monitor failed to function. When complainants checked the coin box they found that it was not repaired and the defect subsisted. When complainants contacted opposite party through telephone opposite party stopped responding and attending the calls. On 28-4-2006 complainant directly approached second opposite party who washed off his responsibility in a negligent manner and told the complainants to approach the manufacturer (opposite party No.1). Though complainants made several requests to repair or replace the apparatuses opposite party has failed to heed to the request. Hence the complaint.

2. Both opposite parties have filed separate versions. First opposite party who is the manufacturer has denied the complainant to be a consumer. It is contended that the goods are purchased for commercial purpose. It is submitted that the coin box phone, P.C.O monitor, etc., manufactured by first opposite party are tested for it's quality and durability. That complainants had purchased one PCO monitor and one coin box each costing Rs.10,500/- and Rs.2,850/- respectively. That no guarantee was offered and that there is only warrantee against manufacturing defects. On inspection it was found that the P.C.O monitor and coin box was working perfectly and that there was no manufacturing defect. The averment that defects appeared after two weeks of purchase is denied as incorrect. The averment that the apparatuses were handed over to second opposite party for repair on 10-3-2006 is denied. That first opposite party has good experienced Service Engineers to render repair and service. That no complaints were reported. Usually when the unit is taken for repair a stand-by unit will be provided by the dealer. Second opposite party has enough stand by units to meet emergent situations. That the apparatuses will not create any trouble unless used in a rough way. The averment that on 17-4-2006 when complainants contacted second opposite party it was informed that the unit is send for repair is denied. That the units were not send to first opposite party for repair. That second opposite party had intimated that the unit was serviced by second opposite party once when it was reported by complainant that some fruit juice glass had toppled over the unit and the printer, keys etc. were not functioning. The said defect was serviced in time. That complainants had closed the STD booth and other business and now they want to get back the price of the units purchased. That if there are any defects opposite party will replace the defective parts. That complaint is filed without basis and that complainant is not entitled to any reliefs.

3. Second opposite party has filed version adopting the very same contentions in the version filed by first opposite party.

4. Evidence consists of the oral evidence of first complainant who was examined as PW1. Exts.A1 to A3 marked for complainants. Witness on behalf of opposite party was examined as DW1. No documents marked for opposite party. Ext.C1 is the report of expert Commissioner.

5. Points for consideration:-

(i) Whether complainants are consumers.

(ii) Whether opposite party has committed any unfair trade practice.

(iii) If so reliefs and costs.

6. Point (i):-

Both opposite parties have denied the complainants to be consumers contending that the goods were purchased for commercial purpose. Apart from the vague contentions and pleadings there is no evidence to establish this submission. First complainant has affirmed that they are conducting a petty stationary shop and since the income from the shop was insufficient for their daily bread, they started an STD booth attached to this stationary shop. PW1 has categorically deposed that he started the booth to earn livelihood by means of self employment. He stated that the shop belongs to 2^nd complainant. There is nothing before us to disbelieve the evidence tendered by PW1 we therefore hold that the coin box phone and P.C.O monitor were purchased by complainants for earning their livelihood by means of self employment and that they are consumers. Point found in favour of complainants.

7. Point (ii):-

Complainants are aggrieved that the coin box phone and P.C.O. Monitor purchased on 15-02-2006 from second opposite party developed defects and has not been rectified by opposite parties. In Ext.A1 the price of P.C.O monitor and coin box phone is seen as Rs.10,500/- and Rs.2,850/- respectively. On the same day complainants have purchased two ordinary telephones (instruments) for a total cost of Rs.790/-. Complainants were given a discount of Rs.790/-. Complainants have no grievances regarding the ordinary telephones purchased by them.

8. Complainants allege that within two weeks the P.C.O monitor and coin box phone became defective. Though these were repaired once the defects persisted. One of the contention raised by opposite party is that there is no guarantee and the offer was only warranty. In page 25 of Ext.A2 the warranty conditions stated are as under:

"VISIONTEK – 31C PCO MONITOR is warranteed for a period of 12 months for the main system unit and 6 months for the printer unit against defects in material and workmanship. Any defect material will be repaired or replaced by LINKWELL TELESYSTEMS (P) LTD. at its option, free of charge within the period of guarantee subject to the following conditions.

1. The adjoining Purchase Record Copy must be duly filled in, stamped and signed by the Dealer. The Purchase Record and the relevant Invoice/Bill must be preserved and produced along with the defective material."

In page 8 of Ext.A3 the warranty conditions of coin box phone are as following:-

"VISIONTEK-41T pay phone is warranted for a period of 12 months from the date of sale to original purchase against manufacturing defects."

In the warranty conditions opposite party has simultaneously used the words warrantee and guarantee alternatively. It is very much clear from Ext.A2 and A3 that the instruments are covered by repair and replacement guarantee against defects for the period stated above.

9. Complainants have specifically stated the defects of each instrument, the details of defect and repair. The complaint is resisted by opposite parties contending that instruments do not have any manufacturing defects. Opposite parties admit repairing the defect once. It is their case that on receiving information from complainants that the printer and keys were not functioning due to spilling over of fruit juice upon the instruments second opposite party had done repair of the defect and that thereafter the instruments were working properly. In the box DW1 has deposed that when he went for the second service of instruments the shop was closed. His evidence in this regard is as under:

"കേസിന്നാസ്പദമായ machine ഒരു പ്രാവശ്യം മാത്രമെ service ചെയ്തിട്ടുളളു. പിന്നീട് service ചെയ്യാന്‍ ചെന്നപ്പോള്‍ സ്ഥാപനം അടച്ചിട്ടിരിക്കയായിരുന്നു. Service records സൂക്ഷിക്കാറുണ്ട്. Defects ഉണ്ടെങ്കില്‍ മാത്രമെ എഴുതി വെക്കാറുളളു. Defects ഇല്ലെങ്കില്‍ എഴുതി വെക്കാറില്ല."

DW1 is a witness on behalf of opposite parties and purports to be a customer care service engineer of first opposite party. If the instrument was repaired/serviced even for a single time opposite party is bound to produce documents for the same. A service engineer has definitely to maintain such service records when he makes field inspections and repairs. The evidence of DW1 that no service records will be maintained if there are no defects is not believable and acceptable. Such records will show the date of service, reasons of defects, and the repairs done. The non-production of service documents can only lead us to draw adverse inference against opposite parties. In the absence of such service records we are unable to hold that the defects were rectified. Regarding defects and repairs the evidence of PW1 has remain undisturbed after cross examination. In fact not much challenge is made against the repeated defects and repair done. The evidence of PW1 is as under:

"ഈ കേസിന്നാസ്പദമായ product കുറെ പ്രാവശ്യം നന്നാക്കി എന്നു കാണിക്കാന്‍ രേഖെളില്ല. Service charge 250/-ക. കൊടുത്തു എന്നു കാണിക്കാന്‍ എന്‍െറ കൈയില്‍ receipt ഇല്ല. Witness adds: പിന്നീട് ഒന്നിച്ച് receipt തരാമെന്നാണ് പറഞ്ഞത്. "

"machine വാങ്ങിയതു മുതല്‍ കേടാണ്. "

To prove the defects of the machine complainant had obtained the report of an expert. Complainant had filed I.A.84/2006 for appointing an expert Commissioner to examine and report about the defect alleged instruments. Sri.P.H. Subair, B.Tech., Head of Section, Electronics Engg., S.S.M. Poly Technic College, Tirur was appointed as Commissioner. He was appointed from the panel furnished from both sides. In Ext.C1 the opinion given by the expert is as follows:

"I have collected the details from both the parties and advised them to submit 'the Coin Box' for inspection on 19-4-2008.

The instrument having Serial No: 109635, Model No:31C has been tested at my office on the aforesaid date and found that

The Key Board is not working

The instrument is malfunctioning

So I hereby confirming that 'the Coin Box' is Defective.

Either side did not file any objections to Ext.C1 report though the case was posted on 24-5-2008 for filing objections to the report. Without filing any objections to Ext.C1 on 21-10-2008 the counsel appearing for opposite party Sri.P.C. Girish filed I.A.467/08 seeking permission to examine the Commissioner. The petition was not accompanied by any affidavit stating any grounds for examining the Commissioner. The only reason stated was that the Commissioner has filed the report without seeing the instruments. The petition was dismissed with the following order:

"In this petition a very bald allegation that the Commissioner has filed report without seeing the coin box is seen stated. The Commissioner is Head of the Section of Electronics in S.S.M. Polytechnic College and was appointed by the Forum. Other than this bald allegation no grounds have been stated. Such allegations cannot be tolerated since Commissioner who is appointed is an officer of the Forum and carries out his duty as such an officer. We consider it most unhealthy to allow such allegations be made against an officer appointed by the Court, without any substance or grounds. Hence petition dismissed."

10. Thereafter on 17-1-2009 the very same counsel of opposite party filed I.A.39/09 to direct the complainant to produce the P.C.O. Monitor cum coin box before the Forum. Again this petition was not accompanied by any affidavit stating reasons and was filed by the counsel. The only reason stated in the petition was that the production of the instruments was necessary for the just decision of the case. Since the instruments had been already inspected by an expert appointed by the Forum, and as it was not practical to crowd the record room unnecessarily with goods which are subject matter of disputes, the petition was dismissed on 19-2-2009. On receiving notice of the petition the counsel for complainant had however, produced the instruments.

11. Ext.C1 report is challenged by opposite parties contending that Commissioner has submitted the report without seeing the instruments. Needless to say that such allegations against an officer appointed by the Forum, with the intention of assisting the Forum to arrive at a just conclusion regarding the defects are very serious allegations. In Ext.C1 the Commissioner has stated that the instruments are defective. He has specifically mentioned the identification Number/Serial No. of the P.C.O. Monitor. This tallies with the number shown in Ext.A2. There is nothing to disbelieve Ext.C1 report especially when opposite party has not filed any objections tot he report. Parties cannot be allowed to make such lame and bald allegations against officers appointed for inspection simply because the report is against them. This practice is highly depreciated by us. In the report the Commissioner has separately stated the identification number and the defects of the P.C.O. Monitor.

12. From the foregoing discussions, as revealed by the evidence tendered and materials placed before us, we have no hesitation to conclude that the P.C.O. Monitor and coin box phone has shown repeated defects after purchase and has not been rectified by opposite parties. The complaint is filed just 10 months after purchase. The only conclusion that can be derived by us is that the instruments have defects and is of substandard quality. Opposite parties have failed to rectify the defects. Since the instruments became defective during the warranty period itself and since opposite parties have failed to rectify the defects, opposite parties are liable to replace the goods. Non-replacements amounts to unfair trade practice. We find both opposite parties guilty of unfair trade practice.

13. Point (iii):-

In the complaint the prayer put forward is to replace the goods or to refund the purchase price. At the time of filing affidavit the complainants have submitted that due to the long delay their STD booth has been closed and that no relief would be gained by replacement of the instruments so belatedly. We can understand the plight of the complainants who have purchased the goods for earning livelihood by means of self employment. It is admitted by opposite parties that the STD booth has been closed. We therefore hold that refund of the purchase price along with costs of Rs.1,000/- will be adequate relief to the complainants. All other prayers are disallowed. The consumer has privity of contract with the dealer and not with the manufacturer. Therefore we consider that both dealer and manufacturer should be jointly and severally be liable to satisfy the relief to the complainant. The dealer, however, is at liberty to proceed against the manufacturer in case he is called upon to satisfy the award.

14. In the result we partly allow the complaint and order the following:-

First and second opposite parties shall jointly and severally pay to the complainants jointly a sum of Rs.10,500/- (Rupees Ten thousand and five hundred) price of P.C.O. Monitor and Rs.2,850/- (Rupees Two thousand eight hundred and fifty only) price of coin box phone together with costs of Rs.1,000/- (Rupees one thousand only) within one month from the date of receipt of copy of this order. On payment complainant shall return the defect alleged P.C.O. Monitor and coin box phone to opposite party if not returned earlier.

Dated this 23^rd day of September, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1

PW1 : P. Moideen. first complainant.

Documents marked on the side of the complainant : Ext.A1 to A3

Ext.A1 : Invoice for Rs.13,350/- from second opposite party to complainant.

Ext.A2 : User's Manual of VISIONTEK-31C given by first opposite party to complainant.

Ext.A3 : User's Manual of VISIONTEK-41T given by first opposite party to complainant.

Witness examined on the side of the opposite parties : DW1

DW1 : K.G. Unnikrishnan, Customer Care Service Engineer of opposite party.

Documents marked on the side of the opposite parties : Nil

Court documents marked : Ext.C1

Ext.C1 : Commission report

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER