IN THE COURT OF CONSUMER DISPUTES REDRESSAL FORUM, MALAPPURAM<br /> <br /> (Present: Smt. C.S. Sulekha Beevi, President,<br /> Sri.K.T.Sidhiq, Member)<br /> <br /> Date of filing: 14-3-2006<br /> <br /> Date of Order: 8-10-2007 <br /> <br /> O.P.No.18/06<br /> <br /> Unnikrishnan.C.D., (34 years) ) CD Krishna Fancy & VCD's ) Complainant <br /> Sdamastha Buildings, )<br /> Chelalri (PO) Thenhippalam, )<br /> Malappuram Dt. ) <br /> <br /> Vs<br /> <br /> 1. Manager, N Hassainar Agencie's, ) Room No.5/164 C, <br /> Payyanangadi, Tirur. ) ) <br /> 2. Manager, Cell International ) Opposite parties 21/351 H Kainikkara Buildings, )<br /> Thunchan Road, <br /> Near Khayam Theatre, )<br /> Tirur. ) <br /> <br /> ORDER <br /> <br /> By Smt. C.S. Sulekha Beevi, President,<br /> <br /> 1.Briefly stated the case of the complainant is that he purchased a coin box (pay phone) from the 1st opposite party on 12-11-2005 by paying Rs.3000/-. The warranty period was six months. It developed snags within two days. Opposite party replaced it with a new model worth Rs.3500/- and the complainant paid Rs.3500/- and the complainant paid rs.500/- extra. within one month this also developed problems and was not performing normally. complainant contacted airtel dealer to rectify the defects. opposite parties have neither repaired nor replaced the phone till date. <br /> 2. Opposite parties have filed version admitting the sale of coin box- pay phone to complainant. Their strong case is that theywere not informed about the defects. That they came to know about the complaint only after receiving notice from the Forum. Further the complaint is bad for non-joinder of manufacturer who is a necessary party and hence liable to be dismised.<br /> 3. Ext.A1 marked on the side of the complainant. No oral or documentary evidence adduced by opposite parties. The points that arise for consideration are <br /> (i) Whether the complaint is bad for non-joinder of necessary parties. <br /> (ii) Whether there is unfair trade practice on the part of opposite parties. <br /> (iii) Refliefs and costs.<br /> 4. Point (i):- According to opposite parties the manufacture of the pay phone is M/s Digilia Devices India (Pvt.) Ltd., Sulthan Bathery, Kerala. Ext.A1 also proves this. Opposite parties contend that the warranty is offered by the Manufacturer and being the dealer they are not liable. Dealer is the agent of the manufacturer. Complainant deals with the dealer alone and not the manufacturer. There is privity of contractbetween dealer and complainant. Opposite parties admit they are dealers and therefore they are agents of the manufacturer. An 'agent' is a person who is employed to do any act for another or to represent another in dealing with third persons. So the dealer is authorised to represent the manufacturer while dealing with customers. Sec.226 and 237 of Contract Act lays down the liability of principal and agents with respect to third persons. Aolthough the manufacturer may appear to be responsible for the manufacturing defects both dealer and manufacturer are jointly and severally liable being the agent and principal. For the above reaons we hold that the complaint is not bad for non-joinder of manufacturer as a party.<br /> 5. Point (ii):- Purchase of the pay phone and price of the product is admitted by opposite parties. The price of the original pay phone purchased by complainant was Rs.3000/-. It was replaced by opposite parties with a new model that can be hung from the wall. The complainant then paid Rs.500/- extra since the cost of this model was Rs.3500/-. Complainant alleges that this replaced pay phone also did not perform normally/Complainant avers that he called the Airtel dealer and informed about the problem. There was no response. The strong contention of opposite parties in the version is that the complaint was left unattended only bcause they were not informed bythe complainant. They came to know of the complaint only after receiving notice from the Forum. According to the complainant the pay phone was purchased through an Airtel dealer at Tirur. Complainant informed the defects to this Airtel dealer. Complainant has no case that they informed the opposite parties. This Airtel dealer is not a party in the proceedings. Therer is no privity of contract between the Airtel dealer and the complainant or the opposite parties. Airtel dealer perhaps has used his acquaintance with complainant to introduce to the opposite party. He has no role in the transaction. The only fact that can be inferred is that complainant has not informed opposite parties regardingthe defects of the pay phone, and hence their grievance was unattended. As per Ext.A1 the warranty period is six months. Opposite parties have not specifically denied that the coin box (pay phone) has manufacturing defects. The product developed snags during its' warranty period itself. According to the complainant it became non-functional on 20-12-2005. Complaint is filed on 14-3-2006. We have no hesitation to hold that the coin box pay phone has manufacturing defects. On payment of purchase price the complainant is entitled to a product which is free of defects. The act of opposite parties selling a produc t of substandard quality amounts to unfair trade practice.<br /> 6. Point (iii):- In the version opposite parties have not raised any contention that the pay phone can be repaired and set correct. It is admitted that opposite parties have replaced a pay phone earlier. Complainant avers that the phone was set in his stationery shop which is his only livelihood. He spent Rs.300/- for the phone, Rs.1000/- for the phone connection, Rs.1200/- for SIM card and Rs.6000/- for putting up a compartment for the unit. He is very much aggrieved that the above amounts spent became a waste due to the defective pay phone. He claims Rs.75000/- as compensation. The compartment put up is permanent structure and complainant can till use it. There is no evidence adduced to show that he has sustained loss or damages to the tune of Rs.75000/-. Further opposite parties could not render prompt and proper service because they were not informed about the defects. It has also to be considered that opposite parties did replace the pay phone earlier.<br /> 7. In the result the complaint is allowed and opposite parties are ordered jointly and severaly to refund an amount of Rs.3500/- (Rupees Three thousand five hundred only) to the complainant along with costs of Rs.2000/- (Rupees Two thousand only) within three weeksfrom the date of receipt of copy of this order.l On payment complainant shall give back the coin box (pay phone) to the opposite parties. Opposite parties are also at liberty to claim reimbursement from the manufacturer.<br /> <br /> Dated this 8th day of October, 2007.<br /> <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> K.T.SIDHIQ, MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Nil<br /> <br /> <br /> <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> K.T.SIDHIQ, MEMBER<br />