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. 222/2003 Filed on 02.06.2003

Dated : 15.01.2009

Complainant:

Dr. Arup Chakrabarti, Breezland, H.No. 102(on NH 47), Kochulloor, Thiruvananthapuram – 11.

(By adv. N.Gangadharan)

Opposite party:

M/s Teli-links, represented by its Manager Chandrasekharan Nair, T.C 28/1007, Near Telephone Exchange, Kaithamukku, Thiruvananthapuram.

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 21.11.2003, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 15.12.2008, the Forum on 15.01.2009 delivered the following:

ORDER

SMT. S.K.SREELA: MEMBER

Briefly stated the facts of the complaint are that lured by the advertisement about Accord Communications and their product Accord EPABX, the complainant purchased a system from the opposite party on 12.11.2001 for Rs. 14,992/- with its accessories and it was installed at the complainant's clinic. The same was purchased since the complainant and his wife who are highly qualified medical practitioners, urgently needed it for their practice. At the time of purchase, it was promised that it would have computer Internet connection, but later it was found that it is not supporting that connection. When the opposite party was informed of this matter the complainant was asked to upgrade the system and the complainant had to pay an additional amount of Rs. 3,500/- and even after that the equipment was not functioning properly. The said amount has been received during the period of warranty. The opposite party had received Rs. 1,882/- towards service/repair charges which the opposite party is not legally entitled to receive. Complainant's practice is affected adversely due to the non-functioning of the equipment. The said act of the opposite party in selling such defective machine amounts to deficiency in service and unfair trade practice and hence this complaint for refund along with compensation.

Opposite party remains exparte.

The complainant has filed affidavit and has been examined as PW1, marked Exts. P1 to P6 on his side. PW1 has not been cross examined and hence his affidavit stands unchallenged.

The points that would arise for consideration are:-

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

2. Whether the complainant is entitled for the reliefs claimed for?

Points (i) & (ii):- According to the complainant, attracted by the advertisement, he has purchased the computer which was found to be different from the one promised. The complainant was promised that the computer would have Internet connection, but the one installed was not supporting the same and as per the advice of the opposite party, the complainant was forced to upgrade his system by paying an additional amount of Rs. 3500/-. Moreover, the complainant has alleged that opposite party has received Rs. 1,882/- towards service/repair charge. The system has been installed in the clinic of the complainant. It is a settled position that the purchaser will certainly be a consumer under Sec. 2(1)(d)(ii) of the Consumer Protection Act in respect of services rendered or to be rendered by the seller for the proper functioning of the equipment during the period of warranty. The allegation is that the system has become defective during warranty period. Hence we have no doubt with regard to the maintainability of this complaint before us.

Ext. P1 is the cash/credit bill for Rs. 14,992/- and Ext. P2 is the warranty for one year, i.e; from 11.11.2001 to 11.112002. The Ext. P4 reveals that the opposite party was informed with regard to the complaint by the complainant on 03.09.2002 which further establishes that the system was showing troubles well within the period of warranty itself. Moreover, the registered legal notice sent on behalf of the complainant dated 16.04.2003 also goes to prove that the improper functioning of the system has been brought to the notice of the opposite parties well within the warranty period itself. The materials on record prove that the malfunctioning of the system was informed to the opposite party. The opposite party has never turned up to deny the same, they have not contested the case. The documents produced on behalf of the complainant prove that the system became defective during the warranty period and the failure of the opposite party in not attending to the repair and after sales service properly inspite of various complaints is a gross deficiency in service in the manner and nature of performance on the part of the opposite party resulting loss to the complainant. It was the responsibility of the opposite party to rectify the defects within the the period of warranty that too free of cost. The complainant has succeeded in proving that the complaint with regard to the trouble with the system within the warranty period was promptly lodged with the opposite party. When the opposite party has not disputed before the Forum that the system supplied to the complainant was defective, there is no necessity of following the procedure laid down in Sec. 13(1) of the Consumer Protection Act. The fact that the system supplied was defective has been proved conclusively by the complainant.

In the light of the above, the complainant is found entitled to get the refund of the price of the system along with compensation. Obviously, the improper functioning of the system would have caused loss to the complainant, it is practically impossible to bring out in evidence the actual monetary loss, inconvenience and mental sufferings caused to the complainant. In the light of the materials on record we find that an amount of Rs. 3,000/- would be reasonable to compensate the same. The complainant is also found entitled for refund of Rs. 1,882/- and Rs. 3,500/- paid to the opposite party.

In the result, the opposite party shall refund Rs. 14,992/- and Rs. 5,382/-(Rs. 1882/- + Rs. 3500/-) along with a compensation of Rs. 3,000/- and Rs. 1,000/- towards costs of the proceedings within a period of one month, failing which the amount shall carry interest @9% . After the receipt of the amount, the complainant shall return the defective EPABX system to the opposite party.

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 day of 15^th January 2009.

S.K.SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

O.P. No. 222/2003

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Arup Chakrabarti

II COMPLAINANT'S DOCUMENTS :

P1 - Cash/credit bill No. NT 1884 dated 12.11.2001 for Rs. 14992.

P2 - Warranty card of invoice No. 1884 dated 12.11.2001.

P3 - Receipt No. 064 dated 20.04.2002.

P4 - Copy of letter dated 03.09.2002 issued to the opposite party.

P5 - Service/repair bill No. 004 dated 07.09.2002 for Rs. 1882/-.

P6 - Copy of advocate notice dated 16.04.2003.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT