Tamil Nadu

South Chennai

CC/21/2017

Ramesh Kymal - Complainant(s)

Versus

The Manager, Emirate Airline - Opp.Party(s)

S.Natarajan and V.Yurendrakumar

03 May 2017

ORDER

                                                                        Date of Filing :   23.12.2014

                                                                        Date of Order :   31.05.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO. 21/2015

WEDNESDAY THIS  31^ST  DAY OF MAY 2017

Ashok Chakravarthy Karlapati,

No.237, Sydenhams Road,

1^st Floor, Appa Rao Gardens,

Appa Rao Garden, Choolai,

Chennai 600 112.                                        .. Complainant

 

                                        ..Vs..

1.  M/s. Reliance Communications Limited,

Rep. by its Manager,

Reliance House,

No.6, Haddows Road,

Nungambakkam,

Chennai 600 006.

 

 

2. M/s. Reliance Communications Limited,

Rep. by its Public Relations Officer,

“H” Block, 1^st Floor,

Dhirubhai Ambani Knowledge City,

Navi Mumbai 400 710,

Maharashtra,

India.                                                               .. Opposite parties.

 

 

Counsel for Complainant          :    M/s. S.Venkata Krishna Kumar &

                                                  another  

Counsel for opposite parties     :    M/s. Shivakumar & Suresh   

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to replace the defective telephone instrument and also to pay a sum of Rs.60,000/- towards compensation for mental agony and hardship  and also to pay a sum of Rs.10,000/- as cost of the complaint.

 1. The averment of the complaint in brief are as follows:

         The complainant submit that he was availed a landline telephone connection bearing telephone No.32019026, relationship No.2363176102 from the opposite parties.    From January 2014 the above said landline was not working  properly.   The complainant further submit that in the third week of October 2014 the said instrument supplied by the opposite party becomes completely dead.    Even after repeated complaints made by the complainant on 19.2.2014, 22.2.2014, and 16.8.2014 and request in person there was no response at all from the opposite parties. 

2.     The complainant further contended that the complainant has issued notice to the opposite parties on 24.10.2014 and demanded the opposite parties to replace the defective  telephone supplied by them and to pay a sum of Rs.60,000/- towards compensation for mental agony.     As such the act of the opposite parties clearly amounts gross deficiency in service and thereby caused mental agony  and hardship to the complainant.   Hence the complaint is filed.

 

3. The brief averments in Written Version of  the opposite parties    are as follows:

The opposite parties submit that the complaint is devoid of merits and is not maintainable on facts or in law and is therefore liable to be dismissed in limine.   All the averments  and allegations made in the complaint are denied as false except to the extent admitted herein.    The opposite parties further submit that  the complaint is not maintainable for non joinder of the necessary parties.   It is also true that the telephone instrument was also provided to the complainant.  But it is false to state that from January 2014 the land line was not working properly.  He used to services till October 18, 2014  which is clearly proved by the bills sent by the opposite parties and received by the complainant.  

4.     The opposite parties was not aware of the complaint with the dealer for instrument fault and the complainant is put to strict proof of the same.    It is true that the complainant approached the first opposite party in person along with instrument but it is false to state that even after 15 minutes none attended the complainant besides other customers as the lone  person was engaged in phone conversation and he is put to strict proof of the same.  The opposite parties executive requested the complainant to wait since there was heavy rush on that day.   It is true that at the time of availing the telephone connection the opposite parties supplied the instrument which is manufactured by some other company and therefore this opposite parties is not liable for any manufacturing defects of the instrument.    Further only the remedy available to the Complainant is to seek compensation for the alleged mental agony, inconvenience and hardship suffered by him is against the manufacturer alone who had manufactured the device.   It is settled law that claims towards compensation for mental agony must prove the actual loss suffered by the party due to the breach of contract by the opposite parties.    The opposite parties has not committed any breach  and there is no deficiency of service.   Only the complainant is liable to pay cost under section 26 of the Act for filling this frivolous and vexatious compliant.    The complainant has suppressed material facts before this forum and therefore the complaint is liable to be dismissed.

5.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as his evidence and documents Ex.A1 to Ex.A4 marked.  Proof affidavit of opposite parties  filed and Ex.B1 & Ex.B2 marked on the side of the opposite parties.  

6.   The point for the consideration is:  

 

1. Whether the complainant is entitled to replace the defective telephone instrument as alleged in the compliant ?

 

2. Whether the complainant is entitled to a sum of Rs.60,000/- towards compensation for mental agony with cost of Rs.10,000/- as prayed for towards deficiency of service ?

 

7. POINTS 1 & 2:-

 

         Heard both sides.  Perused the records.   Admittedly the complainant availed the service of land line telephone connection bearing Telephone No.32019026, relations ship No.2363176102.  The learned counsel for the complainant contended that from January 2014 onwards the instrument was not functioning properly.    Thereafter from third week of October 2014 the said instrument was totally dead.   Hence the complainant complained repeatedly  on 19.2.2014, 22.2.2014  and on 16.8.2014, there was no response from the opposite parties. On 24.10.2014 the complainant personally went to the office of the  1^st opposite party  and made a complaint the  treatment by the opposite party is totally unpleasant  to the extent of keeping wait for hours without hearing  amounts to deficiency in service.    Accordingly the complainant issued the legal notice on the very same day claiming replacement of the instrument with compensation.  Since the complainant is a practicing Advocate sustained huge loss and mental agony due to non functioning of the telephone.  The complainant claiming a sum of Rs.60,000/- towards  compensation for mental agony and Rs.10,000/- as cost of the complaint.  Further  the contention of the complainant is that the allegations relating to non-joinder of the manufacturer by the opposite party does not arise in this case, because  in the written version para-9 itself the opposite parties admitted that the opposite parties do not know who is the manufacturer.  8.       The learned counsel for the opposite parties contended that the complainant suppressed several material facts and filed this complaint vexatiously.   But the opposite parties have not pleaded and proved what are the facts suppressed by the complainant.   Further the opposite parties contended that the averments in the complaint that from January 2014 onwards the landline instrument  was not functioning is false, and from 3^rd week of October 2014 onwards the landline instrument is totally dead is also false and marked the documents of  telephone bills for such proof.  The said contention also cannot be acceptable because semi working condition instrument shows the call details and raise bills.   In this case the bills for the above said months showing call details, but the opposite parties has not proved that the instrument was properly functioned during that period.   Further the contention of the opposite parties is that the complainant deliberately failed to claim to any relief against the manufacturer and wantonly not added as parties in this case amounts to non joinder of necessary parties.   But it is very clear from the pleadings and the evidence on record that both the parties did not know who is the manufacturer,  on the other hand admittedly the opposite parties sold the instrument to the complainant.  

9.     Further   the   contention  of the opposite parties is that the opposite parties are ready to replace the instrument but has not taken any positive steps for such replacement.     The  contention of the opposite parties regarding compensation claimed by the complainant is against Sec. 26 of Consumer Protection Act 1986 is unsustainable because it  relates to vexatious claim.    The   learned   counsel  further  contended  that  the   compensation   claimed   is   exorbitant.    Considering    the facts   and    circumstances   of    the   case  this  forum is of the considered view that the opposite parties are jointly and severally liable  to replace the instrument within one month from the date of this order and also to pay a sum of  Rs.10,000/- towards mental agony and Rs.5,000/- as cost of the complaint and the points 1 & 2 are answered accordingly.

In the result, the complaint is allowed in part.  The opposite parties 1 & 2 are jointly and severally liable to replace the instrument within one month from the date of this order i.e. 31.5.2017 and also to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony and Rs.5,000/- (Rupees Five thousand only) towards cost of the complaint to the complainant. 

The above  amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.       

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  31^st day  of  May 2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants side documents:

Ex.A1-  5.10.2014 -  Copy of  Reliance Communications bill.

Ex.A2- 24.10.2014 – Copy of Notice to opposite parties.

Ex.A3- 29.10.2014         - Copy of Postal Ack. Card

Ex.A4- 30.10.2014         - Copy of Postal Ack.  Card.

 

Opposite parties’ side document: -   

Ex.B1-         -        - Copy of bills for the period of August 2014 to

                               November 2014.

Ex.B2-  7.7.2015   - Copy of Statement of Account of the complainant.

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.