A. LAKSHMANAN vs ANJALEEM ENTERPRISES

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

THE complainant is running a Public Phone Booth with S.T.D. and I.S.D. facilities. He purchased an Intellitrac STD/PCO with programming software and booth display from the second Opposite on 14-8-1991. THE first Opposite Party is the manufacturer. This instrument calculates the cost of metered calls and gives the exact amount due. In March, 1992 the complainant found that this instrument was malfunctioning. When a customer dials an international number or STD number and immediately thereafter dials a local number, the instrument metered only the local call while the customer able to talk on the international or STD line. THE meter installed in the Phone Exchange records as per the international or STD call, with the result the complainant has to pay excessive charges to the Telephone Department while he can collect only the local call amount from the customer. This defect was reported to the Opposite Party who tried to rectify it, but in vain. On account of this malfunctioning of this instrument, the complainant claims to have incurred a loss of Rs. 30,436/-. Hence this complaint for recovery of the amount, for compensation in the sum of Rs. 1 lakh and for refund of the price of the instrument. The claim is resisted by the Opposite Parties. It is contended that this instrument is used for commercial purpose and the complainant is not therefore a consumer within the meaning of the Act. It is admitted that the sale of this instrument is covered by a guaranty card. The alleged malfunctioning of this instrument is totally denied. According to the opposite parties they have sold more than 500 instruments in the City and this kind of allegation has not been levelled by any other consumer. It is denied that the complainant has incurred a loss of Rs. 30,436/-. There was no deficiency of service.

Exhibits A1 to A18 and B1 and B2 are marked. Proof affidavits are filed.

AS the case related to the alleged malfunctioning of the instrument purchased by the Complainant from the second Opposite Party, namely the Intellitrac STD/PCO, an Advocate Commissioner was appointed with the consent of both the parties to inspect the machine, monitor its working and submit a report. His report is marked as Exhibit C1. The points that arise for consideration are : 1. Whether the complaint is maintainable? 2. Whether there was any defect in the machine or deficiency of service on the part of the Opposite Parties? 3. To what relief, if any, is the complainant entitled?

Point No. 1 : The complainant is running a Public Telephone Booth under license from the Telephone Department. For the purpose of his business he has purchased from the Opposite Party No. 2 and installed an Intellitrac STD/PCO instrument manufactured by the first Opposite Party. The case is that this instrument has been malfunctioning resulting in heavy loss to the complainant. The contention of the Opposite Party is that this machine has been purchased by the complainant for commercial purpose and is not therefore a consumer within the meaning of Section 2(1)(d)(i) of the Consumer Protection Act. The complainant has filed an affidavit to the effect that he has purchased this machinery for use in a self-employment scheme and it cannot therefore be considered to be for commercial purpose. The second Opposite Party''s Manager has filed a counter affidavit that the complainant is not a self-employed youth and is employed as Manager in Raj Mahal Super Market, Hosur, but there is nothing to substantiate this contention. We accept the affidavit of the complainant and hold that he has purchased this machinery to use it for self-employment and as pointed out by the National Commission in M/s. Jyoti Marketing and Projects Ltd. v. M. Pandian and Another I (1992) CPJ 337 (NC), where a person buys any article for consideration to use it for self-employment in order to earn his livelihood, the purchase is not for commercial purpose. He is therefore a consumer within the meaning of Section 2(1)(d)(i) of the Consumer Protection Act.

FURTHER this sale admittedly carries a war ranty. The allegation of the complainant is that the malfunctioning of the instrument resulting in heavy loss to the complainant was during the period of warranty. Where the sale of machinery carries with it a warranty, the seller is bound to maintain it in a proper working order during the period of warranty and the purchaser will certainly be a consumer under Section 2(1)(d)(ii) of the Act in respect of the services rendered or to be rendered by the seller for the proper functioning of the system during the period of warranty, as held by this Commission in Shrimp India v. Richardson and Cruddos (O.P. 204/91 dated 15-5-1992), following the decisions of the State Commission of Maharashtra in Padma Amrapurkar v. Williams and Company I (1992) CPJ 150 and Viswa Jyoti Printers v. Molins of India I (1992) CPJ 93 and the decision of the National Commission in Viswa Jyoti Printers v. Molins of India and Molins of India v. Viswa Jyoti Printers I (1992) CPJ 167 (NC). The malfunctioning of this instrument is during the period of warranty and the failure of the opposite parties to rectify the malfunctioning amounts to deficiency of service and the malfunctioning amounts to deficiency of service and the complainant as hirer of the services of the opposite parties is entitled to maintain this complaint. The point is found in favour of the complainant. Point No. 2 : The complainant is running a Public Telephone Booth under license from the Telephone Department. The members of the public are entitled to use this booth for local, STD and ISD calls on payment of charges therefor. For the purpose of ascertaining the charges, the complainant has purchased from the second opposite party and installed an Intellitrac STD/PCO instrument manufactured by the first opposite party. To this instrument is connected a monitor. As soon as a customer dials a number, the number is displayed in the monitor and as soon as the call is answered on the other side, the monitor starts displaying the duration and the charges. After the call is over, a slip will be ejected showing the call number, the time, the duration and the charges, vide Exhibits 18(a), 18(b), 18(c) and 19(d). The grievance of the complainant is that when a customer dials a STD or ISD number and immediately thereafter dials a local number, this instrument supplied by the opposite parties to the complainant displayed the local number only and recorded the charge for the local number, while the customer was able to talk for several minutes in the STD or ISD number with the result the slip ejected from the Intellitrac instrument will only show a charge for the local call, while the meter in the Phone Exchange will record the international or STD call and the charges therefor. The complainant was able to collect from the customer the local charge only, while he was charged the STD or ISD call amount in the Phone Exchange which ran to hundreds of rupees per call. Exhibit A8 is the list of these calls as per which the complainant had to pay an excess of Rs. 30,436/-. As already observed, an Advocate-Commissioner was appointed to inspect the machine, monitor its working and submit a report and Exhibit CI is the report. He has visited the premises of the complainant and inspected the machinery in the presence of the complainant, his Advocate and the Advocate for the opposite parties. This is what the Commissioner has stated : "6. To verify the correctness of the statement of the complainant, I myself dialed an STD number 009712215418 and when it was maturing, I slightly pressed down the protruding disc in the connecting telephone set and then dialed a local number 412029, now, only the local number was on the display board, whereas I was talking to the STD caller. Counsel for the opposite party at his request, was also given a chance. He dialed STD number to Vellore 0416215148 and then a local number. While his STD caller was on the line what was displayed on the board and printed in the device was only the local number and the rate of Re. 1/-. 7. Whenever a particular number is dialed, that number alone will be displayed on the board until if it is disconnected. If another number is dialed without disconnecting the previous number, subsequently dialed number should not come on the Display Board. But, in this case, when the previous STD caller was on the line, the Board and Device displayed only the subsequent number."

As the Counsel for the opposite parties expressed an opinion that this malfunctioning might be due to some defect in the Telephone set provided by the Telephone Department, the Commissioner thought fit to address the Divisional Engineer, ADYar Telephone Exchange to depute a competent engineer with two fresh sets of telephones, and on 23-12-1992 in the presence of the Advocates on both sides, the Assistant Engineer of Telephone Department Mr. R.S. Arunachalam and two other members of the technical staff checked the instrument installed by the Department. It was found to be in proper working order. As suggested by the Counsel for the Opposite Parties, a STD call has been made to Vellore (0416215148) and then a local number (417771). The Vellore call was found to be correctly metered and displayed. Then a STD call to Virudhunagar (045624816) was dialed and immediately after this a local number 412806 was dialed in the manner narrated by the complainant and the latter number alone was displayed whereas the Virudhunagar caller was on the line. In order to satisfy himself, the Commissioner has dialed a Pudukkottai number 043222792 and then a local number 412029. The local number alone was displayed and printed, but infact the Commissioner was talking to Pudukkottai. At the request of the Commissioner the instrument was connected with a new telephone set in the place of old one and when dialed, the same defect has been noticed in the monitoring board of the Intellitrac STD/PCO. It is therefore clear that this instrument purchased from the second opposite party and installed by the Complainant has been malfunctioning and taking advantage of this fact, some customers have been misusing the same at the expense of the complainant.

THE opposite party has represented to the Commissioner that the malfunctioning may be due to the fact that this instrument which was originally installed on the north eastern corner has been shifted to the opposite side, a few yards away. THE Complainant has explained that it had been moved and kept for the sake of convenience without in any way disturbing the installation. All the four lines of wiring were found duly connected with the instruments and the Commissioner would suggest that this malfunctioning cannot be attributed to the shifting of the instrument. THE Commissioner has also pointed out that if the defect was due to shifting, recording should be erratic and not uniform. It has then been urged before the Commissioner by the Opposite Party that an additional Court has been connected with the device and the original serial connection is changed. This additional cord has been connected only to give battery connection and it had nothing to do with the instrument as pointed out by the Commissioner.

A perusal of the Commissioner''s report will clearly show that the Intellitrac STD/PCO instrument supplied by the Opposite Parties has been malfunctioning and the Opposite Parties have not been able to rectify the defect. This is a clear case of defect in the machine supplied and deficiency in the service rendered by the Opposite Parties. The point is found in favour of the complainant. Point No. 3 : The complainant has been put to very great loss on account of the malfunctioning of this instrument. As already pointed out the loss incurred by him has been set out in Exhibit A8 and it comes to Rs. 30,438/-. The opposite parties are bound to make good the loss. The complainant has also asked for refund of the price amount. It is of no use to the complainant having such a defective instrument and incurring loss. He is therefore entitled to get back the price, of Rs. 22,408.50 under Section 14(1)(c) of the Consumer Protection Act. The complainant has also claimed compensation in the sum of Rs. 1 lakh. This is excessive. We are inclined to grant Rs. 15,000/- as compensation.

In the result we order as follows : 1. The opposite parties shall return to the complainant the price of the instrument, namely Rs. 22,408.50 and take back the instrument. 2. The opposite parties shall pay to the Complainant Rs. 30,438/- being the loss sustained by the complainant on account of the malfunctioning of the instrument. 3. The opposite parties shall also pay Complainant compensation in the sum of Rs. 15,000/- 4. The opposite parties shall also pay a sum of Rs. 5,000/- as costs including the Commissioner''s fee.

Complaint allowed with costs.