Anjaleem Enterprises Pvt Ltd vs A Lakshmanan

THIS appeal has been filed by the opposite parties against the Order dated 26th February, 1993 passed by the State Consumer Disputes Redressal Commission, Tamil Nadu at Madras (for short the State Commission) in O.P. No. 219/92. By the impugned Order the opposite parties have been directed to refund to the complainant (Respondent herein) the price for the instrument namely Rs. 22,408.50 and take back the instrument and also pay to the complainant Rs. 30,438/ - being the loss sustained by him on account of malfunctioning of the instrument. The opposite parties were also directed to pay Rs. 15,000/ - to the complainant as compensation.

THE case of the complainant is that he is running a Public Phone Booth with STD and ISD facilities. He purchased Intellitrac STD/PCO with programming software and booth display from the opposite parties on 14th August, 1991 for Rs. 22,408.50. The said instrument was manufactured by the first Appellant (who was first opposite party in the complaint) and sold by the second appellant (who was Opposite Party No. 2 in the complaint). The special features of the instrument were to be (i) the number dialed will be displayed on the monitor and when che answering party answers the call the meter starts counting, (ii) based on the above counting the instrument is to calculate the cost of the metered calles and give the exact amount due. In March, 1992 the complainant found that the instrument was mal -functioning. When the customers dialed an international or STD number and immediately thereafter dialed local number the instrument displayed on the monitor only the local number and recorded charges only for local calls when actually customer was able to talk on the STD/ISD number for several minute?. On this account there was a huge difference between the bills as per the instrument and the meter installed in the Telephone Exchange which recorded the International or STD calls with the result the complainant had to pay excessive charges to the Telephone Department while he could collect only local call charges from the customers. This defect was reported to the second opposite party who tried to rectify it on 2nd March, 1992. However, the defect could not be rectified and the instrument continued to give faulty information. On account of this malfunctioning of the instrument the complainant incurred loss of Rs. 30,436/ -. The complainant also claimed Rs. 1.00 lakhs as compensation and refund of the price of the instrument. The claim was resisted by the opposite parties. According to them the instrument had been purchased for a commercial use, therefore, and the complainant was not a consumer as defined in the Consumer Protection Act, 1986. It was admitted that the sale of the instrument was covered by a guarantee card. The opposite parties denied the malfunctioning of the instrument. According to them they sold more than 500 instruments in the city and this kind of allegation was not levelled by any other customer.

AS the case related to the malfunctioning of the instrument, the State Commission appointed an Advocate Commissioner (hereinafter referred as the Commissioner) with the consent of both the parties to inspect the Machine, monitor its working and submit a report. The Commissioner inspected the machinery in the presence of the complainant, his Advocate and the Advocate for the opposite parties. The relevant part of his report runs as follows : ''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 041625148 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/ -. Whenever a particular number is dialed, that number alone will be displayed on the board until 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.''

THE Advocate for the opposite parties expressed an opinion that this malfunctioning of the instrument might be due to some defect in the telephone set provided by the Telephone Department. The Commissioner addressed a letter to the Divisional Engineer, Adyar Telephone Exchange to depute a competent Engineer with two fresh sets of telephones. In the presence of Advocates of both sides the Assistant Engineer of the Telephone Department and two other members of the technical staff checked the instrument installed at the Booth. It was found to be in proper working order. At the request of the Commissioner the instrument was connected with new telephone set in place of old one. The Commissioner dialed a number on STD call and immediately after a local number; the local number alone was displayed and printed while the Commissioner was talking on STD. The complainant produced the bills received by him from the department to show that he suffered loss of Rs. 30,438/ -. In the light of the above the State Commission held that the instrument was malfunctioning and awarded the sums noticed above. Feeling aggrieved the opposite parties have filed this appeal.

LEARNED Counsel for the Appellant could not assail the report of the Commissioner before us. The report has been considered in detail by the State Commission and relevant portions have also been referred to above. It was argued by the learned Counsel for the appellant that the loss shown to have been suffered by the complainant might be due to some manipulation by the complainant. No such plea was raised before the State Commission and it cannot be allowed to be raised at this stage.

ANOTHER plea raised by the opposite parties is stated in paragraph No. 3 of the memorandum of appeal. It reads as follows : ''The facts stated by the complainant shows efficiency of the STD -PCO equipment in question the Appellant respectfully submits that as per the Tender -1 -/80 -MMD supplied by the Indian Posts and Telegraphs Department New Delhi (January -1981) Telecom exchange would disconnect a Phone call within 250 MSCE (0 -25 Seconds).''

The facts narrated by the complainant regarding and Commissioners Report shows that when protruding disc (Switch hook) was pressed slightly (which can never be less than 0.25 Seconds). It is failure on the part of the exchange of the Telephone Department to disconnect the line whereas the device provided by the Appellant disconnected it.''

It was for the Appellant to examine some person from the Telephone Exchange that the malfunctioning of the instrument occurred due to the non -disconnection of the phone call in the Telephone Exchange. Assistant Engineer of the Telephone Department and two members of the technical staff had appeared before the Commissioner for checking the instrument. No such plea was raised on behalf of the opposite party before those persons. It would not be out of place to mention here that this plea was also not raised before the State Commission. Hence, without proof we cannot take cognizance of this averment.

LASTLY , learned Counsel for the opposite party -appellant prayed before the State Commission that it should have given an opportunity to them to rectify the defect. As stated in the complaint the opposite party had tried to rectify the malfunctioning of the instrument on 2nd March, 1992, but was not successful. Before the State Commission also it was not prayed on behalf of the opposite party that an opportunity may be given to rectify the telephone. Now it is too late to give an opportunity to the opposite parties to take the instrument for rectification of the defect

WE have carefully perused the record as well as the Order of the State Commission. We do not find any infirmity in the finding arrived at by it that the instrument supplied by the opposite parties to the complainant was defective. However, we are not inclined to uphold the award of Rs. 15,000/ - made by the State Commission as compensation in favour of the complainant. He has already been compensated for the loss suffered by him. We disallow this item. In other respects the award made by the State Commission is upheld. For the reasons given above, we partly accept the present appeal as discussed above. The respondent will be entitled to costs of the present proceedings which we assess at Rs. 2,000/ -. Appeal partly allowed.