K.P.DAVIS vs GEORGE PALLIKKUNNAN

THE complainant in O.P. 698/96 on the file of the Consumer Disputes Redressal Forum, Thrissur is the appellant. THE complainant alleged before the District Forum that he purchased a Brother Brand Fax Mochine Model 620 for Rs. 25,500/-, on payment of the said amount Ext. A2 bill was issued by the 1st opposite party. THE second opposite party is the manufacturer of the Fax Machine. THE grievance of the complainant was, the Fax Machine did not conform to the specifications as was represented by the opposite parties. THEre is difference in the time taken for the transmission of the message by the Fax Machine. Through he had made several requests to attend the same that was not attended inspite of the fact that there was warranty for a period of one year. THEreafter he sent notice to both the opposite parties for which the 1st opposite party''s lawyer sent Ext. A6 reply. THE statements in Ext. A6 are not true. THErefore, the complainant wanted the return of the price paid by him and also compensation. On service of notice, the 1st opposite party entered appearance and filed version. THE 2nd opposite party remained absent and was set ex parte. In the version filed by the opposite party he sought to maintain that himself is only a commission agent and that guarantee was given only by the 2nd opposite party. He denied the allegation that the Fax Machine is not working as was represented and also averred that there is no defect to the Fax Machine. THE complainant has sought the return of purchase price as the complainant cannot operate the Fax Machine without licence. THErefore he wanted dismissal of the complaint.

COMPLAINANT produced Exts. A1 to A6; he took out CW 1 an Expert Commissioner to examine machine. He filed Ext. C1 report. The 1st opposite party examined R.W. 1. On a consideration of the said material the District Forum dismissed the complaint. The said dismissal is under challenge in this appeal. Learned Counsel for the appellant maintained that the purchase of the Fax Machine by the complainant for consideration from the 1st opposite party having been admitted and the complainant having proved that the Fax Machine does not perform as is stated in Ext. A4 brochure, it was wrong for the District Forum to have dismissed the complaint. It was urged by the learned Counsel that the evidence of C.W. 1 alongwith Ext. C1 would show, whereas Ext. A4 brochure assured that the Fax Machine has a transmission speed of 15 seconds, when a message was transmitted through it, the same took two minutes and 23 seconds (143 seconds). The said material itself would show that the Fax Machine did not have the quality that the opposite party claimed it has, thus the opposite parties have indulged in ''unfair trade practice'' within the meaning of Section 2(1)(r) of the Consumer Protection Act, 1986 (for short the ''Act'') and it is urged by the learned Counsel inasmuch as the transaction principally was with the 1st opposite party and the complainant, the 1st opposite party cannot claim that he is not answerable for the said practice particularly when it was the 1st opposite party who gave Ext. A3 quotation and also handed over the brochure Ext. A4. According to the learned Counsel admittedly the price of the Fax Machine was paid to the 1st opposite party who issued Ext. A2 bill.

On the other hand the learned Counsel for the respondent/1st opposite party sought to maintain that the very conclusion reached by the Commissioner cannot be taken as acceptable as even the evidence of Commissioner as C.W. 1 would show that fluctuation in the voltage could affect the speed and the speed can also depend upon the size of the paper. It is also urged by the learned Counsel, that since admittedly the complainant did not secure a licence for operating the Fax Machine, it could not have had the modems which is necessary for the proper performance of the Fax Machine, therefore, the conclusion reached by the Commissioner in Ext. C1 report cannot be accepted and the District Forum was only correct in not accepting the said report. The learned Counsel brought to our notice the Telephone Directory 95-96 for Thrissur District in support of his argument that fees are prescribed for testing charges for the modems date circuits. He urged, since the complainant is not a licensee he could not avail the said service which should affect the performance of the Fax Machine. It was also urged by the learned Counsel alternatively that with due regard to the explanation to Section 2(1)(r) of the Act at any rate the 1st opposite party cannot be made liable as he is not the person who issued Ext. A4 brochure wherein the qualities of the Fax Machine are narrated.

FOR the correct appreciation of the rival arguments certain admitted facts have to be kept in view. It is not disputed that the complainant purchased the Fax Machine in question from the 1st opposite party appellant and he paid Rs. 25,500/- for which the appellant issued Ext. A1. The second opposite party who was impleaded as the manufacturer did not contest the matter. Though the learned Counsel for the first opposite party raised a contention to the effect that the second opposite party is not really the manufacturer such a contention is not seen taken in the version filed by the 1st opposite party. As has already noticed, the second opposite party remains ex parte. Therefore, the said argument at this belated stage cannot be accepted. Then two points that would fall for consideration are whether actually there is unfair trade practice and secondly, if so whether the first opposite party also can be made liable for the claim. The main piece of evidence relied on by the appellant in support of his case that there is unfair trade practice is Ext. C1 report alongwith the evidence of Commissioner as C.W. 1. As already noticed, Ext. C1 was not accepted by the District FORum. Learned Counsel for the 1st respondent sought to maintain that the report cannot be accepted particularly in the context of the evidence of the Commissioner as C.W. 1 as well as that of R.W. 1, Kumaran. In Ext. C1 Commissioner states that he examined the Fax Machine, when a page was sent in standard mode it took two minutes 23 seconds (143 seconds) for transmission. But in the catalogue the transmission speed is said to be 15 seconds. Thus the Commissioner says on his observation by operating the machine he noticed the said feature. The part of the deposition of C.W. 1 relied on to dislodge the probative value of the said report is, that in his examination as C.W. 1, the Commissioner said that fluctuation of electricity can affect the machine. What is to be noted is, he proceeded to say how it could affect the machine. He said, if the voltage is low the machine would not work. Of course he also has said, depending on the size of the paper there could be variation in time. This cannot have much significance because in Ext. C1 he said, when a page was sent in standard mode it took two minutes 23 seconds. Nothing was asked as to the size of the paper or the nature of message that he despatched. In Ext. C1 he said the message was sent in standard mode and as R.W. 1 he says, when the voltage is low the machine would not work and if the voltage becomes high the machine would become defective. Thus the evidence of R.W. 1 as well as Ext. C1 does not support the conclusion that on account of fluctuation the speed of the Fax Machine would be affected. The evidence also does not show, that the Commissioner used paper of such size that it took more time. It is not even suggested to the Commissioner when he was examined, that he used paper of such a size that it took more time. So long as it is the duty of the party who objects to the Commission report to file objection to the Commission report and substantiate the same, it was necessary for the party to bring out relevant materials by cross examination of the Commissioner in support of it. We have adverted to both Ext. C1 as well as the evidence of the Commissioner as C.W. 1. We see nothing to support the conclusion that the message which the Commissioner transmitted took more time on account of the size of the paper which he used or on account of fluctuation of electric supply. When such is the situation Ext. C1 has to be accepted. Then, the conclusion is inevitable that the Fax Machine did not perform as is stated in Ext. A4. Once it is noticed that the Fax Machine did not produce the result as is stated in Ext. A4 brochure, since the complainant customer purchased the machine on the faith of the quality mentioned in Ext. A4 as it is demonstrated that the Fax Machine did not have the said quality, the same should amount to unfair trade practice as defined under Section 2(1)(r) of the Consumer Protection Act. Now the question for consideration is, whether the 1st opposite party also can be made liable for the relief sought by the complainant. As has noticed the learned Counsel relied on the explanation to Section 2(1)(r) of the Act. The learned Counsel made stress on the explanation to maintain that only the author of Ext. A4 can be made liable for the unfair trade practice, as the representation in question was caused to be made by the manufacturer and not by the first opposite party, the dealer. In interpreting the section like this, the same should not be read in isolation, the same has to read with due regard to the context in which the explanation is incorporated. Interpretation is to discover the intention of the Legislature, in that the object and purpose of the legislation also have to be kept in view. Of course, the explanation states that the statement shall be deemed to be a statement made by the person who had caused the statement to be so expressed, made of contained. It should be noted, the definition of "Unfair trade practice" in Section 2(1)(r) is an inclusive definition. Therefore, what are narrated therein need not and cannot be exhaustive; but can only be illustrative. And the explanation envisages statement in or on anything sold, sent or delivered. As noticed, the 1st opposite party gave Exts. A2 to A4. The very conduct of first opposite party would show that he was an active accessory to the same. Having regard to the fact that the section is an inclusive definition its scope need not confine to the sub-clauses Section 2(1)(r)(i). So understood the fact that it was the first opposite party who gave the quotation for the concerned equipment, received the consideration and issued the bill and also gave Ext. A4 brochure would enable the complainant in the context of Ext. C1 to rely on Ext. A4 in support of his case as to the quality of the equipment. When the question is as to unfair trade practice, that he did not have the necessary licence to operate the machine need not have much relevance unless it is shown that, the same has nexus with the functioning of the equipment. Nothing was asked to R.W. 1 whether failure to obtain ''modems'' would affect the functioning of the machine as is assured in Ext. A4 brochure.

WE are of the view that the first and second opposite parties are jointly and severally liable for the unfair trade practice. Consequently the first and second opposite parties are liable to return the purchase price Rs. 25,500/- which shall bear interest from the date of the complaint @ 12% till payment and on such payment it will be open to the opposite parties to have the equipment in the possession of the complainant delivered to them in the same condition. In the result, the appeal is allowed and the impugned order is set aside. In the circumstance of the case, there will be no order as to costs. Appeal allowed.