MANISH LALWANI vs ICNET LIMITED

THIS is a compensation application filed by Shri Manish Lalwani, Proprietor of Lakshmi Communication under Section 12-B of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the Act) seeking compensation from ICNET Limited having its Corporate Office at Madras and a Branch Office at New Delhi as he had suffered monetary loss and damages consequent upon the latter having indulged in certain unfair trade practices.

THE applicant, Shri Manish Lalwani was engaged in the business of STD/Local PCO Booth. During March, 1996, the respondents advertised in "Hindustan Times" regarding providing of Fax Plus services to general public including STD and PCO Centres. Allured by the aforesaid advertisement, the applicant approached the respondent and placed an order for Fax Plus Access Unit services at his office premises. He paid Rs. 16,000/- vide form FPOSF No. 00133 dated 15.3.1996 through cheque No. 865791 dated 15.3.1996 which was cleared in favour of the respondents on 21.3.1996. Subsequently, the respondents installed Fax Plus Access Unit (for brief A.U.) bearing Id. No. 00288 on 1.4.1996 at the business premises of the applicant. It has been alleged by the applicant that right from the installation of the A.U. No. 00288 at his premises, Very poor service was provided by the respondent as is evident from the details given below : (1) During April, 1996, the applicant sent 11 national and international Fax messages to the respondents for transmission to the destination but only 5 were delivered and the rest six were reported "non-delivered". (2) During May, 1996, the applicant sent 24 messages through the A.U. in question but only 11 could reach their respective destinations and .the rest were reported "non-delivered".

Facing above deficiency of service on the part of the respondents, the applicant approached the respondents'' Delhi Branch and the latter assured him improved and better services. During June, 1996, the applicant sent 8 messages through the aforesaid A.U. but only 3 could be delivered and the rest fell under the category of "non-delivered / not-delivered".

ON account of unsatisfactory service of A.U., the applicant stopped its operation and lodged strong protest with the Delhi Branch of the respondents. The representative of the respondents by the name of one Mr. Robin visited the premises of the applicant on 16.7.1996 and bring it to his notice that "with the opening of our Bombay Centre, all the Fax messages sent by the applicant will be got delivered promptly and there will be no more cause for any complaint in future, on this count". The applicant on the assurance of the representative of the respondents, sent 2 messages one each to Saudi Arabia and Pakistan on the same day namely, 16.7.1996 but these were reported "not delivered" on 17.7.1996. On account of the aforesaid deficiency of services provided by the respondents, the applicant lost his reputation and has become unreliable in the eyes of his customers and were deserted by his customers, which has resulted in huge losses in his business. The applicant sent legal notice to the respondents on 7.9.1996 but the respondents have not paid any heed to it. Left with no other alternative, the applicant approached this Commission praying for compensation from the respondents.

ON receipt of the said application, notice was issued to the respondents. Coming to light the new address of the respondent in New Delhi, fresh notices were issued to the respondents at the new address at New Delhi and at the original Chennai address and opportunity was granted to the applicant to serve the notices ''dasti''. ON the next date of hearing, the applicant filed an affidavit of service. After awarding adequate opportunities to the respondents, the proceedings against it were set ex-parte on 1.12.1998. The applicant filed its evidence in the form of affidavit alongwith supporting documents and list of reliance. The stand taken by the applicant in its complaint was reiterated in the evidence. The respondents preferred not to participate in the proceedings right from filing of their replies to the stage of final arguments. In the premises, I heard the ex-parte arguments advanced by Mr. Vasdev Lalwani, Advocate for the applicant.

THIS is a case of complete non-rebuttal. After going through the complaint petition, evidence on affidavit, documents on record and arguments advanced by Mr. Vasdev Lalwani, Advocate for the applicant, I am of the view that since the respondents made false claims of its Fax Plus Access Unit and allured the applicant, who is trading in the business of Electronic Mail by newspaper advertisement, collecting money and installing A.U. which did not function well, it tantamounts to misrepresentation and deficiency of service attracting the provisions of Section 36 A of the MRTP Act, 1969. Hence, I hold that the respondents have indulged in unfair trade practices within the meaning of Section 36A of the Act as alleged by the applicant. It is quite clear that the applicant had suffered pecuniary losses as a result of unfair trade practices indulged in by the respondents. He is entitled to relief.

IN view of the above, I direct the respondents to refund the amount of Rs. 16,000/- deposited by the applicant alongwith interest @ 18% from the date of deposit till the same is refunded to him. In the prayer clause of the application, the applicant has sought compensation towards money spent on printing and publicity material - Rs. 3,000/-, loss of reputation and business - Rs. 10,000/-, and loss of earnings for five months -Rs. 30,000/-. I am not agreeable to award such huge amount in the light of 18% interest allowed on the deposited amount. However, I am agreeable to award Rs. 10,000/- on these counts. In addition, I allow Rs. 2,200/- towards legal charges as prayed.

The respondents are directed to pay the aforesaid amounts within 6 weeks from the date of this order and file an affidavit of compliance within 2 weeks thereafter, which shall not be later than 8 weeks from the date of this order. The applicant on receipt of the aforesaid amounts, will return the A.U. No. 00288 to the respondents within 2 weeks thereafter. C.A. disposed of.