PRABHAKARAN NAIR N.K. vs BPL SANYO LTD.

BOTH these appeals arise out of an order passed by the District Forum, Wynad in C.C. 64/92. In Appeal No. 175/92, the 1st Opp. Party is the appellant and the Appeal 180/92 the complainant is the appellant.

ON 29.8.90 the complainant purchased from the 2nd Opp. Party a BPL VCP manufactured by the 1st Opp. Party for Rs. 10,888/- believing the claim made by the 1st Opp. Party in various advertisements in the media that the said set has the facility of frame advance. The complainant being an Engineer was particular to have the Frame Advance Facility. In page 7 of the user''s Manual issued by the 1st Opp. Party also contained the following statement. "Frame Advance" Press the pause/still Button during still play back. Play back picture will advance frame by frame. ONe pressing advances one frame. Normal play-back will resume as the play button is pressed."

On taking the VCP home the complainant noticed certain defects. The frame advance facility promised was not working. Therefore he wrote to the 2nd Opp. Party on 8.9.90 with a copy to the 1st Opp. Party No. 1 about the defect. On 28.10.90 again he wrote to the 1st Opp. Party about the defect. The 1st Opp. Party sent a reply on 7.11.90 stating that there is no manufacturing defect and further reiterating that the "Frame Advance Facility" is provided in the set and that a demonstration will be given to the complainant. On 12.12.90, a technician of the 1st Opp. Party gave a demonstration to the complainant. Complainant alleged that he could not demonstrate the working of "Frame Advance Facility". On 14.12.90 the complainant wrote to the 1st Opp. Party pointing out the failure of technician to demonstrate frame advance and requesting rectification of the defect. On 10.6.91 the Opp. Party No. 1 replied that in the set, the "frame advance facility proceeds with a very low speed with noise bar continuously pushed down". The 1st Opp. Party also stated in Model No. VHP 5300, excellent frame advance was provided. The complainant again sent a letter to 1st Opp. Party No. 1 on the subject, and 1st Opp. Party sent a reply reiterating the same contentions. On receipt of this, the complainant sent a registered notice on 20.2.91 to Opp. Party No. 1 demanding him to set right the matter and informing him that on failure the complainant would resort to legal proceedings. The 1st Opposite Party sent a reply on 12.3.91 stating that the statement in users manual that "one pressing advances one frame" is a printing error. The complainant alleged unfair trade practice on the part of 1st Opp. Party and also false representation that the V.C.P. is of a particular standard, quality, grade, style and model and that it incorporates particular feature which in fact it does not possess and that therefore he is entitled to get compensation. He claimed a total amount of Rs. 21,338/- as compensation.

The 2nd Opp. Party filed a version stating that complainant is not maintainable. It was admitted that the complainant purchased a BPL V.C.P. model V.H.P. 5000 manufactured by the 1st Opp. Party. It was also contended that the 1st Opp. Party was only an authorised agent of M/s. BPL Sanyo Ltd. and therefore if at all there was defect in the goods sold to the complainant only, the 1st Opp. Party is not liable to pay compensation. It was also stated that there was no unfair trade practice or misrepresentation as alleged by the complainant.

THE 1st Opp. Party also filed a version stating that the complaint is not maintainable. It was also contended that the unfair trade practice alleged is not covered in any manner by the definition in Sec. (2)2(r) of the Consumer Protection Act and Section 36 A of Monopolies and Restrictive Trade Practice Act. THE 1st Opp. Party also denied that the complainant has chosen to purchase this V.C.P. because of "frame advance facility" in the V.C.P. THE frame advance facility is provided in the V.C.P. to study fast action scene in minute detail. A frame lasts for 40 milliseconds in a television. THE object that is viewed in a televison or through VCP/VCR has a normal movement of 25 frames per second and slow motion facility will have the movement of less than 25 frames per second. Where two successive pictures are frozen there is a difference between them and a small movement in the object being observed. THE advancement of the picture is more pronounced in a fast moving object and less pronounced in a slow moving object. In a slow moving object, only after repeated operations of the still and pause buttons, movement could be observed. THE statement in the Users Manual under the title "frame advance", "one pressing advances one frame" was a printing error and it should be corrected and read as "one pressing advances the Frame". That is a bona fide mistake. Before the District Forum, the Opp. Party offered to demonstrate the functioning of V.C.P. with particular reference to the frame advance facility. Accordingly a demonstration was conducted. Fast moving scenes and slow moving scenes were separately demonstrated. It was found by the District Forum, while operating the V.C.P., when the pause still button is pressed continuously for sufficiently a long time minor advancement of the picture is seen more particularly in fast moving object. To achieved this result, the District Forum found that advancement and numerous continuous pressing of the pause/still button was necessary. It also found in regard to slow moving object or scene even continuous and numerous pressing on the button did not result in any marked advancement of the frame. The District Forum found that practically no marked or notworthy advancement of the picture was visible with a slow moving object. The Forum could not see any advancement of the frame corresponding to every push or a pause button as mentioned in the User''s Manual. The representative of the Opp. Party No. 1 represented that the later model VHP 5300 VCR has a more pronounced frame advance facility than in the V.C.P. supplied to the complainant.

COMPLAINANT was examined as PW 1 and Exbts. A1 to A11 were marked. No oral evidence was adduced by the Opp. Party. The complainant deposed that he purchased the VCP on seeing the advertisement in the media and the Users Mannual. Ex. Al is the bill for purchase of VCP. Ex. A2 is the advertisement given by the 1st Opp. Party which claims better quality for the BPL Sanyo VHS Vedeo similar to foreign made products. Exbts. A4 to A10 are correspondence between the parties. In Exbt. A7 the 1st Opp. Party stated that "Excellent Frame Advance without any noice is provided in their VCR Model VHP 5300. In Ex. All the 1st Opp. Party has stated that "Frame by Frame is a limited feature" in the VCP supplied to the complainant and "no improvement can be done on this". It also states that one pressing advances one frame" is a printing error in the User Mannual. It is also stated that there is no universal definition for "Frame by Frame or how it should move or how it should be, Exbt. A3 is the Users Mannual. Under title Frame Advance it stated as follows:- "Keep the pause/still button pressed during still play back. Play back picture will advance frame by frame". Exbt. A3(a) is the specific instruction regarding Frame Advance. It reads as follows. "Press the button. Play back picture will advance frame by frame. One pressing advances one frame."

The District Forum found that the complainant wanted the frame advance facility and it was under the impression that such facility was provided in the VCP he purchased the set and immediately after the purchase the complainant came to know that facility was not present and the wrote to the 1st Opp. Party stating that frame advance facility was not there, as was represented by the 1st Opposite party in the User''s Mannual. In Exbt. A4 letter, the 1st Opp. Party has taken a stand that frame advance facility as claimed in Exbt. A3 is provided in the VCP. The District Forum found that demonstration revealed that during still play back, when only one pause button is pressed continuously for a long time minor advancement of the picture is seen even in fast moving object and that for this advancement numerous and continuous pressing of pause/ button became necessary. In regard to slow moving object even continuous pressing or pause button does not bring in any marked advancement of the frame and there was no advancement of frame corresponding to every push of the pause as claimed in Exbts. A3 & A3(a). In the above circumstances, the District Forum held that the set supplied to the complainant, does not have the quality and features which Opp. Party claimed and represented and that therefore the Opp. Party has adopted unfair trade practice. The District Forum also found that the complainant was prepared to purchase another improved model VCR at the rate relevant at the time of purchase of the set, but that suggestion was not acceptable to the Opp. Parties. In the circumstances the District Forum found that the complainant is entitled to refund of the price on his returning the set to the Opp. Party and also damages of Rs. 500/- and Rs. 200/-towards cost. The District Forum further found that the claim for damages of Rs. 10,000/- is unsustainable.

IN this appeal, learned Counsel for the appellant has challenged the order. Learned Counsel submitted that the statement in Exbt. A3 that one pressing advances one frame is a printing error. He has also submitted that performance of a set depends upon the price of the set, and that having regard to the price of the set in question, the advancement of frame is satisfactory. He has argued that if the complainant wanted improved performance in regard to advancement of frame, he should have purchased an improved set which the opposite party offered.

WE are unable to accept the contention of learned Counsel. There was demonstration before the District Forum and it clearly revealed that the performance of the set was not satisfactory in regard to the frame advance claimed by the 1st Opp. Party. The 1st Opp. Party cannot escape the liability by saying that what is contained in A3(a) is a printing mistake or having regard to the price of the set, the performance is satisfactory. What we have to see is whether the set gives the performance claimed and whether it reason ably answers the presentation made by the 1st Opp. Party in advertisements and Exbt. A3(a). After careful consideration of the matter, we feel that the complainant has succeeded in establishing that the set does not give performance claimed and it does not reasonably answer to the representation made by the complainant. The evidence of the complainant clearly establishes that he purchased the set believing the representations made by the 1st Opp. Party. In the circumstances we agree with the finding that this is a case where untrade practice as defined in Section 2(r)(1) of the Consumer Protection Act has is established. The next question to be considered is what are the reliefs to which the complainant is entitled. Though a suggestion was made by the District Forum to supply the improved set having better performance at its price at the time of purchase of the disputed set on return of the disputed set, the 1st Opp. Party was not willing to accept this suggestion. In the circumstances the District Forum was justified in ordering refund of the price on, taking back the set. Award of Rs. 500/- as damages and Rs. 200/- as cost also cannot be said to be on the high side since the complainant had to suffer mental agony and resort to the Forum for appropriate relief finding no favourable and reasonable response from the Opp. Parties.

In Appeal 180 of 1992 the complainant has claimed enhanced compensation and costs. The complainant has used the VCP and in the circumstances of the case, the District Forum way of the view the compensation and cost awarded are reasonable. We do not find any reason to differ from the view expressed by the District Forum. In the result both appeals fail and are dismissed. In the circumstances we order that the parties will bear their own costs. Appeals dismissed. _________________