RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No. 3293 of 1999

M/s Moti Lal Duli Chand Pvt. Ltd. having its

Registered Office at 20, Industrial Estate, Kanpur

through its Principal Officer Sri Subodh Prahladika.

                                                                       ….Appellant.

Versus

1- M/s BPL Telecom Limited, 701, Deepika Tower,

    7, Nehru Place, New Delhi through its

    Regional Manager.

2- Kaydee Sons, 31, Anand Bazar, Swarup Nagar,

    Kanpur through its Proprietor.              ….Respondents.

Present:-

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Raj Kamal Gupta, Member.

Sri O.P. Duvel, counsel for the appellant.

None for the respondents.

Date 26.12.2017

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

This appeal has been filed against the judgment and order dated 7.9.1999, passed by the District Forum, Kanpur Nagar in complaint case no.790 of 1997.

The facts giving rise to this appeal, in short, are that the appellant/complainant had purchased BPL EPABX model ADX-3 from the OPs for a sum of Rs.2,95,314.00. After installation of the aforesaid system, the complainant found that the system was not the same as promised and hence, a letter dated 20.1.1997 was sent to the OPs pointing out the deficiency in the system installed. The OPs did not remove the deficiency. Since the system was not the same one as was ordered under the contract

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therefore, there was clear cut deficiency in service. Besides, the OPs had promised to provide call-billing package and its installation but they failed in doing that also. The OPs' engineers inspected the system and vide service record dated 5.5.1999 admitted various deficiencies and failure of installation of "SMDP and Call Billing Software." Since the OPs did not provide the system which was promised under the contract hence, a complaint case for awarding compensation was filed in the Forum below wherein the OP no.1 filed their WS mentioning therein that the complainant was not a consumer and that the complainant had placed an order on the OP no.2for BPL EPABX model ADX-3 manufactured by the OP no.1 after examination of various features of the equipment. The complainant was provided with the system with all the features. On the complaint of the complainant, the OP no.1 had deputed his service engineer on 21.9.1996 for inspection of the site and he listed a few requirement from the complainant for installation of the equipment but the complainant did not fulfill the requirement. There was no P & T line hence, the service engineer shifted all  the lines in the exchange and connected the battery to the exchange to ensure that the system worked satisfactorily. The OP had also explained the reason of certain features sought by the complainant which could not be provided and also suggesting the solution for few problems but the complainant continued to harass the OPs by insisting on getting special features installed in the said system. It was also found by the OPs that due to voltage fluctuation the

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features as well as SMDR cord had been burnt. In fact, the OPs had arranged a meeting with the complainant for redressal of the problem wherein the complainant had acknowledged that there was no problem in the equipment. SMDR cord installation was pending due to non-availability of computer/PC from the complainant who was responsible for providing the same. The OPs did not commit any deficiency in service and the complaint is liable to be dismissed. After hearing the parties, the Forum below passed the impugned order on 7.9.1999 as under:-

"फोरम आदेश करता है कि विपक्षी आदेश प्राप्ति के 60 दिन (दो माह) के अंदर संविदा में अंकित सभी फंक्‍शन से सम्‍पन्‍न नया एपेवेक्‍स सिस्‍टम परिवादी के यहां पुराने एपेवेक्‍स सिस्‍टम के स्‍थान पर लगाये तथा 10,000/- हर्जाना स्‍वरूप अदा करे। विपक्षी 10,000/- का बैंक ड्राफट परिवादी के नाम बनवाकर फोरम में जमा करे जहां से परिवादी उसे प्राप्‍त कर सकेगें। विपक्षी आदेश प्राप्ति के 30 दिन के अंदर ड्राफट फोरम में जमा करे।"  

          Feeling aggrieved with the impugned order that the appellant/complainant has filed this appeal mainly on the grounds that the ld. Forum has failed to appreciate the fact that the feature which were required by the appellant/ complainant in the EPBX telephone exchange and agreed to be supplied by the OPs did not have such an exchange hence, the purpose of entire exercise was frustrated. Besides, the appellant has claimed a sum of Rs.5 lacs as damages but the ld. Forum did not consider this aspect of the matter and merely ordered for replacement of the old telephone machine, therefore, the impugned order is liable to be modified and the amount of compensation of Rs.5

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lacs claimed by the complainant be allowed to be recovered from the OP no.1 and also a sum of Rs.2,000.00 per day as damages.

The respondent no.1 has filed the objection mentioning therein that the complainant was not a consumer and that a sum of Rs.59,657.00 was remaining as balance to be paid by the complainant. Besides, all the final transactions have already taken place between the parties and therefore, now the respondent no.1 was not at all responsible for the said transactions. Besides, the complainant had purchased the article for commercial purpose hence, the complainant was not a consumer. Besides, the appellant did not enforce the said order as the technology of EPBX got out dated and nobody was purchasing the model at the relevant time. Therefore, this appeal deserves to be dismissed.  

Heard counsel for the appellant Shri O.P. Duvel and perused the entire records. None appeared for the respondents.

It transpires that this appeal was decided by this Commission vide orders passed on 11.9.2007 which was challenged in a revision before the Hon'ble NCDRC in revision petition no.1637 of 2008 and by the order passed in that revision petition on 9.5.2016, the order passed on 11.9.2007 by this Commission was set aside and the case was remanded back to this Commission to decide this appeal on merit after giving an opportunity of being heard to both parties. Subsequently, both the parties were given opportunity of being heard.

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However, at the time of final argument counsel for the appellant was heard but none appeared from the side of the respondents.

It transpires that this appeal was filed on 22.11.1999 whereas the impugned order was passed on 7.9.1999 and its copy was issued on 10.9.1999, so from the date of receiving of the certified copy on 10.9.1999, this appeal has been filed with delay but the appellant has filed an application for condonation of delay alongwith the affidavit. There is no counter affidavit filed by the respondents to counter to the contents of the affidavit filed by the appellant. The grounds taken by the appellant are that the copy of the impugned order was obtained on 10.9.1999 but the counsel for the appellant Shri R.K. Bajpai had advised the appellant to file execution application after the period of 60 days and also told that the period for filing the appeal is 90 days but when the appellant contacted another counsel Shri S.K. Nigam then he advised him for filing an appeal against the said order but by that time one month had expired.

          The file was taken by the counsel but the roof of the office of the deponent Shri J.P. Gupta had collapsed and the entire records was covered by the malba of the roof and therefore, after retrieving the file that this appeal could be filed on 16.11.1999 only. Hence, the delay in filing the appeal and therefore, it should be condoned.

          Considering the special circumstances, we consider it proper to condone the delay of about 1½ months in filing the appeal.

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          Now we come to the main question as to whether the grounds taken by the appellant in appeal have any justification for amending the impugned order or not. We find that the Forum below had found the OP of committing deficiency in service as despite taking the entire cost of the system the proper and promised system was not installed and therefore, the OP was directed to install the new system in place of the old one and also to pay a sum of Rs.10,000.00 as compensation. Even though the complainant had asked for the compensation of Rs.5 lacs to be given but the Forum below found it proper to order for replacement of the system instead of allowing for compensation for installation of the faulty system.

          It is argued by the counsel for the appellant that if the order was not executed then there was nothing which could be done y the appellants but we find no substance in this arguments as in case the order was not executed by the OP then the appellant has had the recourse under section 27 for securing compliance of the order. Therefore, we find that the impugned order is absolutely proper and there is no need to interfere in that. The Forum below has passed the order for replacement of the system in question but in case the OPs were not in a position to replace the system then they should refund the amount of the system in question within 2 months otherwise, they will be liable to pay interest @ 9% p.a. on the entire amount. With this modification the appeal deserves to be party allowed.   

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ORDER

The appeal is partly allowed to the extent that in case the OPs are not in a position to replace the system then they should refund the amount of the system in question within 2 months otherwise, they will be liable to pay interest @ 9% p.a. on the entire amount. The rest part of the impugned order shall remain as it is.

Certified copy of the judgment be provided to the parties in accordance with rules.

         (Vijai Varma)                        (Raj Kamal Gupta)

    Presiding Member                             Member

Jafri PA-II

Court No.2