BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 21st January 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
SMT. SHARADAMMA H.G : HON’BLE MEMBER
ORDER IN
C.C.No.217/2013
(Admitted on 13.08.2013)
Mr. Mohammed Nawaz,
Of age 52 years, Adult, Muslim,
S/o. K. Bavajan,
R/at 203, Vishwas Planet,
B.R.Karkera Road,
Pandeshwar, Managlore.
….. COMPLAINANT
(Advocate for the Complainant: DS)
VERSUS
1. Authorized Signatory,
M/s Tushar,
House of Electronics,
Housed in the ground floor of
‘Rayika’, Morgan Gate,
Jeppu, Mangalore 575001.
2. Authorised Signatory,
M/s. Luminous Power Technologies Pvt. Ltd.,
C.8 & C.9, Community Centre,
Janakapuri (Near Janaka Cinema),
New Delhi 110 058.
…....OPPOSITE PARTIES
(Opposite Party No.1: Ex parte)
(Opposite Party No.2: In person)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
- 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against opposite parties claiming certain reliefs to refund Rs.17,190/ with 12% from 31.5.2012 till the date of final adjudication and to pay sum of Rs. 50,000/ towards the cost of the proceedings and solatium .
2. In support of the above complainants Mr. Mohammed Nawaz filed affidavit evidence as CW1 and produced documents not marked. On behalf of the opposite parties Mr. Himanshu Kumar Balajee (RW1) Dy. Manager Legal, also filed affidavit evidence and not replied the interrogatories.
The brief facts of the case are as under
On perusal of the complaint and the version it grasped this dispute is related to purchase of inverter and later turned defective and the opposite party not responded on complaint. The complainant alleges that he has purchased an inverter from the Opposite parties and after few months of purchase there developed a defect in it. On complaining several times the Opposite parties not responded and cured the defect. On July 2013 he personally visited again the opposite party no 1 and registered a complainant. Even though the opposite party no 1 promised to send their representative for repair, have not send any one for attending. Hence the Opposite parties have sold a defective inverter and not attended the defect and they are liable for deficiency in service. The opposite party no 1 absent form proceedings and placed Ex Parte. The opposite party no 2 contended that the complainant had registered the complaint and not responded for our call and hence the call registered was closed. Also contends, their product is defect free and tested with stringent process. Hence there is no deficiency in service from his part. These being the facts of the dispute in resolving this complaint we consider the following
POINTS FOR ADJUDICATION
We have examined the evidence produced and the documents produced. The admitted facts are the purchase of the inverter, and an information of defect in the inverter during the warranty period to the opposite party no 1. It is denied by the Opposite party no 2 that there is defect in the inverter and the complainant is a consumer. In these circumstances we consider the following points for adjudication.
- Whether the complainant is a consumer as per Consumer Protection Act 1986?
- Whether there is deficiency in service on the part of the Opposite parties?
- Whether the complainant is entitled for the relief prayed for?
- What order?
On considering the evidence on record and the documents produced, gone through the notes of argument and answered the above points as under:
- In the affirmative.
- In the affirmative.
- In the affirmative.
- As per delivered order
REASON
POINT NO 1: The complainant produced the Invoice dated 30.05.2012 issued by the Opposite party no 1 establishing the purchase of the inverter on paying Rs 17990/. The opposite party no 2 contended that the complainant is not the consumer as he has purchased the inverter for the use in the school which is a commercial purpose and the complainant has not pleaded to the effect that the purchase is for the livelihood purpose. The complainant countered it by stating that he has pleaded that it is not for commercial purpose and also even if it is commercial purpose the defect is within warranty period, the consumer Forms have jurisdictions to try which is established principle. It is true that the defect is within guarantee period attracts jurisdictions. Apart form that the inverter purchased is not for reselling or earning profit or enhancing profit. Admittedly it is purchased for using in the school during the power off period. This is for the comfort for the students and imparting education comfortably. Hence we are of the opinion that this Forum has jurisdiction to try and hence the point no 1 answer in the affirmative.
POINT NO 2: The complainant case is he had purchased the inverter and within warranty period it started giving trouble as it conked out abruptly and intermittently, the battery supplied is weak and backup for only ½ an hour. The complainant personally visited opposite party no 1 and complain about the problem but opposite party no 1 promised to send their men for attending repair work. Admittedly the opposite party no 1 registered the complaint. But contends that they have contacted the complainant on 16.07.2013 by the representative of the opposite party for attending the repair work but the complainant not responded and hence the complainant closed. The information of defect is admitted and it is the opposite parties being the trader and service provider has to prove that the complaint is attended and the defect is cured.
2. In this regard the Opposite party no 2(opposite party no 1 ex parte) contends that he had attempted to serve the complainant and to attend the repair work on 16.07.2013 and produced Annexure, a SERVICE REPORT Sl.no 189 dated 16.07.2013. On close and critical observation of the Annexure we find the date of complaint as 13.07.2013. In the customer detail column the name of the customer, mobile number is mentioned but the person contacted is not entered and no explanation given whom they have contacted and who refused to respond. It is pertinent to note that the complainant is an education institution and operated through employed personnel. It is necessary to reveal who has been contacted and not responded. Also it is the case of the complainant that this Annexure has not been issued to him. We also noticed there is no signature of the complainant or no remark as to why the signature is not taken on the service report. In Fault detail & action taken detail column in the SERVICE REPORT it is mentioned “customer not picking the call from past three days and no response from any concerned persons ... call closed.” Simply mentioning in the SERVICE REPORT is not sufficient to prove that they have attended the complainant as these documents is not marked and it is the zerox copy. It is not explained why keeping original or carbon copy with the opposite party but not produced. Since in SERVICE REPORT the contacted person name not mentioned or even not producing the original/carbon copy and also not containing the customer signature, and not marked cannot be considered. We squarely mention that the Opposite parties in their version have not pleaded that they are still ready to attend the repair even after this complaint is filed. The opposite party contention is that the complainant is not responding to them and since 3 days the complainant is not picking the call and hence complainant is closed. It is born by record that the date of purchase of the inverter is on 30.05.2012 and delivered on 01.06.2012. The present complainant filed on 13.08.2013 and the opposite party no 2 filed their version on 24.10.2013 all with in WARRANTY PERIOD OF TWO YEARS. Why there is no offer to attend the repair in their version is raises our eyebrow.
These facts established the opposite parties not interested in attending the repair work.
3. Opposite party also contends in Para 6 of their version that they have a totally computerized call handling system under which every complainant is given a complaint number and the complaint does not get removed till it is solved or customer refuses to have his call attended for the complaint. The opposite party no 2 contends that in present case the complainant not responded to answering party and also not picked up the call since three days. This we cannot accept as the refusal by the complainant to attend the call unless there is evidence to show the refusal. Only entry in the SERVICE REPORT is not sufficient as it is one sided and unmarked document. There is no effort by the Opposite parties to attend the call either by any correspondence or future visits as the opposite party claims the call will not be closed unless attended and rectified or refusal by the complainant. It is also difficult to presume that the person who has given the complaint about the defect will refuse to attend when called for unless it is shown with cogent evidence that the complainant has some other ultra-thinking and fraudulent intention. The opposite party not produced any evidence to that effect. Hence we are of the opinion that there is deficiency in service on the part of the Opposite parties hence the point no 2 in the affirmative.
POINT NO 3: As we hold the Opposite parties for deficiency in service on the ground that the Opposite parties not attended the complainant’s complaint with regard to defect in the inverter and not even after the complaint filed, no pleading by the Opposite parties as to ready to attend in spite the defect is well within the warranty period we see the irresponsibility of the Opposite parties. In our considered opinion the complainant is entitled for the refund of the invoice price of Rs 17990/ with an interest of 10% per annum from the date of complaint till the date of payment. There is negligence on the part of the Opposite parties. The opposite party no 1 not even present or represented before the Forum and remain Ex parte after selling the product. The opposite party no 2 not taken constructive effort to attend the complainant’s problem. Hence to meet the ends of justice we consider an amount of Rs 10000/ as compensation and an amount of Rs 6000/ towards cost. Hence the point no 3 answered in the affirmative.
POINT NO 4: In the result of the above discussion and adjudication of the above points we deliver the following
ORDER
The complaint is allowed. The Opposite parties shall pay jointly and severally the complainant an amount of Rs 17,990/ (Rupees Seventeen thousand Nine hundred Ninety only) with an interest of 10% per annum and an amount of Rs 10,000/ (Rupees Ten thousand only) towards compensation and further Rs 6,000/ (Rupees Six thousand only) as litigation expenses within 30 days from the date of the copy of this order received.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 9 Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 21st January 2017)
MEMBER (SRI T.C. RAJASHEKAR) D.K. District Consumer Forum Additional Bench Mangalore. | | PRESIDENT (SRI VISHWESHWARA BHAT D) D.K. District Consumer Forum Additional Bench, Mangalore. . |
MEMBER
( SMT. SHARADAMMA H.G)
D.K. District Consumer Forum
Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Mohammed Nawaz
Documents marked on behalf of the Complainant:
Nil
Witnesses examined on behalf of the Opposite Parties:
Rw.1: Mr. Himanshu Kumar Balajee, Dy. Manager Legal
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 21.01.2017 MEMBER
