DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 31st day of October, 2022
Present : Sri.Vinay Menon V., President
: Smt.Vidya A., Member
Date of Filing: 15/12/2017
CC/186/2017
E.Vijayan,
S/o. Late Sankara Tharakan,
Erattuthodi House,
Thiruvazhikkode (PO), Ottappalam, Palakkad.
(By Adv. K. Dhananjayan) - Complainant
Vs
A.N. Sethumadhavan,
“Amma” House,
Kunnathurmedu (P.O.), Palakkad – 678 013. - Opposite party
(By Adv. P.K. Dileep)
O R D E R
By Sri. Vinay Menon V., President
- Complaint pleadings in brief is to the effect that the complainant installed a solar panel, marketed and sold by the opposite party. The opposite party is also an after sales service provider for the proper upkeep and functioning of the panel. Total consideration was Rs. 1,59,000/-. Within one year of usage, while still in warranty period, the said panel started showing various defects like fast wearing off of battery and low voltage. Eventhough the opposite party has acted in his capacity as the agent of the manufacturer, the opposite party is liable, as the product was sold by him. The complainant sustained losses due to the defective product and sought for return of the cost together with interest at the rate of 12% and for incidental and ancillary reliefs.
- In his version opposite party admitted that he is engaged in the business of installation and other allied post installation works of the solar energy apparatus. He denied that he had any liability as he was only an agent of the manufacturer. He also denied the allegations that the product supplied was defective and that it suffered from any manufacturing defects. He sought for dismissal of the complaint.
- The following issues arise for consideration:
- Whether the complaint is bad for non-joinder of necessary parties?
- Whether the solar panel suffer from any manufacturing defects as allged?
- Whether the complainant is entitled to any of the reliefs sought for?
- Reliefs, if any.
4. Evidence comprised of Proof affidavit and Exhibits A1 to Ext. A8 on the part of the complainant. Eventhough the opposite parties filed proof affidavit they did not appear for postings of 22/03/2022, 20/04/2022, 01/06/2022, 11/07/2022, 25/07/2022 and 13/09/2022. Hence the opposite parties were called absent and set-exparte on 13/09/2022. Thereafter they filed Review Application as R.A. 127/2022 and the same was dismissed as there was no error apparent on the face of record warranting review.
Issue I
5. Contents in paragraph 5 of the memorandum of complaint makes it clear that the opposite party is an agent of the manufacturer. It is the case of the complainant that the opposite party being the agent of the manufacturer is liable and responsible as if he is the manufacturer. We cannot subscribe to this view adopted by the complainant. Such a stand adopted by the complainant is opposed to the provisions of S. 230 of the Indian Contract Act, 1872. The complainant has also not brought out by way of cogent evidence that the opposite party has acted in excess of his authority so that a claim/liability can be successfully bound on him.
6. It is true that the complainant is the dominus litis. He can proceed with any party of his choice. Yet the question whether the opposite party can be tied with a liability or cognizance of any offence is another question. Even if the complainant had the intention to implicate the opposite party, then it ought to have been under any of the three exceptions to S. 230 of the Indian Contract Act.
7. In the facts and circumstances of the case, we cannot hold that the liability for manufacturing defect can directly be cast on the opposite party, considering the fact that the complainant had not taken any effort/steps to rope in the manufacturer.
Issue No. II
8. Grievance of the complainant is that the solar panel installed in his premises is not providing enough energy output as held out by the opposite party. This allegation is stoutly denied by the opposite party. In order to prove his contentions, the complainant filed an application as I.A. 277/2018 seeking appointment of an Expert Commissioner which was allowed on 03/11/2018. Eventhough I.A. 277/2018 was allowed on 03/11/2018, panel of experts was filed only after two years on 03/12/2020. By his communication dated 20/01/2021, Expert Commissioner appointed from this panel expressed in inability to execute the warrant. No proactive steps were taken by the complainant till 01/06/2022 to assist this Commission in any manner to execute the warrant issued and on 01/06/2022, the order in I.A. 277/2018 was recalled.
9. Thus the complainant has failed to prove his allegations. The complaint is therefore dismissed.
Issue Nos. III & IV
10. In the facts and circumstances of the case, the parties are directed to suffer their respective costs.
Pronounced in open court on this the 31st day of October, 2022.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Copy of receipt dated 4/1/2015
Ext.A2 - Copy of receipt dated 4/1/15 (same as A1)
Ext.A3 – Copy of counterfoil of deposit slip dated 18/2/2015
Ext.A4 – Copy of counterfoil of deposit slip dated 14/1/2015
Ext.A5 – Copy of counterfoil of deposit slip dated 22/4/2015
Ext.A6 – Copy of counterfoil of deposit slip dated 11/3/2015
Ext.A7 – Copy of counterfoil of deposit slip dated 9/07/2015
Ext.A8 – Copy of brochure issued by manufacturer.
Exhibits marked on the side of the opposite party
Nil
Court Exhibit
Nil
Third party documents
Nil
Witness examined on the side of the complainant
Nil
Witness examined on the side of the opposite party
Nil
Court Witness
Nil
Cost : Not allowed.
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
