Sri Ranjan Ray, Ld. Member

FINAL ORDER/ JUDGEMENT

This complaint was initially filed under the provisions of C.P. Act, 1986 against the Opposite Parties (O.P.s) – 1) Anil Distributors, Goyan Sadan, Sevoke Road, Siliguri, P.O. & P.S.- Siliguri, Dist. - Darjeeling, Pin Code- 734001 and 2) Birla Energy Solutions Private Limited, Industry House, 6^th Floor, 159, Church Gate Reclamatio, Mumbai, P.O. & P.S.- Churcg Gate, Pin Code- 400020, Maharashtra. The O.P. No.1 contested the case by filing Written Version (W.V.) and as per Order No.- 07, dated 30.07.2019 the O.P. No. 2 declared ex-parte.

                    The brief fact of the complaint filed by the complainant is as follows-

          The complainant is the proprietor of a restaurant named “Gladly Bengali alias Bangali” and the restaurant is the only source of income for the complainant and he looks after the entire management of the restaurant because it is the sole source of earning bread and butter to him. The complainant visited the shop of the O.P. No.1 to purchase a generator which the complainant required immensely as the Durga Puja load shedding had started. The complainant had no idea regarding generators and the O.P. No.1 mentioned two types of generators to the complainant; one a petrol generator and other one a petrol cum LPG generator. The O.P. No.1 further suggested the complainant to take the petrol cum LPG generator as the same is not eco-friendly but also comes with a minimum maintenance cost and its cost was more by Rs. 20, 000/- to Rs. 25, 000/- (Rupees Twenty Thousand to Rupees Twenty Five Thousand) only approx than of normal petrol generator. On assurance of the O.P No.1, the complainant purchased a petrol cum LPG generator vide Invoice No. AD/ 0031/17-18, dated 31.08.2017 from the O.P. No.1 by paying a sum of Rs. 1, 79, 690/- (Rupees One Lakh Seventy Nine Thousand Six Hundred and Ninety) only. After taking the delivery of the said generator the complainant noticed that there was no LPG kit facility installed in the said generator rather it apparently seemed to be an ordinary petrol generator. The LPG kit was supposed to be preinstalled in the said generator which he was purchased from the O.P. No.1. The complainant immediately lodged a complaint before the O.P. No.1regarding the said issue and the O.P. No.1 assured him that technicians of and/ or O.P. No.2 would visit the complainant soon and resolve the problem by installing a LPG kit in the said machine but thereafter no technicians came to install the same. Thereafter, on 23.09.2017 the complainant sent messages to Mr. Tapas Pal, the Service Engineer of the O.P. No.2 and thereafter several requests were made and exactly after two months on 23.11.2017 the complainant reminded the said Service Engineer that the LPG kit was not yet installed in the generator but did not get any reply. After that, on several occasions the complainant communicated with the O.P.s and addressed his grievances but did not get any result.

          Finally, after 05 (five) months from the date of purchase of the said generator and the complainant’s complaint, one of the technicians from the O.P.s visited the complainant’s place and tried to install the LPG kit but he failed to install the same. Thereafter, on numerous occasions the complainant verbally requested the O.P.s to provide and install the LPG kit but the O.P.s failed to provide any sort of service. On 28.01.2018 the complainant received one e-mail from Mr. Tapas Pal, representative of the O.P. No.2, informing him that the LPG kit could not be installed at complainant’s site and further requested him to deliver the generator at the O.P.’s workshop as per the date he would confirm to the complainant to bring the said generator but ultimately he failed to do so. After that, the situation was compelled the complainant to run the said generator by using petrol for which he has to bear huge financial expenses and spent up to Rs. 56, 000/- (Rupees Fifty Six Thousand) only. The complainant several times requested the O.P.s to resolve the issue but did not get any result. On 02.08.2018 the complainant sent a legal notice to the O.P.s and in response of the said legal notice the O.P. No.1has accepted that the LPG kit was not installed at the time of purchase of the said generator due to oversight and mistake. Due to non availability of free services to the complainant’s generator, it is now deteriorating day by day and ultimately decreased the life of the said machine and at the same time it is creating huge sound and air pollution. Finally, to resolve the issue the complainant did any support from the O.P.s and having no other alternative the complainant lodged this complaint.              

                    The prayers of complainant are as follows :

1. To pass an order directing the O.P.s to pay Rs. 56,000/- (Rupees Five Six Thousand) only plus Rs. 3, 500/- (Rupees Three Thousand and Five Hundred) only per month from the date of filing of this instant case to the complainant along with interest @24% per annum from 31.08.2017 till the date of payment which the complainant has incurred as petrol expense which could not have been born by the complainant if there existed an LPG Kit.
2. To pass an order directing the O.P.s to pay Rs. 1, 20, 000/- (Rupees One Lakh and Twenty Thousand) only on account of non-maintenance of the generator.
3. To pass an order directing the O.P.s to pay Rs. 1, 00, 000/- (Rupees One Lakh) only for immense mental harassment and agony caused to the complainant for a long tenure.
4. To pass an order directing the O.P.s to pay Rs. 1, 00, 000/- (Rupees One Lakh) only as compensation for negligence and deficiency in service.
5. To pass an order directing the O.P.s to further extends the warranty of the generator.
6. To pass an order directing the O.P.s to pay Rs. 15, 000/- (Rupees Fifteen Thousand) only for litigation cost to the complainant.

List of Documents filed by the complainant:

1. Photocopy of Tax Invoice. (Page No.-1)
2. Photocopy of the Money Receipt. (Page No.-2)
3. Photocopy of Owner’s Manual and Warranty Book. (Page No.-3 to 25)
4. Photocopy of telephonic communication dated 23.09.2017 and 23.11.2017. (Page No.-26)
5. Photocopy of E-mail dated 28.01.2018. (Page No.-27)
6. Photocopy of E-mail dated 04.08.2017. (Annex.-28)
7. Photocopy of Quotation. (Page No.-29)
8. Photocopy of Legal Notice dated 02.08.2018 along with Web Postal Tracking, Acknowledgement Card and Reply of Legal Notice dated 07.08.2018. (Page No.-30 to 40)

Regarding this instant case, the Opposite Party (O.P.) – 1) Anil Distributors, Goyan Sadan, Sevoke Road, Siliguri, P.O. & P.S.- Siliguri, Dist. - Darjeeling, Pin Code- 734001 contested the case by filing Written Version (W.V.) but the O.P. No.2) Birla Energy Solutions Private Limited, Industry House, 6^th Floor, 159, Church Gate Reclamatio, Mumbai, P.O. & P.S.- Church Gate, Pin Code- 400020, Maharashtra did not file W.V. and as per Order No.- 07, dated 30.07.2019 the O.P. No. 2 declared ex-parte.

         The brief fact of the Written Version (W.V.) filed by the O.P. No.1 is as follows-

         The O.P. No.1 did not admit the statements or allegations made by the complainant in his complaint and argued that the Petrol cum LPG generator which was purchased by the complainant from the O.P. No.1 had been effected on presentation of the quotation for the said generator dated 04.08.2017, acquired by the complainant directly from the O.P. No.2, i.e., Birla Energy Solutions Private Limited. The complainant is the proprietor of a restaurant named “Gladly Bengali” which is an immensely famous business entity in the town of Siliguri as well as the state of West Bengal alike, operating at a large scale with booming business. It was clearly mentioned in the said quotation that the Unit prices of 02 (two) models/ types of Petrol Generator Sets and the O.P. No.1 merely assured the complainant of the availability of said units at its dealership/ place of business and nothing more. The O.P. No.1 mentioned two types of generators to the complainant or that the Petrol cum LPG generator came with minimum maintenance cost or that its cost was more than a normal Petrol generator. However, it was true that the LPG Kit was not installed at the time of the purchase of the said generator due to oversight and mistake. The technicians visited the complainant’s place of business namely “Gladly Bengali” for installation of the LPG Kit in the said generator, wherein it was being used for the purpose of facilitation of the said business. However, the said installation could not be effected by the technicians due to the ill-temper and bad behavior of the complainant. The O.P. No.1 categorically mentioned in his W.V. that he is not aware of any such message/ messages purportedly sent by the complainant to said “Sri Tapas Pal”.

         The complainant was communicated through e-mail by a representative of the O.P. No.2 to bring the said unit to the workshop of the O.P. No.2 for proper installation of the LPG Kit into the said generator and compulsorily bringing the unit/ genset to the dealer’s workshop for free service also mentioned in the owner’s manual for the said generator. The O.P. No.1 did not fail or neglect to provide any sort of service to the complainant whereas the complainant, for his illegal and unlawful gain had been continuously evading the terms of service with regard to his purchased generator set. The O.P. No.1 denied that the complainant has had to bear huge financial expenses to the tune of Rs. 56, 000/- (Rupees Fifty Six Thousand) only on account of running the said generator on petrol and the O.P. No.1 did not fail to provide a single service to the complainant due to which he had to suffer huge monetary loss. The O.P. No.1 also categorically mentioned in his W.V. that he is still ready and willing to installation the LPG Kit into the said generator provided the same is brought to the workshop of the O.P. as per the terms and conditions mentioned in the Owner’s Manual. The installation of the LPG Kit into the said generator could not be effected till date due to the continuous non-cooperation of the complainant with the O.P.s.

         Having heard, the Ld. Advocate of the complainant and on perusal of the Complaint and documents filed by the complainant the following points are taken to be decided by this Commission.

POINTS FOR CONSIDERATION

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

DECISION WITH REASONS

          All the points are taken up together for consideration and decision.

Seen and perused the complaint petition filed by the party which is supported by the affidavit, documents filed by the parties. We are also heard arguments the complainant in full length.

The complainant resides in, Siliguri, Dist.- Darjeeling and the O.P. No.1 also carries his business in Siliguri of Darjeeling districts. Thus, the Commission has no doubt that the complainant is a very much consumer as per the Consumer Protection Act- 1986 and Consumer Protection Act- 2019 and also there is no doubt that this Commission has its territorial jurisdiction to decide this case.

At the time of argument, Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P.s not only through his Written Deposition but also by producing documents.

As per evidences and documents filed by the complainant it is clear that the complainant purchased a petrol cum LPG generator vide Invoice No. AD/ 0031/17-18, dated 31.08.2017 from the O.P. No.1 by paying a sum of Rs. 1, 79, 690/- (Rupees One Lakh Seventy Nine Thousand Six Hundred and Ninety) only. After taking the delivery of the said generator the complainant noticed that there was no LPG kit facility installed in the said generator rather it apparently seemed to be an ordinary petrol generator. The LPG kit was supposed to be preinstalled in the said generator which he was purchased from the O.P. No.1. The complainant immediately lodged a complaint before the O.P. No.1 regarding the said issue and the O.P. No.1 assured him that technicians of and/ or O.P. No.2 would visit the complainant soon and resolve the problem by installing a LPG kit in the said machine but thereafter no technicians came to install the same. Thereafter, on 23.09.2017 the complainant sent messages to Mr. Tapas Pal, the Service Engineer of the O.P. No.2 and thereafter several requests were made and exactly after two months on 23.11.2017 the complainant reminded the said Service Engineer that the LPG kit was not yet installed in the generator but did not get any reply. After that, on several occasions the complainant communicated with the O.P.s and addressed his grievances but did not get any result.

Finally, after 05 (five) months from the date of purchase of the said generator and the complainant’s complaint, one of the technicians from the O.P.s visited the complainant’s place and tried to install the LPG kit but he failed to install the same. Thereafter, on numerous occasions the complainant verbally requested the O.P.s to provide and install the LPG kit but the O.P.s failed to provide any sort of service. On 28.01.2018 the complainant received one e-mail from Mr. Tapas Pal, representative of the O.P. No.2, informing him that the LPG kit could not be installed at complainant’s site and further requested him to deliver the generator at the O.P.’s workshop as per the date he would confirm to the complainant to bring the said generator but ultimately he failed to do so. After that, the situation was compelled the complainant to run the said generator by using petrol for which he has to bear huge financial expenses and spent up to Rs. 56, 000/- (Rupees Fifty Six Thousand) only. The complainant several times requested the O.P.s to resolve the issue but did not get any result. On 02.08.2018 the complainant sent a legal notice to the O.P.s and in response of the said legal notice the O.P. No.1 has accepted that the LPG kit was not installed at the time of purchase of the said generator due to oversight and mistake. Due to non availability of free services to the complainant’s generator, it is now deteriorating day by day and ultimately decreased the life of the said machine and at the same time it is creating huge sound and air pollution. Finally, the O.P.s did not take any initiative to resolve the issue.

Regarding this instant case, the Opposite Party (O.P.) – 1) Anil Distributors, Goyan Sadan, Sevoke Road, Siliguri, P.O. & P.S.- Siliguri, Dist. - Darjeeling, Pin Code- 734001 contested the case by filing Written Version (W.V.) but the O.P. No.2) Birla Energy Solutions Private Limited, Industry House, 6^th Floor, 159, Church Gate Reclamatio, Mumbai, P.O. & P.S.- Church Gate, Pin Code- 400020, Maharashtra did not file W.V. and as per Order No.- 07, dated 30.07.2019 the O.P. No. 2 declared ex-parte.

         In support of his defense, the O.P. No.1 argued that the Petrol cum LPG generator which was purchased by the complainant from the O.P. No.1 had been effected on presentation of the quotation for the said generator dated 04.08.2017, acquired by the complainant directly from the O.P. No.2, i.e., Birla Energy Solutions Private Limited. The complainant is the proprietor of a restaurant named “Gladly Bengali” which is an immensely famous business entity in the town of Siliguri as well as the state of West Bengal alike, operating at a large scale with booming business. It was clearly mentioned in the said quotation that the Unit prices of 02 (two) models/ types of Petrol Generator Sets and the O.P. No.1 merely assured the complainant of the availability of said units at its dealership/ place of business and nothing more. The O.P. No.1 mentioned two types of generators to the complainant or that the Petrol cum LPG generator came with minimum maintenance cost or that its cost was more than a normal Petrol generator. However, it was true that the LPG Kit was not installed at the time of the purchase of the said generator due to oversight and mistake. The technicians visited the complainant’s place of business namely “Gladly Bengali” for installation of the LPG Kit in the said generator, wherein it was being used for the purpose of facilitation of the said business. However, the said installation could not be effected by the technicians due to the ill-temper and bad behavior of the complainant. The O.P. No.1 categorically mentioned in his W.V. that he is not aware of any such message/ messages purportedly sent by the complainant to said “Sri Tapas Pal”.

The complainant was communicated through e-mail by a representative of the O.P. No.2 to bring the said unit to the workshop of the O.P. No.2 for proper installation of the LPG Kit into the said generator and compulsorily bringing the unit/ genset to the dealer’s workshop for free service also mentioned in the owner’s manual for the said generator. The O.P. No.1 did not fail or neglect to provide any sort of service to the complainant whereas the complainant, for his illegal and unlawful gain had been continuously evading the terms of service with regard to his purchased generator set. The O.P. No.1 denied that the complainant has had to bear huge financial expenses to the tune of Rs. 56, 000/- (Rupees Fifty Six Thousand) only on account of running the said generator on petrol and the O.P. No.1 did not fail to provide a single service to the complainant due to which he had to suffer huge monetary loss. The O.P. No.1 also categorically mentioned in his W.V. that he is still ready and willing to installation the LPG Kit into the said generator provided the same is brought to the workshop of the O.P. as per the terms and conditions mentioned in the Owner’s Manual. The installation of the LPG Kit into the said generator could not be effected till date due to the continuous non-cooperation of the complainant with the O.P.s.

As per documents filed by the complainant it is very much clear that the complainant purchased one (01) petrol cum LPG generator vide Invoice No. AD/ 0031/17-18, dated 31.08.2017 from the O.P. No.1 by paying a sum of Rs. 1, 79, 690/- (Rupees One Lakh Seventy Nine Thousand Six Hundred and Ninety) only. After taking the delivery of the said generator the complainant noticed that there was no LPG kit facility installed in the said generator. The complainant immediately lodged a complaint before the O.P. No.1 regarding the said issue and after 05 (five) months from the date of purchase of the said generator and the complainant’s complaint, one of the technicians from the O.P.s visited the complainant’s place and tried to install the LPG kit but he failed to install the same. Thereafter, on numerous occasions the complainant verbally requested the O.P.s to provide and install the LPG kit but the O.P.s failed to provide any sort of service.

In this case, it was the duty of the O.P.s to supply a product with a good condition and proper manner because when a consumer buys a product from a reputed company like Birla Energy Solutions Private Limited, with an expectation for delivery of a good quality of product with proper manner and service as well as better offerings from the company but in this instant case the company failed to provide an incomplete product and also failed to deliver his best services to his consumer. It is fact that the said petrol cum LPG generator was under the coverage of guarantee period and in this context it was the duty of the O.P.s to deliver their best service to his consumer and this Commission has no doubt to hold that the O.P.s did not provide their best service to his consumer.

So, as per the above discussion his Commission has no doubt that there was a deficiency of services from the part of the O.P.s. In this instance case, the O.P.s are jointly and severally liable.

The complainant is entitled to get back his purchased amount of the said petrol cum LPG generator of Rs. 1, 79, 690/- (Rupees One Lakh Seventy Nine Thousand Six Hundred and Ninety) only from the O.P.s.

Hence, it is, therefore,

O R D E R E D

That the Consumer Case No. 01/2019 be and same is allowed on contest against the O.P.s (1. Anil Distributors and 2. Birla Energy Solutions Private Limited) with cost. The O.P.s are jointly and severally liable in this case.

The O.P.s are directed to refund the entire amount of Rs. 1, 79, 690/- (Rupees One Lakh Seventy Nine Thousand Six Hundred and Ninety) only to the complainant with a simple interest @ 6% per annum from the date of filing of this case, i.e., from 02/01/2019 to the complainant within 45 (Forty Five) days from the date of this order, i.e., 21.11.2024. The complainant is also entitled to get Rs. 15,000/- (Rupees Fifteen Thousand) only for mental pain and agony and Rs. 15,000/- (Rupees Fifteen Thousand) only for litigation cost to the complainant. The O.P.s are also directed to deposit Rs. 5,000/- (Rupees Five Thousand) only to Consumer Legal Aid Account of this Commission within 45 (Forty Five) days from the date of this order, i.e., from 21.11.2024. The O.P.s shall pay the entire amount through an account payee cheque within 45 (forty five) days from the date of this order, i.e., from 21.11.2024, in default the complainant will be at liberty to execute the award as per law. 

The O.P.s are entitled to get liberty to take back the said 01 (one) number of said petrol cum LPG generator which they sold to the complainant with their own cost.

Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.