Karnataka

Bellary

CC/110/2019

Veeresh Gouda K - Complainant(s)

Versus

Anu Solar power Private Ltd & Others - Opp.Party(s)

Mohammed Yousuff

06 Mar 2021

ORDER

FILED ON:	16-08-2019
ORDER ON:	06-03-2021

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AT BELLARY

C.C.No. 110 of 2019      

 

Present :  

 

 

(1)  Shri.A.H.Malaghan. B.com. LLB.(Spl), …  Hon’ble President.

 

(2)  Shri.H.Veera Shekar. B.A. LLb.(Spl),    …  Hon’ble Member.

 

(3)  Smt. Marla Shashikala. B.com. (LLB)    .… Hon’ble L-Member.

 

                                                                                           

DATED THIS THE 6^th DAY OF MARCH-2021

 

 

 

 

 

COMPLAINANT/S   By-Shri.Mohammed Yousuf,    Advocate, Bellary.       //VS//

Veeresh Gouda.K. S/o. K.Siddana Gouda, R/o. Sri Manjunath Nilaya, Door No.7, Ward No.19, 2nd Cross, Sathyanarayana Pet, Near State Bank of India, Ballari.

OPPOSITE PARTIES   OP-1 & 2.By-In-person.   R-3.by-Exparte.

1) Anu Solar Power Pvt Ltd., by its Managing Director Joseph.T.J, Age: 45 Years, C/o. No.244, Madawara Village, Tumkur Main Road, Opp: IEL Building, Bangalore-562123.   2) Anu Solar Power Pvt Ltd., by its Technical Director Jomy Joseph, Age: 40 Years, C/o. No.244, Madawara Village, Tumkur Main Road, Opp: IEL Building, Bangalore-562123.   3) Anu Solar Power Pvt Ltd., by its Branch Manager B.Vinay, Age: 42 Years, R/o. No.2, Angdi Rudrasmma Complex, Opp: Janaradhan Reddy House, Siruguppa Road, Ballari-583103.

 

// O R D E R //

 

 

By Hon’ble President Shri.A.H.Malaghan.

 

1.         This is a complaint filed by the complainant against the opposite parties U/Sec-12 of the Consumer Protection Act, 1986.

 

         2.     The brief facts of the case are that, the complainant entered into an agreement with the OPs for Solar production and as per agreement the OPs have agreed for Solar production for 19 KWH 2280 units per month for which, he has to pay sum of Rs.15,75,000/- and out of that said amount, the complainant has paid a sum of Rs.14,78,200/- by way of RTGS and balance amount of Rs.96,800/- has to be paid.  The complainant is ready to pay the above said amount, but due to the deficiency of service of non supply of power as agreed by the OPs, the complainant has not paid the above said balance amount and as per commitment given by the OP, the solar production should be 2280 units per month, but the production of power in the month of Sep-2018 was to an extent of 466.2 units and in the month Nov-2018 1154.9 units and in the month of Dec-2018 161.9 units and in the month of Jan-2019 557.6 units and in the month of Feb-2019 282.9 units and this calculation are based on the bills issued by Gulbarga Electricity Supply Company Ltd., and this itself shows the negligence and deficiency of service and not generated as per the agreed units.  As on the date of entering into agreement the OPs have stated that, they will supply the agreed units without any default, but the OPs have not kept up their promise and further the OPs have agreed that in case if they would not supply as per the agreed units they will pay the damages the complainant and the complainant has invested a huge amount thinking that the OPs will supply as per the agreed terms and conditions. By going through the unites which the OPs have supplied and after deducting in the agreed units still the OPs are liable to deposit the amount to the commandant account, but the OPs have not done so, and the solar production made by the OPs is very less compared to the agreed units and the OPs are liable to return the excess amount.    The complainant has requested the OPs from the beginning to supply the power as per the agreed units, but the OPs have not cared the complainant and they have cheated the complainant though they have collected the huge amount and the OPs have failed to supply the power as per the agreed units for which the complainant has sustained loss.  The complainant has issued legal notice to the OPs on 27-02-2019, which was served to the OPs and the OPs have given reply by denying the notice allegation.  The complainant is depending on the solar production and this is the only source for him and the complainant sustained heavy loss not only financially but also mentally due to the negligence on the part of the OPs. Hence, he filed the complaint for the reliefs.

 

      3.     In spite of service of the notice by this Commission, the OP No.3 did not choose to appear and he placed ex-parte.

 

      4.    After service of notice by this Commission, the OP No.1 & 2 have appeared in persons and the OP No.1 & 2 have filed their common written version as under; there is no agreement either in writing or oral to generate electricity at the rate of 2280 units per month.  The complainant has placed an order for supply and installation of 20KW on grid Solar Power System on 25/10/2017 and the same was supplied under invoice No.201718-01165 on 7/11/2017.  They have also provided performance guarantee certificate in format Annexure IV which is again furnished by the complainant.  The language, intent and the spirit of these two documents clearly establishes that, the contract between the complainant and the OPs are purely supply installation and performance warranty for trouble free operation.  They are yet to receive a sum of Rs.96,800/- from the complainant.  Out of 20 KW Solar Panels Supplied, the defendant insisted on connecting 1 KW Solar Panels for charging his UPS system and effectively only 19 KW is connected to the grid.  The OPs have furnished the date of power generation in tabulated format.

Sl.No.	Month,  Year-2018 (1)	Import (2)	Export (3)	Estimated Own Use (4)	Total Solar Generation (5) =3+4
1	July	628.7	1432.2	620	2052.2
2	August	125.2	466.2	620	1086.2
3	Sept	323.2	748.9	620	1368.9
4	Oct	578.5	1154.9	620	1774.9
5	Nov	95.1	161.9	620	781.9
6	Dec	300.8	557.6	620	1177.6

 

The complainant is residing in a 4 BHK bungalow with 20 KW connected load comprising of borewell pumps, Air conditioner, 3 KVA UPS etc., Since there is 20 KW Solar Power plant the daytime consumption of these gadgets are supposed to be met from solar directly and would not be recorded in the Net Meter as export.  There is no agreement for guaranteed solar output and they have supplied the system with components of high quality and standard.   The system was inspected by CEIG (the topmost authority) and GESCOM officials. There was no adverse comment from any of these authorities and with their permission the system was connected the grid.  The complainant is depending only on the Solar production as that is the only source strengthens our statement that the power cuts are very frequent and prolonged.  Knowing this fact only he has installed a UPS system with lot of batteries to take care of at least the lighting load. On these grounds, the OPs have prayed for dismissal of the complaint.

 

      5.   In order to prove the case of the complainant, he has filed his evidence affidavit as PW-1 and has produced 12 documents which are noted as Annexure P-1 to Annexure P-12.  Annexure P-1 is the Tax Invoice, Annexure P-2 is the Proforma of performance Guarantee, Annexure P-3 is the Proforma for Declaration by the Agency Supplying the Grid Connected Solar Rooftop PV Systems, Annexure P-4 are the Test Certificate, Annexure P-5 is the Anus Solar Power Pvt. Ltd., Certificate, Annexure P-6 is the Certificate of Empanelment, Annexure P-7 is the Installation Single Line Diagram, Annexure P-8 are the Electricity bills, Annexure P-9 is the Office copy of the legal notice, Annexure P-10 and Annexure P-11 are the postal receipt and acknowledgement card and Annexure P-12 is the Reply notice. The written argument filed by the complainant and heard the oral arguments.  

 

        6.   The OPs has not adduced evidence inspite of sufficient time granted by this Commission. However, the OP has produced 03 documents at the time of filing of the written version, which are noted as Annexure R-1 to Annexure R-3.  Annexure R-1 is the Effect of Shading on Photovoltaic Cell, Annexure R-2 is the Anti Islanding for Solar Systems and Annexure R-3 is the Explanation of Net Metering and gross metering.

 

            7.     The points that arise for our consideration are;

1.	Whether the complainant has proved deficiency in service on the part of the opposite parties, as alleged in the complaint?
2	Whether the complainant is entitled for the reliefs prayed for in the complaint?
3.	What order?

 

                             

 

 

 

 

 

            

                  8.   The findings on the above points are as under.  

 

 

Point No.1:	In the Affirmative.
Point No.2:	Partly in the Affirmative.
Point No.3	As per final order.

        

 

 

   

 

 

 

// R  E A S O N S //

 

Point No:1:-

 

9.     Considering the pleadings of both the parties, it is not in dispute that, complainant has purchased Solar Electricity Unit for a sum of Rs.15,75,000/- from OPs, and out of the said amount still the complainant has to pay Rs. 96,800/- to the OPs. Further installation of above said unit in the premises of the complainant is also not in dispute by both the parties.

 

10.    The learned counsel for the complainant has vehemently argued that, as per the commitment of the OPs, the production of Solar unit should be 2280 unit p.m., but considering the present
output production, same is vey less than their commitment. So, the OPs have supplied non performing unit, which is not as per their commitment, to the extent of 2280 units’ p.m.

 

11.    He further argued that, the power of electricity production in the month of September 2018 was to the extent of 466.2, and in the month of November 2018, 1154.9 units, in the month of December 2018, 161.9 units, in the month of January 2019, 557.6 units, in the month of February 2019, 282.9 unit, as per the bills issued by Gulbarga Electricity Supply Co. Ltd., so it shows that, on account of negligent act of the OPs in supplying non performing solar units, and plates the electricity was not generated as per their commitment. Hence, such act of the OPs is nothing but deficiency of their service in the eye of law, and thereby, the complainant has put to heavy loss and untold hardship with other inconveniences. Therefore, the OPs are liable to return the excess amount and other relies as claimed in the main compliant.

 

 12.    In the light of the above said fact, the complainant has requested the OPs to supply power as per the agreed unit, but OPs have not taken any care on the request of the complainant. Therefore, counsel has contended that, by such negligent act of OPs, they have cheated the complainant and collected the huge amount and played unfair trade practice against the complainant which is deficiency of their service also in the eye of law.

 

 13.    On the other hand, the OP No. 1 & 2 has submitted that, there is no agreement either in writing or oral to generate electricity at the rate of 2280 unit’s p.m. Further, we have provided Performance Guarantee Certificate in the Form of Annexure-IV to the complainant. The language, intent and the spirit of two documents are clearly establishes that, the contract between the complainant and the OPs is purely supply installation and for Performance Warranty for trouble free operation.

 

 14.   The OP No. 1 & 2 have further contended that, out of 20 KW solar panels the complainant has used, for charging his UPS system, and effectively. Hence,  only 19 KW is connected to the grid. The OPs have furnished the following data of power generation in tabulated format.

Sl.No.	Month,  Year-2018 (1)	Import (2)	Export (3)	Estimated Own Use (4)	Total Solar Generation (5) =3+4
1	July	628.7	1432.2	620	2052.2
2	August	125.2	466.2	620	1086.2
3	Sept	323.2	748.9	620	1368.9
4	Oct	578.5	1154.9	620	1774.9
5	Nov	95.1	161.9	620	781.9
6	Dec	300.8	557.6	620	1177.6

 

 15.    The complainant is residing in a four BHK Bungalow with 20 KW connected load comprising for bore-well pump, A.C, 3KVA UPS etc., since, there is a 20KW solar plant, the data consumption of these gadgets are suppose to be met from solar directly ,and won’t be recorded in the net meter as export. There is no agreement for guaranteed solar output, and we have supplied the systems with components of high quality and standard. And said unit was inspected by GEIG which is top most authority and also GESCOM officials, and there was no adverse comment from any of these authorities, and with their own permission the system was connected to the grid. So, the complainant knowing this fact has installed a UPS system with lot of batteries to take care of at least the lighting load, hence, the say of the complainant that, the power generation was not as per our commitment is all false and created one. Since, the unit is working properly without any default. So they prayed to dismiss the compliant with costs.

 

 16.    On perusal of the documents of both the parties, the OPs have not produced any technical evidence to substantiate their defense. The OPs have given a tabular format chart showing actual power generation in the said unit. As per the said chart, the power output units from July 2018 to December 2018, and by comparing month wise power generation unit, there is no uniformity in generating the powers. Out of the above said  months reading, the highest generation of power, as per  column 3 and 4, (together) the highest generation of power unit in July-2018 is 2052.2 as shown in column No.5. But on perusal of the power of unit for the month of November 2018 it is only 781.9 units, so it shows that, there is no consistency of power generation in the unit supplied by the OPs. But it is the case of the OP that, the unit are performing well without any trouble, and such being the fact why there is a lot of  variation in generating the power in other months as compared to July 2018 month, is not explained properly by OPs . Because, it is for the OPs to say, why there is a difference of power generation in upcoming months, and what are the technical reasons for such low generation of power. So in the absence of the same, it is understood that, units supplied by the OPs are not functioning properly to its maximum extents. Because it is a technical issue, same is to be convince by OPs regarding above said less performance with experts reports. But in this case, no such documents are produced in support of their defense to shows that units are performing well.

 

17.   Even assuming that, there is no written agreement for generating 2280 units of electricity between the complainant and the OPs, but it is an understanding of the complainant that, the power unit purchase by him should give efficient service with well performance to the extent of his needful in a similar power generation on each and every month, however may be with little variations. But in this case on perusal of the tabular format submitted by OPs it is clearly evident that, there is no similarity in power generation for the respective months shown in the table and there is “abnormal lower output” and there is a lot of difference in generating the power unit, which shows that, the units supplied by the OPs is not up to the full performance as per his Guarantee Certificate issued to complainant, as per Form No.IV which is noted as Annexure P-2 in this case.

 

18.    On perusal of the said Annexure P-2 documents i.e., guarantee card issued by Ops in favour of the complainant wherein the Ops are clearly under taken and agreed that, if the units are working below the performance as specified they will repair the same on free of cost for 5 years from the date of its installation. So, this certificate clearly evidence that, when there is a less performance in power units it is the duty of the Ops to correct the same on free of cost.  But on perusal of their tabular format, the output recorded and shown by them is clearly evident that, there are abnormal variations in its output power generation and as such there is no similarity in above months of output generation of Electricity. 

 

 19.   Further on perusal of the bills issued by GESCOM Ballari, under Annexure P-8 series i.e., solar bills are also evidenced that, there is output variation in each months, So its shows that, the unit supplied by the Ops to complainant are not performing well.

 

20.    The OPs have produced annexure R-1 Certificate to the effect of shading on the photovoltaic cell. But, before installation of the said units on the house of the complainant they must explain to the complainant about the non performance of power generation on account of shading on the photovoltaic cell in advance. But taking such defense after installation of the same without explaining the effect of such shade in generating the power is also not proper on the part of the OPs. But same has been willfully suppressed by OPs in order to get their business.   Because, it is the duty of the OPs to looked into shading problems of the complainant premises before its installation, but not after such installations. Since, it is a technical issue & same has to be noticed by the OPs earlier to installation, regarding its reflection of shading on the photovoltaic cell, who undertakes the said installation on the premises of the complainant as the OPs are competent to decide the said problem before installing the units. But failure to do so is also a deficiency of service on the part of the OPs. It is further observed that, it is not the case of the OPs that, above said shading was affected on the photovoltaic cell after installation of the said units by neighboring buildings or which are constructed subsequent to above said installations.

 

21.   Further the Ops have produced Annexure R-2 and AnnexureR-3 to shows that, what is net metering and gross metering, on perusal of the same it is mentioned that, under net metering, electricity generated by the solar rooftop system is first utilized by the Consumer to meet their internal/captive requirements.  Excess electricity if any is exported to the grid.  Subsequently, when the Consumer imports power from the grid, the exports are adjusted against the imports, lowering the electricity bill.  So, even considering the said documents assuming that, sum of the power generation was used by the complainant for his house out of exports, even then the performance of units is not as stated by the Ops.  Because even from inception the complainant is using the same for his personal use it should not be main cause for lower performance of units as contended by Ops, since, the complainant is using the same on every month but, there is a lot of deference in output generation which was the main grievance of the complainant, which are not resolved by the Ops till this day, despite issuing legal notice to the Ops.       

   

22.    So by considering the same and as discuss above, we are of the opinion that, the OPs have not perform their duties as per the Guarantee Certificate issued to the complainant , and failed to rectify the mistake if any in the power units supplied by OPs is  a clear negligence on the part of the OPs. And such act of the OPs amounts to per se deficiency in their service. Because, it is the duty of the OPs to see that, the unit installed is performing well with its maximum production of electricity without any fault. But in this case, same was not shown in the said chart as there is a lot of variation in generating the power. Therefore, the less generation of power in the said installation has naturally causing loss to the complainant as contended by him. Therefore, the OPs are liable to answer the same to the complainant in the light of their undertakings regarding the performance of installation of Solar Power Units. Therefore, looking to any angle in our view the complainant has proved the point No.1. Hence same is answered in Affirmatively.

 

Point No.2:-

 

23.    In view of the our answers to the point No.1, the claim of the complainant is maintainable against the all Ops.   The complainant has claimed to issue direction to Ops, to make solar production as per the agreed units and pay Rs.1,50,000/- as compensation and cost of the petition.

 

 24.   Considering the above prayer of the complainant, he has not specified anything in his complaint regarding the amount of loss sustained by quantifying the actual amount.  But, he prays to rectify the solar system to its full performance as agreed by Ops.  But, as discussed above in point No.1 by us, the units are not performing well and there is a abnormal variation in output generations of the electricity.  So, it is necessary to issue direction to the Ops to repair the units for its full performance as agreed by the Ops under Annexure P-2 guarantee certificate.  So, in our view same is full fill the grievance of the complainant. 

 

25.    In addition to above claim the complainant is entitled to recover Rs.1,00,000/- from the Ops including all heads of claim shown in the complaint and Rs.5,000/- towards cost of the litigation, which comes to total Rs.1,05,000/-. Hence, for reasons stated above the Point No.2 is answered partly in affirmative in above terms.  Thus the following order.

                     

 

// ORDER //

 

           The complaint filed by the complainant U/S 12 of C.P.Act-1986 against the OP is allowed partly with cost.

 

          Consequently, the OP No.1 to 3 are jointly and severally liable to repair the units for its full performance as agreed and see that the said units shall be worked with full performance.  In addition to above claim, the OP No.1 to 3 are jointly and severally liable to pay Rs.1,05,000/- to the complainant as stated above towards other heads of claim.   

 

            The OP No.1 to 3 are jointly and severally directed to comply the above said order, within two months from the date of this order.  Failing which the above said amount shall carry interest @ 9% p.a., from the date of default till its realization.

 

    Inform the parties accordingly.

 

(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the open court  this 6th day of March-2021)

 

 

Smt.Marla Shashikala                Sri.H. Veera Shekar         Sri. A.H. Malaghan

        Lady Member.                              Member.                      President,

District Consumer Commission Ballari.      District Consumer Commission Ballari.      District Consumer Commission Ballari.