Karnataka

Kolar

CC/11/2014

M.A. Sharadamma, - Complainant(s)

Versus

Balakrishnappa, & Ors. - Opp.Party(s)

G.N.Narayana Swamy

20 May 2015

ORDER

Date of Filing: 03/02/2014

Date of Order: 20/05/2015

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 20 ^th DAY OF MAY 2015

PRESENT

Sri. N.B. KULKARNI                                   …….         PRESIDENT

Sri. R. CHOWDAPPA                                 ……..     MEMBER

CONSUMER COMPLAINT NO 11 OF 2014

Smt. M.A.Sharadamma,

W/o. Kempanna,

Aged About 40 Years,

‘Maruthi Nilaya’,

Challamma Garden,

Gulpet, Kolar City.

 

(Rep. by Sriyuth. G.N.Narayanaswamy, Advocate)       ….  Complainant.

 

- V/s -

1) Balakrishnappa,

S/o.Seenappa,

Ramapura Village,

Vodaguru Post,

Kolar Taluk & District.

 

Working as:

The Proprietor/Dealer,

Cyrus Thermal Power Plant,

Kolar Branch, Eralappa Swamy

Building, Gulpet Main Road,

Kolar.

(Rep. by Sriyuth. P.N.Srinath, Advocate)  

 

2) The Manager,

M/s. Cyrus Thermal Power Pvt. Ltd.,

Om Shanthi Tower, No.1705,

2^nd Floor, 10^th Main, 2^nd Block,

Near Ayyappa Swamy Temple,

B.S.K. 1^st Stage, Bangalore-560050.

(Notice served – remained exparte)                     …. Opposite Parties.

-: ORDER:-

BY Sri. N.B. KULKARNI, PRESIDENT

01.   The complainant having submitted complaint Under Section 12 of the Consumer Protection Act, 1986 has sought, relief of recovery of sum of Rs.23,262/- along with interest @ 2% per month on the said sum and for Rs.76,738/- towards mental agony, loss of time due to deficiency in service.

 

02.   The facts in brief:-

The complainant contends that, as she was in the need of two solar water heaters of the capacity of 100 liters each, on 01.089.2012 she visited shop/showroom of the OP-1 (M/s. Cyrus Thermal Power Plant, Kolar Branch, Eralappa Swamy Building, Gulpet Main Road, Kolar).  And that on thorough enquiry and demonstration and assurance from OP-1 she came forward to purchase the same.  And that the said equipment was of the OP-2.  And that she was convinced of the best quality and good performance and long experience on the part of the OP-1 and as well, that the said equipment was to have ISI brand and guarantee period of five years assured from the date of the purchase.

(a)    Further it is contended that the value of each of said equipment was for a sum of Rs.11,631/-.  And that on 01.09.2012 she had paid Rs.2,000/- to the OP-1 who issued order form/estimation bearing No.10082 and 10083.  And that it was agreed that the said solar heaters two in number were bond to be installed at her house (‘Maruthi Nilaya’, Challamma Garden, Gulpet, Kolar City.) within 10 days on payment of balance of Rs.9,631/- each.  And that on 11.09.2012 she had paid Rs.19,262/- and that OP-1 had issued tax invoice-cum delivery challan bearing Nos. CYR/2012/0028 and CYR/2012/009.  And that accordingly on said day the said equipments were installed in her house premises. 

(b) Further it is contended that eight months subsequent to such installation the problems of leakage commenced.  And that on being informed the OP-2 had sent technician about four months earlier to lodging of the complaint.  And that after inspection it was assured to change the drums within a week and that in spite of such assurance on the part of the OP-2 and even after being approached repeatedly the Ops failed.

(c) Further it is contended that later on she came to know that the OP-1 had left the shop/showroom by closing the same.  And that the said company was not even esteemed.  And that she got issued legal notice to the Ops through RPAD.  And that instead of complying, the Ops gave untenable reply.  So contending the complainant has come up with this complaint.

(d) Along with complaint she has submitted on 03.02.2014, following five documents:-

(1) Legal Notices to the opponents,

(2) Legal notices Reply to complainants

(3) Complainant order forms

(4) Tax Invoice cum delivery challen.

(5) Acknowledgements & Postal receipts.

03.   The OP-1 has put in written version resisting claim of the complainant in toto by contending interalia that, the said legal notice issued by the complainant was replied.  It is also contended that he was not proprietor as contended by the complainant, whereas he was only a sales executive.  It is also contended that one Sri. Dinakara Babu, S/o. Venkataswamappa, residing at Tamaka Village in Kolar Taluk and District was either the proprietor or manager of M/s. Cyrus Thermal Power plant branch.  And that he (the OP-1 was terminated in the month of December-2013) so contending dismissal of the complaint has been sought.

04.   Earlier on 03.01.2015 the learned counsel appearing for the complainant had given up the claim against the OP-2 and had preferred to proceed ahead only against OP-1.  However on 24.04.2015 the learned counsel appearing for the complainant got the said order recalled vide order on I.A-1 Under Section 151 of CPC and thus the proceedings stood continue against this OP-2.  As such, notice through RPAD as well through E-mail came to be issued.  On 11.05.2015 the e-mail so sent came to be returned with a note that, the e-mail address was in-correct.  It is worth to note that this was the e-mail address given by the OP-2 on record.  Hence it was held that there was no need to take further steps and such service of notice attempted was held proper.  Consequently on this day OP-2 came to be placed exparte.

04.   On behalf of the complainant her affidavit evidence came to be submitted and on 24.01.2015 the learned counsel appearing for the complainant with list has submitted four photographs.  On 07.02.2015 the learned counsel appearing for the complainant with memo has submitted a CD. 

05.   On 28.03.2015 affidavit evidence of the OP-1 has been submitted with even dated list following nine documents:-

a) Xerox copy of the rental agreement

b) Xerox copy of the legal notice

c) Xerox copy of the reply legal notice issued by the company.

d) Xerox copy of the order form.

e) Xerox copy of the delivery challen,

f) Xerox copy of the reply of the respondent advocate legal notice.

g) Appointment original letter

h) RPAD acknowledgment original service of reply notice,

i) Postal receipt.

(a) On 10.04.2015 the learned counsel appearing for the complainant and on 15.04.2015 the learned counsel for OP-1 have put in written arguments.

(b) ON 19.05.2015 heard oral arguments as advanced by the learned counsel for both sides.

05.   Therefore the points that do arise for our consideration are:-

(A) Whether it could be held that both the Ops are guilty of deficiency in service?

(B) To what relief the complainant is entitled to?

(C) What order?

 

06.   Findings of this District Forum on the above stated points for the following reasons are:-

POINT No.(1): Negative with regard to OP-1 whereas affirmative with regard to OP-2.

 

POINT No.(2): The complainant is entitled to recover sum of Rs.23,262/- towards price paid in purchasing of the said solar heaters two in numbers from the OP-2 and also compensation in a sum of Rs.25,000/- were to be recovered from the very OP-2, on account of loss of time, mental agony and deficiency in service in respect of the said installation together with interest on both these sums @ 9% pa from 03.02.2014 being the date of the complaint till realization.

POINT No.(3): As per final order.

 

REASONS

POINT NO.s. (1) & (2):-

07.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time. 

 

(a) The very copies of order form bearing Nos. 10082 and 10083 as submitted by the complainant would discloses that on 07.09.2012 the OP-1 did signed the same for having received the said advance of Rs.2,000/- each as an employee for and on behalf of the OP-1.  Because, beneath the signature the designation is described as “employee’s signature”.  So we are bound to accept tenable plea of the OP-1 that at the relevant time he was only a sales executive.  And this is to the knowledge of the complainant.  As such for any deficiency in service in respect of the sale of the said two solar water heaters the OP-2 being the proprietor is only responsible. 

(b)    OP-1 is fair enough to plead in Para-12 of the written version that one Sri. Dinakara Babu, S/o. Venkataswamappa, residing at Tamaka Village in Kolar Taluk and District, was either the proprietor or manager of M/s. Cyrus Thermal Power plant branch.  Besides this documents as noted above would indicate that team leader was one Sujatha.  Therefore to the advantage of the present complainant and through necessary implications these persons, namely Sujatha and the said Dinakara Babu would serve the purpose of the present complainant in as much as she has shown the manager of the said concern as the OP-2.  And for the reasons noted above service of notice admitted on this OP-2 is held proper and this OP-2 claims exparte. 

(c)    We have gone through the said photographs and the CD (DVD) which to discloses that there is continued leakage at different parts of the said drums.  Therefore the goods being defective installation of the same would amount to total deficiency in service on the part of the OP-2.

(d) Moreover the very complainant has pleaded in Para-2 of the complaint that, the OP-2 had assured to solve the problem.  So, nowhere the OP-1 would come in to picture so as to hold him as liable.  Besides the very complainant has pleaded that, the OP-1 has left by closing the shop/showroom.  In this context the said plea of the OP-1 is perused we are bound to accepted that the OP-2 either being manager or proprietor of the said concern had terminated services of the OP-1 with effect from December-2013.  Therefore the sole responsibility, liability and accountability shall remained with the OP-2 only.

(e) As both the said solar heaters are defective because there is a leakage at different parts of the same the installation service of the same is bound to be held as defect.  Because of this the complainant has suffered mental agony.  So we direct that the OP-2 shall pay the said price and compensation together with interest as noted above.

(f)     Hence the findings on these points.

 

POINT NO.3:-

09.   We proceed to pass the following:-

ORDER

01.   For foregoing reasons this complaint stands allowed with costs of Rs.2,500/- as we are under against OP-2 only, whereas it stands dismissed against OP-1 with no costs.

(a) The OP-2 shall pay a sum of Rs.23,262/- being the price money in purchase of the said two solar water heaters, and Rs.25,000/- being the compensation amount together with interest at the rate of 9% pa from 03.02.2014 being the date of the complaint till realization to this complainant if opted the OP-2 is at liberty to collect the said damaged two solar heaters, and in such event, the complainant shall permit the OP-2 to take back the same.