BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 30th of September 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.279/2010
(Admitted on 23.10.2010)
Mrs.Rosaline T.Fernandez,
Wo. Brinston Joseph Fernandez,
Aged about 55 years,
Residing at Rose Villa,
Kadri Kambla Road, Pinto Lane,
Opposite Hari Bhakti Apartment,
Mangalore, Represented by her GPA
Holder Sri.Peter DSouza,
So Late J.B.DSouza,
Residing at “Rose Villa”,
Kadri Kambla Road, Pinto Lane,
Opposite Hari Bhakti Apartment,
Mangalore. …….. COMPLAINANT
(Advocate for the Complainant: Sri.S.K.Ullal).
VERSUS
1. Birla Power Solution Ltd.,
901, Bhikaji Cama Bhavan,
11, Bhikaji Came Place,
New Delhi,
Represented by Regional Service Manager.
2. Megha Associates,
D/No.22-3-584/2, P.L. Gate,
Jeppu, Market Road,
Mangalore -575 001.
Represented by its proprietor/Manager.
(Advocate for the Opposite Party No.1 and 2: Sri H.V.Raghavendra)
3. Sales Officer,
Megha Associates,
D.No.22-3-584/2, KP.L.Gate,
Jeppu, Market Road,
Mangalore-575 001. ……. OPPOSITE PARTIES
(Opposite Party No.3: Exparte).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 and 13 of the Consumer Protection Act alleging defect in goods against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submitted that, he had purchased a Birla 1500 Easy model Inverter along with two M Power Tabular Battery No.MPT 1307 and 1308 from the Opposite Party No.2 on 10.02.2009 by paying Rs.28,000/-. It is stated that, the above said batteries has 24 months warranty from the date of purchase.
The allegations of the Complainant are that, the Opposite Parties did not hand over the warranty card pertaining to the Birla Inverter despite of the request made her. It is stated that the Complainant is working in Dubai and her house is guarded by her power of Attorney Mr.Peter D’Souza. The inverter purchased by her was working till May 2010, thereafter started giving problems and the same has been informed to the Opposite Parties but there was no response from them. At last on 31.05.2010 the Opposite Parties have sent the technician who is not experienced, he came to the house of the Complainant but did not check the inverter but had glanced from outside and told that there is some fault which will be rectified. Thereafter the Opposite Parties have sent another technician who was come on the next day tested the inverter and assured to rectify the defect. On 02.06.2010 they took the inverter to the workshop of Opposite Party No.2 and kept with them for a month. After a month they have sent the inverter by telling that it was repaired. It t is stated that, to the utter surprise of the Complainant the same problem arose and there were unusual noises and bad chemical smell coming from the inverter and lodged a complaint with the Opposite Parties, inspite of repeated calls the Opposite Parties have sent the technician after a week to attend the inverter. The technician inspected and reported that the electronic P.C. Board inside the inverter was not functioning and returned to the workshop with the inverter again and after a regular remind from the Complainant the Opposite Parties had returned the inverter stated that inverter was repaired by replacing the P.C. Board and installed the same in their house.
The Complainant further submits that the inverter sent by the Opposite Parties not checked and repaired properly and they could not rectify the above problem and stated that Opposite Parties are dragging the matter to lapse the warranty period. On 13.08.2010 the Complainant noticed the bad smell coming from the inverter and overheating the inverter box. Again on 14.08.2010 Complainant lodged a complaint and the Opposite Parties again sent the technician on 18.08.2010 observed several problems and stated that the inverter and both batteries are not functioning. The Complainant submits that the above inverter and batteries are having manufacturing defect. Inspite of the same under the pretext of rectifying the defect the Opposite Parties took the inverter on 20.08.2010 to the Opposite Party’s workshop. Finally by seeing the attitude of the Opposite Parties and also with the apprehension that the warranty is going to lapse the Complainant issued a legal notice dated 23.08.2010 called upon to refund the entire amount and damages but the Opposite Parties not complied the same and stated that the service rendered by the Opposite Parties suffers from deficiency and filed the above complaint under Section 12 and 13 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to return the entire cost of the inverter i.e., Rs.28,000/- with interest thereon at 18% per annum from the date of purchase till date of realization and Rs.51,000/- claimed as compensation and costs of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 and 2 appeared through their counsel and filed version. Opposite Party No.3 despite of serving notice neither appeared nor put their appearance. Hence, we have proceeded exparte as against the Opposite Party No.3. The acknowledgement placed before the FORA marked as court document No.1.
Opposite Party No.1 and 2 admitted that Opposite Party No.1 is the manufacturer of Birla Inverter and Opposite Party No.2 is the manufacturer of M.Power batteries and dealers of Birla Inverter and Opposite Party No.3 is the authorized sales officer of Opposite Party No.2. Opposite Party No.1 also admitted that the above said Inverter having warranty of two years. But the Opposite Party No.1 and 2 denied the entire allegations made in the complaint and also denied the manufacturing defect as alleged in the complaint. It is stated that due to frequent overloading in the house of the Complainant, the PCB Card of the said inverter got damaged. The Opposite Parties also requested the Complainant to set-right the problem of overloading in the house of the Complainant. Further the Complainant not maintained the batteries by toping up the distill water. It is stated that immediately after receiving complaint from the Complainant on 19.08.2001 they sent the technician to the house of the Complainant to rectify the defects but they have not allowed to touch the inverter and subsequently the Opposite Parties contacted one Mr.Sathish who is the care taker of the Complainant, it is stated that in order to harass the Opposite Parties the above complaint came to be filed. The Opposite Parties provided all type of service by installing stand by inverter and also by replacing then new control card but the Complainant is acting passively and not allowed the Opposite Party to rectify the defects. Subsequently the Opposite Party had requested the Complainant and care taker of the Complainant to co-operate with the Opposite Party in rectifying the defects but the Complainant had not co-operated with the Opposite Party in solving the problem and stated that there is no deficiency and no mechanical defects in the inverter as well as in the batteries and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the inverter and batteries purchased on 10.02.2009 from the Opposite Party No.2 is defective and the service rendered by the Opposite Parties amounts to deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Peter D’Souza General Power of Attorney holder of the Complainant (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C10 were marked for the Complainant as listed in the annexure in detail. One Sri Haridasan, Senior Manager Sales and marketing of Opposite Party No.1 (RW-1) and one Sri Sathish, Partner of Opposite Party No.2 (RW-2) filed counter affidavit and answered the interrogatories served on them. Ex R1 to R4 were marked for the Opposite Parties as listed in the annexure in detail. Both the parties have submitted written notes of arguments.
We have considered the notes / oral arguments submitted by the learned counsel for the Complainant and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
REASONS
5. POINTS NO. (i) to (iii):
Now the undisputed facts of the case are that, the Complainant Rosaline T.Fernandez purchased Birla 1500 with M-Power Tabular 120 AH Battery inverter on 10.02.2009 from the Opposite Party No.2 (as per Ex C2) for a consideration of Rs.28,000/-. The above said inverter carried a warranty for 24 months from the date of purchase.
Now the point in dispute between the parties before this FORA is that, the Complainant came up with a complaint stating that the inverter purchased by her started giving problems after May 2010. The Complainant lodged a complaint on 31.05.2010. The un-experienced technician of the Opposite Parties came to her house did not check the inverter they just had a glance from the outside and thereafter another technician came to their house and tested the inverter, on 02.06.2010 he took the inverter to their workshop i.e., Opposite Party No.2’s workshop and kept the same for about 10 months and thereafter they brought the inverter. Inspite of the repair the problems in the inverter again persisted by coming bad smell from the inverter and overheating the inverter box and again lodged a complaint on 14.08.2010 the technician of the Opposite Parties once again came to their house and checked the inverter on 18.08.2010, the technician noticed that the automatic cut out on the new PC board is not functioning, as a result the inverter and battery is overheating, causing the formation of fumes from the battery, one of the cables connecting to the P.C.Board was burnt as a result the objects i.e., the battery water was dried up. It is stated that he had to replenish the batteries with 8 liters of distilled water, normal maintenance takes one to two liters only. It is stated that the inverter and both the batteries are not functioning and they are having manufacturing defect and once again the Opposite Parties took the inverter on 20.08.2010 to the Opposite Parties workshop and now it is with the Opposite Parties and stated that the inverter and batteries sold by the Opposite Parties is not up to the quality and came up with this complaint.
The Opposite Parties contended that due to frequent electricity overloading in the house of the Complainant the PCB card of the said inverter got damaged. The Opposite Parties requested the Complainant to set-right the problem of overloading in the house of the Complainant but they have failed and further contended that the Complainant not maintained batteries by toping up the distill water. After receiving complaint from the Complainant they have sent a technician to rectify the defects and provided stand by inverter and batteries to the Complainant, meanwhile when the technician of the Opposite Party had visited the premises of the Complainant he was not allowed by the care taker to touch the inverter and stated that in order to harass the Opposite Parties they have filed a false complaint and also stated that they have not allowed to rectify the defects.
Both the parties filed their oral evidence by way of affidavit and also produced certain documents.
Now the point for consideration is that, the inverter and batteries purchased by the Complainant suffers from defect? The Ex C2 and C3 clearly shows that the above inverter cum batteries purchased on 10.02.2009 for a sale consideration of Rs.28,000/- and the above said inverter and the batteries got having warranty for 24 months from the date of purchase. We noticed that the above alleged defects found within the warranty period. However, it was pleaded before us by the Complainant that she had lodged a complaint on 31.05.2010 and the Opposite Parties sent a technician and attended the service showing 15 AMPS FUSU and again on 02.06.2009 the above said set was taken by the Opposite Party No.2 and the same has been endorsed by the Opposite Party No.2’s technician on the above said service slip. The Ex C6 is the another service charges slip dated 10.07.2010 issued by the Opposite Party No.2 shows that the technician of the Opposite Party No.2 done service on PCB card. The Ex C10 is the another service slip dated 19.08.2010 reveals that the Opposite Parties’ technician once again taken the inverter and batteries for repair and the same has been endorsed on the service slip. The above documents placed by the Complainant clearly shows that, the new inverter cum batteries purchased by the Complainant was not working properly and the Opposite Parties’ technician taken the inverter for two times, despite of repairing the inverter and batteries the problems persisted. We have noticed that, the Opposite Parties took a contention that the warranty provided against the manufacturing defect by faulty workmanship of defect material will be repaired or replaced free of cost by service station when the unit is brought to the workshop. Further it is stated that, the alterations, careless or improper uses avoid the warranty. In the instant case, the Opposite Parties not pleaded that there is an alteration, careless and improper use of the inverter by the Complainant. The only contention that due to frequent electricity overloading in the house of the Complainant the PCB card of the said inverter was got damaged. The above contention raised only at the first time before this FORA. If at all the Opposite Parties’ technician noted the above problem then definitely the Ex C4, C5, C6 and C10 find a place in it. There is no whisper / reflection about the electricity overloading in the above said documents. Hence the above contention raised by the Opposite Party cannot be considered in this case. The documents issued by the Opposite Party i.e., Ex C4, C5, C6 and C10 clearly reveal that the above documents issued by the technicians of the Opposite Party and if at all there is a denial on the part of the Opposite Party, they should have examined the technician in order to disprove the contentions raised by the Complainant. In the absence of the same, we hold that the inverter and batteries sold by the Opposite Parties had a continuous problem from 31.05.2010 onwards. The Ex R2 dated 09.09.2010 issued by the Opposite Party No.1 reveals that the Opposite Party No.1 as per the warranty they have sent the new PCB card to the dealer to replace the same. The admission as well as the documentary evidence available on record clearly shows that the inverter cum batteries are not upto the quality and the contentions raised by the Opposite Parties leaves us unimpressed. What we are looking at is the deficiency in service on the part of the Opposite Parties and also the product sold by the Opposite Parties is a defective which is writ large in the case and duly supported by the factum that they changed the components in the first instance followed by change of fuse when that was not working properly it was further suggested to change the PCB. In the above circumstances, we feel that the Opposite Parties are liable to replace the new battery with fresh warranty by taking the defective inverter cum batteries.
At the outset we constrained to observe that, the defect found within the warranty period. Therefore, we direct the Opposite Party No.1 and 2 to replace the new inverter cum batteries with fresh warranty to the Complainant immediately. Further Rs.5,000/- awarded as compensation for the personal inconvenience and harassment caused to the Complainant and Rs.1,000/- as cost of litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
There is no contractual relationship between the Complainant and Opposite Party No.3. Hence complaint against Opposite Party No.3 is hereby dismissed.
6. In the result, we pass the following:
ORDER
Complaint is partly allowed. Opposite Party No.1 and 2 are directed to replace the new inverter cum batteries with fresh warranty to the Complainant immediately. Further Rs.5,000/- (Rupees five thousand only) awarded as compensation and Rs.1,000/- (Rupees one thousand only) as cost of litigation expenses to the Complainant. Compliance/payment shall be made within 30 days from the date of this order.
On failure to pay the above said amount within the stipulated time, the Opposite Party No.1 and 2 are directed to pay interest at the rate of 10% p.a. on the compensation amount from the date of failure till the date of payment.
Complaint against Opposite Party No.3 is hereby dismissed.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 13 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 30th day of September 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Peter D’Souza General Power of Attorney holder of the Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 20.8.2010: General Power of Attorney.
Ex C2 – 10.2.2009: Purchase Receipt.
Ex C3 – 10.2.2009: Warranty (2)
Ex C4 – 31.5.2010: Complaint slip.
Ex C5 – 31.5.2010: Complaint slip.
Ex C6 – 10.7.2010: Service slip.
Ex C7 – 23.8.2010: Legal notice issued by the Complainant.
Ex C8 – 24.8.2010: Postal Acknowledgements(2).
Ex.C9 – 28.8.2010: Letter from Birla Power.
Ex C10 – 19.08.2010: Complaint / service slip issued by the Opposite Party No.2
Witnesses examined on behalf of the Opposite Parties:
RW - 1 : Sri Haridasan, Senior Manager Sales and marketing of Opposite Party No.1.
RW – 2 : Sri Sathish, Partner of Opposite Party No.2.
Documents produced on behalf of the Opposite Parties:
Ex R1: 19.8.2010: Receipt for providing stand by inverter.
Ex R2: 9.9.2010: Letter issued by Opposite Party No.1 to the Complainant counsel and copy to the Complainant.
Ex.R3: Postal Acknowledgement.
Ex R4: Postal Receipts(2) in the name of the Complainant and her counsel.
Dated:30.09.2011 PRESIDENT
