BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

Dated this the  30^th September 2009

COMPLAINT NO.49/2009

(Admitted on:16.2.2009)

PRESENT:              1. Smt. Asha Shetty, B.A. L.L.B., President                                                                                                                                                                                                                                                                                                                                   

2. Smt. Sulochana V. Rao, Member
3. Sri. K. Ramachandra, Member

BETWEEN:

Sri.Jayaram Bhat,

Aged 50 years,

So Subraya Bhat,

Co B.Narayana Rao,

Shivaramarao Lane,

Sulthanbatheri Road,

Mangalore 575 006.                           …….. COMPLAINANT

(Advocate for Complainant: Sri Keshava Nadodi.)

          VERSUS

1. Birla Power Solutions Ltd.,

    427, 1^st Floor, Venkat Nivas,

    7^th Main, 8^th Cross, Jayanagar,

    2^nd Block,

    Bangalare 560 011.

2. M/s Agari Enterprises,

    Navodaya Complex,

    Main Road, Surathkal-575 014.

3. Megha Associates,

    Opp: Mphasis, Jeppu,

    Mangalore.                              ……. OPPOSITE PARTIES

(Advocate for Opposite Party No.1: Appeared in person)

(Advocate for Opposite Party No.2:Sri.H.V.Raghavendra Bhat.

(Advocate for Opposite Party No.3:Sri.P.P.Hegde.

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs. 

          It is submitted that, the Complainant purchased EPG-500 Model Inverter for his domestic use from the 2^nd Opposite Party who is the Authorized Dealer of Opposite Party No.1 at Mangalore, paid a sum of Rs.11,250/- to the Opposite Party No.2 as per cash memo dated 18.5.2007.  Opposite Party No.3 is the authorized service franchise of the Opposite Party No.1 at Mangalore.

          It is submitted that, while taking delivery of the above inverter, Complainant was informed by the Opposite Party No.2 that he can use the said inverter for three fans, three lights with three hours battery backup.  It was also informed to the Complainant that the said inverter with battery has got 24 months warranty given by Opposite Party No.1.  It is submitted that, the inverter started giving trouble within three months of its purchase, the same was brought to the knowledge of the Opposite Party No.2 and inturn Opposite Party No.3 have visited the Complainant residence and checked the inverter and did the service during the month of August 2007.  That again within a month the trouble started in the inverter and the service was done to the inverter even though the Complainant was unable to use the said inverter up to the level as it was canvassed in the Brochure of Opposite Party No.1.  It is stated that during 2007 there was frequent power cut and he was unable to use the above inverter.  Because of the often trouble in the inverter Opposite Party No.3 started telling that it was a problem in battery and the same was not properly handled.  It is stated that the Complainant was not informed at any stage to maintain the battery by toping of distilled water.  It is submitted that the inverter sold by the Opposite Parties having manufacturing defect because of the often trouble in the inverter.  Hence the Complainant issued a legal notice dated 16.10.2008 to replace the inverter with a new one along with battery, but the Opposite Parties not complied the same.  Hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to replace the New EPG 500 Model Inverter with battery and also pay compensation of Rs.25,000/- to the Complainant.

2.       Version notice served to the Opposite Parties by RPAD.  Opposite Party No.1 appeared in person and rest of the Opposite Parties i.e. Opposite Party No.2 and 3 appeared through their counsel and filed version.

          Opposite Party No.1 admitted that the Complainant purchased above inverter and battery from Opposite Party No.2 on 18.7.2007, at the time of sale it was clearly informed the party that the warranty period for inverter is two years and for the battery it is one year from the date of sale. Warranty manual for inverter also include the same. 

          It is stated that, proper maintenance of the battery has not been taken care by the Complainant.  However, Opposite Party No.2 had given service in August 2007, the battery and the inverters were functioning well.  Now after the warranty period is over in the month of October 2008, the Complainant is demanding for battery.  It is stated that the Complainant was informed by the Opposite Party that the warranty period is over and the battery was damage due to non-maintenance of the battery and contended that there is no deficiency/manufacturing defect and prayed for dismissal of the complaint.

          Opposite Party No.2 admitted that, the Complainant purchased the above inverter and the Opposite Party No.2 had issued warranty and User Manual provided by the 1^st Opposite Party.  This Opposite Party contended that, this Opposite Party is the only dealers of the product manufactured by the 1^st Opposite Party and any complaint if received was forwarded to the 1^st Opposite Party to take necessary repairs.  Since the 2^nd Opposite Party is only the dealer is not responsible for any manufacturing defect and prayed for dismissal of the complaint.

          Opposite Party No.3 submitted that this Opposite Party is not a authorized service franchise of Opposite Party No.1. Opposite Party No.3 is not at all connected to this case and not committed any deficiency 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:

1. Whether the Complainant proves that the inverter and battery purchased on 18.5.2007 from the Opposite Party No.2 suffers from manufacturing defect?

2. Whether the Complainant proves that the Opposite Parties committed deficiency in service?

3. If so, whether the Complainant is entitled for the reliefs claimed?

4. What order?

4.         In support of the complaint Sri.Jayaram Bhat (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex.C1 to C9 were marked for the Complainant as listed in the annexure. One Sri.Shrikanth, Senior Sales Officer of Opposite Party No.1 (RW-1), one Sri Agari Raghavendra Rao of Opposite Party No.2 (RW-2) and one Sri.Sathish Kumar of Opposite Party No.3 (RW-3) filed counter affidavit and answered the interrogatories served on them. Opposite Parties have filed written notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon’ble Forum and answer the points are as follows:                

          Point No.(i): Negative

          Point No.(iii) & (iv): As per the final order.

REASONS

5.  Points No. (i) to (iv):

In the present case, it is admitted that the Complainant purchased EPG -500 model inverter for his domestic use from 2^nd Opposite Party on 18.5.2007 and paid a sum of Rs.11,250/- as per cash memo bearing No.1513 (i.e. Ex C1).  It is also admitted that the 1^st Opposite Party is a manufacturer of the above product and the Opposite Party No.2 is the authorized dealer of Opposite Party No.1 at Mangalore.

Now the point in dispute between the parties before the Fora is that, the inverter purchased by the Complainant has got warranty of 24 months, within the warranty period the above said inverter started giving trouble within three months of its purchase.  It is contended that the above said problem brought to the notice of the Opposite Party No.2, Opposite Party No.2 inturn informed the Complainant to get service from Opposite Party No.3.  The Complainant contacted Opposite Party No.3 and the service technicians of the Opposite Party No.3 visited the Complainant house and checked the inverter and done the service during the month of August 2007.  It is alleged that within a month from the above service the trouble started in the inverter and again the Complainant contacted Opposite Party No.3.  It is further alleged that though some service was done to the inverter once again the problem occurred and the Complainant was unable to use the said inverter upto the level it was canvassed in the broucher and contended that the Complainant was unable to use the inverter when it was necessary during power cut and alleged that the above said inverter though having warranty, the Opposite Parties not done any service inspite of repeated complaint and contended that the inverter has manufacturing defect and came up with this complaint.

The Opposite Parties No.1 to 3 interalia denied the manufacturing defect and also the complaint lodged by the Complainant in respect of the trouble occurred to the inverter in question.

In the entire records except the oral allegation nothing has been placed on record to show that the inverter purchased by the Complainant is not usable and occurred problem within three months of its purchase or subsequently caused any problems.  Under the Consumer Protection Act when a Complainant comes with the complaint of manufacturing defect in goods purchased by him, which cannot be determined without proper analysis or test of the goods by an expert.  In the given case all the Opposite Parties including the Opposite Party No.3 who is alleged to be authorized service franchise of the Opposite Party No.1 at Mangalore specifically denied the authorized service franchisee with the Opposite Party No.1 and also denied the repair/complaint of the Complainant attended by them.  Under such circumstances, it is mandate on the part of the Complainant to satisfy the Fora with expert opinion/material evidence stating that the inverter purchased by him is not working and the trouble occurred within three months or subsequently.  Except the oral averments nothing has been placed on record to show that the inverter purchased by the Complainant is not working and has manufacturing defect.  In the absence of the expert opinion the complaint filed by the Complainant cannot be determined on the basis of oral evidence placed before us.  Further we have noticed that no Job Card/Service Report produced before the Fora to show that the inverter had problem.  In the given case, atleast one should produce some material evidence to prove the manufacturing defect, simply filing bare complaint before the Fora by alleging manufacturing defect is no sufficient to consider the complaint filed by the Complainant. 

In view of the above reasons, the complaint filed by the Complainant has no merits deserves to be dismissed.  No order as to cost.     

6.       In the result, we pass the following:

ORDER

The complaint is dismissed. No order as to cost.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th day of September 2009.)

    PRESIDENT

                                (SMT. ASHA SHETTY)

            MEMBER                          MEMBER

(SMT. SULOCHANA V. RAO)      (SRI. K.RAMACHNADRA)

APPENDIX

Witnesses examined on behalf of the Complainant:

CW1 – Sri. Jayaram Bhat – Complainant

Documents marked on behalf of the Complainant:

Ex C1 – 18.5.2007: Original Cash Memo issued by Opposite Party No.2.

Ex C2 –  18.5.2007: Original Warranty Card.

Ex C3 –  16.10.2008: O/c of Lawyer’s notice issued to Opposite Partys.

Ex C4 – Postal A/d of Opposite Party No.2.

Ex C5 – Postal A/c of Opposite Party No.3.

Ex C6 – Un-served cover of Opposite Party No.1.

Ex C7 – 25.11.2008: Original of Reply of Opposite Party No.3.

Ex C8 – 14.11.2008: O/c of 2^nd Notice sent to Opposite Party No.1.

Ex C9 – Postal A/d of Opposite Party No.1.

Witnesses examined on behalf of the Opposite Parties:

RW-1: Sri.Shrikanth, Senior Sales Officer of Opposite Party No.1.

RW-2: Sri Agari Raghavendra Rao of Opposite Party No.2.

RW-3: Sri.Sathish Kumar of Opposite Party No.3.

Documents marked on behalf of the Opposite Parties:

-Nil-

Dated:30/09/2009                                           PRESIDENT