D.O.F : 04/02/2024
D.O.O : 13/09/2024
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC.28/2019
Dated this, the 13th day of September 2024
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SMT.BEENA.K.G : MEMBER
Abdulla Ibrahim, aged 64 years
S/o Ibrahim Ariyapadi,
R/at Fizza
NH -66, Mogral Puthur.
(Adv: Shajid Kammadam) : Complainant
And
- Bismilla Build Mall
CM Complex, Cherkala,
Kasaragod.
Rep. by its authorized person
- V Guard Industries Ltd
42/962, Vennala High School Road
Vennala, Kochi – 682028.
Rep by its authorized officer.
(Adv: V A Ajmal & A. Amith) : Opposite Parties
ORDER
SMT.BEENA.K.G : MEMBER
The brief facts of the case is that the complainant is a businessman and native of Mogral. The opposite party No.1 is a retail dealer of branded home appliances including opposite party No. 2. The complainant approached opposite party No. 1 to purchase a water heater. The opposite party No.1 suggested V-Guard water heater which is being manufactured by opposite party No. 2. The complainant purchased the same on 26/12/2018 for Rs. 6,500/- on the assurance of opposite party No. 1 regarding the quality of the product. The complainant installed the same in his house with the help of one technician. The allegation of the complainant is that, the water heater was not providing decided results at the inspection itself. It did not meet the expectations of the complainant. The complainant had availed the service of an authorized technician through opposite party No.2 on specific complaints of not generating hot water. After the inspections he was opined that it has inherent defect so he approached the opposite party No.1 for replacing the product with a branded new one. The cause of action of the complaint arose on 26/12/2018 (date of purchase) at Cherkala within the jurisdiction of this Honorable commission. The complainant is seeking direction against opposite party to replace the water heater with immediate effect with a compensation of Rs. 25,000/- and cost of Rs. 5,000/-.
The opposite party No.1 absent, name called absent, set exparte. The opposite party No. 2 filed version stating that the complaint is false, frivolous and not maintainable at law. The opposite party No. 2 denied the entire allegation and averments in the complaint except those which are admitted in the version. According to opposite party No. 2 the complainant does not come within the meaning of section 2(1) (D) of CP Act. The opposite party No.2 admitted the purchase of V-Guard water heater from opposite party No.1 by the complainant on 26/12/2018, which is manufactured by them. As per the complaint registered by the complainant opposite party No.2 had sent an authorized technician namely Mr. Linto Thomas on 29/12/2018, and found that the product was not properly installed as per the instructions mentioned in the warranty card. And it is also found that the product is working as per specifications guarantied by them. The inlet water pressure is low since the water heater is installed hardly one meter down to the water tank. So the flow of water from the water tank to the water heater becomes slow and it causes scarcity of water. The water heater installed on an open terrace and connecting hot water in very old rusted metal plumping pipe line. The distance between the water heater and bathroom is almost 4 to 5 meters. While inspection, the complainant told that he requires more than 10 liters of hot water at once when the tap just opened and he was not ready to wait for water to get heated. The complainant behaved very rudely with the technician of opposite party No.2 and shouted in an obscene and vulgar language to technician. The complainant was not ready to listen or understand the real situation. The allegations and averments stated in the complaint regarding manufacturing defects of the product are baseless. The water heater is in good condition. The installation of the said product was done by an inefficient technician engaged by the complainant himself. The product was installed without following the instructions mentioned in the warranty card. Hence the problem developed. The water heater is covered by warranty and if there are any defects, can be repaired and rectified under the norms stated in the warranty card. Without resorting those conditions the complainant is not entitled for reliefs claimed in the petition. If the product replaced with a new one the same problem would have arise if it is not properly installed. Therefore there is no deficiency in service on the part of opposite party No. 2. The claim of the complainant is excessive, exorbitant and without any basis. And opposite party No. 2 are not binding to pay any amount to the complainant under any heads as stated in the complaint. Therefore it is prayed that the Honorable forum may be pleased to dismiss the complaint with cost in the interest of justice.
The complainant filed proof affidavit on 25/07/2019 and was cross examined as PW1. Ext. A1 marked. On 26/11/2019 the opposite party No. 2 filed proof affidavit and cross examined as DW1. The opposite party No.2 filed authorization letter on 31/10/2019., which is marked as Ext. B1 from the side of opposite party. The opposite party No.2 filed witness list on 18/02/2020 which was allowed. The witness Linto Thomas was examined and cross examined as DW2, Ext. D1 and D2 series marked. Ext. D1 is the ID card of Linto Thomas. Ext. D2 series are the photographs of the installation of water heater in the residential building of the complainant. Ext. D4 is the mobile service report dated 29/12/2018. On 13/11/2020, the complainant filed application to reopen evidence and appoint an expert commission. The complainant filed Expert list only on 22/05/2021. The opposite party No.2 filed objection for the same on 11/10/2021. From 16/11/2021 onwards the case posted for Expert report and finally on 04/07/2023, the complainant filed memo stating not pressing the application. Both sides heard and documents perused. The main issues raised for consideration are;
- Whether there is any deficiency in service on the part of opposite parties as alleged in the complaint?
- Whether the complainant is entitled for any reliefs?
- If so, what is the relief?
For convenience all issues can be discussed together. The case of the complainant is that the water heater purchased from opposite party No.1, manufactured by opposite party No.2 was not providing sufficient quantity of hot water. As per the registered complaint the technician of opposite party No.2 inspected the house of the complainant and examined the product. The technician found that the installation of the water heater was not according to the instructions mentioned in the warranty card. And the installation is done by a technician engaged by the complainant. The opposite party No.2’s authorized technician Mr. Linto Thomas was examined before the commission, he deposed before the commission that - he received the complaint of the water heater on 29/12/2018, on the same day itself, he attended the water heater. According to him, it was found that the product was not properly installed as per the instruction mentioned in the warranty card. And it is also found that the product is working as per specification guaranteed by the second opposite party. The inlet water pressure is low, since the water heater is installed hardly one meter down to the water tank. The flow of water from the water tank to the water heater becomes slow and it caused scarcity of water. It was also found that the water heater installed on an open terrace and connection hot water in very old rusted metal plumping pipe line. The distance between the water heater and bathroom is almost 4 to 5 meters. On inspection, the complainant told that he requires more than 10 liters of hot water at once and requested to replace the said water heater with a new one with a capacity to provide more than 10 liters of hot water, when tap just opened and he was not ready to wait for water to be get heated. The complainant behaved very rudely and shouted in vulgar language. The complainant was not ready to listen and understand the situation. The next day also he telephoned to the opposite party, DW2 and asked for replacement of the water heater having more capacity. It is not correct to say that the water heater which provides 10 liters of hot water is defective. The technician has taken photos and CD to prove the functioning of the water heater. The photos are marked as Ext. D2 series, CD is marked as Ext. D3(Subject to proof). The report prepared by DW2 is Ext. D4. According to Ext. D4, “no product complaint. Demonstrated to customer. Height of the tank from water heater is too low. Plumping complaint.” The opposite parties had not provided copy of the report to the complainant. Usually, the technician are advised to took signature of the complainant, but in this case it was not done due to the rude attitude of the complainant.
We carefully gone through the affidavit and documents produced by the complainant and the version and evidence adduced by opposite party. While perusing the deposition of the complainant (PW1) and opposite party No.2 (DW2), it is clear that the actual complaint is not regarding deficiency in service on the part of opposite parties and the said water heater is functioning properly. Instead it is insufficient to provide morethan10 liters of water. The complainant required a water heater having capacity to provide more than 10 liters of hot water within 2 to 3 minutes and the said water heater is not defective. Even though an expert commission is allowed to find out the defects of the water heater, the report is not seen filed till 04/07/2023. When this commission issued warrant against the commissioner for not complying the order the complainant not pressed the application proves that the water heater is in working condition. Moreover, complainant filed an application to withdraw the warrant issued against the commissioner stating that the commissioner could not complete his work as the complainant is out of India and his residential building was locked. This is the reason for the long delay occurred in this case. The burden of proof in consumer cases lies with the party making the claim and the opposite parties cannot be held liable without adequate proof of deficiency in service/manufacturing defect. This complaint is filed on an experimental basis. The complainant is failed to prove deficiency in service on the part of opposite parties, hence the complaint is dismissed with no order as to cost.
Sd/- Sd/-
MEMBER PRESIDENT
Exhibits
A1 – Tax invoice
B1 – Authorization letter
A2 – Warranty card
D1 – ID card of Linto Thomas
D2 series – photographs of installation of water heater
D3 – CD
D4 – Mobile service report
Cross examination
PW1 – Abdulla Ibrahim
DW1 – Sajin P
DW2 – Linto Thomas
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
JJ/
