Date of filing : 08-08-2008 Date of order : 06-10-2009 N THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD C.C. 124/08 Dated this, the 6th day of October 2009. PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SHYMALADEVI : MEMBER M.Abdul Rahiman, S/o. Cherumba Muhammed, Riyana Villa, Periyattadukkam, Po.Panayal, } Complainant Hosdurg Taluk. (Adv. Satheesh Kumar, Kanhangad) Electron Computer and E-Security. Opp.Manzoor Hospital, Kanhangad, 671315, } Opposite party Rep.by it’s Proprietor A.P. Mohideen. (Adv. B.K. Mahin, Kasaragod) O R D E R SRI.K.T.SIDHIQ, PRESIDENT The case of the complainant Abdul Rahiman is that he purchased an Electronic security system intended to protect the house from thieves and other trespassers. The cost of the said device was Rs.62,500/-. At the time of purchase the opposite party offered a guarantee of 5 years to the system. The system was purchased and installed on 12-02-08. But it never functioned properly. The siren of the system operated automatically without any reason and intermittently caused disturbance to inmates and neighbours. Though the opposite party was informed about the defect, they did not care to rectify the mistake and render service to the complainant. Hence a lawyer notice was caused on 3-4-08 the opposite party neither send any reply nor complied the legitimate demands made in the notice. Hence the complaint claiming the refund of the purchase price of the device Rs.62,500/- with interest and a compensation of Rs.20,000/- and other further reliefs. 2. According to opposite party the complainant has not purchased the goods in dispute i.e the security system from the opposite party. There was just an offer by issuing an invoice and the invoice is not all a bill. Since the goods are not sold by opposite party the sale was not concluded and hence there is no deficiency of service. Further contention of opposite party is that Sec.26 of the sale of Goods Act embodies the rule that risk prima facie passes with property. It provides that unless otherwise agreed the goods remain at the seller’s risk until the properties there is transferred to the buyer, but when the property there in is transferred to the buyer the goods are at the buyer’s risk whether delivery has been made or not. In this case there was no complete sale. The contract has perished for no fault of either of the parties. Thus there is a discharge of contract by frustration. Hence the complaint is liable to be dismissed with costs. 3. Complainant filed affidavit in support of his case and Exts A1 to A3 marked. An expert Commissioner a retired K.S.E.B, Asst. Executive Engineer was deputed to inspect and report the working condition of the Electronic Security System and filed the report. The said report is marked as Ext.C1. 4. On the side of opposite party no evidence either oral or by way of affidavit is adduced. No documents were also produced. Both sides heard. The documents perused. 5. The case of the complainant is that the electronic security system purchased from/ or sold by opposite party was defective at the very outset and in fact it was not working even the day first of it’s installation. The expert commissioner has filed a detailed report that is marked as Ext.C1. In which the Commissioner has stated that the system is not functioning properly and it is not a professionally manufactured system by any reputed company. 6. The case of the opposite party is that they have not sold the alleged electronic security system to the complainant and the Ext.A1 invoice is not at all a bill but it was only an offer to sell the device. The contention of opposite party is not sustainable. The whole defense of the opposite party is set up on a wrong notion that the Ext.A1 invoice is not a bill. It is not true. An invoice is as good as a bill and invoice means a list of goods sent or services provided with a statement of the sum due for that. The declaration made in Ext.A1 invoice is also a pointer to the fact that Ext.A1 is not only an offer of sale but it is a bill issued for the purchase of Electronic home security systems. The 3rd declaration is more important and it requests the customer to return the invoice for warranty purpose. The declaration proves that the invoice issued Ext.A1 by opposite party is a bill for the Electronic Security System sold to the complainant. If Ext.A1 is not a bill as contended by opposite party and had there been any practice or issuing another document as bill after the sale of any article then why should a consumer is requested to return the invoice for warranty purpose. So it is clear that the invoice issued in this case is a bill. 7. Therefore the complainant purchased an Electronic Security device that is having warranty and the denial of after sales service during warranty period to the system amounts to unfair trade practice as well as deficiency in service as envisaged under the Consumer Protection Act. The contention of opposite party in one direction is that he has not sold any article to complainant and there is no consumer relationship with complainant and opposite party, on the other direction he is relying in Sec 26 of sale of Goods Act to establish the rule of risk. This section is applicable only when there is actual sale of goods irrespective of the fact that whether the goods in dispute are actually delivered or not. Both the defence cannot go hand in hand. This inconsistent contentions itself shows that the opposite party have no consistent case hence the contention of opposite party is wholly unacceptable. 8. The counsel for opposite party also relied on a decision of Hon’ble Apex Court reported in AIR 1989 Supreme Court 1141. The said decision is quite irrelevant to the instant case since it is nobody’s case that after filing affidavit in support of the case, the complainant refused to subject him to cross examination. In fact no such a prayer for the cross examination of the complainant was ever made by opposite party. Moreover, the proceedings before the Consumer Protection Act being summary in nature the law of evidence is not at all applicable to the FORA. The FORA is bound to comply with principles of natural justice only. Again it is not the case of opposite party that they had not given any opportunity to adduce their evidence to controvert the case of the complainant or to substantiate their case. 9. Unfortunately our traders and sellers have developed a practice/tendency of not admitting defects in the goods, when pointed out by the consumers, and not replacing the same without contest. In other countries even if there is aggressive marketing, defective products are easily replaced. That practice is required to be adopted. Instead of disputing the undisputed facts the traders or sellers should resolve the matter by replacing or refunding the price of the defective product or article as the case may be. 10. We can imagine the pinch the complainant suffered due to the purchase of an ill-working costly electronic security system which yielded absolutely no security to the complainant except the emotional and mental sufferings due to its ill functioning. The opposite party is liable to compensate the complainant for the sufferings he had undergone. As held by our Hon’ble Apex Court in the case of Ghaziabad Development Authority V. Balbir Singh reported in (2004) 5 SCC 65. The Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation may constitute actual loss or expected loss and may extended to compensation for physical, mental or even emotional suffering, insult or injury or loss. 11. Further in this case the complainant not only deprived the benefit of the Electronic Security system he purchased but also forced to file the complaint to get his grievance redressed. In response to the complaint the opposite party took a stand denying even the sale of the product. We think this is a fit case to order punitive compensation against the opposite party. The Hon’ble Supreme Court in the case of Charansing V. Healing touch Hospital reported in III 2000 CPR1 (SC) has held that the compensation has to be awarded in an established case which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. In the result the complaint is allowed and the opposite party is directed to take back the defective Electronic Security System supplied to the complainant and refund its price Rs.62,500/- with a punitive compensation of Rs.20,000/- and a cost of Rs.3500/-. Time for compliance is limited to 30 days from the date of receipt of copy of this order. Failing which the opposite party shall pay interest @ 9% for the aforesaid amount Rs.62,500/- from the date of complaint till payment with the compensation and cost aforementioned. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Exts. A1.12-02-2008 photo copy of invoice issued by OP A2.3-4-08 photocopy of lawyer notice. A3.Postal acknowledgment card C1. Com mission report. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Pj/ Forwarded by Order SENIOR SUPERINTENDENT
......................K.T.Sidhiq ......................P.P.Shymaladevi ......................P.Ramadevi | |