Kerala

Idukki

CC/143/2017

Secretary Kanchiyar Gramma Panchyath - Complainant(s)

Versus

Energy Solar Solution - Opp.Party(s)

25 Jan 2022

ORDER

DATE OF FILING : 6.7.2017

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION IDUKKI

Dated this the 25^th day of January, 2022

Present :

SRI. C. SURESHKUMAR PRESIDENT

SMT. ASAMOL P. MEMBER

SRI. AMPADY K.S. MEMBER

CC NO.143/2017

Between

Complainant : Kanchiyar Grama Panchayath

Represented by Secretary,

Kachiyar P.O.,

Idukki

(By Adv: Sijimon K. Augustine)

And

Opposite Party : The Managing Director,

Energy Sol Solar Solutions,

N.H. 220, Vadavathoor, Kottayam.

(By Adv: Shiji Joseph)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

1. This complaint is filed under Section 12(1) of Consumer Protection Act, of 1986 (The Act, for short). Facts enumerated in the complaint are briefly narrated here under:

2. Complainant, Grama Panchayath had issued tender for supply, installation and commissioning of street lights within it’s limits. In answer to the same, quotation was submitted by opposite party, namely, M/s. Energy Sol Solar Solutions, mentioning lowest rate. It was accepted by complainant on 19.12.2015 after completion of all formalities. Altogether 93 LED luminaries of 20 W - 230 V AC and components along with 2 LED Mini Mast light system with accessories were installed. Cost of 93 LED luminaries was Rs.3,950/- each and 2 pieces of (cont....2)

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LED Mini Mast LED light system with accessories were obtained at a cost of Rs.74,500/- each. Opposite party had completed the work of installation as per quotation, on 31.3.2016. At the time of purchase of lights, an agreement was executed between complainant and opposite party. As per agreement, opposite party, had undertaken to fix lights in different parts of the Panchayath and given a warranty of 3 years for the lights from the date of invoice. A total amount of Rs.3,67,350/- was paid by the complainant to opposite party towards full and final payment of supply, installation and commissioning charges, on 4.4.2016. However, after a few months of installation, 90% of the lights were found to be damaged and malfunctioning. This was intimated to opposite party and it was asked to replace damaged items. However, opposite party had not responded to the request of complainant. Hence complainant had issued a legal notice in this regard for which opposite party had sent a reply raising frivolous contentions. Damaged and malfunctioning lights were not changed. Opposite party is bound to replace the lights which are not functioning, if not complainant is entitled to do the work by itself and to recover costs and replacement charges from opposite party. Presently, cost of the lights will be Rs.4 lakhs. Complainant is entitled to get Rs.5 lakhs from opposite party towards cost of lights and replacement charges. There is deficiency in service from the side of opposite party. It had also resorted to unfair trade practice for undue enrichment. Complainant and the public had suffered loss since normal life of public was affected, especially of those residing in remote areas near to forest. Complainant therefore seeks direction against opposite party to replace defective and damaged luminaries installed by opposite party or in the alternate to pay Rs.5 lakhs towards cost of luminaries and replacement charges. It also prays for an amount of Rs.50,000/- as compensation from opposite party and for realisation of Rs.5000/- as litigation costs from opposite party.

3. Opposite party had entered appearance and filed written statement refuting the claim of complainant. Its case is briefly discussed here under :

4. According to opposite party, complaint is not maintainable in law or upon facts. Complainant is not a consumer as defined in the Act. In view of definition of terms ‘consumer’ and ‘person’ given in sections 2(1)(b) and 2(1)(m) (cont....3)

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of the Act respectively. Opposite party admits that it had submitted quotation for installation of street lights which was accepted by complainant. As per quotation, opposite party had submitted 2 Mini Mast lights along with 93 LED lights. However, opposite party had not given 3 years blanket warranty as claimed by complainant. Warranty was only against manufacturing defects which specifically excluded damages caused by physical handling, mishandling and by natural calamities. Opposite party had as per quotation, supplied all materials. When installation work had commenced, there was objection by KSEB as Panchayath had not applied for separate supply line for the street lights. Without separate line, LED lights installed in the streets will remain on throughout the day. Therefore as agreed between complainant and opposite party, opposite party had fixed an automatic sensor for switching off the lights upon sensing sun light. After successful installation and commissioning of 93 LED lights along with 2 mini mast lights to the satisfaction of complainant, Panchayath had paid the amount due except caution deposit. Opposite party had provided warranty stated as per quotation. There was no annual maintenance contract between complainant and opposite party. Thereafter on 1.7.2017, upon complaint by the complainant, opposite party had inspected LED lights and mini mast lights. Upon inspection, it was found that many of LED luminaries were damaged due to high voltage surge occasioned by lightning. Though this was not covered by warranty, opposite party had as a gesture of goodwill, replaced all the damaged luminaries, but of mast lights.Both the mini mast lights had 4 branches each, out of which luminaries in one branch were not functioning due to damage caused by lightning. Light timer / sensor provided for automatic functioning was found to be wilfully damaged. Such damages were also not covered by warranty. That apart, it was the duty of the complainant to produce all the damaged goods and to seek replacement. Opposite party had no legal liability to carry out inspection of street lights, remove damaged luminaries if any, to replace them as there was no maintenance contract between them. Complainant has not carried out proper supervision and maintenance of the lights installed including that of mast lights. No separate supply line was applied for and obtained for the functioning of street lights and mast lights. Nobody was appointed by the Panchayath for proper maintenance of (cont....4)

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the lines or the lights. There is no deficiency in service on the part of opposite party. That being so, complainant is not entitled to get any of the reliefs claimed in the complaint. Hence it is to be dismissed with cost.

5. After filing of written version, case was posted for evidence. On the side of complainant, its Secretary was examined as PW1. Exts.P1 to P6 were proved on its side. Thereafter proceedings reveal that the case was repeatedly posted and adjourned for evidence of opposite party. Though sufficient opportunity was afforded, opposite party’s managing director or its agent as such were not examined on it’s side. Initially, evidence was closed as opposite party had taken no steps to tender evidence in the matter. Subsequently, upon application by opposite party, its evidence was reopened and Exts.R1 to R3 were admitted without formal proof. Ext.R3 was marked subject to objection. Thereafter a witness list was filed by opposite party citing its manager as a witness on its side. OP was permitted to examine the witness. Then managerof opposite party company, one Mr.Jose Martin Syprion was examined as a witness on its side on 19.8.2019. Ext.R3 was formally proved by him and Exts.R4 and R5 were admitted in evidence.It is seen from the proceedings that the manager was not cross-examined,though OP was represented on that date, probably, as examination was confined to admission of documents Thereafter it appears that an opportunity was afforded to opposite party to tender party evidence.However, managing director or its authorised representative had not appeared, nor was any chief examination affidavit filed. It is seen that as per proceedings dated 17.3.2020, case was mistakenly posted for cross examination of opposite party. Subsequent proceedings from 17.9.2021 onwards would reveal that there was no attempt by the opposite party to tender any evidence, much less to tender party evidence as such, though the proceedings mention that opposite party was not present for cross examination. Hence evidence was closed and both sides were heard. Now the points which are arises for consideration are :

1. Whether complainant is a consumer ?

2. Whether complaint is maintainable ?

3. Whether luminaries supplied were defective and covered by warranty ?

(cont......5)

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4. Whether there was any deficiency in service on the part of opposite party ?

5. Whether complainant is entitled to get the luminaries replaced and installed?

6. Whether complainant is entitled for any compensation prayed for ?

7. Reliefs and costs.

6. Point Nos.1 to 6 are considered together :

In so far as technical contentions raised by opposite party regarding maintainability of complaint is concerned, it appears to us that, complaint is maintainable in view of inclusive definition given of the term ‘person’ contained in Section 2(1)(m) of the Act. In this context, decision of Hon’ble Supreme Court in the matter of Karnataka Power Transmission Corporation and Another Vs. Ashok Iron Works Pvt. Ltd. and Another (AIR 2009 SC 1905) is very much relevant. We also noticed from the trend of cross examination, that maintainability is further questioned upon the premises that installation works of LED and mast lights were done for commercial purpose as the complainant is collecting tax from public. This contention will also not survive as collection of tax by Panchayath cannot be considered as provision of service to the public at a cost.

7. Now we shall deal with the factual contentions addressed in this case. Allegations are of deficiency in service. We are afraid that pleadings addressed in this context are vague, though the complainant is a public body and represented by a counsel of it’s choice. Complainant has only stated that 90% of the lights installed are damaged or malfunctioning. Averments in the chief examination affidavit are virtually extracts from the complaint itself. In other words, there are no specific pleadings with regard to the actual number of damaged or malfunctioning LED luminaries and the components of mast lights. Complaint or proof affidavit of complainant’s secretary does not say that supplied LED luminaries had any manufacturing or other defects covered by warranty. As per R4 and R5, there is no warranty for damages by mishandling, physical damages caused or damages caused by natural calamities. No such specific allegations are raised with regard to the luminaries installed upon mast lights or its components. Complainant had not attempted to get the defective goods inspected by an expert (cont.....6)

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for ascertaining nature of defect either before filing complaint or after by applying for expert commission inspection. Defective lumanaries or components were not produced before commission. Complainant has no specific case that installation of LED street lights along with that of mast lights was not proper or not in accordance with the conditions outlined in the tender or undertaking of the opposite party in its quotation. It is seen from pleadings that street and mast lights had functioned for a few months after installation. It is settled that burden of proving defect in goods or deficiency in service is upon the complainant. This initial burden has not been discharged by the complainant herein.

8. No pleadings were addressed nor was any evidence tendered to show how complainant came to know about damaged and malfunctioning luminaries. We shall deal with this aspect later and confine our discussions presently regarding supply of luminaries and connected works which opposite party was liable to carry out as per mutual agreement. Ext.P5 is a copy of tender details proved by PW1. As per Ext.P5, supply is to be of 72 LED street lights with power specification of 20W - 230V AC. 2^nd item is with regard to supply installation and commissioning of 6M mini mast LED light system which comprised of 4 numbers of 60 W LED luminaries and 3^rd item is regarding ISO certification, appointment of consultancy, which is not connected with the quotation invited. As per item Nos.1 and 2 of Ext.P5 though there is an apparent discrepancy in the number of LED luminaries to be supplied for street lights, which according to the complainant is 93, but, as per Ext.P5, number of this luminaries is only 72. However, it is admitted by both sides that number of LED luminaries meant for street lights is 93 and therefore we accept the number as 93. Ext.P5 would indicate that opposite party was only to supply, install and commission street lights and 2 mast lights. There was no contract as such for subsequent maintenance work of light installed. Ext.P6 would further clarify this. Ext.P6 is copy of acceptance letter given by opposite party. In Ext.P6, nature of work is described as only supply and installation of LED street lights along with mast lights.

9. Ext.P1 to P4 are the other documents proved by complainant. Ext.P1 is copy of quotation submitted by opposite party where in cost of each luminaries (cont.....7)

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is shown as Rs.3,950/-. It specifies that there is 3 year warranty from the date of installation. Ext.P2 is a copy of agreement executed by the Panchayath and the opposite party. As per Ext.P2 agreement, work involves only supply, installation and commissioning of LED light system and mini mast lights. Ext.P3 is a copy of receipt given by opposite party dated 4.4.2016, whereby payment of Rs.3,67,350/- by complainant to opposite party is evidenced. Ext.P4 series are extracts taken from minutes book of complainant Panchayath relating to extra ordinary meeting held on 17.6.2016. As per item No.17 of meeting held by the Grama Panchayath as above, decision was taken to send a letter to opposite party for replacement of damaged LED lights along with that of mini mast lights and if opposite party fails to replace defective items, to take legal steps against it. Ext.P4(a) is photo copy of acknowledgement of letter sent by complainant to opposite party by registered post in this context.

10. From a perusal of Exts.P1, P2, P5 and P6, it is very clear that the work entrusted to the opposite party by the Panchayath is only for supply, installation and commissioning of LED luminaries along with that of 2 mast lights. There was no contract for maintenance of those street lights or mast lights.

11. As far as allegations of deficiency in service are concerned, complainant has no specific case that LED street lights and mast lights were not properly installed. It is not the case of complainant that the lights installed did not provide sufficient electrodes or that emission of light was poor or installation was in places where lights were not required or requested/agreed to be installed. There is no evidence by PW1 on these lines either.

12. It is also pertinent to note that neither the complaint nor evidence tendered by PW1 would show that concerned secretary of Grama Panchayath had carried out physical inspection of lights installed and noticed any defect. No staff of the Panchayath working under the secretary was designated for the purpose, i.e., to ascertain number and nature of damage or malfunctioning street lights along with mast lights. Ext.P4 extract of minutes also do not reveal that the secretary or any one authorised by him had inspected the street lights and ascertained number and (cont......8)

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nature of damaged or malfunctioning street lights and mast lights. Apparently, there was no specific inspection. In all probabilities, owing to this, actual number of damaged or malfunctioning LED street lights and damages purportedly found in the luminaries or components of the same erected upon mast lights is not mentioned in the complaint. Nor was PW1, able to give evidence subsequently in this regard.

13. In this context, it would be proper to consider evidence ofRW1 and documents admitted by him on the side of opposite party. Exts.R1 and R2 were marked without formal proof. Ext.R1 is also a copy of agreement executed between complainant and opposite party. A similar copy was admitted from the side of complainant and marked as Ext.P2 earlier. Ext.R2 is copy of reply notice sent by opposite party to complainant. Original was not produced by complainant. This does not appear to us as proper as complainant is a local authority who is duty bound to disclose all the facts before public authorities. Ext.R3 is endorsement made by locals who had witnessed changing of malfunctioning lights by new ones, done by opposite party. It has a specific case that despite there being no contract for maintenance, upon receiving complaint from the Panchayath, it had physically inspected the installation and changed damaged LED lights. Ext.R3 would support these contentions of opposite party. It is pertinent to note that Exts.R2 to R5 were formally proved by RW1.The witness has not been cross examined by complainant’s counsel. Proceedings reveal that complainant was represented on the date when RW1 was examined, though his rank is erroneously shown as DW2 instead of RW1. Exts.R4 and R5 are copies of Form 8B retail invoices (Proforma Invoice) issued by opposite party to complainant with regard to supply of luminaries for street lights and mast lights. It is seen from both copies that there is signed endorsement with seal of panchayath acknowledging that the original invoices were received by panchayath. Original receipts which contain specification of warranty were not produced by complainant Grama Panchayath. It is specifically mentioned in Exts.R4 and R5 that there is no warranty for physical damage, cracked part, mishandling, negligence and defects caused by natural calamities. Apparently, physical damage and cracking of parts which is not covered should be owing to mishandling from the side of the Panchayath. It is clear that no blanked warranty was given. (cont....9)

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14. Opposite party has a case that damages so occurred were due to lightning. It is also pleaded that timer of one of the masts was physically damaged due to mischief. Despite this as a gesture of goodwill, opposite party had replaced damaged LED lights. R3 supports these contentions.

15. Opposite party has a further case that it had no liability to maintain street lights and mast lights installed either as there was no contract for the same. Therefore, if at all, any of the LED luminaries or their components had any manufacturing defects, complainant was to produce those damaged items at the premises of opposite party and seek replacement. These contentions appear to be substantive. Complainant has no case that it had collected the damaged or faulty items and produced it before the opposite party for seeking replacement. Line of contentions is that it is the duty of opposite party to replace the faulty items as such. These contentions are not well taken. Admittedly, contract was only for supply, installation and commissioning of the lights. 3 year warranty covers only specific defects. That being so, if at all, any of the product/goods supplied had any manufacturing defect or defects covered by warranty, it was for the Panchayath to collect those defective items and make it available to opposite party for inspection and replacement. This was, admittedly, not done.

16. Opposite party has a further case that Panchayath was bound to obtain a separate supply line for installation of street lights and mast lights, from KSEB. This was not done. That, power was unauthorisedly drawn from existing lines. It was for this reason that opposite party had supplied sensors, so that the lights will be switched off automatically upon sensing sun light.

17. These allegations are probably true. In this regard, when cross examined, PW1 had admitted that no separate supply line was provided for installation of street and mast lights. PW1 would only say that there is no condition in Ext.P2 agreement for drawing of separate supply line. This appears only as alame excuse, firstly, for the reason that it is specified in Ext.P1 quotation and also in Ext.P2 agreement that necessary sanction should be obtained from KSEB. Secondly, as per Regulation 102 KSEB Supply Code 2014, a local authority should apply for

(cont....10)

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separate metered connection for installation of street lights. Regulation also provides that supply and installation along with maintenance work will be done by KSEB if the local authority is prepared to meet the costs. Regulation further provides that supply installation and maintenance can be done by the local authority also. In both cases, it is necessary for the local authority to apply for and obtain a metered connection. Agreements are also to be drawn with KSEB in this regard. Nothing was produced to show that a metered connection was obtained for installation of street lights and public mast lights by the Panchayath. It was bounden duty of the Panchayath to come with all available documents pertaining to installation of street lights and mast lights, before this Commission. It has not done so. However, in view of the admission by PW1, that no separate line was provided for supply of power to the installed street lights and mast lights, it is evident that no metered supply was applied for or obtained by the Panchayath. Electricity Supply Code of Kerala had come into force as early as in 2014. Since installation works were done subsequent to it, the works requires a sanctioned metered supply. Clearly such a metered supply or connection was not applied for or obtained by the Panchayath. Even existing street light supply was to be changed to metered connection when Code came into force.

18. We had to discuss this aspect to consider the contentions taken by the opposite party that no separate supply line was obtained by the Panchayath from KSEB.However, opposite party has admitted in pleadings that it had arrived at a consensus with panchayath and had supplied sensors to switch off lights, so that lights could be switched off automatically during day time even in the absence of a separate line. That being so, opposite party cannot turn around and disown it’s liablity ,if any, for the reason that no separate supply line was provided.

19. However, as mentioned earlier, complainant has not specified the number of damaged or malfunctioning luminaries or any other components. It does not specify nature of damage or malfunction as such. Complainant has no case that it was caused due to manufacturing defect as such. Warranty does not cover any damage occurred owing to natural calamities. Contentions taken that sudden increase/surge in voltage owing to lightning may also damage the lighting (cont....11)

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system and its components are substantive. So also Panchayath had not produced so called damaged or defective luminaries and their components if any at the premises of opposite party and sought replacement as such. It has no case that installation of street lights and mast lights were not proper. We have discussed this aspect in length earlier and hence, for the sake of brevity, are not repeating the same here. Facts being so, it cannot be said that the goods supplied are defective or that there was deficiency in service on the part of opposite party in not physically collecting the damaged luminaries and replacing them as contended by the Panchayath. To sum up all our findings, in the light of aforesaid discussion, we hold that the complainant is a consumer as defined under Section 2(1)(d) of the Act, 1986 and that complaint is maintainable. However, complainant has not succeeded in proving that the luminaries and components supplied had any defect which opposite party was liable to repair or to replace or that there was deficiency in service in the installation of street and mast lights. That being so, complainant is not entitled to get the luminaries replaced or to obtain compensation from the opposite party. Point Nos.1 to 6 are answered accordingly.

20. Point No.7 :

In the result, complaint is dismissed, under the circumstances, without costs.

Pronounced by this Commission, on this the 25^th day of January, 2022

Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

 

Sd/-

SMT. ASAMOL P., MEMBER

 

Sd/-

SRI. AMPADY K.S., MEMBER

 

 

 

(cont....12)

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APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Shylaja P.T.

On the side of the Opposite Party :

DW1 - Jose Martin Syprion.

Exhibits :

On the side of the Complainant :

Ext.P1 - Copy of Quotation.

Ext.P2 - Copy of Agreement.

Ext.P3 - Copy of Receipts.

Ext.P4 - Copy of minutes’ decision.

Ext.P5 - Details of quotation.

Ext.P6 - Form of tender

On the side of the Opposite Party :

Ext.R1 - Agreement.

Ext.R2 - Copy of legal notice, AD Card and postal receipt.

Ext.R3 - Endorsement of locals.

Ext.R4 - Copy of retail invoice dated 24.2.2016.

Ext.R5 - Copy of retail invoice dated 27.2.2016.

 

 

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT