BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD : THIRUVANANTHAPURAM<br /> PRESENT:<br /> <br /> SHRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENA KUMARI. A : MEMBER<br /> SMT. S.K. SREELA : MEMBER<br /> <br /> O.P.No. 404/2004 Filed on 25..10..2004<br /> <br /> Dated: 30..07..2008<br /> <br /> Complainants:<br /> <br /> 1. Dhan & Company, T.C.No.4/1274, Krishna, Kuravankonam, Trivandrum. Represented by its Managing Partner.<br /> <br /> 2. V.S. Velayudhan Nair,Managing Partner, Dhan & Company, ...do...<br /> <br /> (By Adv. Sri. Sonay John)<br /> <br /> Opposite parties:<br /> <br /> 1. The General Manager, M/s. Safeguard Associates, Door No.4/171, Thottathil Lane, Opp. Mission Hospital, East Fort, Thrissur – 5.<br /> <br /> 2. The Marketing Manager, Sense Marketing, East Fort, Near Lord Church, Thrissur – 5.<br /> <br /> 3. Dheeraj. K. Kumar, Marketing Executive, Sense Marketing, P.M.G., Thiruvananthapuram.<br /> <br /> <br /> This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 31..03..2006, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 30..06..2008, the Forum on 30..07..2008 delivered the following:<br /> <br /> ORDER<br /> <br /> SMT. S.K.SREELA, MEMBER:<br /> <br /> The brief facts of the case are as follows: Attracted by the advertisement of the opposite parties in the brochure stating 'You can own an inverter by paying Rs.1,636/- and balance by installments' along with the most attractive things that 5 tubes, 3 fans, T.V and Music system can run for four hours by the support of the inverter of the opposite parties, the complainants placed orders to the 3rd opposite party for the installation of the inverter in the office of the complainants' firm. Accordingly, as per the instruction of the 1st & 2nd opposite parties, the 3rd opposite party installed the inverter in the office of the complainants' firm, after receiving an amount of Rs.9,000/-, on 21..01..2004 and a warranty card for 2 years was also given. The opposite parties had agreed for proper servicing at periodic intervals also. The said inverter functioned smoothly for one month but after that, the functioning of the inverter was found not proper. Though this complaint was brought to the notice of all opposite parties several times, there was no response from the opposite parties and no opposite parties attended to the complaint made in this regard and no kind of servicing has been carried out by the opposite parties, since the installation of the inverter. The opposite parties have not fulfilled the promise made in their brochure and warranty card. Hence this complaint has been enunciated.<br /> <br /> 2. The opposite parties remain ex-parte. Complainant has filed affidavit in lieu of chief examination and marked Exts. P1 to P8. The complainant has not been cross examined hence his affidavit stands unchallenged.<br /> <br /> 3. The issues that would arise for consideration are:<br /> (i)Whether the inverter supplied is defective?<br /> (ii)Whether there is unfair trade practice and deficiency in service on the part of the opposite parties?<br /> (iii)Reliefs & Costs?<br /> 4. Points No.(i) & (ii): According to the complainants attracted by the advertisement of the opposite parties, they have purchased the inverter which became defective immediately after one month of its installation. This inverter was installed in a Chartered Accountant Firm. It is a settled position that even if the equipment was purchased for commercial purpose, the purchaser will certainly be a consumer under Sec. 2(1)(d)(ii) in respect of services rendered or to be rendered by the seller for the proper functioning of the equipment during the period of warranty. The allegation is that the inverter became defective during warranty period. Hence we have no doubt with regard to the maintainability of this complaint before us.<br /> <br /> 5. Ext. P1 which is the brochure with regard to the inverter. Ext.P2 which is the invoice dated 21.01.2004 and Ext.P3 dated 21..01..2004 prove the payment of Rs. 9,000/- towards the purchase of the intelligent inverter 550VA, with 100AH Faraday Tabular battery. The warranty card, Ext.P4, issued to the complainants shows a warranty for a period of one year ie., from 21..01..2004 till 21..01..2005. The notice sent by the complainants to the opposite parties on 23..06..2004 reveal that the inverter is not functioning properly. The complaint Ext.P5 is seen sent well within the period of warranty itself. Moreover, the registered legal notice sent on behalf of the complainants, dated 17..08..2004 also goes to prove that the improper functioning of the inverter has been brought to the notice of the opposite parties well within the warranty period itself, the acceptance of the said notice by the opposite parties is evident from Ext.P6(a). The materials on record prove that the malfunctioning of the inverter was informed to the opposite parties. The opposite parties have never turned up to deny the same, they have not contested the case. The 2nd complainant has filed an affidavit to the effect that the opposite parties failed to fulfill the promise made in the brochure and warranty card. The documents produced on behalf of the complainants prove that the inverter became defective during warranty period and the failure of the opposite parties in not attending to the repair and after sales service of the inverter in time in spite of the various complaints by the complainants is a gross deficiency in service in the manner and nature of performance on the part of the opposite parties resulting loss to the complainants. It was the responsibility of the opposite parties to rectify the defects within the period of warranty. The complainant has succeeded in proving that, the complaint with regard to the trouble with the inverter within the warranty period, was promptly lodged with the opposite parties. When the opposite parties have not disputed before the Forum that the inverter supplied to the complainant was defective, there is no necessity of following the procedure laid down in Sec.13(1). The fact that the inverter supplied was defective has been proved conclusively by the complainants.<br /> <br /> 6. Point No. (iii): In the light of the above discussions, we find that the complainant is entitled to get the refund of the price of the inverter along with compensation. Obviously, the improper functioning of the inverter would have caused loss to the complainants, it is practically impossible to bring out in evidence the actual monetory loss, inconvenience and mental sufferings caused to the complainants. In the light of the materials on record and evidence, we find that an amount of Rs. 2,500/- would be reasonable to compensate the same. The complainant is also found entitled for an amount of Rs.4,000/- towards costs of the proceedings.<br /> In the result, the opposite parties shall jointly and severally refund an amount of Rs.9,000/- (Rupees Nine thousand only) along with a compensation of Rs.2,500/- (Rupees Two thousand five hundred only) and Rs. 4,000/- (Rupees Four thousand only) towards costs of the proceedings to the complainants. On payment of the entire amount the complainants shall return the inverter in dispute to the opposite parties. Order for compliance 2 months failing with the amounts shall carry 12% interest from the date of the order till the date of payment.<br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 30th day of July, 2008.<br /> <br /> <br /> G.SIVAPRASAD, PRESIDENT.<br /> BEENA KUMARI. A : MEMBER<br /> <br /> <br /> S.K. SREELA : MEMBER<br /> <br /> ad.<br /> O.P.No.404/2004<br /> APPENDIX <br /> <br /> I. Complainants' witness: NIL<br /> <br /> II. Complainants' documents:<br /> <br /> P1 : Photocopy of the brochure distributed by the opposite parties. <br /> P2 : Photocopy of Invoice No.867 dated 21..01..2004 for Rs. 9,000/-.<br /> P3 : Photocopy of the receipt No.942/- dated 21..01..2004<br /> P4 : Photocopy of the warranty card bill No.867/08 B. Dated 21..01..2004.<br /> P5 : Photocopy of letter dated 23..06..2004 issued to the 1st opposite party by the complainant.<br /> P6 : Photocopy of advocate notice dated 17..08..2004 issued to the opposite parties.<br /> <br /> P6(a) : Photocopy of postal acknowledgment card received from the 1st opposite party.<br /> P7 : Original newspaper Kerala Kaumudi Daily dated 17..09..2005 highlighting the advertisement.<br /> <br /> P8 : Original advertisement receipt No.TVM 022687 dated 13..09..2005.<br /> <br /> III. Opposite parties' witness: NIL<br /> <br /> IV. Opposite parties' documents: NIL<br /> <br /> PRESIDENT.<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />