D.O.F.01.12.2010
D.O.O.15.05.2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Smt. M.D.Jessy : Member
Dated this the 15th day of May 2012
C.C.No.288/2010
V.B.Raziya,
‘ASHHAD’
P.O.Chirakkara, Thalassery Complainant
(Rep. by Adv.M.V.Rajendran)
1. Index Informatic(s) Pvt.Ltd.
Index House – HIG-25,
Panampilly Avenue,
Pananopilly Nagar,
Cochin 36.
(Rep. by Adv.K.Mahesh)
2.INFRA Associates,
Arafa International Building,
Aarat Road, Kannur. Opposite parties
O R D E R
Sri.K.Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties either to replace the inverter and battery to a new one or to pay back the purchase amount `15,250 together with a sum of `5000 as compensation.
The case of the complainant in brief is as follows: Complainant purchased 800 VA Index inverter with 120 A.H tubular battery from 2nd opposite party on 28.1.2009. 1st opposite party is the manufacturer. Inverter was installed in complainant’s house by 2nd opposite party and a guarantee card for 2 years also issued. 2nd opposite party assured at the time of purchase that the above inverter and battery is sufficient for 4 fan and 5 tub lights for five hours. But from the beginning itself the device was not working property. The capacity of the battery was only one hour 2nd opposite party had taken the battery for service on 4 occasions and retuned to the applicant telling that its defect was rectified. But defect were not cured. When 2 fans and 3 tubes were switched on at a time the inverter is not taking the load and is not working properly. On making complaint again opposite party has taken the inverter for service and returned after 10 days, claiming the defects were cured but same complaints repeated then 2nd opposite party took the same back promising to replace the battery with new one. But not replaced. Legal notice was sent on 25.4.2010 to both parities. After receiving notice 2nd opposite party replaced another battery. But inverter could not be used even for a period of more than 5 minutes. Opposite party is not responding now and not attending even telephone. The opposite parties are liable to replace the product or to repay the price amount `15,250 together with compensation. Hence this complaint.
Pursuant to the notice 1st opposite party appeared and filed version, whereas, 2nd opposite party remained absent and subsequently called absent and set exparte. 1st opposite party took the following contentions: This opposite party is the manufacturer of Index Electronic Genset and 2nd opposite party is the dealer. This opposite party delivered the Guarantee card for his product which is printed in form for one year from the date of sale. This opposite party is manufacturing and supplying only the Index Electronic Genset. They are not manufacturing or supplying the battery required for the Index Electronic Genset. The guarantee card issued is only for inverter and not for the battery and the same is specifically written in guarantee card. This opposite party has not given any assurance to the complainant. The complainant has not made any complaint with regard to the working of the Index Electronic Genset within the guarantee period of 1 year or thereafter. If 2nd opposite party has given any guarantee for two years to the Index Electronic Genset then the second opposite party alone would be liable to rectify the mistake. The 120 AH battery will get back up only up to 1 hour. The battery was provided by the 2nd opposite party. Complainant is not entitled for any relief from this opposite party. Hence t o exonerate this opposite party from the liability.
On the above pleadings the following issues have been taken for consideration.
1. Whether there is any deficiency on the part of opposite
Parties?
2. Whether the complainant is entitled for the remedy as
prayed in the complaint?
3. Relief and cost.
The evidence consists of the oral evidence of PW1, Exts.A1 to A5 on the side of the complainant and Ext.B1 on the side of 1st opposite party. No evidence adduced on the side of 2nd opposite party.
Issue Nos.1 to 3
Admittedly the 1st opposite party is the manufacturer of Index Electronic Genset and 2nd opposite party is the dealer. The case of the complainant is that he has purchased 800 VA Index Inverter with 120 A.H tubular Battery from 2nd opposite party on 28.1.2009. Ext.A2 issued by 2nd opposite party proves the purchase and payment.Ext.A1 is the Guarantee card for Electronic Genset.
The main allegation of the complainant is that 2nd opposite party assured complainant that 800 VA inverter and 120 AH battery is sufficient for the working of 4 fans and 5 tube lights. Five hours continuous working also assured. But the device has not been working properly from the very outset. The inverter is defective. Ext.A2 is the receipt which shows the total amount `15,250 which proves that complainant had purchased 800 VA INDEX INVERTOR and 120 AH Tubular battery. PW1 adduced evidence by way of affidavit evidence in tune with the pleadings. PW1 stated that they have purchased the above said inverter and battery from 2nd opposite party on 28.1.2009. He has also stated that at the time of purchase the men of 2nd opposite party assured that the inverter system is one by which 4 fans and 5 tubes can continuously work for 5 hours. PW1 adduce affidavit evidence that the inverter system was a failure from the very beginning. PW1 stated that the battery was repaired by 2nd opposite party 4 times but in vain. Inverter was taken away by 2nd opposite party for repairing but after returning it, it could be seen no defect was cured. Same complaint repeted Battery was also taken back by opposite party promising to replace it. But he did not give new battery. Complainant issued Lawyer notice to both parties. Ext.A3, copy of the notice and ext.A4 & 5 postal acknowledgement proves that the notice was sent to both opposite parties. 1st opposite party admitted that notice was received by him. But it is seen that no reply has been given by him to complainant. If the inverter was not defective 1st opposite party could have sent a reply stating that there was no complaint for the inverter. Opposite party has taken the defence that it is not the inverter but the battery which is defective by which the system as such is not working properly. Practically it has been admitted that the system as such is not under working condition If that be so it is not understandable the reason for keeping silence towards the legal notice. 1st opposite party did not adduce any evidence except producing a mere form of guarantee card, which is marked as ext.B1.Ext.B1 cannot be considered as a relevant document which can contribute anything in determining the case. Practically no evidence has been adduced by 1st opposite party. He has not entered in witness box for fear of cross examination. There is no reason for not adducing evidence. Pleadings in version as such cannot be considered as evidence. 1st opposite party cross examined PW1 elaborately. In cross examination PW1 deposed that “Inverter complaint BWv”. He has repeatedly answered to another question that “ inverter\p bmtXmcp complaintsDT Cà F¶p ]d-ªm icn-bÔ. He has also stated that “ 1st opposite party \n¶p bm-sXmcp \nhr-¯n-¡pT _m²-y-X-bnà F¶p ]d-ªm icn-bÔ. Complainant adduced evidence by way of chief affidavit in tune with his pleadings. 1st opposite party has also enjoyed the opportunity to cross examination. But 1st opposite party did not adduce any evidence on his part. 2nd opposite party through whom the inverter was sold remained absent right from beginning and 1st opposite party blamed 2nd opposite party for the entire default. It is an admitted fact that the inverter was manufactured by 1st opposite party and sold through 2nd opposite party. 2nd opposite party remained exparte and 1st opposite party did not adduce any evidence except blaming 2nd opposite party. This is only a tactics applied in order to escape from the liability. 1st opposite party did not deny the fact that the 2nd opposite party is the agent through him the inverter system was sold. 2nd opposite party had been selling the system as per the direction of 1stopposite party/ manufacturer. It has also be taken into account that the 1st opposite party did not adduce any evidence in order to establish the contentions raised by them. Actually no interest has been taken so as to place any evidence before the Forum. Under such circumstances there is no need to disbelieve the evidence of PW1. It is quite clear that the system has not been under working condition and complainant could not properly use the system. Hence we are of opinion that there is deficiency in service on the part of opposite parties and they have liability to replace the inverter and battery with a new one or else to pay back the price of the inverter and battery to the complainant. Opposite parties are also liable to pay an amount of `1000 as cost. Hence the issues 1 to 3 are found in favour of complainant and order passed accordingly.
In the result, the complaint is allowed directing the opposite parties to replace the inverter and battery with a defect free new one or to pay back `15,250 (Rupees Fifteen Thousand Two hundred and fifty only) as its price to the complaint. Complainant is also entitled to get `1000 (Rupees One Thousand only) as cost. It is further directed that the opposite parties shall comply the order within one month from the date of receipt of this order failing which the opposite parties shall liable to pay interest for the amount of `15,250 at the rate of 12% p.a from 01.12.2010, the day of institution of the complaint till the realization of amount. Opposite parties 1 and 2 are jointly and severally liable to pay the amount. Complainant is entitled to execute the order after the expiry of 30 days as per the provisions of the consumer protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1.Guarantee card issued b OP
A2. Bill issued by 2nd OP
A3.Copy of the lawyer notice sent to OP
A4 & 5.Postal acknowledgement card
Exhibits for the opposite party:
B1. Guarantee card for electronic genset provided by
Index Informatics Pvt. Ltd.
Witness examined for the complainant
PW1Complainant
Witness examined for the opposite parties: Nil
/ forwarded by order/
Senior Superintendent
