This is a petition filed under Section 12 of the Consumer Protection Act for an order directing the opposite party to replace the acoustic enclosure with a new one or else to pay Rs 55,000/-, th e amount paid to the opposite party towards the price of Enclosure plus an amount of RS 50,000/- as compensation with interest and cost.<br /> The case of the complainant in brief are as follows. The complainant Manoharan is having a Kirloskar 25 KV Diesel Generator in his house. Inorder to control the noise emanated from the generator the complainant asked the opposite party to supply an Acoustic Enclosure with sliding doors on rollers and with adequate place inside. Quotation was placed by the opposite party as proposed by the complainant. The opposite party also showed the Acoustic Enclosure erected in the State Bank of India, Kannur branch. Satisfied with this the complainant placed an order . The opposite party was specifically asked to supply the same type of Acoustic Enclosure that he had given to the State Bank of India which has sliding doors, rollers and bearing mounted on rails with adequate space provided inside the container. The opposite party claimed an amount of Rs 75000/-( Rupees seventy five thousand only) for the same and Rs 25000/-(Rupees twenty five thousand only) was paid on 5.5.2001 as advance. The opposite party also realized an amount of Rs 30000/- on 6.6.2001 towards the price of materials which he brought for the erection of Enclosure. After one week enclosure was erected. Only after erection the complainant could understand that the Enclosure was defective. It was very small in size than ordered and not suitable to the generator. The size was reduced without the permission of the complainant. It has no sliding doors with mounted rails. The maintenance of the engine became impossible since the Enclosure was too small. It was also not sufficient to reduce the sound level. The opposite party supplied the Enclosure ignoring the order placed by the complainant. The opposite party also assured to replace the same with another one. But he did not comply the assurance. The Enclosure erected by the opposite party is cheap, sub standard , second hand and un-size making trouble even to the working of the generator. On 24.9.2001 lawyer notice was issued and in the reply opposite party has stated that the quotation was given without verification of the generator. The opposite party had inspected the generator and took measurement before giving quotation. Due to the act of the opposite party complainant suffered much difficulties and the opposite party is liable to pay compensation. Hence this complaint.<br /> The opposite party filed version denying the averments and allegations in the complaint. His contentions in brief are as follows. The complainant is not a consumer and complaint is not maintainable. One Ravishanker contacted him for getting the Acoustic Enclosure. The allegation that he has placed quotation after verifying the generator set and he was asked to supply the same type of Acoustic Enclosure that was given to the S.B.I.which has sliding doors, rollers and bearing mounted on rails with adequate place provided inside the container are utter false. The quotation was given without verifying the generator set and was only approximate one. He never showed the Acoustic Enclosure of SBI to the complainant and did not care to supply the same type fitted to SBI, Kannur. The generator set of SBI was a water cooled one and of 40KV capacity. But the generator set of the complainant was an air cooled one with 25 KV capacity. The Acoustic Enclosure for the water cooled system and air cooled system are different. The opposite party had stated in the quotation that the sliding doors will be provided in the assumption that the generator system of the complainant was a water cooled one. Only the swing door is suitable for Acoustic Enclosure of air cooled generator. He denies the allegation that the Acoustic Enclosure provided by the opposite party is not sufficient to reduce the sound level to the required stage and the opposite party has supplied the Enclosure ignoring the order placed by the complainant. The quotation was given without verification but on the assumption that the size of the generator set was 1.8 metres length. But the length was only 1.4 metres and thus reduced length to 2.6 metre instead of 3 metres as specified in the quotation. The length was reduced only after getting consent of the complainant. He has clearly stated in the quotation that the final design and dimensions are subject to improvement based on alterations and may vary according to the actual size and conditions. It was false to say that the opposite party had agreed to replace the Enclosure. The opposite party has achieved all specifications proposed by the Kerala State Electricity Inspectorate . The complainant has not followed such specifications while installing the diesel generator set. So there might be some difficulty in drawing out the used oil. The opposite party has run the diesel generator set and recorded the sound level about 65 to 68 DB which is well within the limits prescribed by the Electrical Inspectorate. The Acoustic Enclosure supplied to the complainant was of better quality. The complainant is liable to pay an amount of Rs 19000/- to the opposite party. The complainant is not entitled to get any relief. <br /> On the above pleadings the following issues are raised for consideration.<br /> 1. Whethe the complainant is a consumer and complaint is maintainable?<br /> 2. Whether there is any deficiency on the part of the opposite party?<br /> 3. Whether the complainant is entitled for the relief as prayed in the complaint?<br /> 4. Relief and cost.<br /> The e vidence consists of the oral testimony of complainant as PW1 and documentary evidence Exts. A1 to A5 marked on the side of the complainant and oral testimony of opposite party as DW1. No documentary evidence on the side of the opposite party. The commission report is marked as Ext.C1.<br /> <br /> ISSUE No.1. <br /> Admittedly the complainant contacted the opposite party for getting Acoustic Enclosure and the opposite party claimed an amount of Rs 75000/-. The complainant paid Rs 25000/- as advance and opposite party erected the Acoustic Enclosure for the complainant. The payment of advance itself is a consideration for the service intended to avail from the opposite party. Hence the complainant is a consumer who availed the service from the opposite party on payment of consideration and the complaint is maintainable. Issue No.1 is answered in favour of the complainant.<br /> ISSUE Nos. 2,3 & 4:<br /> Complainant’s case is that the Acoustic Enclosure erected by the opposite party to control the noise emanated from the generator to the house of the complainant has been defective in various ways. It is small in size than ordered and not suitable to the generator. It has no sliding door with mounted rollers. The Enclosure is not sufficient to reduce the sound level. The opposite party ignored the order placed by the complainant. The opposite party promised to replace the same but he did not carry out the work. The opposite party contended that he had stated in his quotation that sliding doors will be provided in the assumption that the generator system of the complainant was a water cooled one. Only the swing door is suitable for Acoustic Enclosure of air cooled generator. He further contends that the quotation was given without verification but on the assumption that the size of the generator set was 1.8 metres length. But the actual length was 1.4 metres and thus reduced the length of Enclosure to 2.6 metres instead of 3 metres as specified in the quotation. The opposite party admitted that the length of Enclosure reduced from 3 metres to 2.6 metres. Ext.A2 shows that the proposed size of the container is 3 metres. The opposite party admits that it has been reduced to 2.6 metres. There is no evidence to show that the length was reduced by convincing the complainant for its necessity. The complainant has a consistant case that he has provided less than a proposed size. The contention that the quotation was given without verification has no validity to measure the quality of the work done by the opposite party. The opposite party has stated in the quotation that the design and dimension are subject to improvement based on alterations and may vary according to actual site condition does not mean that the opposite party is at liberty to make any change ignoring the quotation. That clause can only be considered in positive sense to have only an unavoidable change with the consent of concerned parties. In Ext.A2 under the sub heading “ the system for the DG set “ Para 2 contains the sentence “ the sliding door shall be provided with rollers and bearing mounted on rails for ease of operation”, creates liability on opposite party to provide the same since that was agreed upon. The complainant clearly pleaded that the opposite party was asked to supply such type of Acoustic Enclosure and bearing mounted on rial. Ext.A2 confirms that it was agreed to provide sliding doors. The opinion of the Expert Commissiioner in Ext.C1 is that clearance now provided at engine end and generator end are inadequate. In his opinion the swing doors do not open to the full length of the DG set. To get adequate access to the engine and alternator, to make the routine maintenance easier the expert commission suggests suitable sliding doors on wheel and bearing with suitable insulation. It was proposed in Ext.A2 to provide sliding doors. The Commission also pointed out that major engine overhauling would require the engine parts to be dismantled and taken out for which Enclosure bolts and nuts around should be easily removable type. The Commission opined that the engine erection appears to have errered initially. In the above discussion makes it clear that there is imperfection in the erection of Acoustic Enclosure that amounts to deficiency in service on the part of opposite party under Section 2(1)(g). The very purpose of erection of Enclosure has become spoiled and thus we are of opinion that opposite party is liable to replace the Acoustic Enclosure with a new one or else to pay Rs 55000/- received by the opposite party. In case if it is not replaced the complainant is also entitled for a sum of Rs 25000/- as compensation with cost of Rs 1000/-. But in the case of replacement complainant should pay the balance consideration. Thus issue numbers 2,3 & 4 are found partly in favour of the complainant.<br /> In the result, the complaint is allowed partly directing the opposite party to replace the Acoustic Enclosure with a new one or else to pay Rs 55000/-(Rupees fifty five thousand only) received from the complainant together with a sum of Rs 25000/-(Rupees twenty five thousand only)as compensation and a sum of Rs 1000/-(Rupees one thousand only) as cost within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order as per the provisions of the Consumer Protection Act. In the case of replacement the complainant should pay the opposite party the balance consideration.<br /> Sd/-MEMBER Sd/- MEMBER Sd/- PRESIDENT<br /> APPENDIX<br /> Exhibits for the complainant<br /> A1. Letter dt. 8.2.2001 sent by the opposite party<br /> A2. Letter dt. 8.2.2001 (LE/EM/01/2001) sent by the opposite party<br /> A3. Lawyer notice dt.30.10.2001 sent by the opposite party<br /> A4. Installation check report for R/HA power generation engines. Dt.3.7.2001.<br /> A5. Photographs 9 in nos.<br /> Exhibits for the opposite party-NIL<br /> Witness examined on the side of the complainant<br /> PW1. Ravishankar .P.V<br /> Witness examined on the side of the opposite party<br /> DW1. K.Govind Menon<br /> Exhibit marked for the Court.<br /> C1. Commission submitted by M. Ramdas, Chief Electrical Inspector.<br /> <br /> <br /> <br /> <br /> <br />