DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM
Dated this the 23rd day of April, 2024.
Filed on: 13/05/2022
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No. 250/2022
COMPLAINANT
Abhilash Jose, S/o Sajan Antony, Thevankat House, St. Mary's Chapel Road, Thoppumpady P.O, Kochi, Ernakulam District. PIN - 682005.
(Rep. by Adv. E.G. Gorden, P.A. Bonifus & V.M. Mary Harsha, Sayed Muhammad Complex, C.P. Ummer Road, Kochi 35)
Vs
OPPOSITE PARTIES
- M/s. Kairos Solar, represented by its manager, Building No. 393/1, Ground floor, North Pipeline Road, HMT, Kalamassery, Kochi, Ernakulam. PIMA 683503.
- Ariston Thermo India Privates Led Bording Hơ xii/895A1, C o Yusen Logistics India Pvt. Ltd. Survey No 717/4, Pottekattu Building, HMT Road, Kalamassery, Kerala- 683503.
(Rep. by Adv.K.S.Arundas #35, DD Oceana Mall, Near Taj Gate Way Hotel, Marine Drive, Ernakulam-682 031)
F I N A L O R D E R
D.B. Binu, President:
- A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The complainant resides at the provided address and purchased a solar water heater from the 1st opposite party who is the dealer of the 2nd opposite party who is the manufacturer of the product for Rs. 21,000 on September 9, 2020. Before the purchase, a representative from the dealer assured the complainant about the quality of the product and offered a five-year guarantee against defects, promising replacement or repair for any defects during this period.
Trusting the assurances, the complainant bought the heater, which was installed by technicians from the dealer on the purchase date. About 16 months later, in January 2022, the heater developed a leak in the panel pipe. Despite informing both the dealer and manufacturer and receiving a visit from a technician of the manufacturer, who promised a replacement, the product was not replaced despite repeated contacts.
The complainant issued a legal notice to both parties on March 26, 2022. The dealer did not respond to the notice, and the manufacturer's notice was returned as the company had left the provided address.
The complainant alleges a deficiency in service and unfair trade practices by both parties. The complainant seeks reimbursement of the purchase price (Rs. 21,000) with 18% interest per annum from the date of purchase, compensation of Rs. 20,000 for mental agony and suffering, payment of all costs of the proceedings, and a declaration that the opposite parties are jointly and severally liable for the payment. The complainant requests the Commission to direct the opposite parties to make these payments and address the deficiencies and unfair practices cited.
2) Notice
The commission sent notices to the opposite parties. The second opposite party subsequently appeared and submitted their version. However, the first opposite party did not file their version and was set as ex-parte.
3) THE VERSION OF THE SECOND OPPOSITE PARTY
The statement emphasizes that OP2 denies all allegationss and contentions of the complaint inconsistent with their response. The OP2 highlights that it is a globally respected company specializing in water heating solutions known for their quality and energy efficiency. The response is authorized and filed by Ms. Arati Godbole, who has been empowered by the company to handle legal matters.
The OP2 asserts that the complaint is legally unfounded and should be dismissed on those grounds alone. They stated that the issues raised do not constitute a consumer dispute under the Consumer Protection Act, 2019, and thus fall outside the jurisdiction of the Commission. The complaint is characterized as misconceived, motivated by an intent to harass the company, and without merit.
They also point out that the alleged defects could be due to mishandling or other reasons, not necessarily manufacturing defects, and such cases require expert evaluation. OP2 mentions a specific instance where the complainant has failed to demonstrate any manufacturing defect, citing long usage and proper functioning for over a year and a half as evidence of the product's quality.
OP2 refers to legal precedents where the burden of proof for manufacturing defects lies with the complainant and where complaints have been dismissed when no substantial defects could be proven. They request that the complaint be dismissed with costs and deny all allegations of deficient service, unfair trade practices, or negligence.
Overall, OP2 seeks to dismiss the complaint, stating that no proper cause of action exists against them, and no evidence supports the complainant's claims. They ask the Commission to reject the complaint and impose costs on the complainant for what they describe as an abuse of the legal process.
4) . Evidence
The complainant filed a proof affidavit along with six documents, which were marked as Exhibits A-1 to A-6.
- Exhibit A1: The brochure of the water heater was issued by the 1st opposite party.
- Exhibit A2: Payment receipt issued by the 1st opposite party for the purchase of the water heater by the complainant.
- Exhibit A3: Warranty Card dated 09.09.2020 issued by the opposite parties.
- Exhibit A4: Office copy of the lawyer notice dated 26.03.2022 issued by the complainant to the opposite parties.
- Exhibit A5: Postal receipt dated 26.03.2022 issued by the postal authority, regarding the sending of the lawyer notice by registered post.
- Exhibit A6: Acknowledgement card evidencing the receipt of the lawyer notice by the 1st opposite party on 30.03.2022.
- Exhibit A7: Returned cover evidencing that the 2nd opposite party had locked the office.
The first opposite party filed a proof affidavit along with three documents, which were marked as Exhibits B-1 to B-3.
Exhibit B-1:The BOARD Resolution Dated 21 March 2022.
Exhibit B-2: The copy of the Instruction Manual.
Exhibit B-3: The copy of the service report.
5) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant.
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any
6) The issues mentioned above are considered together and answered as follows:
In the present case in hand, as per Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The Copy of the Payment receipt issued by the 1st opposite party for the purchase of the water heater by the complainant (Exhibit A-2). Hence, the complainant is a consumer as defined under the Consumer Protection Act, 2019, (Point No. i) goes against the opposite parties.
The complainant has filed a consumer complaint alleging deficiencies in service and unfair trade practices by both the first and second opposite parties concerning the purchase and subsequent failure of a solar water heater.
The argument note filed by the complainant's counsel, Adv. Tom Joseph, in support of the consumer complaint:
The complainant purchased a solar water heater from the first opposite party, an authorized retailer of the second opposite party, for Rs. 21,000 on September 9, 2020, as shown by Exhibit A2. Assurances were given via Exhibit A1, the brochure that the product was among the best available and came with a five-year complete guarantee against defects.
Approximately 16 months after installation, the water heater became defective, and despite notifying both opposite parties, the issue was not resolved effectively. A technician confirmed a leakage in the panel pipe and promised a replacement, which was never fulfilled. The complainant was forced to issue a legal notice on March 26, 2022, due to the lack of response and action from the opposite parties. The first opposite party acknowledged the notice but returned by the second, indicating they had left the address.
The complainant asserts a legal right to the warranty, which was confirmed by the promotional materials, until September 9, 2025. Despite the clear defect acknowledged by the technician from the second opposite party, there has been no resolution, demonstrating a deficiency in service and breach of assurance, constituting unfair trade practices.
The issue has caused significant inconvenience and health problems for the complainant’s elderly family members, who rely on hot water for their health needs, exacerbating their conditions and increasing the complainant’s distress and mental agony.
The counsel argues that the complaint is well within the jurisdiction of the Commission as it involves consumer rights violations under the Consumer Protection Act. The complainant seeks a directive for the opposite parties to pay Rs. 21,000 with 18% interest per annum from the purchase date for the unfair trade practices and deficiencies, plus an additional Rs. 20,000 for the difficulties and mental agony experienced.
In summary, the complainant's counsel requests the complaint be upheld, emphasizing the mental and physical toll on the complainant and his family due to the opposite parties' negligence and lack of accountability in addressing the product defects and fulfilling their service obligation.
The first opposite party's conscious failure to file their written version in spite of having received the Commission’s notice to that effect amounts to an admission of the allegations levelled against them. Here, the case of the complainant stands unchallenged by the first opposite party. We have no reason to disbelieve the words of the complainant against the first opposite party. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
We have carefully heard the submission made at length by the learned Counsel representing both parties and have also considered the entire evidence on record.
The complainant purchased the said water heater for Rs. 21,000 on September 9, 2020, from the first opposite party, an authorized dealer of the second opposite party. The product came with a five-year guarantee against defects, assured through promotional materials and verbal promises. Approximately 16 months post-installation, the product developed a leakage, which was not resolved despite numerous complaints and a legal notice served on March 26, 2022.
A. Maintainability of the Complaint: As per Section 2(7) of the Consumer Protection Act, 2019, a consumer is defined as any person who buys goods or hires services for consideration. The evidence submitted, including the payment receipt (Exhibit A-2), confirms that the complainant qualifies as a consumer. Therefore, the complaint is maintainable under the act.
B. Deficiency in Service and Negligence: The inability of the opposite parties to address the defect in the water heater, despite the explicit five-year guarantee against defects, constitutes a deficiency in service. This is further compounded by the non-response to the legal notices, particularly by the second opposite party whose notice was returned upon them leaving the registered address.
The primary function of a solar water heater, as specifically mentioned in Exhibit A1, is to provide hot water cost-effectively. The decision to purchase this water heater was significantly influenced by the fact that the complainant's elderly parents and grandparents, who suffer from rheumatic and other age-related ailments, reside with him. They require hot water daily to manage their conditions. Unfortunately, the defective product failed to serve this essential purpose from the outset, leading to further health complications for the elderly family members due to the product's shortcomings and the resultant inconvenience.
The issue with the heater was substantial, not minor, as it completely failed to operate as intended. It was the responsibility of the second opposite party, as highlighted in their promotional materials (Exhibit A1), to ensure the functionality and proper installation of the product. The visible defect was confirmed by a technician from the second opposite party, obviating the need for further expert evaluation.
The installation was conducted by agents of the second opposite party, and it remained untouched and unaltered in its initial state, which points to an inherent manufacturing defect.
It is unreasonable to presume that the complainant, being a layperson, would possess technical knowledge concerning the solar water heater. This underscores the obligation of the opposite parties to ensure that the product supplied was suitable for regular use without defects.
The resultant emotional distress experienced by the complainant and his family, which was compounded by the adverse impact on the health of his elderly parents, can be directly attributed to the defective product and the failure of the opposite parties to address the product's deficiencies effectively. This constitutes a clear case of unfair trade practices and a lack of due service, making it incumbent upon both opposite parties to provide redress for the financial and emotional damages, as well as legal expenses, sustained by the complainant as a result of these failings.
The non-adherence to the terms of the warranty and failure to address the defects within the warranty period amounts to a deficiency in service. Moreover, the Commission observes that the complainant’s repeated attempts to amicably resolve the issue, documented through Exhibits A-3 to A-6, and the lack of effective response qualifies as negligence on the part of the opposite parties.
C. Unfair Trade Practices: Promising a five-year defect-free usage and subsequently failing to honour such commitments when defects arose, as alleged and unrefuted by the first opposite party and insufficiently contested by the second, constitute unfair trade practices as per the Consumer Protection Act, 2019, Section 2(47).
D. Liability of the Opposite Parties: Both opposite parties are held jointly and severally liable for the refund of the purchase price with interest, compensation for mental agony, and the cost of legal proceedings.
The consumers are entitled to a refund or replacement if a product is confirmed defective and the defects are not addressed within a reasonable timeframe. This ruling is intended to serve as a deterrent against the disregard for consumer rights and to reinforce accountability among manufacturers and sellers within the consumer goods sector.
We determine that issue numbers (I) to (IV) are resolved in the complainant's favour due to the significant service deficiency and the unfair trade practices on the part of the opposite parties. Consequently, the complainant has endured considerable inconvenience, mental distress, hardships, and financial losses as a result of the negligence of the opposite parties.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
- The Opposite Parties shall refund the purchase price of the solar water heater to the complainant, a sum of ₹21,000 (Rupees Twenty-One Thousand only), as substantiated by Exhibit A-2.
- The Opposite Parties shall pay compensation of ₹20,000 (Rupees Twenty Thousand only) to the complainant for service deficiency, unfair trade practices, inconvenience, and the consequent mental distress and hardship suffered by the complainant.
- The Opposite Parties shall pay the complainant ₹10,000 (Rupees Ten Thousand only) to cover the legal and other procedural costs incurred during these proceedings.
The Opposite Parties are jointly and severally liable for the fulfilment of the above orders, which must be executed within 45 days from the date of receipt of this order. Should there be a failure to comply within the stipulated period, interest at an annual rate of 9% will be applied to the total of the amounts specified in Points I and II, accruing from the expiration of the 45 days until the full payment is realized, calculated from the date the case was filed (13.05.2022).
Pronounced in the Open Commission on this the 23rd day of April, 2024
Sd/-
D.B.Binu, President
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
Forwarded/by Order
Complainant’s Evidence
Exhibit A1: The brochure of the water heater was issued by the 1st opposite party.
Exhibit A2: Payment receipt issued by the 1st opposite party for the purchase of the water heater by the complainant.
Exhibit A3: Warranty Card dated 09.09.2020 issued by the opposite parties.
Exhibit A4: Office copy of the lawyer notice dated 26.03.2022 issued by the complainant to the opposite parties.
Exhibit A5: Postal receipt dated 26.03.2022 issued by the postal authority, regarding the sending of the lawyer notice by registered post.
Exhibit A6: Acknowledgement card evidencing the receipt of the lawyer notice by the 1st opposite party on 30.03.2022.
Exhibit A7: Returned cover evidencing that the 2nd opposite party had locked the office.
Opposite party’s Exhibits
Exhibit B-1:The BOARD Resolution Dated 21 March 2022.
Exhibit B-2: The copy of the Instruction Manual.
Exhibit B-3: The copy of the service report.
Despatch date:
By hand: By post
kp/
CC No. 250/2022
Order Date: 23/04/2024
