By Smt. C.S. Sulekha Beevi, President,

1. Complainant alleges that the TATA BP Solar Lighting System purchased from 3^rd opposite party on 30-8-2005 for Rs.35,900/- is defective. It is stated that representatives of second and third opposite parties approached him with offer to supply the lighting system and assured that the product will provide energy to 4 lights and a TV connection. Complainant states that third opposite party who is the dealer supplied the product and he believes that second opposite party installed it at his house. As per the warranty card the period of warranty offered is 10 years. The second day the product developed snags and the same was intimated to 3^rd opposite party. 2^nd opposite party came after 4 days and repaired the system which functioned properly for a few days. After a couple of weeks the malfunctions again occurred. Second opposite party came again on reporting the complaint, and suggested that the solar panel should be lifted to a further height. Some shifting of the Solar panel was done. After a few months on 15-8-2006 the system connected to TV became nonfunctional. Second opposite party attended the complaint and suggested to shift the solar panel to further height. As per instruction of second opposite party complainant made an iron frame unit with four legs to erect the solar panel above the level of the house. Complainant paid the charges of this iron frame. The solar panel was installed to a height above the house by second opposite party. Complainant had to pay Rs.650/- to second opposite party for the repairs. Complainant alleges that the collection of such charges during warranty period is illegal. The solar system became defective again after two days. On reporting about the defect second opposite party came and checked the whole system and told that one of the solar panel is defective and it was taken away by him. Thereafter though complainant called second opposite party several times he replied stating that the panel has been sent to the company for replacement and that 1^st opposite party has not returned it. Now the whole system is not working. Complainant though issued a lawyer notice to second and third opposite parties they did not care to respond. Hence this complaint to direct opposite parties to jointly and severally refund the purchase price along with interest and to pay compensation of Rs.25,000/- together with cost of Rs.5,000/-. Complainant also prays to direct second opposite party to refund Rs.650/- with interest.

2. First opposite party filed version admitting to be the manufacturer of the product. It is stated that the said lighting system is comprised of Solar module, battery, regulator and Luminaries. That the warranty offered for each of the above items vary from one year to 10 years. The warranty contains terms and conditions which are binding on the complainant also. It is submitted that second opposite party has no privity of contract or legal relationship with first opposite party. The averments that second opposite party is authorised service agent and representative of 1^st opposite party etc. are specifically denied. It is admitted by first opposite party that third opposite party is the dealer. It is submitted that the lighting system would provide energy to four lights only. It is further submitted that had the complainant approached first opposite party the defects if any would have been looked into and would have been replaced is necessary. That complainant has approached second opposite party who has no right to meddle with the products of first opposite party during the warranty period. The allegation that the panel was send to first opposite party for replacement is denied. It is averred that 1^st opposite party became aware of these allegations only when served with copy of complaint from this Forum. That third opposite party who is the dealer has ended it's relationship with KODCO almost 1½ years ago and has closed the business activities at Malappuram. A specimen copy of warranty card is produced along with the version. That there is no deficiency in service or unfair trade practice by first opposite party.

3. Second opposite party filed version along with I.A.116/08 which was a petition to receive the version and condoning the delay in not filing the version within time. I.A.116/08 was allowed on 29-3-2008 on condition of payment of cost of rs.200/-. Second opposite party did not pay any cost. As such the petition was disallowed and the version filed by second opposite party does not stand recorded. Even then the contentions of second opposite party in the version is narrated hereafter. Second opposite party denies that it is a dealer of 1^st opposite party. It is stated that second opposite party has no relationship with first opposite party. That second opposite party is an agency of Shell, Hykon Companies and that neither does these companies nor first and 3^rd opposite parties have any relationship with second opposite party. It is specifically denied that second opposite party made any offer or representation regarding sale of lighting system to complainant. That second opposite party has not received any advance. That on the date when complainant purchased the Solar system the establishment of second opposite party had not even come into existence, and that his establishment started only in September, 2006. Second opposite party denies installing the lighting system in the complainant's house. It is stated that complainant had brought the defective solar lighting system to the establishment of second opposite party and had taken it back after necessary repairs. Second opposite party had collected Rs.650/- as service charges for the repair which is only legal. That after doing such repair the complainant has not thereafter approached second opposite party at all. The allegation that second opposite party had gone to the complainant's house and taken away the solar panel is specifically denied. Second opposite party has no connection with 1^st or third opposite party. That second opposite party is not liable to compensate the complainant in any manner.

4. Notice issued to third opposite party was returned as 'closed down – left'. Thereafter as per substituted service effected by publication third opposite party was set exparte on 15-2-2008.

5. Evidence consists of the affidavit field by complainant and Exts.A1 to A4 marked for him. First opposite party filed counter affidavit. Second and third opposite parties have not filed any affidavits. No documents marked for opposite parties. Either side has not adduced any oral evidence.

6. Complainant is aggrieved that the solar lighting system purchased from third opposite party is defective. Ext.A2 is the warranty card which shows 1^st opposite party is the manufacturer and third opposite party is the dealer. The warranty offered is for 10 years and the date of purchase is 30-8-2005. In Ext.A4 lawyer notice and in the affidavit complainant has stated that the product became defective during the first year after it's purchase. Ext.A3 is the cash bill for Rs.650/- being repair charges issued by second opposite party. These would corroborate the case of complainant that the product had defects and was repaired during warranty period itself. Therefore we hold that complainant has succeeded in establishing that the product has become defective during the warranty period.

7. The next question that arises for consideration is regarding the liability of the opposite parties to redress the grievance of the complainant.

8. First opposite party being the manufacturer and third opposite party being the dealer are generally cast with such responsibility in the ordinary course of consumer-trader relationship. Though complainant alleges that second opposite party has business dealings with first opposite party there is no cogent evidence adduced to support this contention. Moreover first opposite party and second opposite party have specifically and vehemently denied the same. It is the case of second opposite party that they are dealers of Shell, Hykon Companies only and have nothing to do with the product sold by 3^rd opposite party and manufactured by first opposite party. Second opposite party admits repairing the defective product but denies taking away the solar panel from the complainant. When a product becomes defective during warranty period the consumer has to approach the dealer or manufacturer to set it right. It is stated by the complainant that on reporting to third opposite party about the defect of the lighting system after two days of it's installation, it was second opposite party who approached to repair the system. It can be presumed that second opposite party was send by third opposite party who is the dealer. When the dealer has given a stranger the right to meddle with the product, the manufacturer cannot wriggle out of the responsibility leaving the consumer at his own mercy. So the contention of first opposite party that the product was meddled by a stranger who is not an authorised service agent is only to be brushed aside.

9. It is the further say of complainant that second opposite party has taken away the solar panel and has not returned it. A solar panel is of course a main component of solar lighting system. During the pendency of this case parties were given several chances to explore the possibility of settlement. Since the solar panel was missing first opposite party was not in a position to inspect and check the working or make offer to rectify and replace. Complainant has affirmed that second opposite party has taken away the solar panel. Second opposite party has abandoned the case after filing version and has not adduced any contra evidence to rebut the allegation made against him. Admittedly second opposite party has interfered with the product. He has not replied to Ext.A4 notice. For these reasons we have to hold that second opposite party cannot be absolved from the liability to compensate the complainant for the missing solar panel.

10. The product was sold by third opposite party. After sale of the product the consumer herein has been denied of proper after sales service. It is stated by first opposite party that third opposite party has stopped business and has closed down the establishment. When a product shows defect the consumer's foremost option is to contact the dealer with whom he has privity of contract. But when the dealer has vanished totally neglecting the consumer, they cannot be left without any remedy. In our opinion the manufacturer who supplies any product should be vigilant and should also take care of such situations. The irresponsible act of third opposite party has clogged the channel of redressal for the complainant. In this case there has been total lack of care on the part of the dealer to respond to the grievance of the consumer. The product has been repaired several times during it's warranty period and later became totally defective. For defects of a product, both the dealer and manufacturer are equally responsible. So we are able to conclude that first opposite party and third opposite party are jointly and severally liable to compensate the complainant.

11. While considering the relief that has to be given tot he complainant the shortage of solar panel in the lighting system has also to be taken into consideration. The panel was taken away by second opposite party. This component is definitely a major part of the lighting system. In our view rectifying the defects of the product would be adequate relief to complainant. First and third opposite party shall jointly and severally be liable to rectify the defects and resume function of the lighting system, for lighting four lights only on the complainant paying necessary cost and expenses to replace the missing solar panel. We also hold that second opposite party shall be liable to pay Rs.10,000/- as cost of the one Solar panel taken away by him. In addition third opposite party is directed to pay cost of Rs.5,000/- to the complainant. First opposite party is at liberty to proceed against third opposite party if necessary.

12. In the result we partly allow this complaint, and order the following:-

(1) First and third opposite parties are jointly and severally liable to rectify the defect of the alleged lighting system. The complainant shall pay necessary expense for the cost of only one solar panel that has to be replaced. The repairs shall be done at the premises of the complainant or any place suggested by first opposite party or as is convenient to the parties. Complainant shall pay expenses to replace the one solar panel within 45 days of receipt of copy of this order. The time to rectify the defect is fixed as four months from the date on which complainant remits the above said expenses. On failure on the part of first and third opposite parties to rectify the defect they shall jointly and severally be liable to pay Rs.20,000/- (Rupees Twenty thousand only) to the complainant.

(2) Second opposite party is ordered to pay Rs.10,000/- (Rupees Ten thousand only)to the complainant within one month from the date of receipt of copy of this order, failing which second opposite party shall also be liable to pay interest @ 9% upon this sum from date of complaint till payment.

(3) Third opposite party is directed to pay Rs.5,000/- (Rupees Five thousand only)being cost of this litigation within one month from the date of receipt of copy of this order.

Dated this 20th day of June, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A4

Ext.A1 : Cash bill dated, 30-8-2005 for Rs.15,900/- from 3^rd opposite party

to complainant.

Ext.A2 : Photo copy of the warranty card dated, 30-8-2005

Ext.A3 : Cash bill dated, 27-9-2006 for Rs.650/- from 2^nd opposite party

to complainant.

Ext.A4 : Photo copy of the lawyer notice dated,. 10-6-2007 issued by complainant's

counsel to 2^nd and 3^rd opposite parties.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Nil

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER