IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

            Dated this the  4^th  day of May 2018

Present: -    Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

       Sri. M.Praveen Kumar,Bsc, LL.B ,Member

 CC.No.302/2016

K.Raveendran                                             :         Complainant

S/o Kunju Pillai

Proprietor, M/s Reshmi Home Appliances,

Karunagappally, Kollam.

[By Adv.R.Parameswaran Nair]

V/s

1. Managing Director                                      :         Opposite parties

         M/s Chloride Power Systems & solutions Ltd

         EXIDE HOUSE, 59E, Chowranghee road, Kolkata-700020

         [By Adv.Electron.A]

2. Chief Officer

        Vispra Power  Controls,338/102, Ellaithottam Road East,

       Sri Venkadeswara industrial Estate, Peelamedu

        Coimbatore-641004.

3. Managing Partner

         Aadhithya Associates, No.CC-31/2191-CPlackat colony

        Kaloor P.O, Kadavanthra, Cochin-682017

4. Suresh C.R, Partner

        Aadhithya Associates, Cherodath House, chalakkudy-680307

5. Jayapal, Partner

         Aadhithya Associates, Lavanya  loor south, Udyogamandal P.O,

          Ernakulam

ORDER

E.M.MUHAMMED IBRAHIM , President

            This   is a consumer complaint filed by one K.Raveendran against opposite parties    Under  Section  12 of the Consumer Protection Act praying to direct the opposite parties to  repair or replace defective inverter and  its accessories  or to return the entire sale price and  other charges and to pay Rs.10,000,00/- towards compensation along with interest and costs and also seeking to direct the opposite parties to discontinue   the  unfair trade practice.

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The averments in the complaint in short are as follows.

          The opposite parties are engaged in solar business.  Opposite party No.4&5 are partners  of  3^rd  opposite party who is the dealer of  1^st opposite party.  The 3^rd opposite party approached the complainant  during the month of June 2015 and offered to install a Solar Power Generator along with its accessories including 7 KVA SOLAR PCU-MPP in the premises of the  new shop by name “Reshmi Happy Home” at Karunagappally belongs to the complainant.  By believing the representation made by the 3^rd opposite party the complainant paid Rs.6,30,000/-  through bank during the month of July 2015 and thereupon the 3^rd opposite party issued tax invoice for Rs.6,36,300/- dated 17.07.2015 as full and final cash settlement and also issued a guarantee card with effect from that date for battery  and 7KVA 96 V Vispra inverter both with 5 year guarantee and also 25 year guarantee for 250 Watts panel and  also for structure.  Opposite parties made  the complainant to believe that the  installation will generate  solar energy for the use of complainant’s business and

assured considerable financial savings  towards  electricity charges.   Later  the complainant found that electricity bill from Kerala electricity Board was not showing any decrease and in fact it increased from his usual consumption and KSEB made him to pay additional deposit and other penalty payments for excess electricity consumption.

          The complainant made complaint to opposite parties on several occasions by e-mail and through telephone calls but no  use.  Finally the  solar Inverter stopped working with effect from 19.08.2016.  Though the complainant attempted to contact 4^th and 5^th opposite parties  they were  not attending calls and was acting hideous.  The 3^rd opposite party dealer  has also not responded and in effect opposite parties refused to attend the inverter complaint or to repair or replace the same.  The opposite parties were acting in collusion and they misguided the complainant to purchase the solar power plant believing that

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the 2^nd opposite party manufactures quality inverters and 1^st opposite party is having authorisation  from  MNRE/NABARD and such other  Govt. authorities for installing said inverter with batteries etc. manufactured by them and entitled for subsidies etc. but complainant received no concessions and paid full amount to opposite parties as per their tax voucher and then again failed to give guaranteed service.  Subsequently it was found that the inverter manufactured by 2^nd opposite party and the batteries etc manufactured by 1^st opposite party were having  manufacturing defects and it never helped the complainant with solar energy as the electricity bill from KSEB shows that the consumption of energy was higher for a period when the inverter was  working  and after ceasing the functioning of inverter the consumption of electricity came down and on inspection by the complainant as well as  their technician  it was confirmed that the inverter never worked properly and opposite parties failed to render guaranteed service to complainant.  They have installed defective inverter and also failed to render necessary services  to  the  complainant  and hence there is   deficiency in service and unfair trade practice on the part of the opposite parties.  Hence the complaint.

Notice was served on opposite party No.1 to 5 and all opposite parties except opposite party No.1 not appeared  before Court.  Though opposite party 1 entered appearance through Adv.  Electron.A,  no version has been  filed.  Hence all the five opposite parties remain exparte.  The complainant filed affidavit without mentioning the allegations and got marked 4 documents as Ext.P1 to P4.

          Heard the counsel for the complainant.  The learner counsel appearing for opposite party No.1 who has neither filed any version nor cross examined the complainant has filed argument note contenting that the case is not maintainable as the complainant would not come within the definition of consumer.

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The points for consideration is:-

1. Whether the complainant is consumer as defined under Section 2(d) of the Consumer  Potection Act?
2. Whether the complainant is entitled to get the reliefs sought for in the complaint?
3. Reliefs and costs.

Point No.1

     It is well settled that only a consumer can file a complaint under section 12 of the  Consumer Protection Act.  Who is a consumer  is defined under section 2(1)(d) of the above Act.  Accordingly a consumer means ‘any person who buys any goods or obtains any service for consideration which has been paid or promised or partly paid and partly promised.  But does not include a person who obtains such goods or service  for resale or for any commercial purpose’.  However the  explanation attached to Section 2(1)(d) would clearly indicate  that commercial purpose does not include use by person of goods bought and  used  by  him and  service availed by  him   exclusively  for  the  purpose  of  earning his livelihood by means of self employment.  Here in this case the complainant  has no case that he has purchased the Solar Power Generator  to be used in his self employment for the purpose of earning his lively hood.  On the other hand the allegations in the complaint and the documents produced by the complaint would indicate that he is the proprietor of more than one business and the Generator  has been purchased for using the same in his  newly started business.    Admittedly the complainant   K.Raveendran is the proprietor of M/s Reshmi Home Appliances, Karunagappally, Kollam District.  It is clear from paragraph 2 of the complaint coupled with Ext.P2 and P4 documents that the Solar Power Generator and its accessories worth Rs.6,30,000/- has been  purchased for  installing  the  same  in  the  complainants  new  shop  named

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Reshmi Happy Home at Karunagappally.  There is no averments either in the complaint or in the proof affidavit that the complainant is a consumer and he has been conducting the business  by name “Reshmi Happy Home” for earning his livelihood .Instead the averments in the complaint would clearly indicate that he has purchased the solar power generator and its accessories for installing the same in his new business by name Reshmi Happy Home at Karunagapplay.  The address of the complainant shown in the complaint is that he is the proprietor of M/s “Reshmi Home Appliances”.  But the averments in the complaint as well as the address of the complainant shown in Ext.P2 and P4 documents would indicate the product was purchased for using the same in the new business which would indicate that the complainant is having other sources of livelihood and the present business by name Reshmi Happy Home is the 2^nd  business concern and if  that be so it can only be considered that the product was purchased only for commercial purpose and therefore the last limb of sub clause (i) of clause (d) of Subsection 1 of Section 2  would attract in this case  and  the  explanation

attached the above  provision  would not  attract at all.  Therefore the complainant cannot be treated as a consumer as defined Under Section 2(1) d(i) of the Consumer Protection Act 1986.  The point answered accordingly.

Point No.2

Of course the  materials available on record would indicate  prima fascie that the Solar power Generator and its accessories supplied by the 1^st opposite party is  having manufacturing defect.  But as the complainant is not a consumer as defined under the Consumer Protection Act this Forum cannot entertain the complaint and award any relief.  The only  remedy available to the complainant is to approach the Civil Court for getting the defective Solar Power Generator and connected materials replaced or get refunded its value and compensation.

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Point No.3

In view of our findings that the complainant is not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act 1986, the complaint is not maintainable and the same is only to be rejected.

          In the result the complaint stands rejected.

          No Costs.

Dictated to the  Confidential Assistant Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the     4^th day of  May  2018.    

E.M.Muhammed Ibrahim:Sd/-

                                                                                     President

            M.Praveen Kumar:Sd/-

            Member

                                                                                   Forwarded/by Order

          Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.P1                  :         Copy of  letter

Ext.P2                  :         Copy of Tax Invoice

Ext.P3                  :         Copy of Guarantee Card

Ext.P4                  :         Copy of e-mail

Witness examined for the opposite party:-Nil

E.M.Muhammed Ibrahim:Sd/-

                                                                                   President

           M.Praveen Kumar:Sd/-

            Member

                                                                                   Forwarded/by Order

          Senior Superintendent