DATE OF FILING : 01.08.2013.
DATE OF S/R : 16.09.2013.
DATE OF FINAL ORDER : 27.01.2016.
Creative Horti Farms Pvt. Ltd.,
a registered private limited company,
having its corporate office at
17, Govt. Place East,
4, Esplanade Mansions,
Kolkata 7000 69, and site office
at Bauria, Domjur Road, Raghudebpur, P.S. Uluberia,
District Howrah,
being represented by its
Director, Harishankar Bajoria. …...…………….……………………… COMPLAINANT.
1. Market Dynamics Pvt. Ltd.,
Chatterjee International Centre
of 33A, Jawaharlal Nehru Road, 17th floor, flat no. 2,
Kolkata 7000 71.
2. Subir Nathak,
Managing Director
of Market Dynamics Pvt. Ltd.
of 33A, Jawaharlal Nehru Road, 17th floor, flat no. 2,
Kolkata 700071. ……………………………….………….. OPPOSITE PARTIES.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak.
F I N A L O R D E R
- Complainant, Creative Horti Farms Pvt. Ltd., represented by its Director, by filing a petition U/S 12 of the C .P. Act, 1986 ( as amended up to date ) has prayed for a direction to be given upon the o.ps. to replace the damaged tanks and accessories with new ones, to repair the entire solar water heater system and Rs. 10,00,000/- as compensation along with other relief or reliefs as the Forum may deem fit and proper.
- It is the specific case of the complainant that complainant runs a resort / club under the name and style “Country Roads”, situated at Bauria, Domjur Road, Raghudevpur, P.S. Uluberia, Howrah, and for that resort / club a purchase order dated 14.11.2011 was given to the o.ps. for installation of 1100 LPD solar water heater vide Annexure ‘A’. The cost of the machine was changed from Rs. 1,82,000/- to Rs. 2,02,900/- and the enhanced rate was confirmed by the complainant vide amended P.O. dated 07.05.2012. After installation, the total bill was paid on 02.07.2012 vide Annexure ‘C’. Subsequently only after lapse of four months, the machine got collapsed due to leakage in the S.S. Tanks from 17.09.2012 and after that the information was conveyed vide letter dated 31.10.2012 vide Annexure ‘D’ requesting them to replace the tanks as the machine was under warranty period of two years. Thereafter o.ps. assured the complainant to send technical team vide letter dated 09.11.2012 vide Annexure ‘E’ and technical team inspected the solar system and submitted the report dated 14.12.2012 saying that the failure of the machine was due to careless handling on the part of the complainant. Complainant contacted the o.ps. through its letter dated 07.01.2013 vide Annexure ‘H’. O.ps. also sent reply on 14.01.2013 stating therein that as the tampering was done by the complainant, the warranty clause does not apply vide Annexure ‘I’. Ultimately complainant sent legal notice dated 28.01.2013 intimating the entire facts with the request to repair and install the required accessories at the cost of the o.ps. Thereafter o.ps., vide letter dated 13.02.2013 addressing the legal officer of the complainant, rejected the request and asked for payment as per invoice sent with it vide Annexure ‘J’ & ‘K’. Being frustrated and finding, no other alternative complainant filed this instant case with the aforesaid prayers. Hence the complaint.
- Notices were served. They appeared and filed written version. Accordingly, the case was heard on contest.
- Upon pleadings of both parties two points arose for determination :
- Is there any deficiency in service on the part of the O.Ps. ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- Both the points are taken up together for consideration. We have carefully gone through the complaint petition along with annexures, the written version along with annexures, questionnaire, reply and B.N.A. filed by both the parties and noted their contents. It is the specific plea taken by the o.ps. vide para 3 of W/V that complainant’s requirement was 3000 liter per day but complainant installed a solar water heater system having capacity of only 1100 liter per day and that was made clear to the complainant that installation of such system having capacity less than 3000 liter will not be sufficient for them specially in the peak season i.e, winter when withdrawal of hot water is usually more than the installed capacity resulting the failure of system at any point of time. But on going through the records we do not find any such documents by which o.ps.’ this contention or claim may be proved. It is also the fact that after installation for the first time in December, 2011 once the tank was changed by the o.ps. vide Annexure dated 09.03.2012 and only after that complainant made entire payment of Rs. 2,02,900/- on 02.07.2012 against the final tax invoice dated 15.05.2012. From the Annexure 1 – “Conditions of contract” attached with the purchase order dated 14.11.2011, it is found that the entire system was under warranty period of two years from the date of purchase and there shall be routine check up for 5 to 6 times during the warranty period. It is even undertaken by the o.ps. that the maintenance shall be done within 6 hours after informing / docketing the complaint. But it is highly alleged by the complainant that after informing o.ps. on 31.10.2012, o.ps. sent its technical person on 06.12.2012 even after sending a reminder to the o.ps. on 28.11.2012. But o.ps. were to visit the system within 6 hours as per their warranty clause. So it is well understood that o.ps. made a great delay in discharging their duties when it is well within their knowledge that the said system is utmost importance during winter season. As the complainant is running a resort, the smooth performance of said system was highly required by its guests. At that point of real necessity, complainant was compelled to lose its reputation. However, the o.ps. tried to remove the defects of the tank by sending its technical person who even applied ‘M-seal’ at the leakage area But we are to consider the fact that it is not at all a defect which could have been removed or repaired by way of applying ‘M-seal’. O.ps. had changed the tanks immediately after the installation. So it is very well understood by a man of common prudence that o.ps. installed a defective system. It cannot be a luxury on the part of the complainant to file a case if there is no valid reason. O.ps. have miserably failed to keep promise which certainly amounts to deficiency in service coupled with unfair trade practice on their part which should not be allowed to be perpetuated for an indefinite period. And we are of the candid opinion that it is a fit case where the prayers of the complainant should be allowed. Points under consideration are accordingly decided.
Hence,
O R D E R E D
That the C. C. Case No. 264 of 2013 ( HDF 264 of 2013 ) be allowed on contest with costs against the O.Ps.
That the O.Ps. are directed to replace the damaged tanks and accessories along with necessary repairing work of the entire solar water heater system to set it right, free of costs, within one month from the date of this order i.d., Rs. 100/- per day shall be charged till actual work done.
The complainant do get an award of Rs. 50,000/- as compensation and Rs. 10,000/- as litigation cost and o.p. is directed to pay the same within one month from this order i.d. amount shall carry an interest @ 9% p.a. till actual payment
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( Jhumki Saha)
Member, C.D.R.F., Howrah.
