Orissa

Jajapur

CC/18/2015

Bimal Kumar Dhal - Complainant(s)

Versus

MLITE SOLAR - Opp.Party(s)

29 Jun 2015

ORDER

IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present: 1.Shri Biraja Prasad Kar, president,

                                                                        2.Sri Pitabas Mohanty,  Member,

                                                                        3.Miss Smita Ray, Lady Member.                                       

                                              Dated the 29th day of June ,2015.

                                       C.C.Case No.18 of 2015

Bimal  Kumar Dhal,S/O Baishnaba charan Dhal

At. Kimbiriapal, P.O. Udaypur, Via. Sujanpur

Dist.Jajpur.                                                                                     …… ……....Complainant .                                                                       .

                   (Versus)

1.M LITE SOLAR-Prop-Sunil Kumar Mangaraj,At..Samantarapur,Barunai Industrial

    Estate Road,Khorda,Bhubaneswar.

2. M/S MAHARISHI SOLAR  TECHNOLOGY PVT.LTD,A-14,Mohan Co-operative

     Industrial Estate,Mathura Road,New Delhi-110044.

3. INDIAN BANK, BALIAPAL,At.Baliapal,P.O.Bainsiria, Dist.Jajpur.

4.  NABARD , Regional Office, Ankur 2/1,Nayapalli,civic Center,

    Post Box-179,Bhubaneswa.,

                                                                                                           …………………..Opp.Parties.

For the Complainant:                   Self.

For the Opp.Parties No.1            Mr.Chinmoy Patra, Mr.P.K.Sahoo, Advocates.

For the Opp.Parties No.2            Sri Pathsarathy Suttar ,Authorized Representative.

For the Opp.Parties No. 3           Sri G.C.Panda, Miss.B.R.Rout, Advocates.

For the Opp.Parties No.4            None.                                             

                                                                                                                       

                                                                                               Date of order:  29.05. 2015.

SHRI  PITABAS  MOHANTY, PRESIDING  MEMBER .

                        The petitioner has filed this  dispute  alleging deficiency in service on the part of the O.Ps. due to supplying a defective solar inverter.

                        The facts relevant for the present dispute shortly as per complaint petition are that the petitioner purchased a solar inverter under JNNSM scheme of NABARD circular No.102/DOR-GSS/34/2014 from M-LITE SOLAR  which is the authorized agency of M/S Maharishi Solar Technology Pvt. Delhi through Indian Bank Baliapal with the help of Digambar Behera the company agent on 12.05.2014 at the cost of Rs.56,700/- . For purchasing the above inverter the petitioner has availed a loan from the Indian Bank (O.P no.4) by paying Rs.11,400/- towards down payment and a fixed deposit bond  amounting to Rs.1,28,702/- as mortgage  as against 40% subsidy and 5 years warranty of the inverter. It is alleged by the petitioner that after the one day  of installation the inverter is not working properly many types of problem created. Then the company sent their service man and checked the inverter then after two months the inverter completely stopped working . Accordingly the petitioner lodged written objection to the company and after receipt of the objection the company intimated him to took the inverter to their office. It is further alleged by the petitioner that though at the time of supplying the Inverter the company has not given the warranty card or any documents to the petitioner on the other hand assured to give free home service  for 5 years.  But at present as per the assurance the company is not taking any steps to provide any service for the alleged Inverter for which the petitioner has suffered a lot. As such finding no other way the petitioner has filed this dispute with the prayer to direct the company (M-LITE SOLAR) to provide service for the alleged Inverter and issue warranty card as well as a direction to the Bank to release subsidy and award compensation of Rs.1,00,000/- for mental agony.                    

                        In the present dispute there are 4 numbers of O.Ps. out of which only O.P no.1,2,3  after appearance have filed the written versions and O.P. no.4 has been set-exparte vide order dt.11.06.2015.       

                        The O.P no.1 has filed the written version taking the main plea that the dispute is liable to be dismissed   on the grounds.

a. The dispute has been filed without any reason /cause as well as having no deficiency in service.

b. That due to non availability of documentary evidence such as  warranty card, invoice copy               in the present dispute filed by the petitioner is not maintainable .  The allegation that the alleged solar Inverter has been supplied by O.P no.1 through Digambar Behera at the cost of Rs.56,700/- is not sustainable and acceptable in the eye of law.

C. Similarly regarding the payment of Rs.11,400/- ,Rs.525/- and Rs.25,000/- towards deposited amount for documentation charges and fixed deposit are also not sustainable as per law due to non-availability of any documentary evidence.

d. Further it is stated by O.P no.1 that the transaction is in between the O.P no.1 and O.P no.3 only. As such in absence of any privity of contract in between O.P no.1 and the petitioner the present dispute is liable to be dismissed.

e. More over in absence of documentary evidence regarding payment of subsidy as well as due to non-submission of any expert opinion regarding manufacturing defect of  the Inverter the allegation of the petitioner is also not acceptable according to law as per observation of Hon’ble Punjab State  Commission reported in 2014(4)-CPR-8-Punjab.

f. Like wise the petitioner alleges that he has intimated the O.P no.1 stating the Inverter is not working is also not correct in absence of any documentary proof, since the petitioner had not purchased the alleged product from O.P no.1.

                        Accordingly the dispute is liable to be dismissed.

                        The O.P no.2 also filed the written version denying the allegations made in the complaint petition and taking the main ground that the alleged Inverter neither has been purchased from O.P no.2 nor O.P no.2 is the proper party for the alleged grievance of the petitioner.

                        Similarly the O.P no.3 has filed the written version where in the O.P no. 3 has taken the following defence:-

a. The petitioner is not a consumer of O.P no.3 since the petitioner is a beneficiary under Govt. scheme . Besides this NABARD is the proper Authority to sanction the subsidy.

b. The Bank has disbursed the loan to the petitioner.

C. As regards subsidy the Bank has intimated to the  Regional / Zonal office to claim subsidy  and the Bank also has intimated to AGM NABARD on 06.10.2014 and 07.10.2014 to release subsidy in favour of the petitioner but till date the subsidy amount has not yet been received by the Bank . As such there is no deficiency in service on the part of O.P no.3 for which the claim shall be disallowed with cost.

                        After perusal of the record along with documents we are inclined to frame the following issues:-

. Issue No.1

                        Whether the petitioner is a consumer ?

Issue No.2      Whether this Fora gets jurisdiction to adjudicate the present dispute so far as territorial jurisdiction is concerned ?

Issue No.3

                        Whether there is deficiency in service on the part of the O.Ps ?

Answer to issue No.1

                        Admittedly the petitioner has availed a loan from the O.P no.3 who has sanctioned the loan for purchasing the Inverter . For availing such loan the petitioner is paying interest. As such the petitioner is  the consumer of O.P. no.3  as per section 2(d) 1 of C.P. Act 1986  in view of the  observation of Hon’ble state Commission Keral reported in 2003(1) CPR-596  which is supported by  Hon’ble Supreme Court at page-598 (1995) 2 SCC-150-SC vide para-8, 2005-CTJ-211,Pundichery supported with Appex Court reported in 2001(1) CPR-7-vide para-12.

Answer to issue No.2

1. Admittedly the O.P no.1 has sold the alleged Inverter through O.P no. 3 as admitted by O.P no.1 vide para-7 of the written version and this  indicates that the O.P no.1 has carried his business through O.P no.3  which is within the territorial jurisdiction of this Fora. As such this Fora gets jurisdiction to adjudicate the present dispute as per section 11(2) a & b of C.P.Act-1986.

Answer to Issue No.3

                        This is the vital issue where we are required to verify whether there is deficiency in service on the part of the O.Ps.?

1. In the written version the O.P no.1 though has taken the main plea that in absence of any documentary evidence i.e warranty card, invoice, cash memo  and other documents  of the  alleged  Inverter  the  dispute is not maintainable against O.P no.1 and liable to be dismissed on the other hand the O.P. no.1 vide para-7 of the written version clearly admits that “ all the transactions was done between Indian Bank (O.P no.3) . In this contest the petitioner has stated in the complain petition that he has brought the alleged Inverter through Indian Bank ,Baliapal with the help of Digambar Behera ( the company agent). In such situation the petitioner could have impleaded Digambar Behera as party but in absence of Digambear Behera as party to this disputewe have come across with the subsidy claim form of ten borrowers where in the petitioner’s name has been mentioned by O.P.no.3 vide seriel -7 of the subsidy claim form .This undisputedly establish that the O.P no.1 has sold the alleged Inverter to the petitioner for which the O.P no.3 has claimed subsidy.

                        2- In addition to it recently this Fora has disposed of a dispute of same nature bearing “ C.C. Case No.1/15 and C.C. Case No.2/15 ) where in Digambar Behera (the agent)was O.P no.3. In the written version the O.P no.3 has clearly stated that he was working as agent of O.P no.1 and has given 23 work orders of Solar Inverter of 4 Banks from Jajpur Dist. Due to problem of the Inverter he has suggested the company to open a service center but the company has failed to do so. According to the agent (O.P no.3) the company has cheated the customers.

2. As regards the decision cited by the O.P no.1 is not applicable to the present dispute and distinguishable for the reasons.

1-In the complaint petition no where the petitioner has stated that the alleged Inverter suffers from “manufacturing defect “ rather as per complain petition the Inverter is not working properly . In this contest we are in the considered view that the alleged Inverter is not working properly may be due to some mechanical / technical trouble.

2- In case as per cited decision of O.P no.1 the alleged Inverter suffers from manufacturing defects then the liability lies with O.P no.1  to prove the same as per observation of Hon’ble National Commission reported in 2014 (3) CLT-177 vide para(III) (Krishnapal singh Vrs.Tata Motors and others) . On the other hand such plea of O.P no.1 is not acceptable since mechanical defects is separate from manufacturing defects  as observed by Hon’ble National Commission reported in 2013(2)CPR-504-NC (Terex Vectra Equipment Pvt. Ltd. Vrs. S.K Meherchand and others)

3- Further vide para-7 of Special term and condition of NABARD circular of the alleged Inverter supported with the application dt.06.05.2014 of the petitioner for the alleged Inverter by O.P no.1 clearly go to establish that the warranty of the alleged Inverter is for 5 years.

                        In view of the above narrated analysis we are constrained to hold that the O.P no.1 not only has committed gross deficiency in service  but also is carrying unfair trade practice by supplying a defective inverter for which the petitioner has suffered a lot.   Accordingly the blame is to be placed at the door of O.P. no.1 only.

                        As regards the liability of O.P no.3 though there is no deficiency in service on the part of the O.P. no.3 but we advice the O.P. no.3 to take further steps for release of subsidy in favour of the petitioner .

                                                               O R D E R

                        In the result the dispute is allowed only against O.P no.1 and dismissed against O.P no.2 and 3. The O.P no.1 is directed to repair the Inverter at the door of the petitioner within 7 days after receipt of this order , failing which the O.P no.1 shall be liable to refund the cost of Inverter with 12% interest from the date of filing of the present dispute till its realization . The O.P no.1 is also further directed to issue warranty card and documents of alleged Inverter to the petitioner . As regards compensation we allow Rs.15,000/-( Fifteen thousand ) which will be paid by O.P no.1 to the petitioner within one month after receipt of this order . This order has been passed as per observation of Hon’ble Supreme Court reported in 1993(3) CPR-7-SC( Lucknow Dev.Authority Vrs.M.K.Gupta) .  No cost.

                        Send the copy of this order to DGM/ Zonal Manager, Zonal office  Indian Bank, Bhubaneswar and A.G.M, Nabard Regional Office, Bhubaneswar  for kind information and necessary action.                                 

      This order is pronounced in the open Forum on this the 29th day of June ,2015. under my hand and seal of the Forum.                                                                                         

 

(Shri Biraja Prasad Kar)                                                           (Shri Pitabas Mohanty)

        President.                                                                                      Member.

                                                                                    Typed to my dictation & Corrected by me.                                             

 

 

(Miss Smita Ray)                                                      

  Lady Member.                                                                        (Shri Pitabas Mohanty)

                                                                                                              Member.                                                                         

                                                                        

                                                                                                                                                    

       .