BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENA KUMARI .A : MEMBER
SMT. S.K. SREELA : MEMBER
C.C.No. 241/2008 Filed on 17/10/2008
Dated: 31..03..2011
Complainant:
Murugadas, S/o Sankaran, Managing Partner, M/s. Ananda Surgicals, Ananda Chambers, Medical College, Thiruvananthapuram.
(By Adv. K. Sudarsana Kumar)
Opposite parties:
M/s. Birla Power Solutions Ltd., 901, Bhikaji Cama Bhavan, 11, Bhikaji Cama Place, New Delhi – 110 066.
Birla Power Solutions Ltd., House No. 35/969, Panchammas, North Janatha Road, Palarivattom, Ernakulam – 25.
M/s. Kulathunkal Electronics, Kulathunkal Buildings, M.G.Road, Thiruvananthapuram – 1.
(3rd opp. Party by Adv. Nair Ajay Krishnan)
This O.P having been heard on 23..02..2011, the Forum on 31..03..2011 delivered the following:
ORDER
SHRI.G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that, complainant purchased a Birla Ecogen Genset Model 2800 generator from the 3rd opposite party on 17/10/2007 manufactured by the 1st opposite party for a consideration of Rs. 57,000/-, that 2nd opposite party is the authorised distributor of the 1st opposite party in Kerala, that a warranty period for one year was extended to the generator, that immediately after the purchase, serious defects were noticed in the battery as well as in the said starter of the generator, that complainant immediately brought it to the notice of the 3rd opposite party by telephone, that as it remained unattended, the complainant contacted the 2nd opposite party, that thereafter the complaint was attended by replacing the battery, but the defect in the self starter has not been rectified till date for the reason that the spare parts are not available, that during July 2008 complaints were again noticed in the generator, that after repeated requests and persuations, technician from the 3rd opposite party came and after inspection informed the complainant that the coil was burnt out and equipment should be brought to the shop of the 3rd opposite party for repair at the expense of the complainant himself, that he took the generator to the 3rd opposite party and got it repaired and brought back the same at his expense, that immediately thereafter the defects in the generator has been getting from worse to worst, the machine again broke down as the coil once replaced was again burnt out. None of the opposite parties cared to attend it despite timely information and requests, that all these happened when the warranty was in force, that complainant sent a legal notice on 5/9/2008, that the frequent occurence of defects and recurrance of once rectified defects indicates that the generator has got an inherent defect which cannot be cured by repairs, that the act of the opposite parties amounts to unfair trade practice. Hence this complaint to direct opposite parties to replace the generator with a new one and to pay compensation of Rs. 25,000/- along with a cost of Rs. 3,000/-.
2. 1st and 2nd opposite parties have not turned up inspite of service of notice on them. No version filed by opposite parties 1 & 2. Hence opposite parties 1 & 2 remained exparte.
3. 3rd opposite party entered appearance and filed version contending inter alia that complainant had purchased the said generator on 17/10/2007 from the 3rd opposite party, that the averments in paras 5 to 7 in the complaint are not correct and hence denied, that no complaint was registered by the complainant with regard to any problem with the generator as alleged, that during August 2008 the complainant came to 3rd opposite party complaining that the system was not working properly, that 3rd opposite party informed him that the 3rd opposite party was not the service agent of the 1st opposite party from June 2008 and directed the complainant to approach the present service agent of the 1st opposite party M/s. Attukal Engineering Company, near Old Iron Bridge, Sreekanteswaram, that since the complainant insisted that 3rd opposite party should do something in this regard, as an act of good will 3rd opposite party sent their technical Engineer to the premises of the complainant where the generator was kept, that the technical Engineer was surprised to find that the generator was kept in a damp corner of the shop near to the bathroom and there was presence of water all over the place, that 3rd opposite party took the equipment to the present service agent of the 1st opposite party and they immediately repaired the generator replaced the starter and the complainant had taken back the set fully satisfied, that as a measure of goodwill no money was received as repair charges, that complainant was adviced the generator has to be placed in a dry place, that during October 2008 complainant again brought the generator to the 3rd opposite party stating that it was not working, that 3rd opposite party checked on the same and informed the complainant that the same dampness problem was noticed on the equipment and since the opposite party was no longer the service dealer of the 1st opposite party it was better to take the equipment from them for the service, that complainant stated that he would come and collect the generator later and take it to the present service agents but till then he requested the 3rd opposite party to keep custody of the same, that believing the submission of the complainant the complainant 3rd opposite party took possession of the same and issued a receipt in this regard, but the complainant never came to collect it and instead filed this complaint. The averments in paras 9 to 12 of the complaint is denied. It is submitted by opposite parties that no loss has been sustained by the complainant due to any act of the 3rd opposite party. Hence 3rd opposite party has no way liable to compensate the complainant. Hence 3rd opposite party prayed for dismissal of the complaint.
4. The points that arise for consideration are:
Whether the generator was having manufacturing defects?
Whether complainant is entitled to get the generator replaced with a new one?
Whether complainant is entitled to get compensation and cost?
In support of the complaint, complainant has filed a proof affidavit and has marked Exts. P1 to P5. In rebuttal, 3rd opposite party has not filed proof affidavit or any documents.
4. Points (i) to (iii) : Admittedly, complainant purchased the generator from the 3rd opposite party on 17/102007. It has been the case of the complainant that immediately after the purchase of the said generator serious defects were noticed in the battery as well as in the self starter of the generator and that the same was brought it to the notice of the 3rd opposite party. It has also been the case of the complainant that the battery was replaced by the opposite party, but the defects in the starter has not been rectified till date for the reason that the spare parts were not available, which forced him to resort to manual starting method. It has also been the case of the complainant that again complaints were noticed in the generator, that technician from the 3rd opposite party came and brought the equipments to the 3rd opposite party's shop for repair and complainant brought back the generator after repair from the 3rd opposite party. It has been contended by the complainant that in August 2008 again the said generator broke down as the coil which was once replaced was again burnt out. Opposite parties did not care to attend the same despite timely intimation and request. Complainant's evidence would consist of his oral testimony and Exts. P1 to P5. Ext. P1 is the copy of the invoice dated 17/10/2007 issued to complainant by the 3rd opposite party. As per Ext. P1 the price of the generator is Rs. 57,000/-. Ext. P2 is the copy of Advocate notice dated 5th September 2008 addressed to all opposite parties. Ext. P3 is the acknowledgement card and postal receipt. Ext. P4 is the acknowledgement card and postal receipt. Ext. P5 is the copy of the E-mail. Complainant has been cross examined by the 3rd opposite party. In his cross examination when asked 'generator ന് load capacity ഉണ്ടല്ലോ (Q) ഉണ്ട് (A) overload എടുത്താലും coil burn off ആകാം (Q) അറിയില്ല , പക്ഷെ normally generator off ആകും. Coil burn off ആയത് 2nd time ആണ് (A)അങ്ങനെ നിങ്ങള് overload എടുത്ത് try ചെയ്തതുകൊണ്ടാണ് off ആയത് എന്നു പറയുന്നു(Q) ശരിയല്ല, അത്general knowledge കൊണ്ട് പറഞ്ഞതാണ് (A) overload എടുത്താല് generator off ആകുകയല്ല coil burn off ആകാം എന്ന് opposite party പറയുന്നു (Q) എനിക്കറിയില്ല ഞാന് Engineering expert അല്ല (A). Generator മഴവെള്ളം വീഴുന്ന സ്ഥലത്താണോ വച്ചിരിക്കുന്നത് ? (Q) അല്ല, covered area - ല് ആണ് (A) Dampnessസംഭവിച്ചാലും generator coil burn off ആകുമെന്ന് പറയുന്നു (Q) dampness ഉണ്ടാകുന്ന സ്ഥലത്തല്ല generator വച്ചിരിക്കുന്നത് (A) 2nd time burn off ആയപ്പോള് opposite partyപറഞ്ഞതനുസരിച്ചാണ് generator opposite party - യെ ഏല്പ്പിച്ചത് , അത്കൊണ്ട്കൊടുത്തിട്ട് ആയതിനെപ്പറ്റി അന്വേഷിച്ചോ (Q) phone - ലൂടെ അന്യേഷിക്കും (A) generator തിരിച്ചെടുക്കാതിരിക്കാന് കാരണമുണ്ടോ (Q) generator നന്നാക്കിയിട്ടില്ല , നന്നാക്കിയതായി വിളിച്ചുപറഞ്ഞതുമില്ല . Though complainant has been cross examined at length by the 3rd opposite party nothing has been elicited from the complainant to shake the contention of the proof affidavit. In his re-examination complainant has deposed that 3rd opposite party has never informed him that the coil was burn off due to over load. It is to be pointed out that admittedly the said generator is with the 3rd opposite party as such complainant was not capable of being followed the procedure under Section 13 (c) of the Consumer Protection Act because complainant was not in possession of the generator and there was no material to show that 3rd opposite party had returned the same to the complainant. In such a circumstance the burden is on the part of the 3rd opposite party to show that the said generator is having no defects and they are in perfectly working condition. The relationship between the 1st opposite party and 3rd opposite party is one of principal to principal, and not one of principal to agent. 3rd opposite party neither filed affidavit nor furnished any documents to corroborate the contention in the version. The burden is on the part of the opposite party to show that the said generator is free from defects since the said generator is with 3rd oppostie party. In the absence of any evidence from the side of the 3rd opposite party we are of the considered opinion that the contention raised by the complainant in the complaint that the generator is having inherent defects which cannot be cured by repairs stands proved. As a dealer the 3rd opposite party must provide the facilities to rectify the defects. 3rd opposite party has not done it. Further the alleged defects were developed within period of warranty. Hence complainant is entitled to get the generator replaced with a new one. If the said model is not available complainant is entitled for refund of the price of the generator. Complainant is also entitled to compensation for mental agony and suffering.
In the result, complaint is allowed. Opposite parties 1 & 3 shall jointly and severally replace the Birla Ecogen Genset Model 2800 Generator with a new one. If the said model is not available opposite parties 1 & 3 shall jointly and severally refund the price of the Generator to the complainant along with a compensation of Rs. 2,000/-. Both parties are left to bear and suffer their costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 31st day of March, 2011.
G. SIVAPRASAD : PRESIDENT
BEENA KUMARI .A : MEMBER
ad. S.K. SREELA : MEMBER
C.C.No. 241/2008
APPENDIX
I. Complainant's witness:
PW1 : Murugadas
II. Complainant's documents:
P1 : Copy of the Invoice dated 17/10/2007 issued to complainant by the 3rd opposite party.
P2 : " advocate notice dated 5/09/2008 addressed to all opposite parties.
P3 : Acknowledgement card and postal receipt
P4 : " "
P5 : Copy of the E-mail
III. Opposite parties' witness : NIL
IV. Opposite parties' documents : NIL
PRESIDENT
