Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The Complainant has come up with this complaint against the Opposite parties with his grievance that he had got installed a Solar Water Heater through the 1st Opposite party, manufactured by the 2nd Opposite party on payment of Rs.52,500/-. Thereafter, after one year, in the month of March 2006 the system started giving trouble by developing leakage in all over the system, then he informed the same to the Opposite parties, but was of no use, therefore he suffered loss of Rs.1,000/- per month due to failure of the system. He sent a letter to the 2nd Opposite party, who has sent untenable reply to his letter. He has got issued a legal notice to the 2nd Opposite party, but again 2nd Opposite party has sent untenable reply. That due to negligence of the Opposite parties in supplying a system with manufacturing defect he has been put to loss and prayed to direct them to replace the old system with new one or pay the cost of the system with interest at 24% p.a., also to pay compensation at Rs.1,000/- per month calculation from march 2006 and to award cost.<br /> 2. The 1st Opposite party who is duly served with the notice of this complaint has remained absent, is placed exparte. The 2nd Opposite party through his counsel has filed its version admitting supply and installation of solar system manufactured by them, but denied the system developed leakage due to manufacturing defect. It has also denied the alleged loss sustained by the complainant and further contended that on the letter of the complainant he deputed a technician to look into the problem and that the technician in the course of inspection of the system found that the system was material altered and that the leakage in the system was due to unauthorized alteration made by a person who has no basic knowledge of the system by fixing pressure pump to the system, that air vent was completely closed, therefore the leakage was due to over pressure. For which it cannot be held responsible and the same was communicated to the complainant. Further stated that a letter was sent by them to the complainant on 23.09.2006 giving two options; (1) The same tank has to be repaired, in such an event the complainant has to bear the transportation cost; (2) New tank has to be installed in which difference cost between the old tank and new tank has to be born by the complainant, but the complainant has not exercised his options, therefore contending that there is no deficiency at their hand and the complaint is not maintainable has prayed for dismissal of the same.<br /> 3. In the course of enquiry into the complaint allegations, the complainant and 2nd Opposite party represented by its General Manager have filed their affidavit evidence reiterating their contentions canvassed in their respective complaint and version. Both the parties have produced copies of certain correspondences that took place between them. Heard the counsel for both the parties and perused the records.<br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the Complainant proves that there has been leakage in the solar system including tanks because of manufacturing defect and that 1st and 2nd Opposite parties have caused deficiency in their service in not attending to his problem?<br /> 2. Whether the complainant is entitled for the relief as sought for?<br /> 5. Our findings are as under:-<br /> Point no.1 : In the negative.<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Point no. 1:- The claim of the complainant that a solar system manufactured by the 2nd Opposite party was sold by the 1st Opposite party in his favour for Rs.52,500/- and it was installed to his residence has not in dispute between the parties. But the claim of the Complainant that during March 2006 after one year after the installation, that system including tanks developed leakage and that the Complainant despite addressing letters to the Opposite parties and informing them have not rectified the defects has been denied by the 2nd Opposite party by further contending that as soon as they received the Complaint of the Complainant with regard to the leakage of the system, a technician who visited the spot and attended the system reported to them that the leakage was due to material alterations that is done at the instance of the Complainant by an unauthorized person installing a pump to augment more pressure and in the course ventilator pipe has been removed and the vent system has been fully closed and due to over pressure the system started leaking.<br /> 7. The counsel representing for the Complainant argued, that despite letters and issue of legal notice the 2nd Opposite party has not rectified the mistake. The 2nd Opposite party has admitted the receipt of letters and legal notice, but stated to have suitably replied them. With this, we shall have to find out whether the complainant has been able to prove any manufacturing defect in the system he had brought from Opposite parties. The counsel representing the 2nd Opposite party in the cause of arguments, by relying upon decisions reported in II (2006) CPJ 143 (NC), another decision reported in the same journal at page 300 of NC and further relied upon 2 more decisions argued that the complainant who has attributed manufacturing defect in the system has not examined any expert to prove the manufacturing defect and further submitted that in the warranty there is a condition wherein the dispute pertaining to the sale is subject to Bangalore jurisdiction only and this Forum has no jurisdiction, and in this regard he relied upon a decision reported in 3(A) 1995 Supreme Court page 153 between Angile Insulations Vs. Davyaashmore India Ltd. and another and 3(B) 1989 SCC page 163. So far as the first point canvassed by the counsel for the 2nd Opposite party is concerned with regard to the manufacturing defect attributed is concern admittedly for a period of one year after it was installed there was no problem. It is contending by the Opposite party that leakage in the system including tanks started when a pressure pump is installed and ventilator was totally closed, due to pressure of water. This fact has not been seriously disputed by the complainant. Therefore, under these circumstances and in the circumstance of this case there is no need for seeking any opinion the expert to know whether the defect is manufacturing one or due to material alterations. Coming to the 2nd contention it could be seen that the Consumer Protection Act is a special enactment and section 11 confer the jurisdiction of the District Forum and the conferment of the jurisdiction is not by contract of the parties, but by statue. Further in view of section 3 of the Act which overrides the other acts. We do not find any substance in the arguments of the counsel for the 2nd Opposite party that this Forum has no jurisdiction and it is the Forum at Bangalore gets jurisdiction to entertain the complaint. Therefore, both the submissions are of baseless, therefore are rejected.<br /> 8. Coming to the merits of the case, it is admitted by the complainant that system worked well for a period of one year. In reply to the letter of the complainant, the 2nd Opposite party has sent a reply on 24.09.2007 intimating the complainant that leakage was due to unauthorized material alterations done by the complainant to the system. The complainant in his affidavit evidence specifically has not denied the material alterations made to the system whereas the 2nd Opposite party not only in its version, but also in the affidavit evidence has stated that the system has been materially altered by a person who has no basic knowledge of the system. As against which, the complainant in his affidavit evidence ought to have sworn to that he has not got the system materially altered by any unauthorized person and that contention of the 2nd Opposite party is false and baseless. But, the complainant has not said so. The complainant in 2nd para at page 3 of his affidavit evidence has only incorporated what the 2nd Opposite party has stated in his reply as under:-<br /> “I further submitted that the 2nd Opposite party instead of attending my problem, sent an untenable letter dated 23.09.2006 stating frivolous observations of technician regarding improper installation of system regarding pressure pump, air vent etc., to escape themselves from the liability. Further system was installed only by technical team sent by the Opposite parties and Opposite parties have issued installation certificate dated 01.06.2004, stating installation as per company specification”.<br /> Except this the complainant has nowhere in the affidavit evidence denied the contention of 2nd Opposite party with regard to the material alterations done to the system by installing pressure pump and closing the ventilator. No doubt the 2nd Opposite party has not denied in they having got the system installed at the residence of the complainant. But at that time they stated that the pressure pump was not installed by them, vent was not closed by them, therefore the necessary inference could be drawn in the case on hand is that the pressure pump was installed by the complainant at his instance or on his account. If, the complainant had not done so, he could have totally denied having got installed a pressure pump making material alterations in the system and that material alterations it appears caused leakage in the system due to pressure of water created by the pressure pump, therefore for which the complainant cannot blame the Opposite parties.<br /> 9. No doubt, the problem in the system was noticed by the complainant within the warranty period. But, the complainant having altered the system by installing a pressure pump it takes away it right of getting the system repaired at the cost of Opposite parties during the warranty period and this is included in the exclusions of the conditions of warranty, therefore, the complainant cannot attribute deficiency to the Opposite parties. The 2nd Opposite party as could be seen from his reply and also in the version stated that even after knowing the material alterations gave 2 options to the complainant for meeting his problem. One is that he was prepared to repair the tank or tanks provided the complainant bears the transportation cost and the 2nd option is replacement of new tank with old tank provided that the complainant paying the difference values of tanks. The offers of the 2nd Opposite party appear to be fair and is a good gesture. Therefore, under these circumstances explained above though the complaint is liable to be dismissed as he has not proved there was in manufacturing defect in the system and Opposite parties have caused deficiency in service, but because of the offers made by the 2nd Opposite party in his pleadings, and also during arguments we propose to give option to the complainant to avail one of the offers made by the 2nd Opposite party. Thus we answer points no.1 and 2 accordingly and pass the following order:- <br /> ORDER<br /> <br /> The Complaint though is liable to be dismissed but disposed off in the following terms:- <br /> 1. The complainant shall within 30 days from the date of this order give his option accepting one of the offers made by the 2nd Opposite party as referred to above and on the complainant so making, the 2nd Opposite party shall within 15 days from the date of that offer of the complainant shall either repair the tanks effectively on the complainant meeting the transportation charges or by supplying new tanks with the old tanks on payment of the difference cost to old tanks and new tanks.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br />