IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> <br /> CC 281/09 DATED 06.10.2009<br /> ORDER<br /> <br /> Complainant Sri. Bhavarappa R/at D.No.200, HPO & RMS Layout, Kalyanagiri Nagar, Mysore-19.<br /> <br /> (By Sri. P.D. Medappa, Advocate)<br /> <br /> Vs. <br /> Opposite Party 1. M/s Emmvee Solar Systems Pvt. Ltd., No.42, Viswamananva Double Road, Opp. Harsha Hospital, Kuvempunagar, Mysore-23.<br /> 2. Manager, M/s Taurus Solar Systems, No.428, 1st Floor, Vishwamanava Double Road, Kuvempunagar, Opp. Judges Quarters, Mysore-9.<br /> <br /> (By Sri. K.N. Harish Babu for O.P.1, Sri. V. Krishna Murthy for O.P.2, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 05.08.2009<br /> Date of appearance of O.P. : 26/08/2009<br /> Date of order : 06.10.2009<br /> Duration of Proceeding : 1 Month 10 days<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> MEMBER<br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act the complainant has filed the complaint seeking a direction to the opposite parties to take back the Solar Water Heating Systems already installed at his premises and replace for solarizer make and further sum of Rs.50,000/-, cost and other reliefs.<br /> <br /> 2. In the complaint, it is alleged that, one Mr. Sri Anand Babu styling himself from the first opposite party collected advance of Rs.1,000/- on 07.07.2007 and issued a receipt mentioning the capacity of the system at 100 liters. On 09.08.2007 the said person collected further sum of Rs.1,500/- and the capacity of the system understood was 125 liters. Later, said Anand Babu also collected a sum of Rs.5,000/- by way of cash and further un-named cheque for Rs.15,500/- from the complainant. Another gentleman came to the premises of the complainant and installed water heater. Complainant did not suspect. He believed the system was of required capacity and make installed. The opposite parties unilaterally reduced capacity of the system from 125 liters to 100 liters and also instead of Solarizer water heater, Taurus water heater was supplied and installed. Thus opposite parties have committed deficiency in service. Accordingly, it is prayed to allow the complaint.<br /> <br /> 3. The first opposite party filed version in which in respect of certain allegations in the complaint ignorance is pleaded and in respect of other material allegations, are denied. It is contended that, this opposite party did not appoint any person as dealer by name Sri. Anand Babu. Also it is contended that, the complainant never approached this opposite party. The complainant was silent for nearly two years and now come up with this complaint. There are no allegations against this opposite party and this opposite party is not a necessary party to the present proceedings. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. The second opposite party in its version has denied certain facts alleged in the complaint and in respect of some other allegations, ignorance is pleaded. However, it is contended that, one Sri. Anand Babu is free lancer, he always purchase the system from the second opposite party. In the month of August 2007, the said Ananda Babu purchased one Taurus make Solar Water Heater system of the capacity of 100 liters for a sum of Rs.15,500/-. This opposite party has issued bills and warranty card. Qualified Technician installed the system and issued installation certificate. That system is now also in good condition. It is stated, there is no deficiency in service on the part of this opposite party. Hence, it is prayed to dismiss the complaint.<br /> <br /> 5. To prove the facts alleged in the complaint, the complainant has filed affidavit and produced certain documents. For both the opposite parties their representatives have filed affidavits and for the second opposite party a document is produced. We have heard the arguments and perused entire material on record. <br /> <br /> 6. Now, the points for our consideration are as under.<br /> <br /> 1. Whether the complainant has proved any deficiency on the part of both or either of the opposite parties and that he is entitled to the relief sought?<br /> 2. What order?<br /> <br /> 7. Our findings are as under:-<br /> Point no.1 : Negative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 8. Point no. 1:- According to the complainant, one Mr. Anand Badu received order for Solarizer water heating system receiving advance of Rs.1,000/- from the complainant. Later he received further advance of Rs.1,500/- by cash. Likewise, said Anand Babu also received a sum of Rs.5,000/- by cash and un-named cheque for Rs.15,500/- towards supply of Solarizer Solar Water Heating system. From the copy of the order produced by the complainant, the bills pertains to the first opposite party, but the first opposite party has specifically denied that, the complainant placed order for supply of Solar Water System with it. It is contended that, the complainant never approached the first opposite party. Hence, at the out set, question would be whether the complainant in fact placed an order for Solar Water Heater with the first opposite party or otherwise. <br /> <br /> 9. Even though the order copies referred to above which are printed pertains of the first opposite party, in view of the contention of the first opposite party first all it is necessary for the complainant to prove that in fact he placed an order with the first opposite party. As could be seen from the allegations made in the complaint, the complainant has not specifically stated that he placed an order for supply and installation of Solar Water Heater System with the first opposite party. What is alleged and contended by the complainant is, Sri Anand Babu styling himself from the first opposite party collected the amount etc.,. The allegation that, “Styling” himself as from the first opposite party itself creates doubt whether that person was representative of the first opposite party. As noted above when the first opposite party specifically denied that Anand Babu was not at all authorized dealer, it is for the complainant to prove either he had placed order with the first opposite party or that said Anand Babu is a representative of the first opposite party. To prove this fact except the copies of the order referred to above, there is no cogent and acceptable evidence on record.<br /> <br /> 10. The first opposite party has also specifically contended that, there is no specific allegation against it by the complainant regarding deficiency in service and it is not a necessary party to proceedings. In this connection it is relevant to note that, it is not a contention of the complainant that, as per the order, the first opposite party did not supply and install the Solar Water Heating System.<br /> <br /> 11. As found from the material on record, Solar Water Heating System pertaining to the second opposite party is installed in the premises of the complainant. The second opposite party also contend that, there is no allegation of the complainant of any deficiency in service on its part. In the complaint, no where the complainant has alleged that, he had placed an order for supply of Solar Water Heating System with the second opposite party. When it is not at all the case of the complainant that he had placed an order for supply of Solar Water Heating System with the second opposite party, there cannot be any grievance of the complainant against second party for non supply of the system. Consequently, there cannot be any deficiency in service on the part of the second opposite party.<br /> <br /> 12. It is submitted for the second opposite party that, one Mr. Anand Babu is free lancer used to purchase Solar Water Heating System and accordingly, he had purchased the system of 100 liters capacity for a sum of Rs.15,500/- for which delivery challen/invoice was issued and the copy of the same is placed on record for the second opposite party. Further, the second opposite party contended that, as per the instructions of Anand Babu, a Technician of the second opposite party installed the said Solar Water Heating System and installation certificate also was issued. Copy of installation certificate is produced by the complainant himself. Hence, it is clear that, the complainant has not made out any deficiency on the part of the second opposite party.<br /> <br /> 13. It is not at all the case of the complainant that, the Solar Water Heating System that has been installed in his premises is defective or the system is not functioning properly etc.,.<br /> <br /> 14. From the facts and the material on record, what we found is that, one Mr. Anand Babu collected an order from the complainant for supply of water heating system of the first opposite party and later, he purchased the system from the second opposite party and accordingly, as per the direction of Mr. Anand Babu, a technician from the second opposite party has installed the system in the premises of the complainant.<br /> <br /> 15. During the course of arguments when we questioned the learned advocate for the first opposite party in respect of the copies of the order forms, he submitted that, the first opposite party has not at all appointed Anand Babu as its dealer and he is not at all concerned etc.,. In view of this, it appears said Anand Babu without knowledge and authority of the first opposite party obtained order from the complainant promising to supply and installed the system to the first opposite party. However, the said Anand Babu purchased the system from the second opposite party and got installed the same in the premises of the complainant. When we questioned the learned advocate what action has been taken by the first opposite party against the said Anand Babu, he submitted that so for no action has been taken and since the complainant is the aggrieved party, if he takes any action, the first opposite party will assist and support the complainant. But we feel that, when said Anand Babu is collecting order in the name of the first opposite party who is not authorized dealer or representative, after coming to know it, in the normal course, the first opposite party is also ought to have taken legal action against him.<br /> <br /> 16. In the complaint, the complainant as noted here before has alleged that one Mr. Anand Babu styling himself from the first opposite party received the order etc.,. Since the first opposite party has denied Anand Babu was its representative or dealer, it is for the complainant to prove it and from the evidence on record, complainant has not proved it. Said Anand Babu is not a party to the proceedings. It is specific contention of the second opposite party that, said Anand Babu is free lancer and purchases the system from it and accordingly, one of the system was purchased by him and that has been installed as per his direction in the premises of the complainant. Under the circumstances in view of the fact that, said Anand Babu being not party to the present proceedings, in his absence, it may not be proper on our part to make further comment against him at this stage. Hence, it is suffice to note that, the aggrieved party or parties may take appropriate legal action against Anand Babu.<br /> <br /> 17. Learned advocate for the opposite parties pointed out that in the year 2007, the complainant had placed on order for supply of the system and within a few months the system was installed and nearly for about two years, the complainant was silent and now he has filed the present complaint. As noted above, it is grievance that he placed an order for supply of the system of the first opposite party make but the system installed is of the make of the second opposite party. The learned advocates point out that easily one can make out and see which brand or make the installed system is. The complainant at the time of installation was aware that the system was of the brand of the second opposite party and at that time the complainant did not raise any objection stating that he had placed an order for supply and installation of the make of the first opposite party. In the complaint, the complainant has stated that, he believed that, the system is of Solarizer Solar Water Heating System etc.,. But when the brand can be made out by simple looking at the system, the contention of the complainant that, he believed etc., is not worth be appreciated. He kept quite nearly about for 2 years and has now come up with this present complaint.<br /> <br /> 18. The copy of the orders through which the complainant has paid advance twice, on the top right side, it is mentioned triplicate representative copy. It means the said copies are of the representative of the company. There is signature of the representative at the lower left side of the document. The complainant not at all produced any receipts or copy of the orders given to him. When these are the copy of representative how the complainant came in possession in same, is not made out.<br /> <br /> 19. Learned advocate for the first opposite party with reference to a note in the order for the system produced by the complainant submitted that, the payments should be made only by cheques or D.D. but in the case on hand the complainant as claimed, paid once Rs.1,000/- and on another occasion Rs.1,500/-. Though the complainant also alleges payment of Rs.5,000/- to Mr. Anand Babu, to substantiate that fact, there is no document. To show that, the complainant had paid Rs.15,500/- through un-named cheque, Xerox copy of his bank account extract is produced. In this bank account extract amount of a cheque mentioned therein is paid to one Mr. Raghu. Who is that Raghu, is not know. When the complainant has paid such huge amount though he has taken care to issued cheque, had issued un-named cheque and even it was not account payee. Hence, considering these facts even we cannot make out that the complainant had placed an order for supply of the system as alleged either with the first opposite party or the second opposite party and hence, the complainant has failed to establish payment of price of the Solar Water Heating System either to the first opposite party or the second opposite party. Consequently, there is no deficiency in service on the part of either of the opposite parties and as prayed by the complainant, either of the opposite parties are not liable and responsible to replace the system.<br /> <br /> 20. With reference to the note in the order form referred to above, we would like to make some observations. With reference to the said note learned advocate for the first opposite party submitted that, the customer or the person placing order for supply and installation of the system, shall have to pay the amount only through cheque or D.D. In the case on hand in spite of said note, the complainant paid the amount by cash and also un-named cheque. Hence, the learned advocate submits the somplainant is negligent in this regard. At the same time we would like to note further that, the note reads as under;<br /> <br /> “ Payments by cheques/DD’s issued in favour of the company. Rs.100/- to be added to each cheque for outstation cheques”.<br /> <br /> 21. Said note is vague. It is not clear as to whether the customer shall pay amount only through cheques or D.D. In fact it is mis-leading one. Reading the entire note, proper inference that can be drawn is, in case the payment is made though out station D.D or cheque, Rs.100/- should be added. Consequently, as argued by the learned advocate, the amount shall be paid only through cheque or D.D. Mention of such vague note misleads the customer or public and hence, the first opposite party may take note of this observation and replace appropriate note.<br /> <br /> 22. Accordingly we answer the point No.1 in Negative. <br /> <br /> 23. Point No. 2:- From the discussion made above and conclusion arrived at, we pass the following order: <br /> <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. There is no order as to costs. <br /> 3. Give a copy of this order to the party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 6th Oct 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V. Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar. J)<br /> Member<br /> <br />