IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 28th day of October, 2022.
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 99/2017 (Filed on 18-04-2017)
Petitioners : (1) M/s. Tease me,
XIII/549Q, Gurukrupa Mall,
Gandhinagar P.O,
Medical College, Kottayam
Rep. by its Partner Raveendranath
Bhaskaran Nair,
Krupa-Karthika, Kumaranalloor,
Kottayam (Adv.Vinu Jacob Mathew)
Vs.
Opposite party : (1) M/s. Honda Siel Power Products Ltd.
409, DLF Tower B,
Jasola Commercial Complex,
South Delhi, New Delhi- 110025
(2) M/s. Honda Siel Power Products Ltd.
Kaloor, Ernakulam
Cochin – 682017
(For Op1 and 2, Adv. Sopy Punnoose
and Adv. Rajalakshmi)
(3) Melamparambil Agencies,
Melamparambil Chambers,
Podiyadi P.O.
Thiruvalla – 689110.
O R D E R
Sri. Manulal V.S. President
Case of the complainant is as follows:
The complainant is conducting a coffee shop at Gandhinagar Kottayam. There are three partners for the said firm and all partners are depending on the income from the said coffee shop for their lively hood.
The complainant purchased a Honda Portable Generator with model No. EU70ISN RDT having a power of 7KVA manufactured by the first and second opposite party from the dealer the third opposite party for Rs.1,79,300/- on 12-1-2017. After considering the specifications the opposite parties have fixed the capacity of the generator to be installed and on the advice and information of the opposite parties the generator was safest, about the replacement warranty and the proper serving, the complainant have purchased the same. The coffee shop was inaugurated on 20-2-2017 and the generator was in use in case of power failure from the said date. After a few days on 4-3-2017 at about 3.30.pm. all of a sudden fire broke out from the generator and the fire exploded with great sound. The main portion of the generator including the engine was burnt and has caused damage to the building and other articles of complainant. The coffee shop had to be closed for two days. The fire and closing down of as the result of the same have also caused damages to the complainant.
The matter was immediately informed to the opposite parties on the same day itself . But there was no proper response from the first and second opposite parties and service engineers came only on 6-3-2017 evening. Just a formal inspection was done and nothing has been stated by them. There was no response from the part of the first and second opposite parties thereafter also.
It is alleged in the complaint that the manufacturing defect of the machine has lead to the said fire and explosion and the opposite parties were well aware about the same. Generator is essential for the coffee shop for its functioning in case of power failure, hence the complainant is compelled to take a generator on rent for its purpose.
Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to replace the generator and to pay a compensation of Rs.3,00,000/- along with Rs.10,000/- as litigation cost.
Upon notice first and second opposite parties appeared before the commission and filed version. Though the notice was served to the third opposite party, they did not care either to appear or to file version.
Version of the first and second opposite parties as follows:
The first opposite party is a company duly incorporated under the provisions of the companies Act 1956 having its registered office at 409, DLF tower B, Jasola Commercial Complex, New Delhi and is manufacturer of various types of generator and is widely accepted from its class and quality. The second opposite party is first opposite party’s area sales office in Cochin.
The complainant purchased a Honda genset model no.EU70ISN from the third opposite party on 12-1-2017. The averments contained in point no. 8 of the complaint is not correct. The information was conveyed to the second opposite party on 6-3-2017 and the opposite party attended the complaint on the same day only. The generator has no manufacturing defect. If the generator was the source of fire, then the insulating material inside the generator would have been burnt. There was no sign of burnt insulation material within the generator. No signs of explosion in generator were found by the engineers when they visited the site on 6-3-2017. The fuel inside tank was found intact and in good condition even after the fire was extinguished. It signifies that no leakage of fuel had occurred. This in turn establishes that the fire was caused by some external source than the engine of the generator or the manufacturing defect. Since there were burn signs on the outer cover only, it is evident that the fire did not take place due to any defect within the engine.
It is averred in the version that the region of burn was limited to the exhaust portion which indicate that some form of hindrance had occurred to the free flow of exhaust gases which could have resulted in increased surrounding temperature and the consequent fire. Accumulation of flammable substances near exhaust region would aggravate the fire incidents. The generator is embraced with EBT (engine block temperature) sensor, which shuts down the generator set when it is over heated. In this case there was no overheating inside the engine, and therefore the generator continued to work in spite of the fire outside.
It is further averred in the version that during inspection the representative flammable foreign materials in close proximity of the exhaust of the generator was found by the representatives, which could have contributed to the start and spread of the fire. Presence of other combustible materials was also found in the close proximity of the generator installed location. Presence of plastic hanger passing over the generator was also found. This could have prevented free flow of the hot gases. The lack of ventilation and wrong installation might have caused external fire near the exhaust region and it was no way due to any manufacturing defect.
It is further averred in the version that during the inspection the complainant was requested to bring the generator to the service centre for a thorough inspection, which was not done by the complainant. The complainant had never availed of any service from the opposite parties. The first free service was due on 12-2-2017, but the complainant did not bother to respond for the free service. The manufacturer has no obligation other than what is stated in the warranty policy. There is no deficiency in service or unfair trade practice from the side of the manufacturer.
Evidence of this case consists of deposition of Pw1,Pw2 and Dw1. Exhibits A1 to A6 were marked from the side of the complainant and B1 to B4 from the side of the opposite parties. Expert commission reports is marked as exhibit C1 to C3.
On evaluation of complaint, version and evidence on record we would like to consider the following points
- Whether there is deficiency or unfair trade practice on the part of the opposite parties?
- If so what are the reliefs and cost?
Point number 1 and 2 together
There is no dispute on the fact that the complainant purchased a Honda Portable Generator with model No. EU70ISN RDT having a power of 7KVA manufactured by the first and second opposite party from the dealer the third opposite party for Rs.1,79,500 on 12-1-2017. Exhibit A1 is the invoice issued by the third opposite party on 12-1-2017 for an amount of Rs.1,79,300/- for the purchase of the generator. There is no dispute on the fact that on 4-3-2017 all of a sudden fire broke out from the generator and the fire exploded. According to the complainant the fire broke out due to the manufacturing defect of the generator. It is proved by exhibit A2 report of fire and safety department proves that the generator and hose real hose are caught fired on 4-3-2017.
Complaint was resisted by the opposite parties stating that the fire was caused by some external source than the engine of the generator or the manufacturing defect. According to the opposite parties if the generator was the source of fire, then the insulating material inside the generator would have been
burnt. It is further contented by the opposite parties that the region of burn was limited to the exhaust portion which indicate that some form of hindrance had occurred to the free flow of exhaust gases which could have resulted in increased surrounding temperature and the consequent fire. Accumulation of flammable substances near exhaust region would aggravate the fire incidents.
Pw1 who is the complainant would depose that the generator was installed by the employees of the third opposite party.
Dw1 who is the authorized person of the first and second opposite parties deposed before the commission that he cannot say about the hindrance at the exhaust portion of the generator. He further deposed before the commission that
there was no sign of plastic rope in exhibit B2 And B3 photographs. Dw1 admits that the generator was installed at the balcony of the restaurant. He further deposed that fire was not originated from the generator and he is not aware of the origin of the fire.
In order to prove his case the complainant filed a petition to appoint an expert commissioner to inspect the subject generator and the same is allowed by this commission. The expert commissioner firstly inspected the generator on 12-10- 2017 and his report was marked as Exhibit C1. Thereafter our predecessors directed the expert commissioner to conduct the inspection after issuing notice to both the parties. In compliance of the said order the expert commissioner again inspected the generator on 25-6-2018 and filed Exhibit C2 report.
On perusal exhibit C1 we can see that the Expert Commissioner has reported that it is not possible to ascertain the exact source of fire by inspecting the generator in the after-occurrence state. The fire caused is of very high intensity as the plastic wheels on the side opposite to the exhaust has been deformed. He further reported that there is no possibility of existence of an external source, for the peril to occur. He categorically reported that the only possibility is a source from the generator. In exhibit C1 commissioner stated that as the generator is not operational, the internal defects of the generator cannot be ascertained, without the help of service personals of repairer or manufacturer. In exhibit C2 report the Pw2 who is the expert commissioner reported that though he had directed the opposite parties to bring the technician or any one qualified to dismantle the generator at the time of inspection nobody was present along with representative of the first opposite party. In these circumstances this commission vide order in IA 59 of 19 directed the opposite parties to open and rectify the generator in the presence expert commissioner. Exhibit C3 is the report filed by the expert commissioner after dismantling the generator. In exhibit C3 he categorically deposed that inspection of burnt portions on the generator reveal that the fire generated causing damage to the generator is not from the external factors and is only due to a fire that has occurred within the generator. He further reported that only probable reason for the fire to occur in the generator is a fire ignited by the spark within the generator i.e. source of ignition which in normal condition should not happen and combustion of petrol vapours generated by the spilled over petrol absorbed by the sound proofing lining martial while refilling. During cross examination Pw2 would depose that if the temperature on exhaust portion increased or that portion remains closed there is no chance to catch the fire on generator.
He further deposed hat the evidence on generator clearly indicates that the fire caused from the generator and its residues was very well available from the inner side of the generator while it was opened on 13-12-2020. Pw2 during the
cross examination would depose that the petrol tank of the generator was in closed position and due to that the petrol tank was burnt. Thus, we are of the opinion that the contention of the opposite party that the fire was caused by some external source than the engine of the generator would not sustainable. Therefore we are of the opinion that the first and 2 second opposite parties sold a generator having defect and thereby committed unfair trade practice.
According Pw2 the generator was in repairable condition and the delay caused in repairing the generator aggregated the damages. In exhibit C3 expert commissioner reported that though the generator was entrusted to the opposite parties on 17-7-2019 for dismantling, but the opposite parties ignored the same. He further reported that cost of repairs would amount Rs.55,880/- as per the initial estimate prepared by the first and second opposite party. Exhibit B4 is the warranty policy issued by the first opposite party. On perusal of exhibit B4 we can see that the first opposite party offered a warranty for two years from the date of purchase for commercial/retails by the customer and repair or replacement of defective parts at any authorized dealer free of charge, if found defective by reason of defective material or poor workmanship. As discussed earlier the Pw2 who is the expert commissioner reported that reason for the fire to occur in the generator is a fire ignited by the spark within the generator which is under normal condition should not happen. Thus it is clear that the fire was occurred due to defective parts of the generator and first and second opposite parties are bound to repair the same under warranty policy. Therefore we are of the opinion that the first and second opposite parties have committed deficiency in service by not repairing the generator under the warranty policy.
Dw1 would depose before the commission that the restaurant is fully automated and in a modern way. He further deposed that the said shop was closed for two days. Though the complainant claimed Rs.3,00,000/- as compensation for the damage he did not adduce any evidence to prove the same. Though he deposed that he had spent Rs.90,000/- for the purchase of new generator he did not adduce any evidence to prove his case. No doubt the closing down of coffee shop for two days would cause loss towards salary of employees, income due to the damage of the foods products and severe mental agony to the complainant. All these loss were sustained by the complainant due to the unfair trade practice and deficiency in service committed by the first and second opposite parties and they are liable to compensate the same.
Considering the nature and circumstances of the case we are of the opinion that awarding an amount of Rs.1,50,000/- as compensation for the damages caused to complainant will meet the ends of justice.
In these circumstances we allow the complaint and pass the following order.
(1)We hereby direct the first and second opposite parties to rectify the defects of the Generator with model No.EU70ISN RDT having a power of 7KVA in a perfect condition and to hand over the same to the complainant within 30 days from date of receipt of this order.
(2) We hereby direct the first and second opposite party to pay Rs.1,50,000 to the complainant as the compensation for the damages for the loss and mental agony due to the unfair trade practice and deficiency in service from the part of the first and second opposite parties. The first and second opposite parties are jointly and severally liable to comply this order.
The Order shall be complied within 30 days from the date of receipt of Order . If not complied as directed, the amount will carry 9% interest from the d date of Order till realization.
Pronounced in the Open Commission on this the 31st day of October, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Sworn statement from the side of complainant
Pw1 - Raveendranath
Pw2 – Binu Varkey
Sworn statement from the side of opposite party
Dw1- R. Sreenivasan
Exhibits marked from the side of complainant
A1 – Copy of invoice issued by 3rd opposite party
A2 – Copy of report of fire and safety department
A3 – Copy of lawyers notice dtd.10-03-17
A4- postal receipts
A5- Postal AD card
A6 – Letter dtd.13-03-17 by 2nd opposite party to Adv. Vinod Jacob Mathew
Exhibits marked from the side of opposite party
B1 – Authorisation letter
B2 series – Photos (6 nos.)and photos of vehicle
B3 series - Photos (5 nos)
B4 – Copy of warranty card
Commission Report
C1- Report No.ECR/IA No.273/17 dtd.18-01-2018 by Binu Varkey
C2 – Report No.ECR/IA No.273/17 dtd.18-06-2018 by Binu Varkey
C3-Report No.EC/2020/03/02 dtd.10-03-2020
By Order
Sd/-
Assistant Registrar
