Complaint filed on: 21-05-2015

                                                      Disposed on: 02-04-2016

BEFORE THE BENGALURU IV ADDITIONAL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM COMPLEX, 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027          

CC.No.987/2015

DATED THIS THE 2^nd DAY OF APRIL 2016

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainant: -

                                        Khujema,

                                                No.75, 11 floor, 3^rd Cross,

                                                5^th block, Koramangala,

                                                Bengaluru-95

V/s

Opposite party:-       

                                        M/s. Anu Solar Power Pvt. Ltd.

                                                No.243, 3^rd Cross, 8^th main, 3^rd

Phase, Peenya industrial area,

Bengaluru-58

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OP, praying to pass an order, directing the OP to pay product cost of Rs.30,728=00 along with interest at 18% per annum and to pay damages of Rs.50,000=00  and cost of litigation, in the interest of justice and equity.   

2. The brief facts of the complaint can be stated as under.

On 18-6-2011 the complainant purchased water solar heating system from the OP by paying a sum of Rs.30,728=00 with a capacity of 250 liters and the same was installed on top portion of  his house. From the date of commissioning and installation of the product, it is not functioning properly and it is giving lot of problem and there is heavy leakage of tank, thereby lot of water is lost. Because of huge wastage of water damage to the building is being caused and he has to pay excessive electricity and water bills. The complainant is suffering from lack of service by the product provider since it is not functioning properly and whenever the complainant informed to OP, the service centre people come after lapse of many days for repairs and retain the system for a longer period. Meanwhile the complainant and his family members have to suffer and they are put to great harassment and mental agony. The system supplied by OP is having a warranty period of 5 years and the OP has to attend the manufacturing defects free of cost, but the OP has charged heavy amount for transporting the system. Because of bad quality of system it comes for repairs on and often for which the complainant has to pay huge amount of transport. The product supplied by the OP is of poor quality and it is of not a good quality. It is subjected to repairs for many times, but of no use. Hence there is no chance of it working properly in future & because of poor quality of system the complainant and his family have to suffer physically, mentally and financially. Now the system is taken away by the OP for repair. The OP is demanding huge amount for transporting the system for which the complainant is not ready and willing because the complainant has to pay huge amount often for transporting the system because of the poor quality of the system supplied by the OP. Thereafter the complainant has sent a legal notice dated 28-4-2015 to OP and it was served on the OP and the OP gave false and baseless reply. The complainant is using Cauvery river water for solar system and Cauvery river water is of very good quality and it cannot harm the solar heating water system. So the complainant has come up with the present complaint. 

3. After service of the notice, the OP has appeared through its counsel and filed version contending interalia as under:

The OP is a leading manufacturer of solar energy equipment. The OP has been supplying, installing and servicing various type industrial equipments and solar energy equipment’s over 35 years. The OP operates its operation with the approval of Ministry of New and Renewable Energy, Bureau of Indian Standards (BIS) etc. The OP has got ISO 9001-2008 certification from past 15 years. The OP is manufacturing solar flat plate collector systems strictly as per BIS specification and solar copper panels are supplied with BIS marks only. The complainant has approached the OP for supplying 250 liters of solar heater system and the OP supplied and installed system on 18-6-2011 & after installation, the system was working satisfactorily for few years. The system has 5 years of long warrantee against manufacturing defect from the date of installation. The water bill produced by complainant is nothing to do with the system. The complainant filed complaint on 5-6-2015 after using the system for 3 years. As per the warrantees the complainant is supposed to use the soft water. Due to the usage of hard water for few years and site related problems tank developed problems and the OP replaced the tank free of cost on 28-6-2013 and 5-4-2014. Third time the OP collected the tank 0n 4-3-2015 for replacement while collecting the tank the OP informed the complainant that he is supposed to pay two times packing, forwarding and transportation charges of Rs.1700=00 before dispatch of tank & the OP further informed that the said charges are applicable to the present tank. There is no manufacturing defect in the system and the complainant was using hard water and there was site related problem so there was leakage in the tank after few years of use. The OP never collected transport charges for earlier two replacement, therefore so the complainant has produced the bill. The OP asked transportation charges only for one tank/present tank, though warrantee provides for the transportation charges for all replacements. There was no manufacturing defect in the system. On 4-3-2014 the OP collected the tank for replacement and the complainant agreed to pay the transportation charges of Rs.1700=00 both sides. After few days, when the OP called the complainant and informed the complainant that the tank is ready for dispatch end asked the complainant to arrange money for transportation charges, the complainant refused to pay the transportation charges and threatened to take legal action. The contention of the complainant is OP to provisions of the warrantee. Earlier two times the OP replaced the tank free of transposition charges so there is a provision for the same in the warrantee. To manufacture and install a product lot of inputs raw material, labour, taxes and service etc. are required there will be no such a margin to give free transportation charges each time in 5 years long warrantee. The complainant used the system for more than three years and refused to pay the transportation charges during the warrantee period and collect the system, therefore there is no deficiency in the service on the part of the OP. Earlier two times the OP replaced the tank free of transposition charges though there is provision for collect the same, now only to save the transportation charges of Rs.1700=00 the complainant has filed this complaint. There is no deficiency of service, so it is prayed to dismiss the complaint with exemplary cost, in the interest of justice and equity.

4. So from the averments of the complaint of complainant and version of the OP the following points arise for our consideration.

1. Whether the complainant proves that, the OP is negligent and there is deficiency of service on the part of the OP, in supplying poor quality of solar heating system?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?

5. Our findings on the above points are;

          Point no.1: In the affirmative

Point no.2: The complainant is entitled to claim refund of Rs.30,728=00 along with 6% interest per annum on the said amount and Rs.2000=00 towards cost of litigation.

          Point no.3: For the following reasons

REASONS

          6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced documents alongwith complaint. On the other hand, one George Kutty, who being the General Manager of OP has filed his affidavit by way evidence on behalf of the OP and produced documents along with list dated 5-8-2015. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides in between lines.

7. One Khujemabhai, who being the complainant has stated in his affidavit by way of evidence that, on 18-6-2011 he purchased water solar heating system from the OP by paying a sum of Rs.30,728=00 with a capacity of 250 liters and the same was installed in top portion of  his house. From the date of commissioning and installation of the product it is not functioning properly and it is giving lot of problem and there is heavy leakage of tank, thereby lot of water is lost. Because of huge wastage of water damage to the building is being caused and he has to pay excessive electricity and water bills. He is suffering from lack of service by the product provider since it is not functioning properly and whenever he informed to OP, the service centre people come after lapse of many days for repairs and retain the system for a longer period. Meanwhile he and his family members have to suffer and they are put to great harassment and mental agony. The system supplied by OP is having a warranty period of 5 years and the OP has to attend the manufacturing defects free of cost, but the OP has charged heavy amount for transporting the system. Because of bad quality of system it comes for repairs on and often for which he has to pay huge amount of transport. The product supplied by the OP is of poor quality and it is of not a good quality. It is subjected to repairs for many times, but of no use. Hence there is no chance of it working properly in future & because of poor quality of system he and his family have to suffer physically, mentally and financially. Now the system is taken away by the OP for repair. The OP is demanding huge amount for transporting the system for which he is not ready and willing because he has to pay huge amount often for transporting the system because of the poor quality of the system supplied by the OP. Thereafter he has sent a legal notice dated 28-4-2015 to OP and it was served on the OP and the OP gave false and baseless reply. He is using Cauvery river water for solar system and Cauvery river water is of very good quality and it cannot harm the solar heating water system. So he has come up with the present complaint, so the complaint be allowed and grant relief as prayed in the complaint.  

8. Let us a have look at the relevant documents of the complainant. Document no.1 of the complainant produced along with affidavit evidence is the copy of tax invoice dated 18-6-2011 issued by the OP in the name of complainant for having purchased Solar water heating system for a sum of Rs.38,570=00. Document no.2 is the copy of installation certificate dated 15-6-2011 issued by the OP stating that the OP has installed Solar Water heating system on 15-6-2011 at the addresses of complainant. Document no.3 is the copy of installation and commissioning certificate issued by the OP in the name of complainant dated 18-6-2011 wherein it is stated that solar water heating system supplied by the OP carried 5 years warranty from the date of commissioning against the manufacturing defect and purchase of system. Document no.4 is the copy of water bill issued by BWSSB, Bengaluru for the month of Jan.2015 for Rs.999=00. Document no.5 & 6 are the copies of service call sheet issued in the name of complainant dated 18-5-2013 and 7-3-2014 wherein in the column of problem recognized it is written as tank leakage and no charge was levied by OP. Document no.7 is the copy of service call sheet of OP dated 19-2-2015 issued in the name of complainant wherein in the problem recognized column it is written as tank factory B/B and OP has charged Rs.1,700=00. Document no.8 is the copy of legal notice of complainant issued to the OP dated 28-4-2015 calling upon the OP to refund the value of solar water heating system along with 18% interest per annum and to pay damages of Rs.50,000=00  within 15 days from the date of receipt of this legal notice failing which he will approach the consumer forum for taking legal action. Last document is the reply letter of OP dated 7-5-2015 issued to the complainant’s lawyer stating that the solar water heating system supplied by them to complainant was having warranty of 5 years. Due to quality of the water used by the system and other site related problem tank develop a leak for multiple times and they replaced the tank on 28-6-2013 and 5-4-2014 free of cost and again they collected tank third time on 4-3-2015 for replacement, while collecting the tank they informed the client that he is supposed to pay for two times packing forwarding and transportation charges of Rs.1700=00 before dispatching the tank. They have informed the client that, the tank is ready for return dispatch and request the payment but the complainant has refused to pay the above amount and threatened them with legal action, so he requested the lawyer to advice for paying very reasonable packing forwarding and transportation charges as per the warranty terms.     

9. At this stage, it is relevant to have a cursory glance at the material evidence of the OP. One George Kutty, who being the General Manager has stated in his affidavit by way of evidence that, the OP is a leading manufacturer of solar energy equipment. The OP has been supplying, installing and servicing various type industrial equipments and solar energy equipment’s over 35 years. The OP operates its operation with the approval of Ministry of New and Renewable Energy, Bureau of Indian Standards (BIS) etc. The OP has got ISO 9001-2008 certification from past 15 years. The OP is manufacturing solar flat plate collector systems strictly as per BIS specification and solar copper panels are supplied with BIS marks only. The complainant has approached the OP for supplying 250 liters of solar heater system and the OP supplied and installed system on 18-6-2011 & after installation the system was working satisfactorily for few years. The system has 5 years of long warrantee against manufacturing defect from the date of installation. The water bill produced by complainant is nothing to do with the system. The complainant filed complaint on 5-6-2015 after using the system for 3 years. As per the warrantees the complainant is supposed to use the soft water. Due to the usage of hard water for few years and site related problems tank developed problems and the OP replaced the tank free of cost on 28-6-2013 and 5-4-2014. Third time the OP collected the tank 0n 4-3-2015 for replacement while collecting the tank the OP informed the complainant that he is supposed to pay two times packing, forwarding and transportation charges of Rs.1700=00 before dispatch of tank the OP further informed that the said charges are applicable to the present tank. There is no manufacturing defect in the system and the complainant was using hard water and there was site related problem so there was leakage in the tank after few years of use. The OP never collected transport charges for earlier two replacement, therefore the complainant has produced the bill. The OP asked transportation charges only for one tank/present tank, though warrantee provides for the transportation charges for all replacements. There was no manufacturing defect in the system. On 4-3-2014 the OP collected the tank for replacement and the complainant agreed to pay the transportation charges of Rs.1700=00 both sides. After few days, when the OP called the complainant and informed the complainant that the tank is ready for dispatch end asked the complainant to arrange money for transportation charges, the complainant refused to pay the transportation charges and threatened to take legal action. The contention of the complainant is OP to provisions of the warrantee. Earlier two times the OP replaced the tank free of transposition charges so there is a provision for the same in the warrantee. To manufacture and install a product lot of inputs raw material, labour, taxes and service etc. are required there will be no such a margin to give free transportation charges each time in 5 years long warrantee. The complainant used the system for more than three years and refused to pay the transportation charges during the warrantee period and collect the system, therefore there is no deficiency in the service on the part of the OP. Earlier two times the OP replaced the tank free of transposition charges though there is provision for collect the same, now only to save the transportation charges of Rs.1700=00 the complainant has filed this complaint. There is no deficiency of service, so it is prayed to dismiss the complaint with exemplary cost, in the interest of justice and equity.  

10. Let us have a cursory glance at the relevant documentary of OP. Document no.1 to 6 are the copies of power of attorney of Managing Director, Factory certificate of OP copy of approval from Ministry of New and renewable energy, copy of Bureau of Indian Standards certification, copy of SIO 9001-2008 certification and copy of test report of Madurai Kamaraj University and document no.7 is the warranty card wherein it is stated that Anu Solar Power Private Ltd will replace or repair at their work or at your site, free of charge within a period of (see below) years from the date of sale, such parts thereof an may found on examination to have manufacturing defects, packing forwarding, transportation etc. to be taken care by the customer. The said warranty card is vague and bald in relation to Solar Water heating system supplied to the complainant by OP.     

11. On making careful scrutiny of the case of complainant on the background of oral and documentary evidence of both parties, it is made crystal clear that, the complainant has purchased solar water heating system from the OP for a sum of Rs.30,728=00 having warranty period of 5 years and the same was installed on the terrace of house of the complainant and after installation and commissioning of the device tank started leaking and two times the OP issued service call sheet dated 18-6-2013 and 7-3-2014 for attending the problem of leakage of tank, so also 3^rd time again solar water heating system of complainant was having problem of leakage of tank of device and at that time the complainant was asked to pay transportation charges of Rs.1700=00 and told the complainant that the tank is ready and requested the complainant to pay transportation charges and take the tank. But the OP has refused to pay the said charges as the tank problem in the system is well within the warranty period. The terms and conditions of the warranty produced by the OP do not state specifically that the complainant has to pay transportation charges in respect of tank to be supplied by the OP if warranty period of 5 years. The entire terms and conditions of the OP produced are silent on the particular aspect, so the complainant has requested the OP by writing a letter and issuing a notice to rectify the defects of solar water heating system well within the warranty period and the same was not rectified by the OP well within the warranty period. On the other hand, the OP is demanding to pay transportation charge of Rs.1700=00 which is against the terms and conditions of the warranty & as on this date, the complainant is suffering for not rectifying the problem of water heating system well within the warranty period, despite making several requests and reminders to OP. The testimony of the complainant that after purchase of solar water heating system by paying Rs.30,728=00, the leakage of tank started and that the problem has not been rectified. Inspite of making several requests and reminders stands corroborated by documents of complainant. On the other hand, the OP has not produced any believable documentary evidence to show before the forum that the device supplied by the OP to complainant is having any manufacturing defects and it is in good condition. The act of OP in making change of water tank two times and 3^rd time asking the complainant to bear transportation charges and replacement of 3^rd tank makes it clear that, the solar water heating system supplied by the OP is not working and it is leaking and the problem of solar water heating system of complainant has not been rectified till this date but the OP is demanding the complainant to pay transportation charges and then they will replace the tank. In fact, the OP was supposed to replace the tank well within the warranty period free of cost including transportation charges as per the terms and condition of the warranty. The oral and documentary evidence of complainant goes to shows that the complainant who comes to forum seeking relief has established this point with believable material evidence that, the OP is negligent and there is deficiency of service on the part of the OP in supplying the poor quality of solar water heating system to him and as such we are of opinion that, the oral and documentary evidence of complainant are more believable trustworthy and acted upon than the material evidence of OP and accordingly we answer this point in a affirmative.

12. In view of our affirmative finding on the point no.1, the complainant is entitled to claim refund of Rs.30,728=00 from OP along with nominal interest at 6% per annum. So the OP is directed to pay Rs.30,728=00 to the complainant along with 6% interest p.a. on the said amount from the date of complaint within 30 days from the date of this order failing which the OP shall pay the said amount to the complainant along with 7% interest p.a. on the said amount from the date of complaint to till the date of realization. The OP is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation. This order is to be complied by the OP within 30 days from the date of this order. The complainant is directed to hand over the solar water heating systems to the OP after receipt of the entire amount as per the order and accordingly we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

The complaint of complainant is partly allowed.

The OP is directed to pay Rs.30,728=00 to the complainant along with 6% interest p.a. on the said amount from the date of complaint within 30 days from the date of this order failing which the OP shall pay the said amount to the complainant along with 7% interest p.a. on the said amount from the date of complaint to till the date of realization.

The OP is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation.

This order is to be complied by the OP within 30 days from the date of this order.

The complainant is directed to hand over the solar water heating systems to the OP after receipt of the entire amount as per the order.

Supply free copy of this order to both parties. 

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 2^nd day of April 2016).

MEMBER                       MEMBER                      PRESIDENT

-:ANNEXURES:-

1.     Witness examined on behalf of the complainant by way of affidavit:

Khujema Bhai, who being the complainant was examined on 13-10-2015.

2.     Documents produced on behalf of the complainant:-

Document no.1 is the copy of tax invoice dated 18-6-2011 issued by the OP.

Document no.2 is the copy of installation certificate dated 15-6-2011.

Document no.3 is the copy of installation and commissioning certificate issued by the OP.

Document no.4 is the copy of water will issued by BWSSB, Bengaluru.

Document no.5 & 6 are the copies of service call sheet.

Document no.7 is the copy of service call sheet of OP dated 19-2-2015.

Document no.8 is the copy of legal notice of complainant issued to the OP dated 28-4-2015.

3.     Witness examined on behalf of the OPs by way of affidavit:

George Kutty, who being the General Manager of OP was examined on 21-12-2015

4.     Documents produced on behalf of the OPs:-

Document no.1 to 6 are the copies of power of attorney of Managing Director, Factory certificate of OP copy of approval from Ministry of new and renewable energy, copy of Bureau of Indian Standards certification, copy of SIO 9001-2008 certification and copy of test report of Madurai Kamaraj University and document no.7 is the warranty card.

MEMBER                   MEMBER                   PRESIDENT