BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 26^TH DAY OF JUNE 2023

ORDER

SMT. K. ANITA SHIVKUMAR, MEMBER

Complainant filed this complaint U/S 35 of Consumer Protection Act 2019, prayed to hold OP guilty of selling defective products and deficiency of service, direction to OP’s to refund Rs.21,000/- along with interest at the rate of 18% per annum from the date of receipt of money, to pay compensation of Rs.10,000/- towards mental agony, to pay the cost of litigation and such other relief.

2. Brief facts of this case are as follows:-

Complainant purchased solar water heater from OP No.2 who is authorized dealer of OP No.1. OP No.1 is manufacturer of solar water heater LPD ETC insta copper tank and also installed the same on 26.06.2021 at the premises of complainant. For that complainant paid Rs.21,000/- including CGST and SGST. After the installation OP No.1 has issued installation certificate on 26.06.2021 and OP No.2 has raised a bill No.368. Complainant promptly paid the invoice value to OP No.2. Complainant stated in the complaint that within 3 months of installation, complainant found gradually a solar water heater tank was shrinking and denting on its own and the dents are gradually deepening, affecting the out flow of water. The defect found by the complainant has been brought to the notice of OP’s over phone. OP No.1 denied its responsibility and holding the OP No.2 as responsible.  Similarly OP No.2 denied the responsibility stating that he is only dealer of OP No.1, not responsible for any manufacturing defect. Complainant stated that it is evident and manifestation of inherent of solar water heater manufactured by OP No.1, installed by OP No.2. Under such circumstances complainant got issued legal notice on 01.12.2021 calling upon the OP’s to replace the solar water heater or alternative to refund the entire amount. The legal notice issued was duly served on OP No.1, notice sent to OP No.2 returned with endorsement on “no such firm in this address”. Complainant alleged that OP No.2 intentionally refused the notice, though the address on invoice reflects the same. The complainant also alleged that instead of complying the demand, OP’s called the complainant and denied their responsibility. With no other choice complainant approached this commission praying to grant the reliefs.

3. The notice sent to OP’s No.1&2. OP No.1 was absent on the date of appearance, hence OP No.1 placed Ex-parte. OP No.2 made its representation through its counsel and filed its version. OP No.2 denied the allegations of complainant made in the complaint stating that OP’s have not denied its responsibility and OP No.2 regularly followed up this matter with OP No.1. OP No.1 informed to OP No.2 that there was no manufacturing defect in the said product. Due to wrong fixation of plumbing work the product was damaged. The pipe installed for air ventilation is not properly fixed as instructed in the user manual, hence complainant found the defect and out flow of water from the water heater. Due to the mistake of complainant, the product was damaged. The guaranty card issued by OP No.1 on 20.06.2021 mentioned that the guaranty is not covered for wrong plumbing work. Hence OP No.2 is prayed to dismiss the complaint against him with cost.  

4. After the stage of version the case set down to adduce affidavit of complainant, complainant not filed his affidavit evidence. Complainant filed 6 documents at the time of filing the complainant with list. Later, one Prashant Bhat, proprietor of OP No.2 adduced affidavit evidence, one document, which is marked as Ex.R.1. Heard arguments. We perused the materials on record, proceed to dispose the matter on merits.

5. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant has proved the deficiency of service on the part of OP?

ii) Whether complainant is entitled for the relief?

iii) What order?

6.  Our answers to the above points are as follows:-

Point No.1:- In the affirmative

Point No.2:- Partly affirmative

Point No.3:- As per the final order

REASONS

7. Point No.1:- Complainant has purchased the solar water heater from OP No.2 by paying Rs.21,000/-including CGST and SGST. OP No.2 has issued receipt No.368 dated 26.06.2021 which is at Doc.No.1. On the same day OP No.1 has issued installation certificate, which is at Doc.No.2. As stated in the complaint, the solar water heater was shrinking and denting on its own within 3 months of its installation, gradually dents are deepening which affected the out flow of water from the tank. The very defect has brought to the notice of OP’s over phone, which is not disputed. OP No.2 filed version, taken contention on behalf of OP No.1 also that due to the wrong fixation of plumbing work the product was damaged, the pipe installed for air ventilation is not properly fixed as instructed in the user manual. OP also contended that plumbing work was carried out by complainant himself. Hence they denied the allegations of manufacturing defect with the solar water heater as made by the complainant in his complaint. And also contended that OP No.2 is dealer of OP No.1, is not responsible for the manufacturing defect, if any.

8. Heard pleadings of both parties having discrepancy with the product. As complainant stated that the solar water heater tank was shrinking and denting on its own but OP taken stand that the wrong committed during fixation of plumbing work to the product was damaged.  After the problem occurred complainant has called and also OP has sent the technical person to the spot which is evidenting through Doc.No.3 dated 23.10.2021 which is issued by customer care department, authorized signatory. The said technician mentioned in the service call slip that tank is shrinking/tank dent. It proved that complainant proved the problem occurred with tank and the technician from OP No.1has attended it. On perusal of Doc.No.3 we cannot analyses the defect with the tank is due to problem committed by complainant at the time of fixing the pipes or it has defect at the time of purchase. It only shows that complainant has faced the problem with solar water heater.

9. As contended by OP with reference to the guarranty certificate issued by OP No.1 in clause No.1 of terms and conditions “guarranty does not covered defects/damages due to improper usage includes unauthorized repairs, modification, alteration or tampering, excess flow, wrong plumbing, etc”. It shows the said problem raised by the complainant not covered under the guarranty. In the very guarranty certificate OP also mentioned that “the guarranty does not cover any damaged inflated by animals, such as dogs, monkeys, domestic pets, birds or any other creatures”. When the wrongs which are not in hands of OP similarly complainant is also not in position to control the above damages by animals. Hence it cannot be acceptable.

10. It is pertinent to note that when the dent comes are deepening on its own and the out flow of water from the said tank might have caused the problem to the complainant, when he purchased the solar water heater for the purpose of using in his daily life, might have faced difficulty in using it. As OP stated that it is not manufacturing defect, caused due to wrong fixation of plumbing work, which is done through the complainant’s side. If it is the reason for shrinking and denting occurred in tank, as per OP, before issuing installation certificate, OP No.1could monitor the plumbing work and certify the installation for usage. Or otherwise, if it is such technical point involved in fixing of pipes and plumbing, cause many problems with product, OP itself could take assignment of plumbing too. Whatever may be the reason on the said solar water heater, it was under the warranty period that too within 3 months of its installation, is really leads to pain to the complainant. Hence OP’s are directed to rectify the defect within 15 days or otherwise OP is directed to replace the solar water heater with new one without extending the warranty. The warranty retains same from 26.06.2021.

11. Complainant not only brought the information to the OP’s notice orally or over phone, has also issued legal notice on 01.12.2021 calling upon OP’s replace the defective solar water heater or refund the value of heater. The said legal notice was served on OP No.1 but OP No.1 did not come forward to comply the claims of complainant. As the manufacturer of solar water heater OP No.1 is absent before the commission, OP No.2 appeared and take contention that the manufacturing defect is no way concerned to OP no.2 as a dealer, its sole responsibility of OP No.1 to replace or refund to the complainant.

12. Since product is under warranty and the solar water heater carries warranty for the period of 10 years from the date of purchase. OP No.1 itself has installed the solar water hater and issued installation certificate, subsequently the defect was attended by OP No.1 itself, has issued service call slip. In our considered view it is enough to prove the defect arise within short span of a purchase and the same was within the notice of OP’s. OP No.1 has not appeared before the commission and placed any documents to defend his case. Hence the documents placed by complainant are unchallenged with regard to OP No.1. With regard to OP No.2, has appeared and taken his stand that he is only dealer manufacturing is not concerned to him. Though the defect was well aware, when the fixing of pipe involves technicality which may leads on entire system of solar water heater, OP only could take assignment or fixation could undertake under his monitory. OP’s did not do so. OP No.1 has not rectified the defect nor replaced it well within the time, it amounts to deficiency of service on the part of OP No.1. On the above discussion we answer Point No.1 in affirmative.

13. Point No.2:- When the product carries 10 years of warranty if any defect occurs in between to be resolved by OP. It is not acceptable if he denies the responsibility on silly reasons and shifting the responsibility on the complainant, is not fair and just. Hence OP No.1 is liable to compensate the same to the complainant by replacing. The complainant has purchased the said solar water heater on 26.06.2021, defect attended by OP No.1 on 23.10.2021. In our considered view, at present it is almost 2 years of his purchase and it is not clear that complainant is using the product or not, since complainant was absent for several occasions. Complainant has not adduced affidavit evidence, was absent on the day of arguments. Hence in our view, OP No.1 has to rectify the defect within 15 days or OP No.1 has to replace the product by collecting defective solar water heater from the complainant. In case OP No.1 fails to replace the solar water heater. OP is also liable to compensate to complainant for the mental agony for Rs.3,000/- and Rs.2,000/- for cost of litigation. For the foregoing reasons we answer Point No.2 in partly affirmative.

11. Point No.3:- In view of the discussion referred above, we proceed to pass the following:-

ORDER

1. Complaint filed U/S 35, is allowed in part against OP No.1 is dismissed against OP No.2.
2. OP No.1 is directed to rectify the defect within 15 days, failing which replace the solar water heater with new one by collecting defective solar water heater from the complainant. OP No.1 shall comply the above direction within 30 days from the order.
3. OP No.1 further directed to pay Rs.3,000/- towards compensation and Rs.2,000/- for cost of litigation within 30 days from the date of order, failing which OP No.1 is directed to pay interest @ of 10%per annum on Award amount till realization.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 26^th day of JUNE, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of Opposite Party No.2, R.W.1: