D.o.F:28/8/08 D.o.O:28/5/2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC.142/08 Dated this, the 28th day of May 2010. PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SYAMALADEVI : MEMBER Thirupathi Bhat S/o Subraya Bhat, R/at Permukha House, : Complainant Beejanthadka,Badiadka,Perdala,Kasaragod (Adv.A.Rajagopala,Kasaragod) - M/s V.Guard Industries Ltd.
44/875,L.F.C Road ,Kaloor,Cochin : Opposite parties - Key Stone Systems,
Punchiri,Near Jai Matha School, Kotekanni Road,Kasaragod (Adv.K.Dinesh Kumar ,Hosdurg) ORDER SRI.K.T.SIDHIQ : PRESIDENT Shortly stated the case of the complainant is that the V guard Evacuated Tube collector solar water heating system he purchased from 2nd opposite party who is a dealer of Ist opposite party for 20,500/- rupees is defective and it served no purpose. According to him he spent 10,000 rupees for the plumbing work for the installation of the solar water heating system. Apart from that he also spent 750 rupees towards the transportation charges. Though he made complaints to opposite parties but the visit of service personals in response to his complaints were futile. The demand for replacement of the system by way of registered lawyer notice also ended in a defending reply. Hence the complainant filed this complaint. 2. According to opposite parties the capacity of solar water is 125 liters per day and on a clear sunny day the system can generate 60*c to 80*c of hot water. The said performance is available at the solar water heater tank outlet only and is depend on the availability of direct sunlight and its intensity throughout the day. Adequate heating would not take place when the sky is heavily overcast. These aspects are enumerated in the instruction manual and warranty card of the system. After installation of the heater, on 19/7/08 a representative of 2nd opposite party had visited the complainant’s premises and the complainant made some complaint regarding the inadequacy of hotness of water he is getting from the water heater. But he was unable to take the temperature readings thoroughly as the sky turned heavily overcast in the afternoon. On 22/7/08 another technician visited the house, but complainant did not allow them to check the system and demanded the replacement of the system. On 23/7/08 the same technicians again visited the complainant’s premises. They were permitted to inspect and test the temperature at the utility point only. The temperature at the solar water heater tank outlet is relevant and not at the utility point. There were no defects of any sort in the operatives. The opposite parties wanted to monitor the system properly to ensure that it is functioning properly. But on account of the complainants non co-operation the system could not be adequately checked. There is no unfair trade practice and deficiency in service on the part of the opposite parties. The opposite parties further pray that if they shall grant all adequate opportunities to monitor the performance of the solar water heater system properly after inspecting and proper monitoring and then if the heater is found defective the opposite parties undertakes to alleviate the complainant’s grievances . 3. In order to prove the functioning of the solar water heater system installed in the house of the complainant, an advocate commissioner together with the assistance of a technical expert of ANERT (Agency for Non-conventional Energy and Rural Technology) were appointed at the instance of both sides. The Advocate commissioner Sri.Sathyasankara .M filed the report attached with the report of the expert. The Advocate commissioners report is marked as Ext.C1. 4. On the side of complainant Exts.A1 to A5 marked. On the part of opposite parties DW1 Believe Varghese, the Executive of customer service of Ist opposite party filed affidavit and faced cross-examination by learned counsel for complainant. Exts.B1&B2 marked. DW2 the Expert who assisted the Advocate commissioner is also examined at the instance of opposite parties. Counsel for both sides heard and in addition to that the learned counsel for opposite parties filed notes of argument. It is perused. 5. In the version filed by opposite parties one of their prayer is to grant adequate opportunity to monitor the performance of the solar water heater system properly and they are prepared to redress the grievance of the complainant if the system is found defective. In this case they have received adequate opportunity at the time of visit of the Advocate commissioner together with the expert. In the report, the commissioner has reported that he inspected the water heater on 21/4/2009 at 3.30 p.m and he find that water collected from an opening near the system was found like normal cold water. Again on the next day 22/4/2009, he inspected the water heater with expert and the expert sealed the system at about 10.30 a.m. Then they waited till 3.30 p.m and the seal was opened in the presence of the parties and a buckets of 20 liters were arranged by the complainant. Around 100 liters of water was taken from the system (5 times in 20 liters bucket). The temperature of each 20 liters was found as follows: First 20 liters 53 * C 2nd “ 47 3rd “ 43* 4th “ 40 5th “ 39 The Commissioner has reported that on the day of inspection the weather was good though some passing clouds are there and generally it was a sunny day suitable for testing. From the report of the commissioner and from the datas supplied by him it is seen that in the month of April on a sunny day even after keeping the water for 5hrs the first 20 liters of water taken from the system provided only 53*c temperature. To get water @53*c on a sunny day in the month of April a heating system is not at all necessary. Even simply keeping a bucket of water for a few hours in an open terrace without any hindrance to sunlight will provide that much hot water. This fact itself shows that the system is defective. In this context the contention of opposite parties is that the hot water at 60*c to 80*c will be available only at the solar water heater tank outlet only and not at the utility point. The opposite parties are well aware that no one would take the water from the water heater tank directly and even in the diagram of the water heater shown in Ext.B1 instruction manual cum warranty card the utility points are depicted. This would lead to a presumption that what is offered in the instruction manual will be available at the utility points. If the hot water will not be available on the utility point even on a sunny day then what is the need for a solar water heating system? Now the question to be answered by the opposite parties is whether they any point of time informed the complainant that no hot water will be available at the utility points. Had it been so the complainant should not have spent money for plumbing works to get hot water at utility points. So it is clear that the complainant was never informed this aspect. This is nothing but an unfair trade practice as envisaged under 2(1) (r)(vi) of Consumer Protection Act. Sec.2 (1) ( r ) (vi) of the act says that the practice of making any statement, whether orally or in writing or by visible representation which makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services is an unfair trade practice. 6. Moreover, the expert who assisted the advocate commissioner was examined as DW2 at the instance of opposite parties. He during cross-examination by the learned counsel for complainant deposed that according to his opinion the solar water heater had some defect. This would further strengthen the case of the complainant that the solar water heater installed at his premises is faulty. 7. The technical contentions of the learned counsel for opposite parties that the complainant has not tendered any oral evidence etc has no force since Forums constituted under the Consumer Protection Act 1986 is bound by the principles of natural justice only. In this case it is evident that the solar water heater system supplied to complainant was defective at the time of installation itself. Instead of admitting the mistake and redressing the grievance of the complainant the opposite parties went on defending the complaint even on technical grounds. Unfortunately in our country our traders/sellers and manufacturers have developed a practice of not admitting defects in goods, when pointed out by consumers and not replacing the same without a contest. In other countries even if there is aggressive marketing, defective products are easily replaced. That practice is required to be adopted. Instead of disputing the undisputed facts the traders and manufactures should resolve the matter by replacing or refunding the price of the defective product or articles as the case may be. 8. We can imagine the pinch the complainant suffered due to the purchase and installation of an ill-working solar water heating system. It yielded him no hot water but a hot tensed mind due to its nonfunctioning. The opposite party is liable to compensate the complainant for the mental suffering he had undergone. As held by our Hon’ble Apex Court in the case of Ghaziabad Development Authority vs. Balbir Singh(2004) 5 SCC 65 the Forum is empowered to award not only value of goods or services but also to compensate a consumer for the injustice suffered by him. The word compensation may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult, injury or loss. 9. Further, in this case the complainant not only deprived the benefit of the solar water heating system he purchased but he also forced to file the complaint for getting his grievance redressed. In response to the complaint the opposite party took a stand denying their liability. We think this is a fit case to award punitive compensation against opposite parties. The Hon’ble Supreme Court in the case of Charan singh vs. Healing Touch Hospital reported in III (2001) CPR (1) (SC) has held that the compensation has to be awarded in an established case which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a quantitative change in attitude of service providers. In the result, complaint is allowed and the opposite parties are directed to take back the solar water heating system installed on the open terrace of the house of the complainant in as is where is condition and refund its price 20,500/- rupees. Opposite parties are also directed to pay 10,000/- rupees by way of punitive compensation together with a cost of 4000/- rupees. The claim for the refund of plumbing and fitting charges is rejected since complainant can make use of them for a new water heater if he opt to purchase. Time for compliance is limited to 30 days from the date of receipt of copy of order. Failing which opposite parties shall further liable to pay interest @12% per annum for 20,500/- rupees from the date of complaint till payment. Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT Exts: A1-7/6/08-cash receipt A2- instruction manual &warranty card A3-26/7/08- lawyer notice A4-series-AD cards A5-30/7/08- reply notice B1-instruction manual &warranty card B2-copy of inspection report Ext.C1- 5/5/09-commission report DW1- Believe Varghese-witness of OP.1 DW2-Jayakumar.R-Project Engineer,ANERT Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT eva /Forwarded by Order/ SENIOR SUPERINTENDENT
| | HONORABLE P.P.Shymaladevi, Member | HONORABLE K.T.Sidhiq, PRESIDENT | HONORABLE P.Ramadevi, Member | | 
