KERALA STATE CONSUMER DISPUTES REDRESSAL  

     COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL  NO:441/2001

                                     JUDGMENT DATED 13.01.2010

 PRESENT

SRI.M.V.VISWANATHAN                        :  JUDICIAL MEMBER

M/s KSB Pumps Ltd.,

Repd. by the Manager,

KSB Pumps Ltd, 151,

Mettupalayam Road,                                 : APPELLANT

NSN Palayam.P.O,

Coimbatore, Tamilnadu.

(By Adv:Sri.S.Dharmapalan Nair)

          Vs.

1.P.V.Sunny, S/o George,

  Pulikuthiyil House,

  Padichira.P.O, Sulthan Batheri.

2.M/s Grandpa Marketing  Corporation,

  Jayagiri Building,                                     : RESPONDENTS

  Sultan Batheri.P.O, Wayanadu.

3.Sunny Kannampilly,

  Proprietor, Akhil Arun Borewell Constructions,

Pulpally.P.O, Sulthan Batheri.

JUDGMENT

SRI.M.V.VISWANATHAN:  JUDICIAL MEMBER    

The appellant was the 2^nd opposite party in the complaint in OP:53/99 on the file of CDRF, Wayanadu, Kalpetta.  The 1^st respondent was the complainant and respondents 2 and 3 were the opposite parties 1 and 3 respectively in the said OP:53/99.  The aforesaid OP was filed at the first instance against the1st opposite party M/s Granpa Marketing Corporation, Jayagiri building, Wayanadu District and subsequently the 2^nd opposite party, the manufacturer of the pump set and supplemental 3^rd opposite party, the contractor who installed the bore well for the complainant have been impleaded. It was the case of the complainant that he purchased a pump set from the 1^st opposite party, M/s Granpa                                                         Marketing Corporation on a consideration of Rs.18,500/- and the said pump set was installed by the technician engaged by the 1^st opposite party and the said pump set was constructed in the bore well and the same was not functioning properly.  Thereby the complainant alleged deficiency of service on the part of the 1^st opposite party the dealer and the 2^nd opposite party the manufacturer of the pump set.  Though the supplemental 3^rd opposite party was impleaded there was no allegation regarding deficiency of service on the part of the 3^rd opposite party who constructed the bore well for the complainant.  Thus, the complainant claimed refund of the value of the pump set amounting to Rs.18,500/- with Rs.5000/- towards the expenses and Rs.14,000/- by way of the amount spent for constructing the bore well and also for Rs.5000/- as compensation.

2. The opposite parties 1 and 2 filed separate written version denying the alleged deficiency of service.  First opposite party contended that he only sold the pump set and there was no assurance or agreement for installation of the pump set at the site of the complainant.  The 2^nd opposite party admitted the fact that the 1^st opposite party is dealer and that the 2^nd opposite party is the manufacturer of KSB pump set which was sold to the complainant for a sale consideration of Rs.18,500/-.  The definite case of the opposite parties 1 and 2 was that there was no defect for the pump set sold to the complainant; but the pump set was  struck in the bore well by falling of soil over he pump set and thereby water could not be pumped out from the bore well.  Thus, the opposite parties 1 and 2 prayed for dismissal of the complaint filed against them.

3. No appendix is seen attached to the impugned order passed by the Forum below.  A perusal of the impugned order would show that the complainant was examined as PW1 and a witness from his side was examined as PW2.  Exts.A1 to A4 documents were also marked on the side of the complainant.  The 1^st opposite party was examined as OPW1 and B1 series and B2 documents were marked on the side of the opposite parties.  On an appreciation of the evidence on record, the Forum below accepted the case of the complainant and thereby found deficiency of service on the part of the opposite parties 1 and 2.  They were directed to refund the price of the pump set amounting to Rs.18,500/- with the cost of construction of the bore well amounting to Rs.14,000/- and interest at 12% from the date of the impugned order.  The opposite parties were also directed to pay cost of Rs.500/- to the complainant.  Hence the present appeal by the 2^nd opposite party, the manufacturer of the pump set. 

4. When this appeal was taken up for final hearing, there was no representation for respondents 1 to 3.  Learned counsel for the appellant/2^nd opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He canvassed for the position that there is nothing on record to substantiate the case of the complainant that there was defect or manufacturing defect in the pump set sold to the complainant.  Thus, the appellant requested for setting aside the impugned order dated:20..3..2001 passed by CDRF, Wayanadu, Kalpetta in OP:53/99.

5. The points that arise for consideration are:-

1.                            Whether there was any deficiency of service on the part of the opposite parties 1 and 2 in effecting sale of the KSB pump set. on a consideration of Rs.18,500/- to the complainant in OP:53/99 on the file of CDRF, Wayanadu, Kalpetta?

2.                            Whether the complainant therein could establish his case that the water could not be bailed out from bore well because of the defect of the pump set which the complainant purchased from the 1^st opposite party/M/s Granpa Marketing Corporation?

3.                            Whether the Forum below can be justified in finding deficiency of service on the part of the 1^st opposite party/dealer and 2^nd opposite party/manufacturer of the KSB pump set?

4.                            Is there any sustainable ground to interfere with the impugned order passed by the Forum below in OP:53/99?

6. Points 1 to 4:-

For the sake of convenience, the parties to this appeal will be referred to according to their rank and status before the Forum below in OP:53/99.

7. There is no dispute that the complainant Mr.P.V.Sunny purchased one KSB Mono 1 HP pump set from the 1^st opposite party/M/s Granpa Marketing Corporation.  It was purchased on 23..2..1999 on a sale consideration of Rs.18,500/-.  Admittedly the price of the said pump set was accepted by the 1^st opposite party.  There is also no dispute that the 2^nd opposite party M/s KSB Pump set Ltd., Coimbatore is the manufacturer of the aforesaid pump set which was sold by the 1^st opposite party to the complainant.  Admittedly the aforesaid pump set was purchased for pumping out water from the bore well which was constructed by the 3^rd opposite party.  The opposite parties 1 and 2 have admitted that the aforesaid pump set was installed in the bore well.  It is the case of the complainant that the pump set was defective and it could not bail out water from the bore well.  It is also the case of the complainant that the pump set was installed at his premises by a technician engaged by the 1^st opposite party.  The definite case of the complainant is that there was an agreement or assurance regarding installation of the pump set at the instance and at the expense of the 1^st opposite party.  But the 1^st opposite party categorically denied the aforesaid averments of the complainant.  According to the 1^st opposite party he only sold the pup set and there was no agreement or assurance for installation of the same.  It is further contended by the 1^st opposite party that the pump set was installed at the instance of the complainant and it was installed by a person engaged by the complainant himself.  Thus, according to the 1^st opposite party the pump set was installed at the risk and cost of the complainant.  The complainant could not adduce any acceptable evidence especially; documentary evidence to show that there was an agreement for installation of the pump set at the cost of the 1^st opposite party. The complainant as PW1 has deposed in support of his case regarding the oral agreement entered into between herself and the 1^st opposite party for installation of the pump set at the expense of the 1^st opposite party.  The aforesaid oral version of the complainant has been challenged by the 1^st opposite party as OPW1.  PW2 is a person in the neighbourhood he deposed that he could witness the mechanic installing the pump set in the bore well.  But the evidence of PW2 cannot be taken to come to a definite conclusion that there was such an agreement for installation of the pump set.  Had there been anysuch agreement there would have been some document evidencing such an agreement.  The case of the complainant that the 1^st opposite party agreed for installation of the pump set at his cost cannot be believed or accepted.  The available circumstance would only show that the pump set was installed at the instance and at the cost of the complainant.  So, the deficiency of service alleged against the 1^st opposite party regarding the defective installation of the pump set cannot be accepted.

8. The definite case of the complainant is that the pump set sold by the 1^st opposite party was defective one.  Then, it is for the complainant to establish his case that the pump set was defective and water could not be pumped out from the bore well because of the defective nature of the pump set. No evidence is forthcoming regarding the condition of the pump set which was sold by the 1^st opposite party to the complainant.  It is a settled position that the burden is upon the complainant/consumer to prove the alleged deficiency of service.  There can be no doubt that it was incumbent upon the complainant/consumer to substantiate his case regarding the defective nature of the pump set.  It is also to be noted that the opposite parties 1 and 2 have got a contention that there was no defect in the pump set; but the pump set could not bail out water from the bore well because of the falling of soil over the pump set.  No expert has been appointed to inspect the pump set and the bore well.  The Forum below cannot be justified in finding that the pump set sold to the complainant was defective and there was deficiency of service on the part of the opposite parties 1 and 2.

9. It is a settled position that the manufacturer can be made liable only if it is found that there was manufacturing defect in the product.  The complainant could not substantiate his case that there was manufacturing defect in the pump set manufactured by the 2^nd opposite party.  In the absence of any such acceptable evidence it is hard to accept the case of the complainant that there was manufacturing defect in the pump set which was manufactured by the 2^nd opposite party.  The 2^nd opposite party cannot be made liable for the alleged defect in the pump set.  The complainant/consumer miserably failed in establishing his case regarding the defective nature of the pump set.  The complainant has also failed to substantiate case regarding deficiency of service on the part of the opposite parties 1 and 2.  So, the impugned order passed by the Forum below is unsustainable.  The same is liable to be quashed.  Hence this commission has no hesitation to set aside the impugned order dated:20..3..01 passed by CDRF, Wayanadu, Kalpetta in OP:53/99.  These points are answered accordingly.

In the result the appeal is allowed.  The impugned order passed by the Forum below in OP:53/99 is set aside.  Thereby the complaint in OP:53/99 is dismissed.  The parties are directed to suffer their respective costs throughout.

M.V.VISWANATHAN:  JUDICIAL MEMBER

VL.