BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
CACHAR :: SILCHAR
Con. Case No. 46 of 2013
Sri Rafiqur Rahman Choudhury
Vill- Sindura, P.O- Kalain, P.S- Katigorah, Dist. Cachar. ………….………………… Complainant.
-V/S-
- M/S Sarda, Represented by its Proprietor/Manager
Janinganj Bazar, Silchar. P.O & P.S- Silchar, Dist. Cachar. ……………………………… O.P.No.1
1.(1) Dewchand Sarda (Substitution of O.P.No.1)
1.(2) Prakash Sarda ,,
1.(3) Bikash Sarda ,,
- Tata Power Solar System
Plot No.78, Electronic City Phase-I, Bangalore. ……………………………………………….. O.P.No.2
- The Manufacturer, Exide Industries Ltd.
59 E Chowringee Road, Kolkata. …………………………………………………………………… O.P.No.3
Present: - Sri Bishnu Debnath, President,
District Consumer Forum,
Cachar, Silchar.
Sri Kamal Kumar Sarda, Member,
District Consumer Forum,
Cachar, Silchar.
Appeared: - Ms. Tuhina Sarma, Advocate for the complainant.
Mr. Satish Kumar Kabra, Advocate for the O.P No1.(1-3).
Mr. Suddhasatta Choudhury, Advocate for the O.P.No.2
Mr. Debasish Som, Advocate for the O.P.No.3.
Date of Evidence 03-06-2014, 11-07-2018, 14-05-2019
Date of written argument 18-06-2017, 08-07-2019
Date of oral argument 19-01-2019, 24-07-2019, 25-07-2019
Date of judgment 08-08-2019
JUDGMENT AND ORDER
Sri Bishnu Debnath,
- Rafiqur Rahman Choudhury brought this complaint case under the provision of the Consumer Protection Act, 1986 against M/S Sarda a propitiatory firm for award of compensation. Subsequently, Tata Power Solar System and the Manufacturer, Exide Industries Limited were added as Op No.2 and OP No.3 respectively and husband and 2(two) sons of the Proprietor Keshar Devi Sarda were substituted on her death as OP Ni.1(1), 1(2) and 1(3).
- The Complainant in his complaint stated inter-alia as follows:- He purchased a solar plate with Exide Battery and an Inverter from OP No.1on 29/05/2012. The mechanic of the OP No.1 installed the soler set to the place of the complainant but after some days of installation the set failed to function as per the assurance of the Op No.1. Hence, the complainant approached to the OP No.1 to replace the Solar Plate but the OP no.1 did neither repair the same nor replaced it. Hence, the complainant after serving legal notice to the Op No.1 brought the instant case.
- The OP No.1 submitted WS. In the WS denied the allegation and claim of the complainant. However, during pending of the case the proprietor died. Accordingly, her legal heirs have been substituted. They did not submit separate WS but prayed to accept the WS of Late Kosher Devi Sarda as their WS. Hence, the aforementioned WS is treated as their WS. The Tata Power Solar System Ltd in its WS stated inter-alia that the Solar set did not sell by any of its authorized dealer for which the manufacturing company is not liable. The Exide Industries Limited in its WS denied the claim of the complainant.
- During hearing the complainant submitted his deposition supporting affidavit and exhibited cash memo etc. The OP No. 1(2) submitted his deposition on behalf of OP No.1(1-3) to support the plea taken in the WS. The OP No.2 adduced oral evidence of its authorized representative Suresh Sarda and OP No.3 submitted deposition of his witness Manish Bhowmik. After submission of the depositions the parties of the litigation submitted written argument of their respective engaged lawyer.
- I have heard oral arguments of the learned advocate of the parties and perused the evidence on record including written arguments. The OP No. 1 denied the facts of installing the Solar set as alleged by the complainant for which the complainant not only exhibited the cash memo to establish the fact of purchase of the Solar set from M/S Sarda but also by deposing on oath tried to establish the fact that the OP No.1 send Mechanic to install the set. The facts deposed by the complainant is believable because I have found nothing in the evidence on record against the aforesaid evidence to infer any other fact in respect of possessing the solar set by the complainant. As such it is concluded that the complainant purchased the solar set including solar plate from the OP No.1.
- It is an unchallenged fact that the solar plate which the complainant purchased from the OP No.1 is manufactured by the OP No.2 and OP No.1 issued the cash memo, vide Ext.1. Thus, if the product failed to function as per standard prescribed, then directly or indirectly the manufacturer is liable both severally and jointly with the seller and service provider irrespective of the fact as whether the set purchased from an authorized dealer or from a retail seller because set is selling in the market in the name of the manufacturing company. In this case the complainant deposed on oath that he approached to the OP No.1 for replacement of the Solar plate, as the solar plate was defective but the OP No.1 did not replace the solar plate. So when he sold the product as retail seller he has taken responsibility along with the manufacturer and it is the duty of the retail seller to give proper direction to the complainant to get the set workable. Moreover, the Op No.1 has given 2(two) years warranty to the sold out solar plate in view of Ext.1. But evidence on record is saying that the OP No.1 did not discharge both legal and equitable duty toward the complainant to make the solar set workable up to the standard. As such in my considered view both the manufacture and the seller are jointly and severally liable to replace the solar plate or return the price of Rs.9,500/- with interest from the date of purchasing the solar plate.
- So far as other items in the solar set such as Exide Battery,Inverter etc are concern there are no complaint as such in the evidence on record nothing adduced by the complainant against the OP No.3. more over during oral argument the complainant was asked and he unequivocally replied in presence of all sides learned counsels that he has complainant against the solar plate only and against other item of the solar set. As such I do not find any dis service caused by the OP No.3. so OP No.3 is exonerated from liability.
- With the above finding I am directing the OP No.1(1-3) and OP No.2 to replace the Solar Plate with full and proper functioning brand new one or in alternative refund the price of the Solar plate of Rs.9,500 (Rupees Nine Thousand Five Hundred) only with interest at the rate of 10% per annum from the date of purchased of the said item from the OP No.1. the complainant is asked to produce the defective solar plate to the OP No.1, M/S Sarda within 15 days from today for replacement. Further the Op No.1(1-3) and OP No.2 are to pay cost of the proceeding of Rs.3,000 (Rupees Three Thousand) only. They are both jointly and severally liable to satisfy the award within 45 days from today.. In default, interest at the rate of 10% per annum to the awarded amount to be added from the date of default till realization of the full.
- Thus, the case is disposed of on contest. Supply free certified copy of the judgment to the parties. Given under my hand and seal of this District Consumer Forum on this the 8th day of August,2019.
