DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 20th day of July 2016
Present : Smt.Shiny.P.R. President
: Smt.Suma.K.P. Member
: Sri.V.P.Anantha Narayanan, Member Date of filing: 16/01/2015
(C.C.No.10/2015)
Dineshkumar.S - Complainant
Radhalayam, House No.16,
Athira Nagar, Kallekulangara Post,
Olavakkode, Palakkad District – 678 009
(By Party in person)
Vs
1.Proprietor
A – Z Supermarket,
Hemambika Nagar,
Railway Colony,
Olavakkode,
Palakkad - 678 009
(By Adv.B.Gangadharan)
2.The Manager
Godrej Industries Limited
Pirojshanagar,
Eastern Express Highway,
Vikhroli, Mumbai – 400 079 - Opposite parties
(By Adv.C.Sreekumar)
O R D E R
By Shri.V.P.Anantha Narayanan, Member
Brief facts of case.
The opposite party No.1 is an authorized dealer and is engaged in the business of selling goodnight active+ system mosquito repellant machines. The 2nd opposite party is the original equipment manufacturer of good night active+system mosquito repellant. These machines have to be connected with the liquid container and which is produced by opposite party No.2 and these machines have to be plugged into the socket and should be supplied 230 V 50Hz electrical energy to work.
On 25/9/2014 the complainant purchased a goodnight active + system from the opposite party No.1 (A to Z Supermarket, Railway colony, Olavakkode, Palakkad). According to the complainant the machine was working without any issues for 4 days. But on 29/9/2014 at 5.30am the machine started burning with huge flames and melted completely and started emanating rotten egg smell. As a result the complainant’s family suffered shock and mental agony. It was highly difficult for the complainant to manage the situation because of the presence of small kids and a sick mother at his home.
Immediately mother of the complainant contacted Kerala Electricity Board by telephone to extinguish the fire who sent their people at once. The KSEB technicians promptly attended to the issue and prevented the same from further aggravation. According to the complainant, by then, he had suffered a lot of inconvenience, hardships and acute mental trauma and incurred huge material loss because the incident had damaged his wirings, switch boards and painting of the walls vide Ext.A1 series.
The complainant pleaded to the Asst.Engineer, KSEB to certify on this issue with their findings. On the request of the former the latter enquired and issued a certificate marked as Ext.A2 which, according to the complainant, stated that after examining the accident they ascertained that neither the switch board nor the wiring was the cause of issue and it was only goodnight machine which could have probably caused the fire. The complainant then called the customer care department of opposite party No.2 on the same day and complained to them the matter. Opposite party No.2 sent their representative Ramesh to his house. He saw the scenario took photos of the site, examined the batch No. in the liquidator which was not burnt and confirmed that the particular batch No. was despatched to the opposite party No.1. Further Ramesh asked the complainant to submit a detailed report by e-mail to the opposite party No.2 company’s head office and he took the burnt machine with him. Accordingly the complainant submitted a detailed report through e-mail to the opposite party No.2 on 30/9/2014 and reply thereto was received through e-mail dated 10/10/2014 marked as Ext.A3. The opposite party No.2 examined the machine thoroughly but could not ascertain the cause of its failure and hence were not willing to take up the responsibility for the issue which made the complainant feel that they did not have any social responsibility and any concerned for the safety of their customers. According to the complainant their utter negligence made him doubtful of their products having IE or ISI standards which is essential electrically and chemically. The complainant further prays that only after repeated e-mails to opposite party No.2 they are now willing to compensate the small costs without valuation of the machine and switchboard, neglecting the damage caused to him which according to the complainant is a very serious issue and opposite party No.2’s response is insufficient.
Considering the above submissions the complainant prays to the Hon’ble Forum to direct the opposite parties to compensate him for Rs.1,80,000/- towards cost of equipment, switch board charges, cost of replacement of wiring, labour charges for wiring, helper charges for wiring, cost of painting, painters charges, painter helpers charges, leave salary for the complainant, compensation for the risk of health hazard, mental agony and inconvenience and hardships caused to him, telephone charges for calling KSEB and charges for filing this complaint.
Complaint was admitted and notice was issued to both parties.
Opposite party No.1 in their version contends that they know the facts of the case. According to them the complainant filed the above complaint against opposite parties No.1 and 2 for deficiency of service and for the compensation. The complaint is not maintainable either in law or in fact. All the allegations raised by the complainant in his complaint should be proved by him. Firstly the allegation by the complainant that he had purchased a goodnight active + system from opposite party No.1 on 25/9/2014 should be proved by him. He failed to produce any document regarding the purchase of the said product from opposite party No.1. Therefore according to opposite party No.1 complaint seems to be falls, fabricated, unenforceable, incorrect and invalid in law.
Secondly the allegations leveled by the complainant that on 29/9/2014 the goodnight active + system got fired and burnt with huge flames and melted completely and started producing rotten egg smell, that thereby his family suffered shock and mental agony, that on the same date, his mother contacted the KSEB and KSEB staff rushed to his house at about 5.30 am and prevented aggravation to the next level, that photographs produced by the complainant were of the damaged switch box, that the Asst.Engineer, KSEB enquired about the issues and issued a certificate stating that neither the switch board nor the wiring was the cause of issue and it was only the goodnight machine which could have probably the reason for fire, that soon the company’s representative, one Mr.Ramesh came to complainant’s home and took photographs and examined the liquidator not burnt and verified the batch no. and confirmed that the said product was issued through him were false and incorrect and hence were denied by opposite party No.1. If at all such an incident happened, the opposite party No.1 continues his contention that it could have happened by using any local branded electronic goods plentifully available in the street market. Further that too same may not be the complainant’s residence and his switch board or by old rusted switch and the wires. 1st opposite party denies the photograph itself and the switch board itself seems to be decade old.
Hence, opposite party No.1 contends that no cause of action arises in the complaint in question. There arises no deficiency of service or unfair trade practice on their part. Further they are not liable to pay compensation or any of the claims raised by the complainant because they have suffered financial loss and inconveniences due to the lapses and acts on the side of the complainant. Hence the said complaint should be dismissed with costs according to opposite party No.1.
In the proof affidavit submitted by 2nd opposite party, they admit that they know the facts of the complaint; the complainant has filed this complaint against 2nd opposite party for deficiency of service and compensation. They contend that the complaint is not maintainable either in law or in fact and all the allegations leveled against should be proved by the complainant. According to the 2nd opposite party, the complaint is not maintainable neither in law nor in fact. The complainant failed to prove any of his allegations. The complaint is filed experimentally in order to make illegal claim and also to enrich illegally. The reasons stated in the complaint are fully unjustifiable and are insufficient to seek the relief. There is no bonafide in the contentions of the complainant. The circumstances mentioned in the complaint are dubious, unconvinced, incorrect and legally invalid.
The averment in the para 3.1 that on 25/9/2014 complainant purchased a goodnight active+system from 1st opposite party is to be proved by the complainant.
The averment in the paragraph 3.2 that the machine was working without any issues for 4 days, that at 5.30 am on 29/9/2014, the machine began to burn with huge flames and melted completely is not conceivable and totally impossible and hence denied by 2nd opposite party. Another averment in the same para that it then started emanating rotten egg smell and due to this his family suffered a shock and mental agony is a blunder statement made only for false claim. Further the averment of the complainant in the same para that because of presence of his small kids and sick mother at home it was highly difficult for him to manage the situation is totally false and baseless, and hence denied by 2nd opposite party.
The averments in para 3.3 of the complaint that immediately the complainant’s mother contacted the KSEB to extinguish the fire, KSEB people who sent their staff in no time are totally fake and denied by second opposite party. The further averment in the same para that the KSEB technicians promptly attended to the issue and prevented it from aggravation to the next level is totally false and hence denied by 2nd opposite party. Again 2nd opposite party denied as false the averment in the same para that however, by then complainant had suffered a lot of inconvenience, hardship and acute mental trauma and also incurred huge mental loss, since the incident had damaged wirings, switch board and painting of the wall.
The further averment in the para 3.4 of the complaint that following the incident made the complainant to plead the Asst.Engineer, KSEB to certify in this issue with their findings is false and hence denied by 2nd opposite party. 2nd opposite party also denies as totally false the further averment in the same para that based on the request of the complainant the Asst.Engineer, enquired and issued a certificate stating that after examining the accident they ascertained that neither the switch board nor the wiring is the cause of the issue and it was only the goodnight machine which could have been probably the cause of fire. According to 2nd opposite party the goodnight machine has no issues as alleged in the complaint. The averment in the para 3.5 of the complaint that the complainant then called the customer care department of opposite party No.2 on the same day and complaint the same, they sent their representative Mr.Ramesh to complainant’s house is correct, because according to opposite party No.2, they are always concerned about their customers and always love to provide better service to their customers and hence properly addressed to the complaint of the complainant; but denies as false the further averments made by the complainant in his complaint that Mr.Ramesh saw the scenario and photographed the site, examined the batch no. in the liquidator which was not burnt and confirmed that the particular batch No.was despatched to opposite party No.1. According to 2nd opposite party the true intention of the complainant is revealed. The next averment in the same para that complainant was asked to submit a detailed report on e-mail to the company’s head office and the complainant carried the burnt machine with him is totally false and hence denied by 2nd opposite party. Another averment in the same para that 2nd opposite party examined the machine thoroughly and were not able to ascertained the cause of the failure is also false and hence denied by 2nd opposite party. The other averment in the same para (3.5) are also denied by 2nd opposite party namely, they were not ready to take up responsibility and did not have any concern for the safety of their customers that opposite parties utter negligence made the complainant doubt whether they are really having a IE or ISI standard for their products which is crucial electrically and chemically. According to the 2nd opposite party machine and the liquid inside the machine is made as per the legal requirements and the statements made by the complainant in para 3.5 in this connection are just speculative without any basis and facts and hence denied by opposite party No.2.
Again the averment by the complainant in the para 3.6 of the complaint that after repeated e-mails 2nd opposite party are now willing to compensate the complainant the meagre cost without valuing the machine and the switch board and the damage caused to the complainant is neglected by the corporate of the company which is a very serious issue and the 2nd opposite party’s response is not sufficient is totally false and hence denied by opposite party No.2.
Finally the 2nd opposite party contends that there is no cause of action for making the complainant; there is no deficiency of service or unfair trade practice on the part of opposite party No.2. 2nd opposite party is not liable to pay any compensation or any of the claims made by the complainant in his complaint. It is the 2nd opposite party who suffered financial loss and other inconveniences due to the lapses and acts on the part of the complainant. Hence 2nd opposite party’s prayer to the Forum to dismiss the complaint with costs.
On behalf of the complainant application in IA.177/15 is allowed. Complainant filed chief affidavit and counter statement. From his part Ext.A1 series (3 photos and one CD), A2 and A3 series were marked. From the part of opposite party No.1 affidavit and proof affidavit were filed, also filed IA 337/15 to cross examine the complainant. Opposite party No.2 filed proof affidavit and IA 28/16 to cross the complainant. The complainant objected to this application, being a belated one but subsequently allowed as cost to the complainant. Opposite parties filed IA 15/16 seeking to reopen evidence and to recall complainant. Case advanced as per order in IA 114/16. Complainant was cross examined as PW1.
In this case the following are the issues.
1.Whether there is any negligence or unfair trade practice and
deficiency of service on the side of opposite parties ?
2.If so, what is the remedy ?
Issues 1 & 2
In this case the complainant purchased a goodnight active+ system on 25/9/2014 from opposite party No.1, for which there is no proof hence the purchase is considered as dubious. According to him the machine was working without any issues for 4 days and at 5.30 am on 29/9/2014 the machine began to burn with huge flames and melted completely. It then started emanating rotten egg smell. Immediately the mother of the complainant contacted KSEB authorities to extinguish the fire whose staff immediately came to his residence, promptly attended to the issue and prevented it from further aggravation. The incident damaged his wirings, switchboards, and painting of the wall (vide Ext.A1series). Following the request of the complainant the Asst.Egnineer, KSEB issued a certificate vide Ext.A2 stating that their staff came to the house of the complainant at about 6 am on the telephonic information given by the mother of the complainant that in the house of the complainant goodnight machine was burning, and switched off the main and disconnected electricity; after that examined the electricity meter and connection, could not find out any electricity related fault, then goodnight machine was removed from the socket and electricity connection was restored. According to the complainant he suffered a lot of inconvenience, hardships and acute mental trauma and huge material loss as a result of the damage caused to his wiring, switch boards and painting of the wall (vide Ext.A1). The opposite parties denied all these as false.
The complainant also contacted the customer care department of 2nd opposite party on the same day and complained to them about the incident. They sent their representative, Ramesh by name to his residence who saw the scenario took photos of the site, examined the batch number in the liquidator which was not burnt and confirmed that the particular batch No. was despatched to 1st opposite party which was denied by 1st opposite party in their affidavit. Ramesh also carried with him the burnt machine according to the complainant. On the advise of Ramesh the complainant submitted a detailed report by e-mail to the 2nd opposite party dated 30/9/2014 and reply there to was received from 2nd opposite party vide e-mail dated 10/10/2014 which was marked as Ext.A3series. According to the complainant after repeated e-mails the 2nd opposite party were willing to compensate him. But as per Ext.A3series we understand that 2nd opposite party were ready to reimburse the charges of the switch board and requested the complainant to submit the actual bill to enable them to reimburse the above mentioned charges. The complainant wanted the 2nd opposite party to reimburse the loss occurred due to the incident mentioned above. The complainant prays to the Forum to direct opposite parties No. 1 & 2 to compensate him Rs.1,80,000/- for the twelve things mentioned in the 4th para of his complaint.
The complainant could not prove that the purchase of goodnight machine is genuine in the absence of the bill for the purchase of the said product from opposite party No.1 on 25/09/2011. Further he could not establish that switch board was burnt because of the defect of the goodnight machine. The certificate issued by KSEB marked as Ext.A2 also did not mentioned that the goodnight machine caused burning. The complainant, while being crossed as PW1 mentioned that he did not find any fault in the machine and machine worked for 4 days without any fault. He also agreed in his deposition that his house was about 26 years old. The machine burnt for 25 minutes but it never became in aggravated form. He himself did not know the reasons for burning of the machine and did not produce any documentary evidence for that. He also did not request us for appointing an expert commission to know the exact reasons for burning of the goodnight machine. Again although the damaged switch board was repaired by the complainant, he did not produce the repair bill to the Forum. Although 2nd opposite party vide Ext.A3 were willing to reimburse the repair charges of the damaged switch board, the complainant did not produce the repair bill of the damaged switch board to opposite party No.2. He also did not produce his and his wife’s employment and leave details showing documentary evidence. No documentary evidence was produced by him for telephone charges incurred by him. Above all he failed to produce authorized estimates and documents for compensation of Rs.1,80,000/- claimed by him for the twelve things mentioned in the 4th para of his complaint, which is prayed to the Forum.
Thus we conclude that although the complainant cannot establish negligence, deficiency of service and unfair trade practice on the part of opposite parties No.1 & 2, as per Ext.A3 series opposite party No.2 admit their liability to reimburse the switch board repairing charges incurred by the complainant.
Hence, we partly allowed the complaint.
Therefore, we order that opposite parties No.1 & 2 are jointly and severally liable to pay the complainant Rs.3,000/- (Rupees Three thousand only) as compensation for damages and mental agony as a result of burning of goodnight machine and to pay Rs.500/- (Rupees Five hundred only) towards litigation expenses incurred by the complainant.
Order shall be complied with within a period of one month from the date of receipt of this order, failing which complainant is eligible for 9% interest per annum for the whole amount from the date of receipt of this order, till realization.
Pronounced in the open court on this the 20th day of July 2016.
Sd/-
Shiny.P.R.
President
Sd/-
Suma.K.P.
Member
Sd/-
V.P.Anantha Narayanan Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 series – Photographs of the switch board and affected wall and CD
Ext.A2 - Photocopy of Certificate issued by the Asst.Engineer, KSEB dated
17/12/14
Ext.A3 series -Copy of E-mail conversations with the customer care of Godrej
dated 30/9/14
Complainant cross examined
PW1 – Dineshkumar
Exhibits marked on the side of opposite parties
Nil
Cost
Rs.500/- allowed as cost of the proceedings.
