BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 300/2003

Dated : 30.04.2009

Complainant:

P.V.S. Pillai, Indivaram, Harithagiri, Kanjirampara, Trivandrum-30

(By adv. R. Sunil Kumar)

Opposite party:

R. Prem Kumar, Proprietor, Microtech, Sumam, T.C 43/1892, N.S.S Karayogam Road, Sreekandeswaram, Thiruvananthapuram.

(By adv. Malloor S. Mohanlal)

This O.P having been taken as heard on 19.03.2009, the Forum on 30.04.2009 delivered the following:

ORDER

SMT. BEENAKUMARI .A : MEMBER

The complainant was having a Himalaya Brand Uninterrupted Power Supply System of 500 VA. Since the same was not working properly it was entrusted to the opposite party on 20.02.2003 for inspection and necessary rectification. When the equipment was handed over; the complainant requested the opposite party to inspect the equipment and suggest the possible repairs then and there. But the opposite party instead of inspecting the U.P.S asked the complainant to leave it at the shop and asked the complainant to contact him on the next day at 10.30 a.m. So complainant was forced to leave the equipment with the opposite party. At that time the complainant who is a professionally qualified Engineer having more than 20 years of working experience in well reputed companies like Bharath Heavy Electricals, Keltron, Crompton Greeves etc. asked the opposite party not to replace the battery of the equipment without he being convinced about the need for the same. The complainant also insisted the opposite party not to carry out any work till he comes to the shop the next day. The opposite party agreed for the same. As agreed on 21.02.2003, the complainant visited the opposite party's shop at 10.30 a.m. At that time the opposite party was not present at the shop. So the complainant waited there till 12.30. Since the opposite party didn't turn up, the complainant left the shop and returned after an hour. At that time to the surprise of the complainant, opposite party informed that the equipment was repaired and is ready for delivery. The opposite party also gave a bill for Rs. 900/-(cost of the battery Rs. 750/- and service charge Rs. 150/-) being the cost of repair. When the complainant reminded the opposite party of the request made the day before, the opposite party abused the complainant with bad words and insisted that the U.P.S will not be returned unless Rs. 900/- is paid. The complainant then requested the opposite party to give back the equipment without battery, reported to have replaced by the opposite party, he demanded Rs. 500/- as service charges. Then the complainant asked the opposite party to hand over the purchase bill of the new battery. The opposite party declined to give that also. Since the complainant was in urgent need of the equipment he was forced to pay Rs. 850/- and take back the equipment. Even after the reported repairs the equipment is not working properly and he is experiencing the same problem as before. Now the complainant genuinely doubts that the opposite party has not even checked the equipment or replaced any battery. So on 24.02.2003, the complainant issued a lawyers notice to the opposite party and he accepted the same. But he did not care to reply till date. Hence this complaint was necessitated.

The opposite party in this case filed version to contend the allegations levelled against him. The opposite party admitted that the complainant on 20.02.2003 came to the shop with a dead Himalaya Brand UPS of 500 VA and entrusted the opposite party for necessary rectification and to do necessary repair so as to make the UPS in working condition. The opposite party immediately dismantled the system for diagnosing the fault and it was found that the battery was dead and that was the reason for the non-functioning of the system. This was informed to the complainant and he accepted for replacement of the battery. Further the complainant said that he was in urgent need and the system should be given next day itself after replacing the battery. The opposite party assured him that the system will be given at 10.30 a.m on the next day i.e; on 21.02.2003. It was also informed to the complainant that since opposite party do not have sales of battery it is to be brought from outside. This was also agreed by the complainant and as such a new battery was bought by the opposite party from outside and replaced it in the UPS in the place of the old one. The next day i.e; on 22.02.2003 the complainant came to the shop at 2.00 clock in the noon and asked for the UPS and it was given to him and a bill for Rs. 900/- was also given, i.e; Rs. 150/- as service charge and Rs. 750/- as battery charge. The complainant suddenly started abusing the opposite party and said that the amount is much higher and he paid only Rs. 850/-. He was satisfied with the UPS at the time of delivery after replacing the battery and he has signed the job card stating that he received the UPS repaired to his satisfaction. It was only with the amount he quarrelled and even now he has to pay Rs. 50/- to the opposite party. The opposite party stated that the complaint is false and fabricated one only made to take undue advantage. Hence the opposite party prayed for the dismissal of the complaint.

In this case the complainant and opposite party filed proof affidavits and the complainant has produced 3 documents. The opposite party cross examined the complainant.

Points that would arise for consideration are:-

1. Whether there is unfair trade practice and deficiency in service from the side of opposite party?

2. Whether the complainant is entitled to get the reliefs and costs?

Points (i) & (ii):- In this case the complainant stated that the opposite party charged Rs. 850/- from the complainant to rectify the defect of his UPS and for the replacement of the battery. But he alleged that after the repair the same defect was persisting. Hence the complainant genuinely doubted that the opposite party has not even checked the equipment or replaced the battery. Hence he filed this complaint. As per Sec. 13(1)(c) of Consumer Protection Act) expert opinion is necessary in this type of cases to ascertain the matter. But in this case the complainant did not take any steps to appoint an expert to examine the equipment and to prove whether the work was done by the opposite party or not. Without expert opinion we cannot decide the case properly. It is the duty of the complainant to prove his case beyond doubt.

In this case the complainant has produced 4 documents. Ext. P1 is the copy of lawyer's notice dated 24.02.2003 issued by the complainant to the opposite party. Ext. P2 and P3 are the postal receipt and acknowledgement card. Ext. P4 is the bill issued by the opposite party to the complainant for Rs. 900/- dated 21.02.2003. These documents are not sufficient to prove his complaint.

In this case the complainant himself admitted that he is an Engineer having more than 20 years working experience. In our opinion it is very difficult to exploit such a qualified man by unfair trade practice. Hence for lack of evidence we cannot allow this complaint. Hence the complaint is dismissed.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of April 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

 S.K. SREELA : MEMBER

O.P. No. 300/2003

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - P.V. Sivasankara Pillai

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of advocate notice dated 24.02.2003 issued by the

complainant to the opposite party.

P2 - Copy of postal receipt dated 26.02.2003.

P3 - Copy of acknowledgement card dated 27.02.2003.

P4 - Original receipt dated 21.02.2003 for Rs. 900/-issued by

the opposite party to the complainant.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT