By Sri. MOHANDASAN.K, PRESIDENT
Complaint in short is as follows:-
1. The complainant purchased 500 LPD Racold Solar water heater worth Rs..1,18,700/-. The Warranty assured was 5 years. The complainant purchased the product believing the reputation and acceptance of the Solar water heater of the opposite party. But the instrument became defective within 1 year thereafter and the same was informed to the second opposite party and the second opposite party admitted that there is manufacturing defect for the product. The second opposite party is non -other than the dealer of the first opposite party. The product became totally defunct from 2018 May onwards. The second opposite party assured that that the people of first opposite party will inspect the product and they will replace the product. But the opposite parties did not turned up. Hence the complainant caused lawyer notice to the opposite party on 29/09/2018. After the receipt of notice the opposite parties came to the residence of the complainant and the defective product was repaired. But the product became defective within short period thereafter. Then on 17/08/2019 the complainant again issued layer notice to the opposite party about the defective product. On receipt of the notice the opposite party issued reply notice on 08/11/2018 stating that the defective product was replaced on 08/11/2018 with a new 500LPD tank and the complainant had signed in the service report as stated. The complainant content that the opposite party did not made understand the complainant whether the replaced tank was new one or not. The opposite party had advised to reduced inlet pressure for the proper functioning of the product is not correct. The complainant was in use of the product with permissible inlet pressure. The submission of the complainant is that though he used permitted inlet pressure the product became defective within short spanner use. Due to the act of the opposite parties the complainant suffered mental agony and financial loss. The complainant alleges the opposite party is a known, reputed establishment. The approach amounts gross deficiency and thereby resulted inconvenience and hardship to the complainant .The act of the opposite party is cheating with the purpose of making financial advantage out of the transaction which is penal . The complainant hailing from reputed position in the society. The complainant alleges deficiency in service and unfair trade practice on the part of the opposite parties. His claim for the refund of Rs.1,18,700/- and compensation of Rs.1,00,000/- and cost of Rs.2,000/- .
2. On admission of the complaint notice was issued to the opposite parties and the first opposite party entered appearance and filed Vakkalath and version. The second opposite party though notice received not turned up hence set exparte .
3. The first opposite party denied the entire averments and allegations in the complaint. According to first opposite party the complaint is not maintainable and liable to be dismissed u/s 26 of the Consumer Protection Act with the cost of opposite party.
4. The opposite party is submitted that they are a well reputed company and is having a very large customer base and among others , manufactures manages the electric / gas/ solar water heats set business and having its office at Chakan Talegaon Road, Chakan , Pune , Pin code 410501.The product 500 LPD Racold Solar water heater , if some defects are noticed, that will not automatically come within the meaning of manufacturing defect and there may be possibility for that defect due to mishandling , improper handling , or any other reasons also which could be rectified, and that is why the consumer Protection act contemplate expert opinion when the defects are not visible . The opposite party submitted that the complainant raised complaint and the service engineer inspected the said 500 LPD Racold Solar water heater on 08/11/2018 and replaced solar tank without any cost and instructed the complainant to reduce the inlet pressure to less than 2.25 bar as earlier it was 3.5bar .The opposite party alleges the complaint is baseless and flagrant abuse of process of law to harass and black mail the opposite party . The complainant had purchased the 500 LPD Racold Solar water heater on 12/05/2014 of a consideration of Rs.1,18,700/-. The opposite party submit that the complainant had admitted that the said 500 LPD Racold Solar water heater was replaced by the service engineer without any etc cost and there was no defects in the unit after necessary repair / replacement of parts was done as per warranty terms and conditions and on satisfaction the complainant had signed in the service report.
5. The complainant raised the issues in the unit after more than 4 years of using the water heater and thus it is evidence that there was no manufacturing defect or other issues in the unit and it is only due to long usage of the unit. The services were required in the unit but the opposite party had replaced the parts as required.
6. The allegations in the complaint are factious and frivolous and raised with an intention for illegal base. The opposite party specifically contended that to establish the defect of the product there must be expert evidence. The opposite party submit that the complainant had a complaint about the issues of the product and accordingly proper services were provided to the complainant otherwise the complainant may be put to strict proof of any contrary contention. All the complaints of the complainant was handled by the opposite party as per company rules and regulations and the complainant was duly informed the warranty terms and conditions in details.
7. The opposite party also denied the allegation of manufacturing defect unfair trade practice negligence mental harassment. The opposite party submitted that either the first opposite party or the agents dealers, service center has not committed any deficiency in service and unfair trade practice towards The complainant and so the opposite parties not responsible for the compensation as prayed the complaint. Since there is no cause of action against first opposite party or any other opposite party, no deficiency of service, negligence on the part of the opposite party. The complaint being dismissed with exemplary cost infavour of the opposite party.
8. The complainant and first opposite party filed affidavit and documents. The documents of the complainant marked as Ext. A1 to A8. The documents of first opposite party marked as Ext. B1 to B3. Ext. A1 is bill issued by second opposite party to the complainant for Rs.1,18,700/- dated 12/05/2014. Ext. A2 is lawyer notice issued by complainant to the opposite parties dated 29/09/2018. Ext. A3 is lawyer notice issued by complainant to the opposite parties dated 17/08/2019. Ext. A4 is reply by opposite party No.1 to the complainant dated 07/10/2019. Ext. A5 is letter issued by first opposite party to the complainant. Ext. A6 (series) is photographs of defective water tank (3 photographs). Ext. A7 water heater for newly purchased asset solar water heater tank 500LPD . Ext. A8 is copy of brochure issued by opposite party No.1 to complainant. Ext. B1 is service report dated 08/11/2018. Ext. B2 is copy of terms and condition of warranty. Ext. B3 is letter of authorization dated 22/09/2015.
9. Heard complainant and first opposite parties perused affidavits and documents. The complainant also filed argument notes.
The following points arised for consideration:-
- Whether the product 500LPD Racold solar water heater was defective or not.
- Relief and cost
10. Point No.1 and 2
There is no dispute regarding the purchase of 500 LPD Racold Solar water heater worth Rs.1,18,700/- from the second opposite party, the dealer of first opposite party on 12/05/2014. The grievance of the complaint is that though the product was assured 5 years guaranty the product became defective within one year of purchase. The product became nonfunctioning from 2018 May onwards. The complainant approached second opposite party with the complaint and the second opposite party examined the same and said that there is manufacturing defect. Thereafter when the product became totally defunct the complainant approached second opposite party and that time the second opposite party assured that the complainant meet the product and assured it will be replaced. Since there was no action from the opposite parties the complainant caused lawyer notice on 29/09/2018. And as a result the opposite parties came to the residence of the complainant and repaired the product. But within few days thereafter the solar water heater again turned defective. The complainant again caused lawyer notice but the opposite party did not turn up to examine the grievance of the complainant and to redress the same. The opposite party sent a reply notice to the notice stating that the defective product was replaced on 08/11/2018 and so they are not prepared to concede the request of the complainant. Aggrieved by the attitude of the opposite party complainant preferred the present complaint .
11. The contention of the opposite party is that they are well reputed company and on receipt of grievance of the complainant they approached the complainant and replaced the defective product. The complainant had issued Ext. B1 document as proof of service provided by the opposite party. According to opposite party the defective product was replaced on 08/11/2018 and so the present complaint is baseless and ill motivated. The specific contention of the opposite party is that as per various decisions of various authorities and also as per the Consumer Protection Act the complainant is bound to establish manufacturing defect through an expert evidence in this complaint the complainant has not established the defect of the product through expert evidence. More over mishandling, improper handling or any other reason the defect may happened. The opposite party also contended that the product has got history of use for more than 4 years which itself is an evidence for absence of manufacturing defect.
12. The perusal of affidavit and documents it can be seen that there is no contention for the opposite party that the product have no warranty /guaranty of 5 years. The alleged defect reported before the opposite parties were within the period of warranty. It is also noted that as per Ext. B1 the product was replaced there is no reason to hold the product was replaced without having any defect to the product. It is also crucial to note the averments in Ext. A5 letter dated 09/12/2019 issued by the opposite party to the complainant. The content in the ext. A5 is that as follows:
“Dear sir,
With reference to above mentioned subject, you are asking for replacement of 300 LTR tank in place of 500 LTR and your are ready to withdraw the consumer case No.357/2019 on 10th 2019 which was filed by you against company at Malappuram Consumer Forum.
Company is ready to replace the same. After replacement of above tank company will not provide any type of warranty and guaranty for the above solar system and tank.
Thanking you
Yours faithfully ,
For record thermo private Ltd
Authorized signatory”
13. It can be seen that there was an offer from the part of complainant to receive a 300 liter tank in place of 500 liter tank but the opposite party refused to provide guaranty and warranty to the product. The contention of the complainant is that the refusal of providing warranty and guaranty itself is an evidence on the part of opposite party that they do not have confidence on the product of opposite parties . The complainant here in produced certain photographs which is marked as Ext. A6 series reveals the condition of the defective product. The averment of the opposite party is that the complainant has not produced expert opinion when the defects are not visible. But the photographs produced the defects are apparent and so an additional expert opinion is not required in the matter. Ext. A6 shows that there are enough extend of clogs of rust are present on the visible part of the exterior of the inner tank. There are brownish coloured line marks and marks of leak out water from the interior of the inner tank and flowed down along those lines it appears the interior of tank like the exterior has been affected rust . The complainant also has got contention the nut and bolts on the exterior of the inner tank also seen to have rusted severely. The argument of the complaint is that the reputed and reliable manufactures of the solar tanks normally used non rust able food grade stainless steel 3.6 L metal which is not only for making the inner tanks but also to make the nuts - bolts used on the inner tank . The complainant also submitted that the first opposite party is not able to find out the correct level of inlet pressure that can be suit the strength / weakness of the two tanks of the complainant is also contributed to the issue of leakage . IT appears there are tiny holes and cracks in the rusted area of the inner tank had opened up us the inlet pressure of 3.6 bars applied on the first time and the 2.25 bars applied on second time were excessive and unsuitable as the rust had weakened the body of the inner tank. The complainant argued the reason for apprehension of weakness of inner tank was caused due to usage of ordinary rustable steel and they reduced the inlet pressure of both tanks. The replaced second tank was leaked even within two months.
14. In the light of the contention of the complainant and the averments in the documents produced by both side it can be seen that the product manufactured by the first opposite party and delivered by the second opposite party to the complainant was a defective one and the grievance of the complaint is genuine one .
15. The complainant had expressed his willingness to settle the issue but the opposite party was adamant to settle the issue . The complainant produced Ext. A7 the invoice and warranty certificate which shows that the complainant purchased new solar water heater tank 500LPD . Hence the prayer of the complainant to refund the cost of the product is the appropriate remedy to redress the grievance of the complainant .I tis also to be noted that the complainant had issued lawyer notices and ultimately resulted in filing this complaint . Even after filing this complaint the opposite party was not prepared to settle the complaint and so he was compel to contest the complaint . So there is reason to allow compensation on account of unfair trade practice and deficiency in service on the part of opposite parties and we find Rs.25000/- will be reasonable amount on that count . We allow cost of Rs.5000 also infavour of the complainant .
16. Hence we allow this complaint as follows:
- The opposite parties directed to refund the cost of Rs.118700/- to the complainant as the cost of 500LPD Racold Solar water heater .
- The opposite parties also directed to pay Rs.25,000/- to the complainant on account of deficiency in service and their by caused to inconvenience hardship mental agony and financial loss.
- The opposite parties is also directed to pay Rs.5,000/- to the complainant as cost of the proceedings.
4) The opposite parties permitted to take back the defective product from the residence of the complainant immediately after refund of the cost of the product. If the opposite party is not complied the order within one month from the date of order the complainant is not bound to return the defective product to the opposite party.
The opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the above said entire amount will carry interest @ 9% per annum from the date of this order till realization
Dated this 18th day of July , 2022.
Mohandasan . K, President
PreethiSivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A8
Ext.A1: Bill issued by second opposite party to the complainant for Rs.1,18,700/-
dated 12/05/2014.
Ext.A2: Lawyer notice issued by complainant to the opposite parties dated 29/09/2018.
Ext A3: Lawyer notice issued by complainant to the opposite parties dated
17/08/2019..
Ext A4: Reply by opposite party No.1 to the complainant dated 07/10/2019.
Ext A5: Letter issued by first opposite party to the complainant.
Ext.A6: (series) is photographs of defective water tank (3 photographs).
Ext.A7: Water heater for newly purchased asset solar water heater tank 500LPD .
Ext A8: Copy of brochure issued by opposite party No.1 to complainant.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B3
Ext.B1: Service report dated 08/11/2018.
Ext.B2: Copy of terms and condition of warranty.
Ext.B3: Letter of authorization dated 22/09/2015.
Mohandasan . K, President
PreethiSivaraman.C, Member
VPH Mohamed Ismayil.C.V, Member
