Final Order / Judgement | KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI PRESENT:1. SRI. C.V. MARGOOR, B.Com.LLM,PRESIDENT 2. SRI.M.C.DEVAKUMAR,B.E.LLB.PG.DCLP,MEMBER | CC No.30/2017 ORDER DATED 21st DAY OF JULY, 2018 | | Sri. C.V. Palakshan, S/o.late C.S. Veerappa, Residing at House No.3-7(3), Mahadevpet, Madikeri Town, Kodagu District. (Sri.N.G. Aiyappa, Advocate) | -Complainant | V/s | Sri.Sharma, Proprietor, Coimbatore Agro Diesels, Kohinoor Road, Madikeri, Kodagu District. (Sri.K.D. Dayananda, Advocate) | -Opponent | Nature of complaint | Miscellaneous | Date of filing of complaint | 03/06/2017 | Date of Issue notice | 23/06/2017 | Date of order | 21/07/2018 | Duration of proceeding | 1 year 1 month 18 days |
SRI. C.V. MARGOOR,PRESIDENT O R D E R - This complaint is filed by Mr.C.V. Palakshan s/o. late C.S. Veerappa, resident of Madikeri Town, Kodagu District with a prayer to rectify the defects in the pump supplied by the opponent or to provide a new defect free pump with capacitor or to take back the defective pump with all its accessories and to refund the cost of the pump amounting to Rs.19,250/-. Further prayed to grant compensation of Rs.15,000/- for the expenses incurred by the complainant and mental agony suffered by him along with cost of legal proceedings a sum of Rs.5,000/-.
- The opponent is Proprietor of Coimbatore Agro Diesels situated at Kohinoor Road, Madikeri Town. The complainant has purchased an one HP submersible pump from opponent along with all necessary accessories including fitting charges for a sum of Rs.19,250/-. The complainant had paid the amount of Rs.19,250/- to the opponent at the time of placing orders. There after the opponent has failed to deliver the pump set on time and lastly the opponent has delivered the pump set and accessories in the month of June, 2012 but failed to fix the same to the bore well. The complainant got the said pump set fixed to the bore well with the assistance of other technicians by paying cost of Rs.1,500/-.
- It is averred in the complaint that the pump supplied by the opponent is defective and its capacitor gets burnt very frequently. The complainant being annoyed with the frequent repairs complained the matter to the opponent who in turn repaired the same at the cost of the complainant for Rs.1,538/- in the month of September, 2012. The defect remained as it was earlier. There after the capacitor of the set pump was changed about 12 to 15 times. The capacitor was changed for the last time on 07/04/2016 and on 18/08/2016 the pump has stopped working. The water lifting capacity of the pump is much less than the quantity that was assured by the opponent at the time of purchase. The complainant has informed the opponent to take back the pump that was supplied by him after paying him the cost of the said pump and accessories as he was annoyed with frequent repairs of the said machinery. The opponent has failed to respond to repair the pump set. The opponent has issued a warranty card. Very recently when the complainant went through the warranty card, he was shocked to note that there was no mention of warranty clause though the said booklet was highlighted as ‘warranty card’. The name and address of the manufacturer is not mentioned in the owner’s manual and warranty card. This shows that the opponent has supplied a sub-standard pump set to the complainant with intention to cheat him. Now the pump set takes 1½ to 2 hours to lift about 500 liters of water as against the standard time of about 10 to 15 minutes. The opponent has failed to rectify the defects in the said product inspite of repeated requests. Hence this complaint.
- The opponent after service of notice put in appearance through his learned counsel and filed version admitting that the complainant has purchased an submersible pump set along with other accessories as stated in the complaint. The opponent has denied rest of the allegation made in the complaint that he failed to deliver the said pump set immediately and he delivered it in the month of June, 2012. The opponent denied that the pump set is sub-standard one and its capacitor get burnt very frequently. The opponent further denied that this opponent has not mentioned warranty clause even though the booklet highlights as warranty card.
- It is the case of the opponent that he is a reputed businessman in Madikeri Town and he supplied good quality pump set with all standard accessories and fittings to the complainant. The opponent gave warranty card to the complainant with full particulars. There is no complaint of any defects either within the warranty or after the period of warranty. The change of any parts such as capacitor or other items does not cover the risk under warranty and those products are not concerned to the main product. Thereis no cause of action to this complaint and the complaint is barred by limitation. The cause of action mentioned by the complainant is false and faraway from truth. The opponent has not committed any deficiency in service to the complainant either by way of supplying defective product and causing loss to him in any manner. Therefore, the complainant is not entitled to any relief claimed in the complaint. On the above reasons, the opponent prays to dismiss the complaint with exemplary cost.
- The complainant filed his affidavit in lieu of evidence and produced three documents. The opponent has also filed his affidavit in lieu of evidence. The learned counsel for the complainant and opponent have submitted written arguments. On perusal of the complaint affidavit evidence, documents and the written arguments the points that that would arise for determination are as under;
- Whether the complainant proves that 1 HP submersible pump set supplied by the opponent is sub-standard?
- Whether the opponent proves that the complainant is barred by limitation?
- Whether the complainant is entitled to the relief sought for ?
- Our findings on the above points is as under;
- Point No.1:- In the Negative
- Point No.2:- In the Affirmative
- Point No.3:- As per final order for the below
R E A S O N S - Point No.1 to 3:- The complainant in the affidavit and written arguments reiterated the averments of complaint. On the same line the opponent also in the affidavit evidence and written arguments reiterated the averments made in the version. The opponent in the affidavit evidence paragraph no.5 stated that there is no complaint of any defects either within the period of warranty of one year or after the period of warranty. The change of any parts such as capacitor or other items does not cover the risk under warranty and those products are not concerned to the main product. The alleged defect if any is not under warranty. The opponent in the written arguments para no.6 submitted that the complainant has filed this complaint after lapse of long gap of 4 to 5 years and till then no complaints were made with regard to the performance of the said pump set.
- The opponent has not disputed the purchase of 1 HP submersible pump set by the complainant from him in the year 2012. The complainant has produced tax invoice issued by opponent dated 31/03/2012 for Rs.17,757/-. The tax invoice indicates that 1 HP submersible pump set of RIGMAN make 15 stage the price of the said machine is Rs.11,650/-. The total price is Rs.17,757/- other 10 accessories like HDPE pipe, Nipple, Clamp, Bend socket etc. On the back of tax invoice Rs.360/- is added for Nylon rope 45 meters, Rs.95/- for one DP switch, Rs.50/- for 12 + 12 board and Rs.750/- towards fitting charges. All the above items total comes to Rs.19,262/-. The complainant has paid Rs.19,250/- to the complainant on 13/04/2012 that can be seen from the receipt issued by the opponent. The complainant has produced another deliver challen of the opponent dated 30/09/2012 for purchasing 6 meter HDPE pipe, cable nipple, socket, clamp, cotton thread HACL, saw blade and total bill amount is Rs.1,538/-. The complainant produced bill for purchasing capacitor for Rs.218/- on 07/04/2014 from Karkera Trading Co., Madikeri. The complainant produced the last document i.e., instruction manual and warranty card of RIGMAN Company. The warranty card does not bear the signature of dealer, customer and details of the model of the product, serial number, bill etc. On the front page of warranty card the name of RIGMAN can be seen with ISI mark but the entire warranty card is kept blank.
- The complainant in para no.4 of the complaint stated that for the 1st time he got repaired the pump set by paying Rs.1,538/- in the month of September, 2012. The said contention is supported by bill for purchase of some items on 30/09/2012. Three months after fixing the submersible pump set to the bore well it underwent repairs. In the next sentence it is averred by the complainant that unfortunately the defect remained as it was earlier and there after the capacitor of the said pump set was changed about 12 to 15 times. The complainant has not produced any bills for purchase of 12 or 15 capacitors after 30/09/2012. The complainant has produced only one bill for purchase of capacitor from Karkera Trading Company on 07/04/2014. It shows that from September, 2012 to 07/04/2014 the pump set was functioning well. In fact the complainant has changed 12 to 15 capacitors during the period from October, 2012 to 07/04/2014 he would have produced few bills for purchase of capacitors.
- The complainant is literate person who signed in english he would have issued notice to the opponent stating that the pump set supplied by him is sub-standard or defective. The complainant has not cared to issue notice to the opponent with regard to sub-standard pump set said to have supplied by the opponent in June, 2012 except the oral allegations made in the complaint there is no iota of evidence or material to believe that he has intimated the opponent with regard to defects in the pump set supplied by him. The complainant had opportunity to produce bills for purchase of 12 to 15 capacitors from the date of purchase till filing the complaint. Therefore, the allegations made in the complaint that the pump set supplied by the opponent is defective since beginning is not believable as it is not supported by bills for purchase of 12 to 15 capacitors or intimating the opponent in writing.
- As already observed that the complainant is a literate man and he would have been cautious at the time of furnishing warranty card of the said pump set. The warranty card is printed by RIGMAN Company and same is mentioned in the warranty car produced by the complainant. Even the complainant who is customer has not signed on the warranty card though there is a specific space for customer’s signature and before that space left for dealer’s signature. The complainant has wisely drafted the complaint and intentionally not mentioned when he came to know the blank warranty card. In beginning sentence of paragraph 6 of the complaint, the complainant admitted that at the time of purchase of said machinery the opposite party has issued warranty card. It shows that the complainant must have vigilant at the time of receiving warranty card as all the relevant columns kept blank. In the next sentence it is stated that very recently when the complainant went through the warranty card he was shocked to note that there was no mention of warranty clause even though said book let is highlighted as “warranty card”. It is not mentioned in the complaint when the complainant has gone though the warranty card as he has not mentioned the date, month and year of going through the warranty card. The complainant would have been vigilant to go through the warranty card as it is his case that since beginning the submersible pump set was not functioning well and he changed the capacitor of the said pump about 12 to 15 times. The complainant would have gone through the warranty card in the 1st year of purchase when the pump set was not functioning well. It shows the complainant’s negligence in not verifying the warranty card in the 1st year of purchase of pump set during the year 2012 as the submersible pump set was not functioning well. On the contrary opponent pleaded that he has furnished warranty card by filing the contents of it and warranty period is one year. The above circumstances show that the complainant was not vigilant at the time of receiving warranty card and even after when he came to know that the pump set was not functioning well since beginning.
- The contention of the opponent is that the complaint is barred by limitation as this complaint is filed after lapse of long gaps of 4 to 5 years. It is admitted fact that the pump set was delivered to the complainant in the month of June, 2012. For the 1st time i.e. within three months from the date of fixing pup set to the bore well it was not functioning well then the complainant got it repaired by spending Rs.1,538/-. It is repeatedly stated in the complaint that 12 to 15 times he got repaired the pump set by replacing capacitors. The complainant is a literate man as such he would have given notice to the opponent in writing with regard to function of the submersible pup set and requested for replacement or repair as and when it was not functioning well. Except allegations made in the complainant there are no documents or material to believe that he has changed the capacitor of the pump set 12 to 15 times and he informed the opponent of the same. This complainant has been filed before this Forum on 03/06/2017 i.e. 5 years from the date of purchase. The complainant neither issued notice in writing to the opponent with regard to sub-standard pump set supplied immediately after noticing its function or within two years from the date of purchase. Section 24A of the Consumer Protection Act, 1986 deals with limitation period and it says that the District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. In the instant case the cause of action arisen to the complainant during the 1st year of purchase since the submersible pump set was not functioning well. The complainant would have filed complaint within two years from the date of purchase as law provides limitation period of two years from the date on which the cause of action has arisen. As already observed that the complainant has not intimated with regard to giving notice to the opponent at any time. It is averred in the complaint that he has orally informed the opponent in this regard. It is not mentioned as and when he informed to the opponent. The cause of action mentioned in the complaint i.e. 07/04/2016 is imaginary and it is not supported by any document. Therefore, the complaint is liable to be dismissed on two folds i.e. on merits as well as limitation point. Accordingly, we proceed to pass the following ;
O R D E R - The complaint filed by Mr. C.V. Palakshan, s/o. late C.S. Veerappa fails hence, it is dismissed without cost.
- Furnish copy of order to the complainant and opposite party at free of cost.
(Dictated to the Stenographer and got it transcribed and corrected and pronounced in the open Forum on this 21st day of JULY, 2018) (C.V. MARGOOR) PRESIDENT (M.C. DEVAKUMAR) MEMBER | |