IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 15th day of December, 2021.
Filed on 18-11-2019
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Sholy.P.R, B.A, LLB (Member)
In
CC/No.306/2019
between
Complainant:- Opposite party:-
Sri.C.John Mathai Sri. Sunil.R
S/o Mathai Proprietor
Chanthapeedikayil House Adithiya Syndicates
Pazhaveedu.P.O Kannanallor Road
Alappuzha-09 Near NSS College
(Adv. Sri. P.T.Joseph) Kottiyam Junction
Kollam-691571
(Adv.Sri. V.N.Kiranlal)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
1. Material averments briefly stated are as follows:-
The opposite party is the owner and sole proprietor of Adithya Syndicates, supplier of customized water treatment plants and filters. He approached the complainant canvassed him by convincing the pure, clear and clean water by installing their water filtering system. Accordingly the complainant purchased water treatment plant and filters from the opposite party vide invoice dated 25.03.19.
As requested by the opposite party complainant purchased water tanks, new v-guard motor pump set and installed the same by laying new pipeline and drawing new electric points sockets etc. before the installation of the water treatment plants and filters spending more than Rs.30,000/- for material and Rs.20,000/- for labours etc. After checking all such newly drawn electric and pipe line connections, supply systems like new tanks and motor pump etc. opposite party installed the water treatment plants and filters. Though the water output from the flitter after the installation of water filtration unit was not so pure and clean as assured by the opposite party they tried to appraise the complainant that the initial output of the water from filtration would not so clear and that it will become pure and clear within short while.
Since the filtration of the unit was not at all satisfactory, complainant contacted the opposite party over phone several times from 27.03.19 onwards and expressed his grievance. In spite of repeated request opposite party did not respond. Thereafter complainant sent two remainders through e-mail and also sent letters dated 29.08.19 and 09.09.19 through speed post. Finally complainant sent another letter on 24.09.19 expressing his strong discontent towards deliberate latches and negligence of the opposite party and demanded expenses and cost. The act of the opposite party caused much hardships, discomfort and trouble and loss to the complainant. Hence the complaint is filed for a direction to the opposite party to take back the water treatment plants and pay off its cost price as per the invoice dated 25.03.19. Complainant is also seeking an amount of Rs.50,000/- being the cost of material and labour charge and also seeking an amount of Rs.50,000/- as compensation.
2. Opposite party filed a version mainly contenting as follows:-
Opposite party has been successfully and creditably carrying out its business at Kottiyam in Kollam since 2010. Opposite party deals with water purifier, its allied accessories and chemicals meant for purifying water. Complainant approached the opposite party and requested to take up the work of installing water purifier in his premises.
Before the purifier being installed the water proposed to be purified is subjected to chemical analysis and on the basis of analytical lab report the equipment for purification is designed. The spares, medias and chemicals would be replaced or added up in line with the amount of impurity the particular water carries in the respective areas. Opposite party and his personnel visited the complainant’s residence and drew water sample and sent the same to M/s Axion Research Lab for examination. Thereafter opposite party delivered a detailed and comprehensive treatment proposal within a few days. A trade discount of Rs.10,000/- was granted to the complainant and an amount of Rs.45,000/- was collected as advance. Filtration unit was set up at the complainant’s premises.
Water in the complainant’s bore well is to be collected in a large tank to be poured 50 grams below chlorine and allow the same two hours to combine and settle each other. Thereafter the said water is to be allowed to pass through carbon media vessel before letting the same passes through sand media vessel and iron removal vessel respectively. When the aforesaid process takes place it is the duty of the complainant to clean up the three vessels which is called “back washing”. Complainant was duly instructed and properly trained as to all these process during and after the setting up of the unit. Opposite party had to visit the complainant’s premise for several weeks for carrying out back washing. If back washing is not done properly the filth will get settled in the vessel and the same in due course will spread out to the filtered water impuring the same.
Complainant has not maintained the plant properly inspite of a number of demonstration, instructions and training. The complainant had not carried out the back wash promptly and properly. Complainant was using the apparatus till 2019 and even after the expiry of the period of warranty he approached the opposite party with unreasonable complaints. Opposite party installed another additional vessel that clean up the contaminations at the cost of opposite party. Again the complainant informed regarding the back wash problem. When the technician contacted the complainant it was informed that he is residing at Ernakulam with his family. Thereafter the complainant never contacted the opposite party at any point of time. The complaint is filed suppressing material facts without any bonafides. The intention of the complainant is to take unlawful advantage from the opposite party. Complainant is not entitled for any relief and hence the complaint may be dismissed with compensatory cost.
3. On the above pleadings following points were raised for consideration:-
- Whether there is any deficiency of service on the part of opposite parties as alleged?
- Whether the complainant is entitled to get an order to take back the water treatment plant and to pay out its cost as per invoice dated 25.03.19?
- Whether the complainant is entitled to realize an amount of Rs.50,000/- towards the cost of material and labour charges as prayed for?
- Whether the complainant is entitled to realize an amount of Rs.50,000/- on account of compensation for the mental agony, hardships etc.?
- Reliefs and cost?
Evidence in this case consists of the oral evidence of PW1 and Exts.A1 , A2 series and A3 series from the side of the complainant and the oral evidence of RW1 from the side of the opposite party.
4. Point Nos.1 to 4:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Exts.A1 , A2 series and A3 series.
RW1 is the opposite party in this case. He filed an affidavit in tune with the version.
After initial negotiations on 25/3/2019 RW1, the opposite party installed a water treatment plant at the premises of PW1, the complainant, Ext.A1 is the bill dtd. 25/3/2019 for Rs.55,000/-. Initially three vessels were installed for treating the water. However since the water was impure inspite of three vessels an additional vessels was installed by RW1. Complainant was not satisfied with the purity of the water and so within 2 days of the installation he informed RW1 regarding the nonsatisfaction over phone. Since it evoke no response, complainant sent Ext.A2 series 3 letters on 29/8/2019, 9/9/2019 and 24/9/2019 respectively. Inspite of receipt of registered letters there was no action from the part of the opposite party and hence the complaint is filed for direction to the opposite party to take back the water treatment plant and its units and return the bill amount. He is also seeking an amount of Rs.50,000/- as compensation on account of purchase of allied materials and also seeking an amount of Rs.50,000/- for mental agony. Rw1 the opposite party filed a version admitting the installation of the water purifier. According to him the water was tested in a laboratory and the medias and chemicals were decided. It was requested to PW1 that back wash is to be conducted every week for the smooth functioning of the treatment plant. However PW1 used to complaint over phone and accordingly representative of RW1used to visit premises and conduct backwashing. According to Rw1 there is no evidence on record to show that the water is not pure. He has installed such treatment plants all over Kerala and there is no complaint regarding the same. In a nutshell the contention of RW1 is that there is no complaint for the treatment plant and it is only of the usage. Hence the complaint is only to be dismissed. Complainant got examined as Pw1 and Ext.A1, A2 series and A3 series were marked. Opposite party was examined as RW1.
The fact that on 25/3/2019 a water treatment plant was installed at the premises of complainant and as per Ext.A1 bill an amount of Rs. 55,000/- was collected is admitted. According to RW1 the opposite party the sample of water was send to a laboratory by name Axion Research lab at Ernakulam and the medias and chemicals were decided to purify the water. Initially three vessels were installed and thereafter another vessels was also installed for which RW1 has not collected any cost. At the time of installation PW1 was advised to back wash once in a week and if there is any problem it is due to not doing the back wash at regular intervals. It is also contented by RW1 that as per the request of PW1 his representative used to visit the premises and do the back wash. Later once he visited the premises the gate was found locked and on enquiry it was found that PW1 is temporally residing at Ernakulam and so they could not conduct the back wash. The fact that PW1 is not satisfied with the installation of Water Treatment Plant is not in dispute which resulted the complaint and the oral evidence of PW1 is also due to that effect. According to PW1 it is unable to drink and even one occasion when his daughter was taken to a doctor it was advised to use clean water. According to PW1 there is shade in the water and so it is impure. It is true that PW1 has not produced any analysis report after sending the sample of water for analysis. However the oral evidence of PW1 shows that there is shade in the water and so it is impure. Per contra according to RW1 prior to installation of the treatment plant the sample of water was sent to Axion Research Lab and obtained a report that thereafter the medias and chemicals were decided. However the report is not seen produced before this Commission. According to PW1 after about 2 days of installation he came to know that the water is not pure and so he informed the opposite party over phone. Ext.A2 series are 3 letters dtd. 29/8/2019, 9/9/2019 and 24/9/2019 informing that he is not satisfied with the treatment plant and that he is not getting clear water. It is to be remembered that the plant was installed on 25/3/2019 and on the same year after about 5 months and 6 months. Ext.A2 series letters were sent, complaining about the water treatment plant. According to RW1 the sample was send to M/s. Axion Research Lab, Ernakulam and he can produce the report. However the report is not seen produced, inspite of admission during cross examination that it can be produced. According to RW1 Mr. one Virgin had inspected the plant and suggested to install additional vessel. Though RW1 stated that he can examine the said Virgin as a witness in this case it is not seen done for the best reason known to the opposite party.
Admittedly an amount of Rs.55,000/- was collected from PW1for installing the water treatment plant. So it is the duty of RW1 to see that the impurities of water is removed and pure water is supplied to the complainant for his use. The learned counsel appearing for the opposite party contented that PW1 has not produced any chemical report to show that the water is impure. During cross examination PW1 stated that there is shade in the water and so he is unable to use the same. Further the doctor who treated his daughter also advised to use clean water. That is an indication that water was impure. Further Ext.A2 series registered letters sent to the opposite party within 5 months and 6 months after installation of the treatment plant will show that PW1 was not satisfied regarding the cleanness of the water. Though RW1 contented that he had examined the water in a chemical laboratory the report is not forthcoming. According to the learned counsel appearing for RW1 it is the duty of the complainant to prove that the water is impure. It is true that the burden of proof to prove the case is upon the complainant. Here the oral evidence of PW1 coupled with Ext.A2 series letters shows that he is not satisfied with the water treatment plant. Though RW1 contented that he is in possession of the chemical report it is not seen produced. As held by the Hon’ble Supreme Court in Gopal, Krishnaji Ketkar Vs. Mahomed Haji Lathif & Ors (1968 AIR 1413).
“Even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts an issue.”
Here the non production of chemical report by the opposite party enables to draw an adverse inference against him. Admittedly there is no warranty for the water treatment plant. However from the records in hand it can be seen that the plant was installed on 25/3/2019 and Pw1 started complaining about the same within two days after the installation. Initially it was informed over phone and since it evoked no response Ext.A2 series registered letters were sent to the opposite party. The stand taken by the opposite party is that there is no problem with the water treatment plant and impurities occurred since back wash was not done. However according to PW1 he was doing back wash as shown by the opposite party once in a week. Since PW1 is not satisfied with the installation that also even after spending an amount of Rs.55,000/- it is the duty of opposite party to rectify the mistake of the treatment plant. Though one of the demand of PW1is to return the water treatment plant and give its price it is not possible since the plant was installed on 25/3/2019 and so that there is no warranty for the same. However Rw1 can be directed to inspect the treatment plant and make necessary corrections for getting pure water.
According to Pw1 as per the direction of opposite party he had purchased articles worth Rs.30,000/- being the accessories for installing the water treatment plant. Ext.A3 series are the bills to prove the purchase of the articles. Though Pw1 is demanding Rs. 50,000/- on account of purchase of these articles it cannot be allowed since it is still in the premises of complainant. Further we have only directed the opposite party to make necessary changes in the water treatment plant to get pure water. Complainant is also seeking an amount of Rs.50,000/- on account of compensation for mental agony, hardships etc. from the part of opposite party. As discussed earlier even after two days of installation PW1 was not satisfied with the water treatment plant. As per Ext.A1 an amount of Rs. 55,000/- was collected by RW1 for installing the plant. So even after spending such huge amount if Pw1 is not getting the result definitely one will have mental agony and so RW1 is liable to compensate the same. However considering the entire circumstances in this case we are limiting the amount to Rs. 20,000/-. These points are found accordingly.
5. Point No. 5:-
In the result, complaint is allowed in part
A) Opposite party is directed to cure the defect of the water treatment plant by making necessary arrangements in the media and vessels installed.
B) Complainant is allowed to realize an amount of Rs.20,000/-(Rupees Twenty thousand only) as compensation from the opposite party.
C) Complainant is allowed to realize an amount of Rs.3000/- (Rupees Three thousand only) as cost.
The order shall be complied within one month from the date of the receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 15th day of December, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/- Smt. Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - John Mathai(complainant)
Ext.A1 - Tax Invoice dtd.25/3/2019
Ext.A2series - letters dtd. 24/9/19, 9/9/19, 29/8/2019
Ext.A3series - Tax invoices
Evidence of the opposite parties:-
RW1 - Sunil.R (opposite party)
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
