Present         (1)      Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                President

                    (2)      Sri Sheo Shankar Prasad Singh,

                              Member

Date of Order : 01.06.2015

                    Sri Sheo Shankar Prasad Singh

1. In the instant case the Complainant has sought for following reliefs against the Opposite parties:-

1. To pay full price of the Tata B.P. Solar Plate with interest @ 18% per annum from the date 22.08.2009 till full and final payment of the amount.
2. To pay Rs. 50,000/- as compensation.
3. Litigation cost Rs. 10,000/-.

2. Brief facts of the case which led to the filing of complaint are as follows:-

1. The complainant has purchased a Tata B.P. Solar Plate of 40 watt for domestic use on 07.08.2009 for a sum of Rs. 6,150/- ( Six thousand one hundred fifty only ). The dealer/supplier had ensured the complainant that the Tata B.P. Solar Plate shall supply more than 3 Ampere power after full charge.
2. On purchase of the said solar plate, the supplier/ dealer had given the warranty of 10 years and mentioned it in the retail invoice.
3. The solar plate was properly installed and located in accordance with installation instruction given by the said dealer.
4. The complainant found that the said solar plate was not functioning properly and not giving the result as per the assurance given by the supplier/dealer. So he immediately, lodged the complaint with the dealer on 14.08.2009 but no action was taken by the said dealer/supplier.
5. The complainant approached the Opposite Party no. 2 on 22.08.2009 along with the aforesaid solar plate for replacement but instead of replacing the same, the supplier allured/ enticed the complainant to purchase a Tata B.P. Solar Plate ( TBP 1275 M ) of 75 watt with 10 years warranty and had given the document showing the performance specification of the said solar plate to the complainant and assured him that the Tata B.P. Solar Plate ( TBP 1275 M ) of 75 watt shall supply more than 5 Ampere power after full charge.
6. The complainant, accordingly, acted upon such assurance and purchased Tata B.P. Solar Plate ( TBP 1275 M ) of 75 watt for which a bill no. 2009/2009 dated 22.08.2009 was given.
7. On purchase of the Tata B.P. Solar Plate ( TBP 1275 M ) of 75 watt, the said supplier/ dealer had given the warranty of 10 years and mention it in the retail invoice.
8. Tata B.P. Solar Plate ( TBP 1275 M ) of 75 watt was sold by the opposite Party no. 2 to the complainant for Rs. 12,200/- ( Rupees Twelve Thousand Two Hundred only ) which ought to have been sold @ Rs. 10,000/- ( Rupees Ten Thousand ) only. This over charging amounts to unfair trade practice on the part of the Opposite Party no. 2.
9. The Tata B.P. Solar Plate ( TBP 1275 M ) of 75 watt was operated / used according to the instruction given by the said dealer / supplier.
10. The complainant found that the said solar plate is not functioning properly and supplying only about 2.75 ampere power after full recharge which is wholly insufficient. Thus he lodged the complaint with the Opposite Party no. on 10.09.2009 in this regard.
11. That despite lodging of the complaint within warranty period, the Opposite Party no. 2 did not honour its commitments under the terms of warranty. It was followed by another reminder but all went in vein.
12. Ultimately, the complainant approached the Opposite party no. 2 along with the said Tata B.P. Solar Plate ( TBP 1275 M ) of 75 watt and requested him to rectify the defect in the said solar plate or to replace it with another piece of the same description but the Opposite Party no. 2 totally ignored the request made by the complainant and insulted the complainant in the public place.
13. It is well settled that the Consumer Protection Act was enacted inter alia to provide for better protection in the interest of the consumers. Where the defects in the goods/ machine supplied to the consumer as pointed out by him started within the period of warranty and if the supplier had not been able to attend these to immediately then would be a deficiency in service on the part of supplier.
14. The complainant called upon the Opposite Party through his Advocate in letter dated 13.10.2009 and requested the Opposite Party to refund full price of the said Tata B.P. Solar Plate or to replace it with another piece of same description. But the Opposite Party failed to comply with.

3. The Opposite Party no. 1 in its written statement has submitted as follows :-

1. It is submitted that the instant complaint case is not maintainable in the eye as well as on facts and is fit to be dismissed.
2. The complaint as against this Opposite Party is wholly misconstrued misdirected and without any basis as such the same is fit to be rejected.
3. The instant complaint is also liable to be dismissed for mis – joinder of the Parties as no cause of action accrues to the complainant as against this Opposite Party. Hence the complaint as against this Opposite party is liable to be dismissed in limine.
4. It is stated that the Opposite Party no. 2 is not authorized dealer of Tata BP Solar India Limited. As per our standard terms of warranty is null if system is purchased by any unauthorized point of sales. Company has no liability to take any claim. However the complainant had not approached Tata BP Solar India Limited.
5. The complainant not purchased the equipment from Tata BP Solar’s authorized dealer. The complainant never contacted the company in this regard.
6. It is stated that the claim of the complainant can only be raised against the retailer and not from the company ( Tata BP Solar ). The Tata BP Solar India Ltd. has not given any such warranty.
7. The complaint has ever been lodged with the Tata BP Solar India Ltd. and at same time any claim lodged before the supplier, the supplier is sole authority to give answer or comments in the regard.
8. It is submits that no such warranty given by Tata BP Solar and if warranty given by the seller, the seller is liable to answer the same.
9. It is submitted that the complainant never contacted Tata BP Solar India Ltd. at any point of time in this regard hence no action is required to be taken by the present Opposite Party no. 1. So far the statement that he lodged complaint with the Opposite Party no. 2, t is stated that the Opposite Party no. 2 is competent person to give answer in this regard.
10. No legal notice as claim has ever been received by the Tata BP Solar and the statement made therein cannot be raised against the company rather the seller may be held liable for any such sale and subsequent liability.
11. In view of the aforesaid facts and circumstances it is quite clear that the complainant ( customer ) has neither purchase Solar Module ( the item ) from Tata BP Solar nor by its authorized dealer. The complainant has never approached Tata BP Solar for any service requirement in person or by any other meant. Hence the complaint and demand made by customer is unjustified and complaint against Tata BP is not tenable in the eye of law.
12. In view of the aforesaid fact and circumstances, it is quite clear that the claim against this Opposite Party is not tenable in the eye of law and as such the same is fit to be dismissed as against this Opposite Party being without any merit.

4. The complainant in his rejoinder has stated as follows : -

1. It is submitted that the complaint filed before the Hon’ble District Forum at Patna comes under the definition of complaint as per section 2(1) (c) of the Consumer Protection Act and the allegation contained in the complaint filed on behalf the complainant make out a bonafide consumer dispute. Thus a forum constituted under the Consumer Protection Act has jurisdiction to decide the complaint.

It is further submitted that the allegations contained in the complaint are not vague, confused and concocted. From the Bill no. 2008/2009 dated 22.08.2009 issued by the Opposite Party no. 2, it appears that the complainant purchased Tata B.P. Solar Plate ( TB1275M) of 75 watt and the warranty of 10 years was given on it. It is legal obligation upon the Opposite Parties to honour their commitment under the terms of warranty but it is very much unfortunate to state here that the Opposite Parties did not honour their commitments under the terms of warranty till date.

2. It is submitted that the name, address and phone number of Tata B.P. Solar Ltd. was not disclosed by the Opposite Party no. 2 to complainant at the time of purchase on the pretext that the phone number of Harsh Solar System is already mentioned in the Bill and in the event of defect developing in the product to contact the Opposite Party no. 2.

It is further submitted that the Tata B.P. Solar Plate of 75 watt was operated according to the instruction given by the opposite party no. 2. Then he found that the said solar plate is not functioning properly and supplying only about 2.75 Ampere power after full charge which is wholly insufficient. So he lodged the complaint with the opposite party no. 2 on 10.09.2009 in this regard. Despite lodging of the complaint within warranty period, the opposite party no. 2 has taken no any step to rectify the defect in the said plate.

3. It is relevant to mention here that the opposite party no. 1 has neither sent any Engineer/technician to inspect and examine the said solar plate nor produce the copy of policy containing the terms of warranty till date. The list of authorised dealer of Tata B.P. Solar is also not produced or submitted by the opposite party no. 1 till date.

In this case opposite party no. 1 put an appearance by filing written statement but Opposite Party No. 2 neither filed any Vakalatnama nor filed any written statement.

Perused the material adduced in the case and heard the complainant only as none of the opposite parties were present at the hearing stage.

Furthermore opposite Party no. 1 has stated on oath that opposite Party No. 2 is not their authorized dealer and the complainant also has not produced any documents to show that opposite party no. 2 is authorized dealer of opposite party no. 1 and in our view the complainant’s plea that Opposite party no. 1 has not furnished the list of their authorized dealer at Patna is of no help to arrive at any conclusion in favour of the complainant.

From the above discussion it is crystal clear that opposite party no. 2 is solely responsible for deficiency in service because the article has been sold by him and despite notices being served he ( opposite party no. 2 ) did notcared to respond to the allegation levelled in the complaint petition against him.

Accordingly, we direct the Opposite Party no. 2 to refund the price of B. P. Solar Plate i.e Rs. 12,200/- ( Rupees Twelve Thousand Two Hundred only ) to the complainant with interest @ 9% per annum from the date of purchase i.e. 22.08.2009 within a period of two months from the date receipt of this order failing which the interest rate will be 10% per annum till its final payment we further direct that prior to payment of the aforesaid amount the complainant will have to return the Old B. P. Solar Plate to the opposite party no. 2.

Aforesaid opposite party no. 2 is further directed to pay Rs. 5000.00/- ( Rupees Five Thousand only ) as composite charge of compensation and litigation cost to the complainant within the aforesaid period of two months.

Accordingly, this case stand allowed to the extent indicated above.

                                    Member                                                                             President