BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No. 302 of 2013

Date of Instt. 16.7.2013

Date of Decision :21.10.2014

Sant Didar Singh, Mukhia Dera Satgarh Kapurthala Road, Jalandhar.

..........Complainant

Versus

1. Techbuild Marketing Shop No.1, Adarsh Shiksha Kendra High School, Shakti Nagar Road, Jalandhar, through its authorized person/representative.

2. M/s Karisons Televant Pvt. Ltd, T-4 3rd Floor Plot No.19, Centarl Market Sector 10 Dwarda, New Delhi through its authorized director/manager.

.........Opposite parties

Complaint Under The Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.Surinder Singh Adv., counsel for complainant.

Sh.Anand Pandit Adv, counsel for opposite party No1.

Opposite party No.2 exparte.

Order

J.S. Bhatia (President)

1. The complainant has filed the present complaint against the opposite parties on the averments that there is one Dera known as Dera Santgarh at Kapurthala Road, Jalandhar and complainant is Mukhia i.e head of the Dera. Opposite party approached to complainant and told to complainant that he has been dealing in solar power units and this unit are good for value and quality and work for number of years to save electricity and on assurance of the opposite party, complainant got ready to install the solar power unit in the premises of the Dera. Opposite party told to complainant that the unit of 2KW cost Rs.5,00,000/- including installation of the same and on assurance of the opposite party, complainant paid Rs.5,00,000/- to opposite party and opposite party installed unit in the premises of the dera and a bill of the same was issued by opposite party bearing No.505 dated 11.1.2012. From the day of installation of the solar power unit, it is not working properly and complainant made several requests to opposite party about its defects and opposite party every time just made formal checking and failed to remove the defects permanently. The unit has failed to work for the last ten months and same is dead for the last ten months but opposite party failed to remove the defect and also failed to replace the same and cheated the complainant. On such like averments, the complainant has prayed for directing the opposite parties for refund of the price of solar system. He has also claimed compensation and litigation expenses.

2. Upon notice, the opposite party No.1 appeared and filed a written reply raising preliminary objections regarding maintainability, non joinder of necessary party i.e manufacturer/fabricator of the solar power unit, suppression of material facts, estoppal etc. It further pleaded that solar power unit was installed in the premises of the complainant by the opposite party and a bill No.505 dated 11.1.2012 was issued by the opposite party in the name of the complainant. In addition to this, it is stated here that on the bill itself issued by the opposite party, it was specifically mentioned that solar power unit installed by the opposite party in the premises of the complainant carried a warranty of only one year from the date of bill i.e 11.2.2012. It is wrong that the from the day of installation of the solar power unit, it is not working properly as alleged. It is further wrong that the complainant made several requests to opposite party about its defects as alleged. It is also wrong that the opposite party every time just made formal checking as alleged. The complainant has created a concocted story just to get the relief to which he is not entitled to receive at any point of time. The solar power unit was working properly since the day of its installation and the complainant at no point of time ever intimated the opposite party about its defects if any. As the unit was working properly, as such, the question of any defect does not arise at all. It is wrong that unit has failed to work for the last ten months as alleged. It is further wrong that the same is dead for the last ten months. No complaints were made to the opposite party within the warranty period of the solar power unit. Moreover, the warranty period of the solar power unit expired on 10.1.2013 and after the expiry of period of warranty, the complainant can not raise any claim against the opposite party at any point of time. It denied other material averments of the complaint.

3. Opposite party No.2 was impleaded later on and notice was issued to it but none appeared on its behalf in-spite of notice and as such it was proceeded against exparte.

4. In support of his complaint, the counsel for the complainant has tendered in to evidence affidavits Ex.CW1/A and Ex.CW2/A alongwith copies of documents Ex.C1 to C4 and closed his evidence.

5. On the other hand, learned counsel for opposite party No.1 has tendered affidavit Ex.OPW1/A alongwith copy of document Ex.OP1 and closed evidence.

6. We have carefully gone through the record and also heard learned counsel for the parties.

7. It is not disputed that opposite party No.1 installed solar power unit in the premises of complainant for Rs.5 Lacs vide retail invoice dated 11.1.2012. Counsel for opposite party No.1 contended that no complaint was every made to opposite party No.1 regarding any defect in the solar power unit during the warranty period and the present complaint has been filed after the expiry of warranty period, which is not maintainable. He further contended that liability if any is that of the manufacturer i.e opposite party No.2. On the other hand, it has been contended by learned counsel for complainant that from the day of installation of the solar power unit, it is not working properly and complainant made several requests to opposite party about its defects and opposite party No.1 every time just made formal checking and failed to remove the defects permanently. He further contended that unit is lying dead for the last ten months before the filing of the present complaint which was filed on 15.7.2013. He further contended that the complainant has made complaints to opposite party No.1 during warranty period and as such it can not evade its liability. He further contended that dealer as well as manufacturer are liable in case the goods sold are found to be defective one. We have carefully considered the contentions advanced by learned counsel for the complainant and learned counsel for opposite party No.1. So far as the dealer is concerned, it can not evade its liability and say that only manufacturer is liable.

8. In Balaji Motors Vs. Devendra & ANR, II(2013) CPJ 534(NC), the Hon'ble National Commission has held as under:-

"We have examined the material on record and given a thoughtful consideration to the arguments advanced before us. Vide impugned order passed by the State Commission, it has only been stated that since the complaint was made to the dealer within the warranty period, it was the duty of the dealer to attend to the same and repair the vehicle. The petitioner was directed to repair the vehicle to the satisfaction of the appellant within three months. We do not find anything wrong with this order. If the vehicle is presented before the dealer within the warranty period, it is his duty to attend to the complaints, if any, and rectify the defects to the satisfaction of the complainant. In case, the dealer thinks that there is no defect in the vehicle, it can give a certificate to this effect that the vehicle is fit from all angles. Such a certificate shall be open to scrutiny by any expert/specialized agency. However, the dealer can not escape his responsibility of attending to the complaints if made before it during the warranty period".

9. Sp from the law laid down in the above cited authority of Hon'ble National Commission, it is clear that in case any complaint is made to the dealer during warranty period, he is bound to attend the same and rectify the defect in the article sold by it.

10. The complainant has purchased the solar power unit for Rs.5 Lacs. It is in the affidavit Ex.CW1/A of the complainant that from the day of installation of the solar power unit, it is not working properly and complainant made several requests to opposite party i.e opposite party No.1 about its defects and it every time just made formal checking and failed to remove the defects permanently. It is further in his affidavit that unit has failed to work for the last ten months and same is dead for the last ten months but opposite party failed to remove the defect and also failed to replace the same and cheated with complainant. The complainant also served legal notice dated 7.6.2013 Ex.C1 upon the opposite party wherein the above said facts are specially mentioned. The opposite party has not shown if it sent any reply to the above notice served by the complainant. So keeping silent after receipt of notice also in away tends to corroborate the version of the complainant. The complainant has also tendered affidavit Ex.CW2/A of Parminder Singh Prop. of Preet Power Control System wherein he has stated that one solar unit of 2KW is installed in the premises of the Dera known as Dera Santgarh at Kapurthala Road, Jalandhar and he was called a number of times in the last year by the Mukhia i.e head of the Dera for checking of the solar unit because the same is not working properly. It is further in his affidavit that he checked the solar unit and there is technical defect in it and same is required to be replaced as the defect can not be removed after formal checking and repairing. So affidavit of this independent witness corroborates the version of the complainant. On the other hand, opposite party No.1 has simply tendered affidavit Ex.OPW1/A of Pawan Kumar Prop of Techbuild Marketing i.e opposite party No.1 firm, wherein in substance the averments contained in the written statement have been reproduced. We do not find any convincing reason to disbelieve the affidavit of the complainant as well that of Parminder Singh, an independent witness. It is in the affidavit of the complainant that solar power unit is not working properly and complainant made several requests to opposite party about its defects and opposite party every time just made formal checking and failed to remove the defects permanently and that unit is lying dead for the last ten months i.e before the filing of the present complaint. So from the affidavit of the complainant, it is evident that he made complaint regarding the working of the power unit to the opposite party No.1 during the warranty period. Where complaint has been made regarding defect in the article during the warranty period but the dealer or manufacturer has failed to rectify the defect then the complainant even after expiry of the warranty period is very much maintainable. Bot the parties are jointly and severally liable in this regard. Opposite party No.1 is liable being dealer and opposite party No.2 is liable being manufacturer.

11. In view of above discussion, the complaint is accepted against both the parties and they are directed to rectify the defects in the power unit system of the complainant within one month from the date of receipt of copy of this order free of any charges to the satisfaction of the complainant and in case the same can not be rectified then to replace the unit with new one or in the alternative to refund its price to the complainant. Complainant is also awarded Rs.10,000/- as compensation and Rs.3000/- on account of litigation expenses. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

21.10.2014 Member President