IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
C.C.No. 01/2023
PRESENT
SMT. S.K.SREELA, B.A.L, LL.B, PRESIDENT
SMT. S.SANDHYA RANI. BSC, LL.B, MEMBER
SRI. STANLY HAROLD, B.A.LL.B, MEMBER
ORDER DATED: 28-04-2023.
BETWEEN
Vishnu M.Vinayak,
38 years, S/o Madhu V.S.,
Residing at Valiyaveettil, Kuzhithura ,
Kuzhithura P.O., Kollam 690542.
(By Adv.Maruthadi R.Sreeraj) : Complainant
AND
Thampachan @ Vikranth,
Proprietor
AV Tec Nallanickal, Arattupuzha P.O.,
Now residing at Navaneedham,
Nallanickal, Arattupuzha P.O.,
Alappuzha 690 535. : Opposite Party
ORDER
Stanly Harold, B.A.LL.B, Member
This complaint is filed U/s 35 of the Consumer Protection Act 2019.
The averments in the complaint in short are as follows:-
The complainant purchased two Icom 2300H wireless set from the opposite party for an amount of Rs.37,000/- along with other equipments as per invoice dated 18.09.2021. The set so purchased carried a warranty of 2 years. At the time of purchasing the wireless set the opposite party assured that they will arrange part/ product replacement or refund of invoice value. The above set was purchased for complainant’s boat having Reg.No.IND-KL-02-MM-5183. But on installation itself the set showed complaint and that matter was immediately informed to the opposite party. The technician of opposite party visited the boat and one set was repaired and informed the complainant that the other set is having serious manufacturing defect and it will be replaced within one week and the wireless set was taken by the technician. Thereafter the opposite party has not yet replaced the set. After one month the other set also become defective. Even though the matter was informed to the opposite party the defect was not yet cured. This is serious deficiency in service and unfair trade practice on the part of opposite party. Thereafter the complainant approached the opposite party for replace or refund but there was no result. In the result the complainant had no other way but to purchase two another sets. So the complainant is entitled for refund of the value of the set with interest. The said act of the opposite party by selling a wireless set which is having manufacturing defect is clear deficiency in service. The act of the opposite party created much mental agony and hardships to the complainant. The complainant purchased the above said set to get a communication with his fishing boat from the land at any time. It is a settled rule that in the absence of wireless set the license cannot be renewed and the complainant was constrained to purchase another two sets. It is the Government rule to use wireless sets in the fishing boat. But due to the deficient service of the opposite party, the complainant could not get the expected utility of purchase of the wireless set. In the circumstances the opposite party is liable to pay compensation for the deficiency in service. Hence the complaint.
Though notice was served to the opposite party, they failed to appear before the Commission nor made any representation. Hence opposite party set exparte. Complainant filed proof affidavit in lieu chief examination by reiterating the averments in the complaint and got marked Ext.P1 and P2 documents. Ext.P1 is the invoice dated 18.09.2021 for Rs.37,000/-. Ext.P2 is the certificate of registry of a fishing boat bearing No.IND-KL-02-MM-5183 dated 12.11.2021. Heard the learned counsel for the complainant perused the records.
The unchallenged averments in the affidavit coupled with Ext.P1 and P2 documents would establish that the complainant has purchased two Icom 2300H wireless set from the opposite party for an amount of Rs.37,000/- on 18.09.2021. It is clear from the Ext.P1 invoice receipt itself about the description of Icom 2300 H. The warranty of the set was offered is for two years and at the time of purchase the opposite party assured that a revisit will be arranged for part/product replacement or refund of invoice value. It is quite natural that most of the fishing vessels including fishing boats have to install wireless set. Ext.P2 the license of the boat is issued on this basis. Here the complainant had purchase the set for the purpose of his fishing boat bearing Reg.No.IND-KL-02-MM-5183. Thereafter on installation the wireless set showed complaint. This was informed to the opposite party. The technician deputed by the opposite party examined the wireless set and rectified the defect of one set and informed the complainant that the other set is having serious manufacturing defect and it will be replaced within a week and the set was taken by the technician. Thereafter on repeated demands the opposite parties failed to cure the defect of the wireless set of the complainant. After one month the rectified set also became defective. Even though the complainant contacted the opposite party through phone and they were not amenable to resolve the problem of the complainant. Inspite of repeated demands the opposite party failed to replace or refund the amount of the wireless set. In the circumstances the complainant had no other option but to purchase two another new wireless sets. Hence the complainant is entitled for refund of the value of the set with interest. It is an established fact that in the modern period marine technology has vastly developed. The government had given special direction to install wireless set in every fishing vessels as mandatory. It is also pertinent to note that for obtaining the license for trolling for a fishing boat these equipments are inevitable. In the circumstances complainant had decided to install the wireless set in his fishing boat. The Marine VHF(Very High Frequency) radios/wireless are commonly used in fishing vessels for communication with other vessels, coastguard and harbour masters. These wireless operate on a range of frequencies designated for marine use, and are required by law carried out by most vessels including fishing boat.
In addition to safety and emergency, communication wireless/VHF radios are also used by fishing vessels to communicate with other boats in the area to share information about fishing conditions and locations. This can be especially useful in areas where there are lot of fishing vessels competing for the same fish. The wireless set are also important for navigation purposes as they can be used to receive weather forecasts and updates as well as to communicate with the harbour masters for information about port conditions and navigation hazards. Overall marine wireless sets (VHF) are very essential communication tool for fishing vessels providing safety, navigation and social communication function to fisherman. These type of wireless VHF are most essential in panic conditions of sea, pressure of sea water forcibly entering the vessel resulting Hazards like drowning of fishing boat. So it is very pertinent to note the complainant could not utilize his wireless set due to its manufacturing defect. However in this case the opposite party had deliberately abstained from replacing or refunding the amount received from the complainant. It is pertinent to note that above mentioned features of the wireless/VHF is squarely applicable to the complainant. The act of the opposite party has caused huge monitory loss to the complainant. Though the wireless set has two years warranty the opposite party is under an obligation to keep the wireless kept in a perfect condition for a period of at least 12 months. They have failed to perform their obligations which in result caused mental agony and monitory loss to the complainant. Moreover there is a traditional verb along in the seashore that” sea is truth and the sea will not lie or deceit”. 10,000 of fisherman working in fishing boats are in pursuant with this concept for their livelihood. The complainant after spending enormous amount for his livelihood had to face monitory loss and mental agony. The complainant had knocked the doors of the opposite party with the defective wireless set VHF but his grievance was not solved. On the basis of uncontroverted testimony of the complainant coupled with Ext.P1 and P2 documents it can be safely concluded that the complainant had established his case warranting the grant of relief sought for. The opposite party had an obligation to prove that there is no manufacturing defect for the wireless set. The complainant has pleaded that the technician deputed by the opposite party has opined that there is manufacturing defect. Since the opposite party is exparte it can be taken as an expert opinion which clearly admits the specific case of the complainant. It is very pertinent to note that the admitted defect happened during the warranty period. Hence there is deficiency in service and unfair trade practice on the part of the opposite party. Complainant has sustained mental agony apart from financial loss. In the circumstances we hold the view the wireless set VHF is having inherent manufacturing defect. In the circumstances we are of the view that the complaint is only to be allowed.
In the result the complaint stands allowed in the following terms:-
- The opposite party is directed to refund the amount of Rs.37,000/- received as the cost of the wireless set and also directed to pay Rs.10,000/- as compensation for mental agony and financial loss caused to the complainant due to the deficiency in service on the part of opposite party.
- The opposite party is also directed to pay Rs.5,000/- as costs of the proceedings.
- The opposite party is directed to comply with the above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to realize the amount of Rs.37,000/- along with interest @ 9% per annum from the date of the complaint till realization along with the costs from the assets of opposite party movable and immovable.
Dictated to the Confidential Assistant Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the Open Commission on this the 28th day of April 2023.
Sd/-
STANLY HAROLD
MEMBER
Sd/-
S.K.SREELA
PRESIDENT
Sd/-
S.SANDHYA RANI
MEMBER
Forwarded/by Order
Senior superintendent
INDEX
Witnesses Examined for the Complainant:-Nil
Documents marked for the complainant
Ext.P1 : The invoice dated 18.09.2021 for Rs.37,000/-
Ext.P2 : The certificate of registry of a fishing boat bearing No.IND-KL-02-MM-5183
dated 12.11.2021.
Witnesses Examined for the opposite party:-Nil
Documents marked for opposite party:-Nil
