IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 10th day of December, 2021.
Filed on 27-02-2020
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.P.R Sholy, B.A.L, LLB (Member)
In
CC/No.56/2020
between
Complainant:- Opposite party:-
1.Vicar Fr.Rocky The Authorised Signatory
Kollamkudy Proprietor, Green Roof Solar
St.James Church Kiliyankal Towers,
Paloothara, Cherthala opposite Collectorate, Seaport-
Airport Road, Kakkanad,
2. Thankachan C V Kochi- 682030
S/o Varkey (Adv. George Cherian Karippaparambil)
Chirathara
Thanneermukkom North Village
Thanneermukom Panchayath,
Cherthala (Trustee of St.James
Church, Paloothara)
(Adv. E.D.Zacharias for Complainants)
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:-
Opposite party had installed 7 KW solar power system on 25.03.2017 at the premises of the complainant church an amount of Rs.6,17,110/- was paid. Opposite party had offered 5 years warranty for all components of power system. The solar power system installed by the opposite party is not working and as per the intimation of the complainants the technician of the opposite party visited the spot and said that the main board of the power system is defunct and as per the direction of the opposite party, the complainants had brought the main board to the office of the opposite party at Kakkanad. At the time of checking the solar system the opposite party offered and promised that the system is within the warranty period and the same will be installed after curing the defect in the main board free of cost.
2. There was no response from the opposite party for three months and when the complainants tried to contact the opposite party on several occasions they deliberately delayed the matter and failed to cure the defects and return the system. There was remarkable change during the electricity charge during the working of solar power system but due to the irresponsible acts of the opposite party the complainants suffered huge loss. The complainants are paying huge amount towards electricity charge to KSEB and the opposite party is responsible and liable for the loss of the complainants.
3. Opposite party has liability and obligation to cure the defects free of cost. They had violated the offer and assurance at the time of installing the power system. It is an unfair trade practice and grave dereliction of service. Inspite of several complaints over telephone and demanded to take back or cure the power system installed and return the money there is no response. Finally on 20.01.2020 a lawyers notice was issued demanding the amount received from the complainants and compensation of Rs.1 lakh. After receiving the notice a reply dated 23-1-2020 was sent with untrue facts. Hence the complaint is filed for a direction t the opposite party to take back the solar power system and return the amount of Rs.6,17,110/- along with interest or to replace the solar power system with a defect free one. Complainants are also seeking an amount of Rs.1,00,000/- as compensation.
4. Opposite party filed a version mainly contenting as follows:-
Complainant is not a consumer and hence complaint is not maintainable before this Commission. The solar power plant installed is for generation of solar power during day time and export of excess power produced to KSEB for sale. The solar power is also sold to the school and to the parish hall in the complainant’s premises through an agreement with the Kerala State Electricity Board. Since there is an allegation in the complaint that opposite party had cheated the complainant it amounts to criminal offence.
5. Opposite party has chosen the standard and quality components for the installation of the solar power plant at the premises of the complainant. The intelligent power control unit-10 KVA grid tie string series with MPPT technology used in the solar plant is manufactured by M/s REFUsol which is meeting the technical standards stipulated by the Ministry of New and Renewable Energy. The surge protection devices are provided as per Renewable Energy Standards and manufactured by standard brands M/s Hensel/ Hakel. Opposite party has also provided the warranty for each components issued by the original equipment manufacturers to the complainant and the warranty of 5 years against manufacturing defects given by the opposite party is subject to the said warranty provided by the original equipment manufacturers. Opposite party successfully installed the 7KW solar power plant in the premises of the complainant on 25-3-17. The solar modules in the solar power plant is producing Direct Current (DC) power which reaches the Power Control Unit (PCU) through a Direct current Distribution Board (DCDB). The PCU converts the DC power received to alternative current (AC) power as per the standards 415 volts of the KSEB main grid. This solar power plant is categorized as Grid- Tie which implies that the solar power plant would be producing electricity only when all 3 phases of KSEB is available. Every time when there is a grid failure it is recorded in the error history register of the PCU memory in order to smoothen the trouble shooting activities. The synchronization with the grid electricity is ensured to enable solar generated power exporting and sharing to the main grid at any point of time.
6. A complaint was reported for the 1st time on 03.09.19 after two and half years of the installation. Opposite party had deputed its service engineer Sri.Akhil C Chacko on 05.09.2019 and on inspection found that one of the grid phase was not reaching the PCU. On further inspection it was found that one of the grid phase is absent in the complainant’s premises, on examining the error history register of the PCU. Accordingly, complainant was informed to contact the KSEB for restoration of the failed grid phase. On 22-9-19 after 17 days, complainant had informed the opposite party that the failed grid phase under complaint was restored by the KSEB and still the power control unit of the solar plant was not functioning. Sri.Akhil C Chacko service engineer visited the premise. On inspection the failed grid phase was restored and on further inspection by opening the power control unit it was found that the relay inter phase unit was burned completely. Accordingly complainant was requested to send the entire unit to the Kakkanad office of the opposite party for forwarding the same to the service center of the manufacturer M/s REFUsol Gmbh at Pune. On receipt of the unit the entire power control unit was forwarded to the service center of REFUsol Gmbh and the same was delivered to the service center on 10-10-19. The service personnel at M/s REFUsol Gmbh evaluated the components and categorically reverted that the burn damage to the relay inter phase unit is due to excessive electricity surge at the AC side of the power control unit from the main grid. The surge is normally caused when there is lightning or such similar external force producing excess electrical energy to the electrical circuitry or grid line in the AC side. Since it was revealed that the cause of damage as the external surge of electricity from the main grid M/s REFUsol has pointed out that it is not covered under warranty and offered repair on payment basis. The KSEB 3 phase voltage is 415 volts plus or minus 10%. The metal oxide varistor provided in the PCU with rating of 600 volts is to protect any excess voltage from KSEB line. In this case there was surge voltage exceeding 600 volts causing burning of metal oxide varistor and causing damage to relay interface unit. Complainant was appraised of the aforesaid technical aspects and was offered installation of a standby system at the premises for energy production till the repair and installation. The stand by system received by the manufacturer is with the opposite party. It can be installed only on acceptance to pay the repair charges by the complainant. In spite of all the earnest efforts from the side of the opposite party complainant has not positively responded.
7. The averment that since the solar energy power generating unit is within the warranty period the same will be cured free of cost is absolutely false. The allegation of unfair trade practice and grave dereliction of service is also false. On receiving the customer complaint the opposite party promptly deputed the service engineer. The entire power control unit was forwarded to the service center of M/s REFUsol. REFUsol intimated that an amount of Rs.89,000/- is required as repair charges. Though it was intimated to the complainant they did not accept the payment of repair charges. M/s REFUsol had acted in terms of the warranty offered. The complaint is filed suppressing material facts. There was no mental agony, frustration, disgrace and inconvenience to the complainant. on getting notice a reply was sent on 23-01-2020 narrating the true facts and reiterating the offer to install the standby system in the premises provided complainant agrees to pay the replacement charges of Rs.89,000/- plus tax of the damaged parts. Complainant is not entitled for any relief and hence the complaint may be dismissed with compensatory cost.
8. On the above pleadings following points were raised for consideration:-
- Whether the complainant is a consumer?
- Whether the complainant is entitled to realize an amount of Rs.6,17,110/- along with interest being the value of a solar power plant. In the alternative whether the complainant is entitled to get an order to install a defect free system as prayed for?
- Whether the complainant is entitled to realize an amount of Rs.1,00,000/- towards compensation?
- Reliefs and cost?
9. Evidence in this case consists of the oral evidence of PW1 & PW2 and Exts.A1 to A4 from the side of the complainant and the oral evidence of RW1 and Ext.B1 to B12 from the side of the opposite parties. The commission report was marked as Ext.C1 and C1(a).
10. Point Nos.1 to 3
PW1 is the 2nd complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 to A4. During cross examination Ext.B1 and B2 were marked.
11. PW2 was the expert commissioner in this case. As per the order of the Commission on 05-3-21 he inspected the solar plant and prepared Ext.C1 report and C1 (a) photograph. During cross examination Ext.B3 to B8 were marked.
12. RW1 is the opposite party in this case. He filed an affidavit in tune with the version and marked Ext.B9 to B12.
13. On 25.03.17 opposite party installed a 7 KW solar power system at the premise of the complainant church for an amount of Rs.6,17,110/-. Opposite party had offered a warranty of 5 years for all the components of solar power system. On 3/9/19 the power system was found not working and the matter was informed to the opposite party on 03.09.2019. A service engineer of the opposite party visited the premises on 05-9-19 and on inspection it was found that one of the grid phase is not reaching he power control unit. After clearing the same again service engineer visited the spot and on inspection it was found that the inter phase unit was burned completely. Complainant was requested to forward the control unit at the office at Kakkanad. The said unit was sent to the manufacturer M/s REFUsol and on inspection they found that the damage is due to excess surge of electricity and cannot repair under warranty. REFUsol demanded an amount of Rs.89,000/- plus tax. Complainant sent a lawyer’s notice on 20-1-2020 demanding to return the amount along with compensation which was replied on 23-1-2020 stating that since the component was burned it cannot be repaired under warranty. Dissatisfied with the reply of the opposite party the complaint is filed for realising an amount of Rs.6,17,110/- along with interest or to replace the solar power system with a defect free one. Complainant is also demanding an amount of Rs.1,00,000/- as compensation. Opposite party filed a detailed version contenting that there was no deficiency of service from their part. Immediately on getting the complaint on 3-9-19 they sent a service engineer and it was found that there was no grid phase. Since the interphase unit was burned completely it was sent to REFUsol, the manufacturer. Since there was no warranty they can replace only the same on payment. The company demanded an amount of Rs.89,000/- plus tax which was not acceptable to the complainants. Hence according to them the complaint is only an abuse of process. Second complainant got examined as PW1 and Exts.A1 to A4 were marked. The expert commissioner was examined as PW2 and the commission report was marked as Ext.C1. From the side of the opposite party the managing director was examined as RW1 and Exts.B1 to B12 were marked.
14. The 1st contention raised in the version as well as in the argument note filed by the opposite party is that complainant is not a consumer as defined under Sec.2 (1) (d) of the Consumer Protection Act 1986. It was contented that the system was installed for generating 7 KW of power and it was meant for sale to KSEB. It was also contented that the complainant church sold the power to the school as well as to the parish hall. Sec.2 (d) (i) of the Consumer Protection Act reads as follows:-
Consumer means any person who-
- Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.
[Explanation:- For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.]
15. Admittedly the solar power project was installed for generating 7 KW of solar power. During cross examination PW1 admitted that they used to sell electricity to KSEB. However he denied that they sold power to parish hall and school. Ext.A2 is a letter sent by the opposite party to the 1st complainant the Vicar on 25-11-2016. The relevant portion of the letter reads as follows:- “ the type of the system proposed is gird – tie which will avoid the energy storage requirements and enable the excess energy exporting to the main grid managed by the KSEB as per the regulations. This synchronization with the gird electricity is ensured to enable solar generated power exporting and sharing to the main grid at any point of time. The cross examination of PW2 commissioner also shows that it was an on grid solar plant and the electricity generated can be sold to the KSEB. Power storage unit was also missing at the premises since it was connected directly to the KSEB line for sale. If that is so it is pellucid that the product was installed to the use of church and the excess electricity was sold to the KSEB through their grid.
16. The word “commercial purpose” is not defined in the Consumer Protection Act. However there are umpteen number of decisions of the Hon’ble Supreme Court stating that a straight jacket formula cannot be considered for commercial purpose and it will depend upon the facts and circumstances on each case. Here in this case the admission of PW1, the 2nd complainant, the evidence tendered by PW2 expert commissioner and the absence of storage equipment at the premises clearly shows that the excess electricity generated was sold to KSEB through their grid. If that is so it is crystal clear that the power plant was installed for the use of church as well as for sale of the excess electricity which is for profit making purpose. In such circumstances we are in respectful agreement with the learned counsel appearing for the opposite party that the complainants cannot take shelter under the head of consumer and so this Commission has no jurisdiction to entertain such a complaint.
17. Coming to the facts of the case admittedly the power plant was installed by the opposite party on 25.03.17 as per an agreement entered between the parties and they had collected an amount of Rs.6,17,110/- being the price of the same. It is also an admitted case that there was no problem for the power plant and only on 03.09.19 the matter was informed to the opposite party regarding the failure. On 5-9-19 a service engineer visited the premises and on inspection it was found that one of the grid phase is not reaching the power control unit. It was a three phase connection from the KSEB and the connection was restored. Thereafter the service engineer visited the premises and found that the rely interphase unit was burned completely. As per the request of the service engineer the unit was produced at the office of the opposite party at Kakkanad and it was sent to the service centre of M/s REFUsol which is at Pune. After inspection REFUsol informed that the damage occurred due to external surge of electricity. According to REFUsol it was not converd under warranty and so they demanded an amount of Rs.89,000/- plus tax to repair the unit which was not acceptable by the complainant. According to them opposite party had offered a warranty of 5 years and so they are entitled to get it repaired under warranty.
18. As per the request of complainant PW2 an expert commissioner was appointed to examine the unit. Accordingly he visited the premises on 5-3-21 and prepared Ext.C1 report. Ext.C1 report is strongly attacked by the learned counsel appearing for the opposite party. It was pointed out that though this Commission was directed commissioner (PW2) to inspect the system after giving notice to both sides inspection was done in the absence of opposite party. On getting information opposite party informed PW2 to give sufficient time to attend the premises at the time of inspection. Ext.C1 report is concluded as follows:- I may conclude my report and from point No.3,4 and 5 it is clear that the AC side (KSEB side) surge protection devices was not supplied by the EPC, M/s Green roof solar and they have not separated the AC and DC earthing. This is not the electrical standard and that is why OEM - M/s REFUsol, refused the warranty to EPC- M/s Green roof solar. But the end customer signed warranty with the EPC and paid for it also and has every right to avail it.
19. In a nut shell the absence of surge protection devices in AC side and the non standard combined earthing in AC side and DC side is the root cause of the system failure and the full responsibility of the failure lies with EPC- M/s Green roof solar and both the faults must be rectified before re-installing the system. However during cross examination PW2 admitted that the solar system was installed as per the circular issued by the chief electrical inspector. The learned counsel appearing for the complainant pointed out that the circular is dtd. 14.10.2020 and the system was installed during 2017. But both parties did not produce the earlier circular and so Ext.B4 circular is to be relied. Complainant could not prove that there was an earlier circular which is not in accordance with Ext.B4 circular. PW2 admitted in cross examination that there is inbuilt type 3 SPD provided in the REFUsol inverter. He also admitted that as per clause 19 of B4 if there is inbuilt SPD it is not necessary for an external SPD. Since PW2 admitted that there is inbuilt type SPD 3 provided inside REFUsol inverter it is not necessary for external SPD as per Ext.B4 circular. Hence it was pointed out by the learned counsel appearing for the opposite party that Ext.C1 report is against Ext.B4 circular of the electrical inspectorate. As stated earlier Ext.C1 report shows that the system got damage due to the absence of surge protection devices in AC side. But PW2 admitted that electricity can be sold to KSEB and it is directly connected to the grid. If that is so it is the duty of KSEB employees and electrical inspectorate to inspect the project. So from the evidence on record it can be seen that necessary precautions were taken at the time of installing the solar project. The REFUsol inverter got damage since there was excess power. Metal oxide varistor got damage due to the surg in voltage. As pointed out by the learned counsel appearing for the opposite party, opposite party is not responsible for the same and so he has no liability to pay the amount or to repair the same. Admittedly the project was installed on 25-3-17 and it was working without any problem till 3-9-19. As per the settled law since the system was working for more than 2 ½ years it is not possible to direct the opposite party to return the amount or to supply defect free one. The only direction which can be given is only to repair the same free of cost within warranty period. However in this case the manufacturer M/s REFUsol had informed that the defect occurred due to surg in voltage exceeding 600 volts and so they have no liability to repair the same free of cost. In such circumstances we are of the opinion that complainant is not entitled to get any relief as prayed in the complaint and so the complaint is only to be dismissed. These points are found accordingly.
20. Point No.4
In the result complaint is dismissed. Parties are directed to bear their respective cost.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 10th day of December, 2021.
Sd/-Sri.S.Santhosh Kumar (President)
Sd/-Smt. P.R Sholy (Member)
Appendix:-Evidence of the complainant:-
PW1 - Thankachan.C.V (2nd Complainant)
PW2 - George C. Karamel(Expert Commssioner)
Ext.A1 - Copy of Service Agreement
Ext.A2 - True copy of configuration, estimation, maintenance etc.
Ext.A3 - True Copy of Lawyer’s Notice
Ext.A4 - True copy of Reply notice
Evidence of the opposite parties:-
RW - Sijo Varghese(MD, Op)
Ext.B1 - Service/Maintenance Report dtd.5/9/2019
Ext.B2 - Service/ Maintenance Report dtd. 25/9/2019
Ext.B3 - True copy of Sketch
Ext.B4 - True copy of circular dtd. 14/10/2020
Ext.B5 - True copy of Notification dtd. 30/9/2013
Ext.B6 - Copy of Conformity Declaration, Certificate etc..
Ext.B7 - Copy of Service Report
Ext.B8 - Copy of written submission
Ext.B9 - Docket
Ext.B10 - Letter
Ext.B11 - Letter dtd. 25/11/2016
Ext.B12 - Warranty Certificate
Ext.C1 - Commission Report
Ext..C1(a) - Photograph
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Compared by:-
