KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 737/2003

JUDGMENT DATED:  24-11-2009

PRESENT:

SHRI. M.V. VISWANATHAN                            : JUDICIAL  MEMBER

SHRI. M.K. ABDULLA SONA                  :  MEMBER

APPELLANT

Kurian Nicholas, S/o K.N. Nicholas,

“Anathanam”,

Choollikunnu Estate, Tharisu P.O.,

Karuvarakundu, Malappuram District.

(Rep. by Adv. Sri. C.M. Andrews & Shaji P. Abraham)

                        Vs

RESPONDENTS

1.      The Director, ‘ANERT’

            P.B. No. 1094, Kesavadasapuram,

            Pattom P.O., Thiruvananthapuram –4.

2.         The Project Officer (IRED)

            ‘ANERT” (Areacode Block), Edanattu House,

            Areacode (Via), Malappuram District – 673 639.

3.         The Senior Manager (Installation & Servicing Department)

            Renewable Energy Systems Ltd.,

            D-52, Phase-V, IDA, Jeedimetta, Hyderabad – 500 055.

JUDGMENT

SHRI. M.V. VISWANATHAN         : JUDICIAL  MEMBER

                    The above appeal is preferred from the order dated 30^th  April, 2003 passed by CDRF, Malappuram in OP. No. 255/2001.  The complainant in the said original petition was filed by the appellant herein against the respondents/opposite parties alleging deficiency in service in the sale, supply and after sale service of the Solar Water Pumping System.  The complainant alleged defect in the Solar Water Pumping System and that the opposite parties failed to rectify the defects in the said system.  Hence the compliant was filed for getting the defective Solar Modules (12 in numbers) replaced.  In the alternative to pay the present market value of the Solar Modules with compensation of Rs. 10,000/- and costs.

2.          The opposite parties 1 and 2 entered appearance before the Forum below and filed joint written version denying the alleged deficiency in service on their part.  They contended that the first opposite party is a government agency engaged in propagating the special programmes launched by the Ministry of Non Conventional Energy Sources (MNES) in distributing Solar Photovoltaic Water Pumping System to necessary end users in Kerala; that under the said scheme the system was supplied to the users at subsidized rates; that the subsidy to the Solar Water Pumping System has been extended to the 3^rd opposite party, the manufacturer and seller of the system under the sponsorship of Ministry of Non Conventional Energy Sources, that the second opposite party is only an officer working under the first opposite party at the project office.  That there was no privity of contract between the complainant and the opposite parties 1 and 2; that the amount of Rs. 37,500/- collected from the complainant is given to the 3^rd opposite party towards the purchase price under a sale-cum-lease scheme; that as per the said scheme the 3^rd opposite party has executed an agreement of sale with the complainant and that the complainant has also executed a loan agreement with the 3^rd opposite party, the manufacturer and seller of the Solar System; that the 3^rd opposite party has provided to the complainant the installation and instruction manual for the Solar Water Pumping System and the sale deed, sale invoice, bill of materials and delivery chalan duly countersigned by the complainant.  The role of the second opposite party was limited to the extent of identifying the end users and that is done on a non profit motive.  As per the agreement of sale executed between the complainant and the 3^rd opposite party, it is specifically agreed that the system will be periodically inspected by the representatives of the 3^rd opposite party.  Only the 3^rd opposite party is liable to compensate the loss, if any, sustained by the complainant.  The opposite parties 1 and 2 are not liable to compensate any loss sustained by the complainant for the laches on the part of the 3^rd opposite party.  Hence they prayed for dismissal of the complaint filed against them.

3.          3^rd opposite party remained absent and set exparte.

4.          Before the Forum below, no evidence was adduced from either side.  Based on the pleadings, facts and circumstance of the case, the Forum below passed the impugned order directing the 3^rd opposite party to replace the unit supplied by the 3^rd opposite party with a defect free unit (Solar Modules 12 in Nos.) by erecting the same at the premises of the complainant.  The 3^rd opposite party is also directed to pay costs of Rs. 2,000/- to the complainant.  But the complainant is not satisfied with the impugned order passed by the Forum below exonerating the opposite parties 1 and 2.  Hence the present appeal is filed to modify the impugned order, thereby to make all the opposite parties including opposite parties 1 and 2 jointly and severally liable to replace the defective Solar Water Pumping System and to compensate the complainant.

5.          When this appeal was taken up for final hearing, there was no representation for respondents 1 to 3 (opposite parties 1 to 3).  We heard the learned Counsel for the appellant/complainant.  He submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He argued for the position that the Solar Water Pumping System was installed at the premises of the appellant/complainant at the instance of opposite parties 1 to 3 and that the consideration of Rs. 37,500/- was paid by the complainant to the first opposite party and so the opposite parties 1 and 2 cannot be absolved from the liability to compensate the complainant.  Thus, the appellant requested to modify the impugned order passed by the Forum below and thereby to make the opposite parties 1 and 2 (respondents 1 and 2) also liable to redress the grievance of the complainant (appellant).

6.          The points that arise for consideration are:

1.                Whether the appellant/complainant can be considered as a consumer as far as the respondents 1 and 2 (opposite parties 1 and 2) are concerned?

2.                The request of the appellant/complainant to make the respondents 1 and 2 (opposite parties 1 and 2) also liable along with the 3^rd respondent (3^rd opposite party) to get the grievances of the complainant redressed can be allowed?

3.                Is there any legally sustainable ground to interfere with the impugned order dated 30-04-2003 passed by the CDRF, Malappuram in OP No. 255/01?

7.          Point Nos. 1 to 3:  The first respondent/first opposite party is the Director, Anert (agency for Non Conventional Energy Sources) and that the first opposite party is a government agency engaged in propagating the special programmes launched by the Ministry of Non Conventional Energy Sources.  The second opposite party is the Project Officer working under the first opposite party.  The case of the appellant/complainant is that he purchased the Solar Water Pumping System as per the advertisement made by the first opposite party.  It is also admitted by the appellant/complainant that as per the said advertisement the Solar Water Pumping System worth Rs. 2,25,000/- was obtained by the complainant at a subsidized price of Rs. 37,500/-.  The definite case of the respondents 1 and 2 is that they are only government officials engaged in implementing the programmes launched by the Ministry of Conventional Energy Sources and under the said scheme the Solar Photovoltaic Water Pumping System was supplied through the 3^rd opposite party on a subsidized rate.  It is also the definite case of the respondents 1 and 2 that under the said scheme they only selected the beneficiaries under the scheme and thereby the appellant/complainant was also selected as one of the beneficiaries and thereby subsidy was given for obtaining the Solar Water Pumping System.  It is also contended by the opposite parties that the said Solar Water Pumping System was manufactured and sold by the 3^rd opposite party under the sponsorship of Ministry of Non Conventional Energy Sources through Indian Renewable Energy Development Agency Ltd. (IREDA), a Government of India agency by providing financial assistance to the 3^rd opposite party.  The further case of the respondents 1 and 2 is that there was a sale-cum-lease scheme and an agreement of sale executed between the complainant and the 3^rd opposite party (3^rd respondent) and as per the said agreement, the 3^rd opposite party agreed for the sale, installation and commissioning of the Solar Water Pumping System and its maintenance and the guaranty was also given for the said system by the 3^rd opposite party.  It is specifically contended that respondents 1 and 2 in their written version that they rendered service free of charge and there was no motive to make profit.  The fact that Rs. 1,000/- by way of advance and Rs. 36,500/- towards the balance amount were collected from the complainant by the first opposite party is admitted in their written version.  But it is also specifically contended that the said sum of Rs. 37,500/- was collected from the complainant and towards the part payment and the same along with the subsidy were given to the 3^rd opposite party towards the sale consideration.  It is to be noted that the respondents 1 and 2 (opposite parties 1 and 2) are only government officials engaged in propagating and promoting the programmes launched by the government agency namely Ministry of Non Conventional Energy Sources and that they selected the beneficiaries eligible for getting the subsidy.  It is also specified in their written version that the 3^rd opposite party being the manufacturer and seller of the Solar Water Pumping System sold, supplied, installed and commissioned the Solar Water Pumping System at the premises of the appellant/complainant by virtue of the agreement entered into between the appellant/complainant and the 3^rd respondent/3^rd opposite party.  The execution of agreements with the 3^rd opposite party has been admitted by the complainant.  The appellant/complainant has also admitted the fact that the Solar Water Pumping System was installed and commissioned by the 3^rd opposite party at his premises.  The mere fact that the second opposite party, the Project Officer working under the first opposite party visited the premises of the complainant cannot be taken as a ground to hold that the said Solar Water Pumping System was installed under the supervision of the opposite parties 1 and 2.  Considering the facts and circumstances of the case, it can be concluded that the respondents 1 and 2 (opposite parties 1 and 2) are government officials engaged in propagating and promoting the programmes launched by the Ministry of Non Conventional Energy Sources cannot be treated as service provider as far as the appellant/complainant is concerned.  There is nothing on record to show that the respondents 1 and 2 effected sale and service of the Solar Water Pumping System to the complainant.  The Forum below can be justified in exonerating the opposite parties 1 and 2 from the liability.

8.          There is nothing on record to show that respondents 1 and 2 effected sale of the Solar Water Pumping System.  The complainant has not adduced any evidence to connect the opposite parties 1 and 2 with respect to the sale, supply, installation and commissioning of the Solar Water Pumping System at the premises of the complainant.  The burden is upon the complainant to establish that there was a seller or service provider relationship with opposite parties 1 and 2.  No evidence is forthcoming from the side of the complainant to show that there was a consumer – service provider or seller relationship between the complainant and opposite parties 1 and 2.  There is nothing on record to show that the complainant availed the services of the opposite parties 1 and 2 for consideration.  There is also nothing on record to hold that the opposite parties 1 and 2 acted with profit motive or they rendered any service or effected sale of any property for consideration.  On the other hand, the admitted facts would show that the Solar Water Pumping System was manufactured by the 3^rd opposite party and that agreement for effecting sale and service with  respect to the Solar Water Pumping System was executed between the complainant and the 3^rd opposite party.  On the other hand, no such agreement had been entered into between the complainant and opposite parties 1 and 2.  The facts and circumstances would only show that the opposite parties 1 and 2 being the government officials engaged in propagating and promoting the programmes launched by the Ministry of Non Conventional Energy Sources and that they acted as a government agency by selecting the beneficiaries including the complainant.  The mere fact that the opposite parties 1 and 2 collected a sum of Rs. 37,500/- from the complainant cannot be taken as a ground to hold that the sale of the Solar Water Pumping System was effected by opposite parties 1 and 2.  It is categorically contended in the written version that the sale invoice, sale bills, instruction manual etc. were supplied by the 3^rd opposite party to the complainant and that the complainant issued receipt for accepting the same.  Those statements have not been denied by the complainant.    The complainant has not entered the witness box to depose against the aforesaid contentions raised by the opposite parties 1 and 2.  In fact, there is no piece of paper available on record to connect the opposite parties 1 and 2 in support of the case of the complainant that the Solar Water Pumping System was sold by the opposite parties 1 and 2.  The facts and circumstances of the case would only show that the Solar Water Pumping System was sold and installed by the 3^rd opposite party and the agreement was also entered into between the complainant and 3^rd opposite party.  If that be so, it can very safely be concluded that there was no consumer-service provider/seller relationship between the complainant and opposite parties 1 and 2.  So, the Forum below has rightly exonerated the opposite parties 1 and 2 from the liability.  Based on the facts and circumstances of the case, it has been held that the 3^rd opposite party is liable to redress the grievances of the complainant.  So, the impugned order passed by the Forum below exonerating the opposite parties 1 and 2 is to be upheld.  Hence we do so.

          In the result, the appeal is dismissed.  The impugned order dated 30-04-2003 passed by the CDRF, Malappuram in OP No. 255/01 is confirmed.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs.

                                              M.V. VISWANATHAN   :   JUDICIAL MEMBER

                                       M.K. ABDULLA SONA :     MEMBER

Sr.