D.O.F. -  07-05-2012

D.O.O. -  24-01-2014

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

                   Present: Sri.K.Gopalan                   :    President

                                 Smt.Sona Jayaraman.K    :    Member

                                 Sri. Babu  Sebastian         :    Member

                         Dated this, the 24^th day of  January 2014.

                                 CC.No.143/2012

Dr. V. Abdulla,

“Firdous’,

Mathiparanmba,

Peringathur (PO),                                              :   Complainant

Thalassery,

Kannur (Dt.),

Pin -670 675.

(Rep. by Adv. O.K. Dinaraj )

1. The Proprietor,

         Elite Engineering Company,

         Opp. Telephone Bhavan

        Annie Hall Road,

        Calicut – 673 002.

1. The Managing Director,

         Champ Energy Ventures

         Private Limited,                                        :   Opposite parties                                

Plot No.7,

Gat No.399/1-2-3

Village Bhare,

Tal-Mulshi (Dt.),

Pune – 412 106.

        (Rep..by Adv. N. Rajendra Babu)

O R D E R

Smt. Sona Jayaraman.K, Member

        This is a complaint filed Under Section 12 of The Consumer Protection Act  to direct the opposite party No. 1 and 2 to pay ` 1,10,000 with interest along with compensation.

The case of the complainant in brief is as follows: 

The complainant  has purchased a Champ Generator, from opposite party No.1 who was the authorized dealer of opposite party No.2, with automatic turn over switch to be installed at his residence for ` 90,000 as per the quotation.  The generator was transported, delivered and installed by the authorized technician of opposite party No.1 at the residence of complainant and he has received an amount of `2,700 towards installation charges.  An amount of `5,000 was given in advance to the opposite party No.1 and  `80,000 was given on 16-11-11, i.e., on the date of purchase.  Balance amount of `5,000 was given on the date of delivery.  After installation it was found that the generator was not working.  When enquired with the technician  he told that there was a minor defect and it will be rectified within two days.  But the technician has not come to rectify the defect.  So the complainant informed the defect to the 1^st opposite party and asked him to rectify the same.  Although complainant contacted the opposite party No.1 several times he has not taken any effort to rectify the defect.  Then the complainant issued lawyer notice to the opposite parties to rectify the defect or to take necessary steps.  1^st opposite party has acknowledged the notice.  But he has neither taken any steps to rectify the defect nor send any reply.  Opposite party No.2 has contacted the complainant  and took necessary steps.  Only then the complainant came to know that opposite party No.1 has connected automatic change over switch  as extra fitting to the generator and the generator can work manually without that switch.  So the act of the opposite parties amounts to unfair trade practice and deficiency in service.  Hence this complaint.

After receiving the complaint, Forum sent notice to opposite party.  Opposite party has appeared and filed version with a plea of non-joinder of necessary parties.  So opposite party No.2 was later impleaded.  Although opposite party No.1 has filed their version they have not adduced any evidence.

          As per the version of opposite party No.1, they admits the sale of generator.  But according to them the change over switch was not a part of the generator and it was connected to the generator to help the complainant.  They further contended that they have not received the full amount towards the purchase price of the generator and this complaint is filed to avoid the payment of balance amount of `5,000 to the opposite party No.1.  As the generator is not having any complaint in functioning manually they are not entitled to pay any compensation and the complaint has to be dismissed.

          After serving notice opposite  party No.2 has sent a letter seeking adjournment.  But they have not appeared before this Forum.

          Here the main point to be considered is whether there was any deficiency in service from the part of opposite parties.  If yes, what is the remedy.

          The evidence in this case consists of the chief affidavit of the complainant and Ext. A1 to Ext. A12 and Ext. C1.

          Admittedly the complainant has purchased generator from opposite party No.1.  According to the complainant he has asked for a generator which will operate automatically and the opposite party No.1 has sold the generator to the complainant by making him believe that the generator will operate automatically.  The opposite party No.1 has contended in his version that the automatic change over switch is not a part of the generator and it has been purchased separately and it was fitted for the convenience of the complainant.   According to opposite party No.l it has been informed to the complaint at the time of purchase itself.  But as per Ext. A1 quotation it can be seen that the generator was described as “Champ  make 3 KVA petrol/gas A.C. generator including automatic arrangement with site delivery.”  So the description “including automatic arrangement” makes it clear that the 1^st opposite party has not informed the complainant that the automatic switch over is not a part of the generator.  So the contention of 1^st opposite party is devoid of merit.  The act of the 1^st opposite party in selling a generator by misrepresenting fact is an unfair trade practice from their part.  Moreover it can be seen that complainant has sent a lawyer notice, i.e., Ext. A5 stating all these facts.  But the 1^st opposite party has neither send any reply nor send any technician to rectify the defect.  These acts show the  deficiency in service from the side of first opposite party.

          At the same time opposite party No.2 has sent a technician to inspect the generator after getting the Ext. A8 notice.  The Field Engineer of opposite party No.2 has stated that the generator was not working because of the connection of automatic change over switch to the generator.  The generator started manually after removal of the switch.  According to opposite party No.2 the switch is not manufactured by them and it was an extra fitting done by opposite party No.1.  The reply notice sent by opposite party No.2 alongwith expert report  is marked as Ext. A10.  As per Ext. C1, Commission report generator is found to be in working condition and the change over switch is not working in  L.P.G. mode.  So it can be decided that the generator is not having any manufacturing defect.  Opposite party No. 2 is the manufacturer of the generator.  Here it can be seen that opposite party No.2 has acted promptly and swiftly  after receiving the notice of complainant.  The acts of opposite  party No.2 shows that there is no deficiency in service from their part.

          The contention of opposite party No.1 that the complainant has not paid the balance amount o f` 5,000 is unbelievable. It can be seen that the complainant is having documents  to show the payment of ` 85,000 towards the purchase price and the receipt issued by technician towards receipt of installation charges.  So it can be presumed that the complainant has paid the total purchase price.  It must also be noted that opposite party No. 1 has not taken  any steps to prove their case.  Mere filing of version will not  prove the case.  So all the acts and defaults of opposite party  No.1 proves that there is deficiency in service from the part of opposite party No.1 and they have done unfair trade practice also.

          Now the question to be considered is what is the remedy. Ext. A12 document shows that the complainant has purchased an inverter for his personal use.  So he does not need the generator.  Complainant was constrained to buy the inverter due to the deficiency in service from the part of opposite party No.1.  So opposite party No.1 is liable to refund the purchase price of  `90,000 alongwith installation charge of `2,700 to the  complainant.  It can be seen that the acts and defaults of opposite party No. 1 has caused mental agony to the complainant.  So opposite party No.1 is liable to pay an amount of `10,000 towards compensation alogwith litigation cost of ` 1,000.  Hence order passed accordingly.

          In the result, the  complaint is partly allowed  directing the opposite party No.1 to refund the purchase price `90,000 alongwith installation charge of  `2,700 to the complainant  together with an amount of `10,000 towards compensation and an amount of `1,000 as cost of the litigation within one month from the date of receipt of this order, failing which the complainant is  entitled for interest @ 9% from the date of this order till realisation of the amount.  On receiving the above said amount complainant shall return back the generator to opposite party No.1.  Complainant is also at  liberty to execute the order  as per The Provisions of the   Consumer Protection Act.

                   Dated this, the 24^th day of January 2014

                                Sd/-            Sd/-              Sd/-

                              President     Member          Member

APPENDIX

Exhibits for the complainant

A1-   Quotation  of O.P.

A2-   Advance receipt dated 19-10-11

A3 -  Invoice dated 16-11-11

A4 -  Generator fitting charge  receipt                                                       

A5 -  Copy of the lawyer notice dated 24-12-11

A6-   Postal receipt

A7-   A.D Card dated 30-12-11

A8-   Copy of the Registered lawyer notice to the Managing

         Director , Champ Energy Venture Pvt. Ltd.

A9-    Postal receipt dated 28-01-2012

A10-  Reply Letter from the  Director, Champ Energy Ventures Pvt. Ltd.

          Dated 17-2-2013.

A11-  Receipt of  F. Nidha Battery House dated 31-10-12

A12-  Order form F. Nidha Battery House dated 19-10-12.

Exhibits  for the opposite party

Nil

Exhibits for the Court

C1-  Inspection report

Witness examined for the complainant

Nil

Witness examined for opposite party

Nil

                                                       //Forwarded by Order//

                                                      SENIOR SUPERINTENDENT