D.O.F. 09.04.2010
D.O.O.01.03 .2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Smt. M.D.Jessy : Member
Dated this the 1st day of March 2012
C.C.No.106/2010
V.K.Hussain,
‘Shahra’
Pullambil Road, Chalakkara,
Thalassery Complainant
(Rep. by Adv.M.P.Roopesh)
1. Propreietor,
Liang Global Business,
Jyothi Nivas, Mattanur Road,
Melechovva, Kannur 6.
2. Shyla Mohan
Sales Representtive,
Liang Global Business,
Jyothi Nivas, Mattanur Road,
Melechovva, Kannur 6.
(Rep.by Adv.E.Mohd.Shafi) Opposite parties
O R D E R
Sri.K.Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to give 500V and 100 AH inverter and battery to the complainant and to pay a sum of `5,000 as damages.
The brief facts of the case are as follows: Complainant purchased 500 V Battery and 100 AH inverter on 25.4.2005 from 2nd opposite party by home delivery for a consideration of `10,750 with 3 years replacement guarantee. He further promised that the inverter will work for seven hours continuously and can use 4 tubes, 2 fans, TV and mixie at a time. But in practice it could be used for only 1 hour continuously that too for two tubes, 1 fan and Mixie complainant several time complained to opposite party directly and through Telephone. But they did not take any care and hence caused legal notice on 13.4.2008 to replace the inverter and battery. But it was not replied. Hence this complaint.
Pursuant to the notice opposite parties 1 & 2 entered appearance and filed version contending as follows: Complainant purchased 500V Inverter and 100 A Battery. Complainant wrongly mentioned it as 500 V battery and 100 AH inverter. The allegation that the opposite parties cheated the complainant by giving 80A battery instead of 100A is false and baseless. Complainant purchased the 500V inverter and 100A battery by confirming the same and satisfying all the terms and conditions. Opposite party never promised that the inverter will work 7 hrs continuously. They promised that the said inverter will work for 1.45 hr and can use 4 tube, 2 fans and TV at a time. Complainant did not make any complaint to opposite party. The dispute arosed long back in the year 2005. Issuing lawyer notice will not affect the question of running limitation. He has approached Forum not with clean hands. He has enjoyed the full benefit of usage of the product for a period of normal expected life of the same for which the product was offered defect free performance. There is no deficiency of service or unfair trade practice on the side of the complainant. Hence to dismiss the complaint.
On the above pleadings the following issues have been taken for consideration.
1. Whether the complainant is filed within the period of
limitation?
2. Whether there is any deficiency in service on the part of
opposite Parties?
3. Whether the complainant is entitled for the remedy as
prayed in the complaint?
4. Relief and cost.
The evidence consists of the oral testimony of PW1, DW1 and Exts.A1 to A4.
Issue Nos.1 to 3
Admittedly complainant purchased inverter and battery from 2nd opposite party on 25.4.05. Complainant’s case is that he has purchased 500V battery and 100 AH inverter. He has also case that he was cheated by giving 80ABattery instead of 100 A.H. His further case is that he was promised that the inverter would work for seven hrs. continuously and can use for four tubes, 2 fans, TV, Taxi and mixie but it could be used only for one hour continuously and carrying only two tubes, 1 fans and the mixie is not all working.
Opposite parties on the other hand contended that opposite party had sold the 500 V inverter and 100A battery to the complainant. Opposite party never promised that the inverter will work for 7 hours continuously. Opposite parties promised that the said inverter will work for 1.45 hr. and can use 4 tube, 2 fans and TV at a time. This complaint is not filed within the limitation period.
The 1st question that arose for consideration is whether the complaint is filed within the limitation period or not. Admittedly the alleged products purchased by the complainant on 25.4.2005. Complaint filed on 9.4.10. It tooks five years time to file the complaint. Opposite party raised the question of limitation. Complainant has given no explanation in affidavit evidence. In the cross examination complainant deposed that “ 100 ampere hm§n-sb-¦n-epT 80 ampere am{X-ta-bp-ff F¶m-Wv ]-cm-Xn. AXp a\-Ên-em-¡n-bXp 2006 emWv. 2006  DSs\ \nb-a-\-S-]-Sn kzo-I-cn-¨n-«nÃ. Dt±-in¨ coXn-bn-ep-ff operatives Dm-bnà F¶p ]e ka-b-§-fn-em-bmWv a\-Ên-em-¡n-b-Xp. 2006emWv a\-Ên-em-¡n-b-Xp. AXn\p \nb-a-\-S-]-Sn-k-zo-I-cn-¨n-«n-Ã. Ahsc And-bn-¨n-cp-¶p. current t]mbn work sN¿m-¯-t¸m-tgms¡ hnfn-¨n-cp-¶p.”. This evidence makes it clear cause of action arose in the year 2006. The only justification for the long delay in filing complaint is that he had the legal notice on 13.4.2008 and limitation starts from the date of notice. The date of sending notice in the present complaint has nothing to do with the date of running limitations. The right of action accrued to complainant in the year 2006 itself and there after on the date of expiry of guarantee on 25.4.2007 as per Ext.A2. Then there is no reason legally justifiable to file after a long delay in the year 2010 only. Hence this is a case filed beyond the limitation period.
The next point that is to be considered on the merit side is the question with regards to what is actually promised by the opposite party. Complainant alleged that the product has three years warranty and further alleged that the inverter will work for seven hours continuously and can use 4 tubes, 2 fans, TV and mixie at a time. He has alleged that opposite party cheated by giving 80A battery instead of 100A. Whereas the case of the opposite party is that complainant purchased 500V inverter and 100A battery by confirming the same and satisfying all the terms and conditions. The 2nd opposite party promised that the inverter will work for 1.45 hr. and can use 4 tubes, 2 fans and TV at a time. The allegation that complainant was cheated by giving 80 A battery instead of 100A is false and baseless. Complainant stated in affidavit evidence in line with his pleadings. But he has not given supporting evidence so as to confirm those promise were given by the 2nd opposite party. Ext.A1 is the purchase bill. Ext.A1 dated 25.4.05 shows that complainant has purchased Index Inverter 500V and 100A tubular battery.Ext.A2 is the guarantee card for the inverter and battery for a period of 12 months. It also shows the invoice date 25.04.05. This complaint filed on 9.4.2010. It shows he has not made any complaint during warranty period. Even the lawyer notice had been sent only on 13.4.08 that is three years after the purchase. He has admitted in cross examination that he had been realized fact that he was given only 80A battery instead of 100A in 2006. He has deposed “100 A batteryhm§n-sb-¦n-epT 80A am{X-ta-bp-ffq F¶mWv ]cmXn AXp a\-Ê-e-em-¡n-bXp 2006 emWv. Dt±-i-n¨ coXn-bn-ep-ff operation Dm-bnà F¶p ]e ka-b-§-fn-em-bm-Wv a\-Ên-em-¡n-b-Xp. .2006 emWv a\-Ên-em-¡n-b-Xp. AXn\p \na-b-\-S-]Sn kzo-I-cn-¨n-«nÔ. It makes clear that complainant admits that he was aware of all the defects in the year 2006 But he has not taken any legal action then and there. It took three years to sent a legal notice and there from 2 years to file this complaint. It is also revealed that complainant has been using this inverter and battery throughout continuously one hour 2 tubes and one fan. If it was used for a long time without making any complaint that only means he was satisfied with the materials for such a long period after the purchase. If it was not in performance in accordance with the offer he has to adduce evidences to that affect. He is in possession of the catalogue. It would show what exactly the capacity of the inverter and battery and how long it will work continuously. In the cross examination PW1 deposed that there is catalogue for battery and inverter. But he has not produced it. He has no case that catalogue has not been given to him. The case of the opposite party is that they have promised that the said inverter will work for 1.45 hr. Then the burden lies up on the complainant to prove that it was promised for a continuous period of 7 hours use.
Complainant miserably failed to prove his case by adducing cogent and clear evidence. He could not establish what exactly promised by the opposite parties and what s the actual capacity of the inverter and battery.
In the light of the above discussion we find that the complainant failed to prove deficiency in service on the part of opposite parties and hence the issues 1 to 3 are found against complainant
In the result, the complaint is dismissed.
Sd/- Sd/- Sd/-
Member Member President
APPENDIX
Exhibits for the Complainant
A1.Purchase agreement issued by the OP
A2.Guarantee card for inverter issued by OP
A3. Copy of the lawyer notice sent to OP
A4.Postal AD
Exhibits for the opposite parties: Nil
Witness examined for the complainant
PW1.Complainant
Witness examined for the opposite parties
DW1.Sujeer Nambiar
/ forwarded by order/
Senior Superintendent
