DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 7th day of August, 2023
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 11/04/2019
CC/111/2019
Devayani P.V.,
SD Plaza, KTC stop,
Kanjikkode, Palakkad – 678 623 - Complainant
(By Adv.Ullas Sudakaran)
Vs
- Proprietor,
Neeraj Akshaya Urja Shop,
Crystal Centre, Chathapuram,
Palakkad
- Proprietor,
V-Tech Solutions,
Door No.35/642(12),
Matha Nagar, Vadakkanthara Post,
Palakkad – 678 012
- Manager,
V Guard Industries Ltd.,
Vennala, Cochi – 682 028 - Opposite parties
(OPs 1 & 2 set exparte
OP3 by Adv.Santhosh T)
O R D E R
By Sri. Vinay Menon V., President
- The complainant claims to run a lodge. She purchased a V Guard Water Heating System on 8/6/2017 for Rs.49,000/- from the first OP. The heating system manufactured by the 3rd OP had to be replaced twice in view of developing leakage. During the month of March 2019, in response to a complaint made before the O.P.3, they replied that as the complainant was not interested in paid services the complaint was cancelled. The system was not working due to poor quality of storage tank. Aggrieved thereby this complaint was filed.
- OPs 1 & 2 did not enter appearance and were set exparte.
- OP3 filed version contenting that the complainant was not a consumer as contemplated under the Act since the lodge was a high end one and the transaction was purely commercial nature. The tank developed leakage due to the water that was being used did not confirm to the desired parameters and proved to be harmful to the inner body of the tank. The complainant agreed by way of an under taking that the leakage caused due to the poor inlet quality of water. There are no defects whatsoever. Tank leakage and repairs due to scale formation was connected to hard water supply. Hence the complaint is only to be dismissed.
- The following issues were framed for consideration:
- Whether the transaction between the parties herein is a commercial transaction that bars the jurisdiction of this Commission?
- Whether leakage of the tank is attributable to the water condition?
- Whether there is any deficiency in service / unfair trade practice on the part of OP in repudiating the claim?
- Whether the complainant is entitled to any reliefs sought for?
- Any other reliefs?
5. (i) Complainant filed proof affidavit and marked Ext.A1 to A4.
(ii) OP filed proof affidavit and marked Exts. B1 to B6.
Ext.B1 series is objected to on the ground that they are print out of photographs. This Commission is of the opinion that there are some merits in the objections as the photographs are not clear. Hence Ext.B1 series is rejected.
Ext.B2 is objected to as it is a print out from some website. Admissibility of this evidence can be considered at the time of discussion on issue No.1.
Ext.B3 is objected to on the ground that it is a photocopy and original is produced by the complainant.
B4 & B5 are objected as they are scanned copies of certificate of analysis issued by a private lab. The complainant has no case that Exts.B4 & B5 are forged or concocted documents. Their only case is that these documents are scanned copies. Even if they have any case regarding the validity of contents therein, the complainants had not taken any step to examine the person who issued Exts.B4 & B5. Hence objection of complainant with regard to marking of Ext.B4 & 5 are overruled.
Ext.B6 is objected to on the ground that it is a photocopy and it is not complete and that one page is missing. In order to allay this objection the opposite party No.3 filed the original of Ext.B6. Hence this objection is overruled.
(iii) Report of the technical experts was marked as Ext.C1.
(iv) Report of the quality controller, KWA is marked as Ext.C2.
Issue No. 1
6. The preliminary objection of the OP with regard to the complaint was that the appliance was purchased by the complainant for generating profit as the lodge for which the heating system was purchased was a high end lodge and they had very high revenue generation. O.P.3 therefore contented that the entire transaction was of a commercial nature and therefore barred the jurisdiction of this Commission.
7. It can be seen that the complainant did not purchase the water heater for generating profit or for resale. Even though hot water is being provided for the convenience of the residents, the heating system does not per se generate income or profit. Hence it cannot be said that the purchase of heating system was of commercial in nature.
8. There is no bar in the Commission adjudicating this complaint.
Issue No. 2
9. Crux of the dispute between the parties can be decided if we can ascertain the nature of water that was being used in the heating system. Ext.A2 is the user’s manual. Page 8 shows the normal inlet water quality standards. In order to ascertain the nature of water that was being fed into the system we are faced with the task of ascertaining which of the three reports, namely Exts. C2, B4 or B5, reflect the correct value. It would be advisable to go for a tabular depiction of results.
Sl. No. | Description | Ext. A2 (User’s Manual) | Ext.B4 (Analysis dtd. 1/1/2019) | Ext.B5 (Analysis dtd 25/3/2019) | Ext.C2 (Analysis dtd.2/6/22) |
1 | pH | 6.5 - 8.5 | 6.99 | 6.83 | 7.39 |
2 | Total Hardness | 300 ppm (Max) | 376 | 348.33 | 280 |
3 | Alkalinity | 200 ppm (Max) | 277.2 | 301 | 271.70 |
4 | Total dissolved solids | 500 ppm (Max) | 728 | 975 | 658.60 |
5 | Chloride | 200 mg/l (max) | 309.9 | 310.83 | 169.75 |
10. At the time of argument counsel for the complainant argued that since Exhibits B4 & B5 being issued by private service provider and Ext.C2 being issued by KWA, findings in Ext.C2 would prevail over Ext. B4 and B5 and the same has to be taken into consideration. Ext.C2 was prepared on 2/6/2022, approximately 3 years after the complaint arose. Exts. B4 & B5 are more proximal to the date of complainant than Ext.C2. Nature of contents of water being subject to a lot of factors like underwater mineral contents and oozings, and as suspended particles varies with efflux of time, it would be appropriate to rely on the findings in Ext.B4 and B5. Findings in Ext. B4 & B5 cannot be disregard or rejected merely because they were issued by a private agency in the absence of any evidence disproving the entries therein.
11. A perusal of the schedule above would prove that the quantity of many of the minerals / particles in suspension / dissolved matters are very much higher than the desired quantity as shown in Ext. A2.
12. Ext.B6 is a letter of acknowledgment made by the complainant or their authorized representative. In the said letter it is stated that the said authorized representative is convinced that the leakage observed from the water heater was due to the poor inlet water quality. In the said communication complainant has undertook that he would abide by the inlet water standard as mentioned in warranty card. Marking of this acknowledgment was objected to by the counsel for complainant on the ground that the said undertaking is an incomplete one. In view of the said objection, counsel for the complainant submitted the original document. Said original document is also of one page. Even considering that the said document is incomplete, the portion of the documents containing the nature of water and acknowledgement of the fact of variance in the quality of water is in the sheet produced and the signatory has acknowledged that the quality of water is different and that he would comply with the contents in Ext. A2 is contained in the sheet produced.
13. Another argument of the complainant is that contention of the O.P.s is misleading as the water heater they purchased subsequently was working fine with the same water. It is a fact that the materials with which the appliance is made or the sensitivity of the appliance will vary from one type to another. Merely because the second product purchased by the complainant was made differently so as to withstand the adverse effects of the contents in the water, we cannot automatically advert to an adverse inference regarding the quality of the product of the O.P.
14. Hence we can hold that it is the quality of water that has led to leakage of water heater.
Issue No. 3
15. There is no deficiency in service on the part of opposite parties.
Issue Nos. 4 & 5
16. Pursuant to the findings above we hold that the complainant is not entitled to any of the reliefs sought for.
17. Considering the facts and circumstances of the case, parties are directed to suffer their respective costs.
18. With the aforesaid findings and orders, we dismiss the complaint.
Pronounced in open court on this the 7th day of August, 2023.
Sd/-
Vinay Menon V
President Sd/-
Smt. Vidya A.
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant :
Ext.A1 – Copy of invoice dated 8/6/2017
Ext.A2 – Original Users Manual & Warranty Card
Ext.A3 – Original communication from KWA to complainant
Ext.A4 – Original tax invoice dated 8/11/2021
Exhibits marked on the side of the opposite party:
Ext.B1(a to f) – Photocopies of photographs
Ext.B2 – Print out of enlistment of SD Residency in various websites.
Ext.B3 – Copy of Ext.A2
Ext.B4 – Copy of certificate of analysis dated 1/1/2019
Ext.B5 - Copy of certificate of analysis dated 25/3/2019
Ext.B6 – Copy of communication dated 1/2/2019
Court Exhibit:
Ext.C1 – Commission report dated 1/9/2020
Ext.C2 – Original water test report dated 6/6/22 issued by KWA
Third party documents: Nil
Witness examined on the side of the complainant: Nil
Witness examined on the side of the opposite party: Nil
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
