CC Filed on 25.04.2011
Disposed on 28.10.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.
Dated: 28th day of October 2011
PRESENT:
HONORABLE T. RAJASHEKHARAIAH, President.
HONORABLE K.G.SHANTALA, Member.
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Consumer Complaint No. 128/2011
Between:
Smt. Thilaka S.A. W/o. Late Anjineyareddy, Aged about 42 years, R/o. Near Reddy Choultry, Maruthi Extension, Malur Town, Malur Taluk, Kolar District. (By Advocate Sri. Sriram ) | ….Complainant |
V/S 1. The Proprietor, Sri Marikamba Associates, Dealers in Solar Water Heater and Lightings, APC, UPS and Water Purifiers, Vinayaka Complex, 4th Cross, Adarshanagar, Araleri Road, Malur – 563 130. 2. The Manager, Photon Energy Systems Limited, 775-K Road, 45 Jubilee Hills, Hyderabad – 500 033, Andhrapradesh, India. | ….Opposite Parties |
ORDER
This is a complaint filed under section 12 of the Consumer Protection Act, 1986. The complainant contends that he has installed a water heater to his residence from the Opposite Party No.1 on 20.02.2009 by taking loan of Rs.36,400/-. It is stated that the installation was having 5 years guarantee from the date of purchase order. It is stated that on the day of installation of the water heater it started leaking and the water heater was not working properly. Hence the complainant gave complaint to the Opposite Party both orally and in writing and he gave evasive and negative answers and till today the Opposite Party No.1 or Opposite Party No.2 has not taken any action to rectify the mistake. Due to the leaking of the solar water heater the mould of the house started leaking and the complainant had spent huge amount for repair of the mould. Since the date of installation the complainant has not used the water heater even for a single day and she has incurred Rs.1,000/- per month as electricity bill for heating water. The Opposite Parties have failed to give service properly. Hence they have given defective and faulty service and there is deficiency in service. The notice was issued on 22.12.2010 to the Opposite Party No.1 and inspite of it, they have not replied the notice. Hence this complaint is filed for direction to the Opposite Party to refund Rs.36,400/- and to pay damages of Rs.1,50,000/- along with interest at 16%p.a.
2. The notices were served. The Opposite Party No.1 has remained absent and he has not filed any version. The Opposite Party No.2 appeared through his Sales Manager and subsequently remained absent and has not filed version. Hence the case was posted for evidence. The complainant to substantiate his case has filed his affidavit evidence. The Opposite Parties have not filed any affidavit. The argument of the complainant was heard.
3. The points that arise for our consideration are:
Point No.1: Whether the complainant is filed in time?
Point No.2: Whether the complainant has proved the alleged
deficiency in service by the OP?
Point No.3: To what order?
4. Our findings to these points are as hereunder:
1. Negative
2. Negative
3. As per final order.
R E A S O N S
5. POINT NO.1: According the complainant the cause of action arise on 20.02.2009 i.e. the date on which the complainant purchased the water heater. It is stated that from the day one of its purchase it is leaking and it is not working. Hence the cause of action begins on that date and it is not a continuing cause of action. Hence the complaint should have been filed within two years from the date of cause of action. On the other hand the complaint is filed on 25.04.2011. Hence this complaint is filed more than two years after the accrual of the cause of action. Hence we hold that the complaint is barred by time under section - 24A of the Consumer Protection Act.
6. POINT NO.2: The first allegation of the complainant is that, the installation was leaking since the first day of installation and inspite of the complaint it was not repaired. The second allegation is that since the date of installation the complainant has not used the solar water heater for a single day and because of it he used electricity for water heating and sustained loss of Rs.1,000/- per month. In our opinion, if there was any small leakage in the installation definitely that will be repairable and the Opposite Party could have repaired the same if a complaint was made to that effect. If the Opposite Party has failed to repair the leakage the complainant himself could have got it repaired and he could not have kept quiet for more than two years without even using the water hater. When the complainant has invested Rs.36,400/- by taking loan for purchasing the water heater he could not have kept quiet without getting it repaired, if it was leaking. He alleges that due to such leakage the mould of the house started leaking and he has spent huge amount for repair of the mould. In our opinion if the leaking was such that even the mould was affected and the mould required repairs, he could not have kept quiet for such a long time without getting the installation repaired. Hence on the probabilities of the case, it is not possible to believe that the installation was leaking from the commencement of the installation. Similarly his contention that he has not used if for a single day is not acceptable because he could not have kept quiet without getting it repaired and making it fit for use for such long time. When he has spent huge amount of Rs.36,400/- for installing it, he could not have kept quiet for more than two years without using it. Hence this conduct of the complainant clearly goes to show that the allegations is not probable and it is not acceptable. There is no independent evidence to substantiate the contentions of the complainant. The complainant could have got a ‘Commissioner’ appointed for testing the installation and to give opinion whether it was having such leakage or whether it was in workable condition and what repairs was required, etc., The complainant has not made any such effort for getting the installation inspected by appointing a ‘Commissioner’. Hence on the probabilities of the case, we are of the opinion, that his contentions that the installation was defective is not acceptable. Hence we held this point against the complainant.
7. POINT NO.3: In view of the findings on point No.1 and 2, the complaint is liable to dismissed. It is seen that the complainant was entitled for guarantee of 5 years and the guarantee period is not yet expired. Hence the complainant will be entitled to approach the Opposite Party and get the installation repaired before the expiry of the guarantee period. Hence if the complainant so approaches the Opposite Party, the Opposite Party may effect the repairs as per the agreement and if the Opposite Party fails to effect the repairs, then it will be a new cause of action to the complainant and he can deal with the matter according to law. With these observations the complaint is liable to be dismissed. Hence we pass the following:
O R D E R
The complaint is dismissed. No costs.
Dictated to the Stenographer, corrected and pronounced in open Forum this the 28th day of October 2011.
K.G.SHANTALA T. RAJASHEKHARAIAH
MEMBER PRESIDENT
