THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Sri. Santhosh Kesavanath P., President
Sri. K.N. Radhakrishnan, Member
CC No. 130/2009.
Monday, the 26th day of December, 2011.
Petitioner : Sr. Alphonsa
Provincial Superior,
S.H Provincial House,
Santhi Retirement Home
Kottaramattom, Pala.
(By Adv. KT. Joseph, M.A LLB)
Vs.
Opposite parties : 1) The Secretary,
Multi-purpose Rural Development
Society, Reg. No. 33/99,
Thayyil Buildings, Muthalakodam,
Thodupuzha.
2) Mathew,
Kurumberil,
Kalayanthany, Thodupuzha.
(By Adv. Pramod P.M.)
3) Hi-range Rural Development Society,
Reg. No. 1-762, Muthalakodam P.O
Thodupuzha.
O R D E R
Sri. Santhosh Kesavanath P., President.
Case of the petitioner filed on 14..5..2009 is as follows:
Petitioner is conducting hostel for students, who were studying in Santhi Retirement House, Kottaramattom, Pala. The income from the hostel is the sole livelihood of 15 aged sisters who are looking after the affairs of the inmates of hostel. First opposite party is dealing with Solar Module, Tubular Battery, Solar Power UPS etc. Second opposite party is responsible for all the acts of first opposite party. Petitioner installed 3 Solar power packages, ie. 1500 Watts systems, three sets
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of Solar Module Panels, three sets of Tubular Batteries and three Solar Power UPS with cable, 16 Amp switch socket, plug accessories etc. on 16..10..2008. Petitioner installed above items on payment of Rs. 2,97,000/- to opposite party. Opposite party assured 3 years warranty for the system. When the system manifest by opposite party showed complaints petitioner intimate the fact to the opposite party. Opposite party sent a staff, by name Shiju George, who changed two batteries on 2..1..2009. Though batteries were changed, there was no progress in the functioning of the systems installed by the opposite parties . Petitioner on 24..3..2009 issued notice to first opposite party. Notices were returned unserved with intimation office shifted. Notice sent to second opposite party was acknowledged. Second opposite party sent a reply on 2..4..2009. In the said reply second opposite party stated that Hi-range Rural Development Society is the sister concern of multi purpose Rural Development Society. According to the opposite party there is no transaction between the petitioner and second opposite party but he admitted sending of technician. Further more, second opposite party intimated to the petitioner that no letter should be issued to the second opposite party in person. According to the petitioner, act of the opposite party amounts to deficiency in service and unfair trade practice. Batteries installed by the opposite parties are leaking. System is not functioning properly. So petitioner prays for awarding Rs. 3,37,000/- with 12% interest from 4..4..2009 till realization
Second opposite party entered appearance, notices of 1st and 3rd opposite party returned with endorsement addressee not known and addressee left without intimation. Petitioner filed I.A- 147/10 for removing the Opposite party 1 and 3 from party array and same was allowed.
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Second opposite party filed version contenting that petition is not maintainable. According to the second opposite party person who had filed this complaint has no authority to file such a complaint. Hostel conducted by some sisters for earning additional income are not ‘consumers’ as described in the Consumer Protection Act. Second opposite party is only a salaried employee of first and third opposite party and he is not personally liable for any activities of other opposite parties. There is no transaction between petitioner and second opposite party in personal capacity. As an employee of the other opposite parties, he supervised the installation of the solar modules. Solar modules and certain articles were supplied by the 1st and 3rd opposite parties. But said articles are non-electronic components and no complaints will be caused to it. Batteries attached to the unit were supplied by a company called “Dawn Batteries” and the guarantee cards were issued by them. Without making them a party in the petition this petition is not maintainable. 1500 Watts system is installed in small houses. In a concern like petitioners heavy duty system is needed. As a part of after sale service an executive of the opposite party 1 and 3 inspected the system installed in the petitioners concern and based on his report 2 batteries were replaced. According to the second opposite party there is no deficiency in service on the part of the second opposite party he pray for dismissal of the petition with their costs.
Points for determinations are:
i) Whether the petition is maintainable or not?
ii) Whether there is deficiency in service on the part of the opposite party?
iii) Relief and costs?
Evidence in this case consists deposition of PW2 and Ext. A1 to A12 documents on the side of the petitioner and deposition of Dw1 and Ext. B1 document on the side of the opposite party and PW1 commissioner and C1 Court exhibits.
Point No. 1
According to the opposite party person who had filed the complaint has no authority to file a complaint and the petitioner is not a consumer. In our view admittedly second opposite party availed service to the hostel in which petitioners are
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also inmates so, they can be termed as a ‘beneficiary’ to the service availed. As per section 2 (d) (ii) any person who hires service and any beneficiary of such service other than person who hires service is defined as a ‘consumer’. So, the petitioner is a consumer. The other argument put forth by the learned counsel for the petitioner is that the service availed is for a commercial purpose. So, the petition is not maintainable. In our view the nexus between the service availed and the commercial activity is to be looked in to. Here their is no direct nexus between the commercial activity done by the petitioner and installation of the solar module . So, petitioner is a consumer and the petition is maintainable before this Fora.
Point No. 2
According to the petitioner after the installation of the solar module it become defective and second opposite party deputed a service technician to inspect the system and 2 batteries were replaced free of cost. Petitioner taken an advocate commissioner to report about the complaints notices in the system manifested. Commissioner filed her report and is marked as Ext. C1. From Ext. C1 report it can be seen that system is not working properly. Petitioner alleges unfair trade practice on the part of opposite party. According to petitioner second opposite party himself is conducting the business in the name of a different society. After installation he is taking a stand that he has no connection with the society. According to petitioner said acts amounts to unfair trade practice. Petitioner himself sent notice to opposite parties second opposite party accepted the notice. Notice of opposite party 1 and 3 returned with endorsement ‘office shifted present address un known’. After filing of the petition notice were issued to the opposite party 1 and 3 from the fora but the same were returned with endorsement ‘addressee not known’. So, petitioner filed a petition to remove opposite party 1 and 3 from the party array and the same was allowed. Second opposite party has taken a stand that he is only an employee of opposite party 1 and 3. Copy of appointment order given by the 3rd opposite party society is produced by the petitioner and same is marked as Ext. B1. In Ext. B1 it is stated that the petitioner is an employ appointed in the society as a technical assistant of Solar programe. Petitioner as PW1 in the box admitted that he accepted the amounts shown in Ext. A1 to A3 bill. Further more he admitted his signature and hand writing in Ext. A1 to A3 bills. Opposite party 2 as PW 1 in page No. 3 of his deposition stated that he was the secretary of the opposite party society. According
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to DW1 he resigned from the opposite party 3 society 4 months ago. DW1 further deposed that from 2005 August to 2010 October he is the secretary of the society. In Ext. A6 reply notice opposite party admitted that during the said period he is the secretary of 3rd opposite party. But in Ext. A6 itself he replied that in future he is not interested with any future transaction and communications in this regard.
2nd opposite party taken a stand that the society supplied the commodity and he is only an employ of the society. During cross examination he deposed that society is formed for getting subsidy. 2nd opposite party being the secretary of the society from 2005 to 2010 has not produced any piece of document other than the B1 to prove the genunity of his contention. In one way or another price of commodity is accepted by O.P 2, A1 to A3 bills were issued by O.P 2. Technician were sent by O.P 2. A12
reply is send by O.P 2. During the time of issuance of A12 reply he is the secretary of the society. But the notice issued by the petitioner to opposite party society was returned. No bylaw of the society. Returns of the society or any scrap of paper with regard to the society is produced. So, we infer that the society itself is a bogus society in a deceptive manner in order to cheat the consumers. From the available evidence it can be seen that the solar modules and other equipments were supplied by 2nd opposite party himself. Taking different stands in the reply notice version and deposition shows that the trade practice adopted by the petitioner is unfair or deceptive. So, point No. 1 is found accordingly.
Point No. 3
In view of finding in point No. 1 and 2 petition is allowed. In the result 2nd opposite party is ordered to refund the petitioner Rs. 2,97,000/- with 9% interest from 16..10..2008 till realization. Since interest is allowed no separate compensation is ordered. On compliance of order opposite party can take back the installed equipment from the premises of the petitioner. 2nd opposite party is directed to pay petitioner an amount of Rs. 3,000/- as cost of litigation. Order shall be complied with within one month of receipt of the copy of this order.
Dictated by me, transcribed by the Confidential Assistant, corrected by me and
pronounced in the Open Forum on this the 26th day of December , 2011.
Sri. Santhosh Kesavanath P., President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
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APPENDIX
Documents for the petitioner
Ext. A1: Bill with vide No. 1765.
Ext. A2: Bill with vide No. 1766
Ext. A3: Bill with vide No. 1767
Ext. A4: Guarantee card
Ext. A5: Guarantee card
Ext. A6: Guarantee card
Ext. A7: Guarantee card
Ext. A8: Guarantee card
Ext. A9: Guarantee card
Ext. A10: Copy of the notice issued by the petitioner on 24..3..2009
Ext. A11: Returned Notice
Ext. A12: Reply notice.
Documents for the opposite party
Ext. B1: Copy of appointment order
Court Exhibits
C1: Commission report
Witness of petitioner
PW1: Sr. Daisy Jose
PW2: Praseeda Renganath (Adv. Commissioner)
Witness of 2nd opposite party
DW1: S. Mathew.
By Order,
Senior Superintendent
