Haryana

Yamunanagar

CC/839/2011

Prem Chand S/o Asha Ram - Complainant(s)

Versus

UHBVN Ltd. - Opp.Party(s)

BS Chuhan

06 Feb 2017

ORDER

   BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No. 839 of 2011.

                                                                                          Date of institution: 05.08.2011     

                                                                                          Date of decision: 06.02.2017

 

     Prem Chand son of Shri Asha Ram, resident of village Mehmapur, Sub Tehsil Sadhaura, Tehsil Jagadhri, District Yamuna Nagar.

 

                    …Complainant.

                                    Versus

1. Uttar Haryana Bijli Vitran Nigam Limited, through its Chairman, Sakti Bhawan, Sector-6, Panchkula.
2. SDO (OP), Uttari Haryana Bijli Vitran Nigam Limited, Sadhura, District Yamuna Nagar.
3. Jai Bhagwan, Contractor, Uttari Haryana Bijli Vitran Nigam Limited Sadhura, District Yamuna Nagar.

                                                                                                                             ...Respondents

 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                          SH. S.C.SHARMA………………………….MEMBER.

 

Present:           Shri BS Chauhan, Advocate for the complainant.

                         Shri Dharamvir Singh, Advocate for OP No.1 and 2.

                         OP No.3 already ex parte.

ORDER

 

1                      The present complaint has been filed under section 12 of the Consumer Protection Act 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant has applied for a tube well connection in the year 2009 upon which the OP No.2 handed over a detailed list of material required for the tube well connection including 11/.4 KV Transformer, Poles and other material describing their costs with labour and transportation charges amounting to a total sum of Rs.1,25,847/-. Thereafter, the complainant had paid a sum of Rs.1,25,847/-  to the OP No.3 in the office of OP No.2 as he was in dire need of the tube well connection. At that time, the OP had assured the complainant to provide a warranty of 6 years from the date of release of connection on the working of said connection i.e. including the list of material for which the complaint paid to the OPs. Thereafter, on 05.08.2009, a connection bearing Account No.K3K-1012 was released in the name of the complainant after installing a Transformer Poles etc. in the fields of the complainant. On 14.05.2011, the Transformer installed in the field of complainant broke down and electricity supply of the tube well connection had stopped. The matter was reported to the OPs, upon which OPs No.2 and 3 demanded a sum of Rs.10,000/- from the complainant and assured him that on payment of the said amount, they will immediately get the Transformer repaired. Keeping in view that the season of the sowing Kharif Crop was approaching, the complainant acceded the illegal demand of the OPs No.2 and 3 and paid them to Rs.10,000/-. Thereafter, OP No.3 took away the transformer from the complainant’s field on the pretext to get it repaired and to get it installed and then after a very long time i.e. a period of 1 ½ months in the month of July, 2011, the OPs reinstalled the said transformer in the fields of the complainant that too when the complainant had approached the OPs several times. To the utter surprise of the complainant, the transformer was in the same condition as it was earlier. Thus it has become very much clear that the transformer installed in the fields of the complainant is not working since 14.05.2011. The complainant several times visited the OPs but all in vain. Hence, this complaint.

3.                     Upon notice, OPs No.1 & 2 appeared and filed its written statement taking some preliminary objection such as complaint is not maintainable; complainant has no locus standi to file the present complaint; complainant is estopped from filing the present complaint by his own act and conduct; complaint of the complainant is false and frivolous; complainant has not come to this Forum with clean hands and have suppressed the true and material fats from this Forum and on merit it is stated that tube well connection to the complainant was released under Self Execution Scheme. The answering OPs had given the list of approved contractors and of estimate cost of the tube well connection as per self execution scheme. Under this Scheme, the department never received any amount except the 1.5% of the total cost as processing charges. The answering OPs have never given any warranty to the complainant as neither the answering OPs received any payment nor the answering OPs has done any work for release of tube well connection. The company, contractor and consumer is responsible for the working of the transformer installed under Self Execution Scheme upto 6 years after installation. Lastly prayed for dismissal of the complaint. However, Op No.3 failed to appear despite service and as such he was proceeded against ex-parte vide order dated 12.08.2011.

4.                     In support of the case, learned counsel for the complainant tendered into evidence affidavit of the complainant as Annexure CX and electricity bill as Annexure C-1, account statement as Annexure C-2, photocopy of Jama bandi for the year 2002-03 as Annexure C-3, Aksh shijra as Annexure C-4,  Transformer repair bill on letter head of Saini Electrical store as Annexure C-5, copy of girdawari as Annexure C-6, photographs as Annexure C-7 and C-8, Original repair bill on letter head of J.K. Electrical Engineering India dated 20.05.2013 as Annexure C-9 and closed the evidence on behalf of complainant.

5.                     On the other hand, ld. counsel for the OPs No.1 and 2 tendered into evidence affidavit of Shri Vishal Saini , SDO as Annexure RX, photocopy of Sr. No.002507 dated 08.07.2009 as Annexure R-1, photocopy of consent for execution of work under self execution Scheme as Annexure R-2, photocopy of affidavit of complainant as Annexure R-3, photocopy of sales circular No.U-14/2009 as Annexure R-4, photocopy of Sales circular No.U-19/2010 as Annexure R-5 and closed the evidence on behalf of OPs.

6.                     We have heard the counsels of both the parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

7.                     The only version of the complainant is that as per estimate given by the Ops No.1 & 2, complainant paid Rs. 1,25,847/- to the Op No.3 who was contractor of OPs No.1 & 2 for installing the transformer at his tubewell which was installed in the year 2009 under Self Execution Scheme. At the time of purchasing the transformer alongwith other articles, the OP No.3 provided a warranty of six (6) years from the date of release of the connection as per requirement of the OPs No.1 & 2 Nigam according to sale circular No. U-19/2010 (Annexure R-5). However, on 14.05.2011, the transformer in question become defective/breakdown upon which complainant visited the OPs and requested to replace or repair the same but the OPs No.2 & 3 demanded Rs. 10,000/- for its repair. Accordingly, the complainant paid Rs. 10,000/- to the OPs No.2 & 3 and after that OPs No.2 & 3 installed the transformer in question after its repair in the month of July, 2011 i.e. after a period of 1 ½ months from its breakdown but the transformer was not so repaired by the Ops due to which complainant could not irrigate his filed and sow his Kharif crop and suffered financial loss as well as mental agony.

8.                     On the other hand, learned counsel for the OPs No.1 & 2 argued at length that there is no deficiency in service or unfair trade practice on the part of the OPs No.1 & 2 and draw our attention towards clause 8 (vii) of the sale circular No. U-19/2010 (Annexure R-5) wherein it was recorded that “upkeep and maintenance of the system beyond warranty period i.e. replacement of damaged D.T. after 6 years shall be carried out by the Nigam”. Learned counsel for the OPs No.1 & 2 further draw our attention towards clause No. 4 of the same circular wherein it was recorded that “the applicant/contractor (duly approved by CEI) engaged by the applicant shall procure  material from approved firms/outlets, the DTs (transformer shall be of 4 star rating as per BEE guidelines of company having ISO 9001:2000 certification, with warranty clause of 72/78 months i.e. 78 months from the date of supply and 72 months from the date of installation whichever is later, properly riveted specification plate on T/F) purchased with diagonally two number seals provided by firm shall be brought by the consumer/contractor to the respective M & T Lab for checking/testing consisting of Nigam officers/officials with analyzers/ equipment.

            And argued that as per these conditions noted above there was no responsibility of the Ops Nigam for the transformer in question during the warranty period of 6 years and the complainant himself was liable for upkeep and maintenance of the system and also draw our attention towards the another sale circular No.U-14/2009 (Annexure R-4) and lastly requested for dismissal of the complaint qua OPs No.1 & 2.

9.                     After going through the sale circular bearing No. U-14/2009 (Annexure R-4) and Sale Circular No. U-19/2010 (Annexure R-5), we are of the considered view that consumer was himself responsible for upkeep and maintenance of the system during the first 72 months/6 years from the date of installation. This version of the Ops No.1 & 2 has not been rebutted by the complainant by producing any cogent evidence or any other sale circular of the OPs Nigam. Hence, the complaint of the complainant qua OPs No.1 & 2 is hereby dismissed.

10.                   Now question arises whether the complainant is entitled to get any relief against Op No.3 or not? As per the version of the complainant, he deposited an amount of Rs. 1,25,847/- with the OP No.3 as per estimate provided by the OPs No.1 & 2 and OP No.3 provided a warranty of six (6) years on the transformer in question. As the transformer of the complainant became defective on 14.05.2011 and for its repair OP No.3 alongwith Op No.2 demanded Rs. 10,000/- which was paid by him and the repaired transformer was installed in his field in the month of July, 2011 i.e. 1 ½ months from the date of breakdown but the transformer in question was not repaired correctly due to which complainant again get it repaired on 20.10.2011 and paid Rs. 25,898/- vide Bill dated 20.10.2011 (Annexure C-5) and after that again repaired it and paid Rs. 19,500/- vide bill dated 20.05.2013 (Annexure C-9), so, the complainant is entitled to get the amount spent on the repair of the transformer vide bill dated 20.10.2011 (Annexure C-5) and bill dated 20.05.2015 (Annexure C-9) and further is also entitled to get compensation on account of non-irrigation of the land but this plea of the complainant is not tenable as the complainant has totally failed to file any expert report/ mechanic report to prove that transformer in question became defective on 14.05.2011 as alleged in the complaint. Further, the complainant has also failed to place on file any document or any cogent evidence on the file that he paid Rs. 1,25,847/- to the Op No.3 as no such receipt or document has been placed on file. Even, the complainant has not placed on file any document vide which the Op No.3 provided any warranty of 6 years to the complainant. The complainant has placed on file repair bills dated 20.10.2011 (Annexure C-5) and repair Bill dated 20.05.2013 (Annexure C-9) but from the perusal of these bills it is nowhere evident that transformer which was installed at the tubewell of the complainant was defective. Even, the complainant has not placed on file any affidavit in support of these bills. The authenticity of both the bills are also not proved. Both the bills Annexure C-5 and C-9 are of the later date from the date of filing of the present complaint as the present complaint has been filed by the complainant on 05.08.2011 whereas these both the bills are of dated 20.10.2011 and 20.05.2013. Although the complainant moved an application on 18.08.2011 with the request that he may be permitted to get the transformer repaired which was disposed off by our predecessor vide order dated 13.09.2011 but we are of the considered view that this application was also filed in this Forum by the complainant just as an eye wash whereas it was the duty of the complainant to get a local commission appointed to ascertain the defects in the transformer in question. In the absence of any expert report from any authorized laboratory, it cannot be said that the transformer in question was having any defect   whereas it is mandatory under section 13(1)(c ) of the Consumer Protection Act which is reproduced here as under:

Where the complainant alleged defect in the goods which cannot be determined without proper analysis or the test of goods, the District Forum shall obtain a sample of the goods from the complainant, still it and authenticate it in the manner prescribed and referred the sample so sealed to the appropriate laboratory alongwith a direction that such laboratory make an analysis or test, which ever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its finding thereof to the District Forum within a period of 45 days of the receipt of the reference or within such extended period as may be granted by the District Forum.

In the present case, the complainant failed to get appointed any local commission and further has also failed to place on file any mechanic/expert report to prove that transformer in question was in fact become defective during the warranty period.

11.                   Further, from the other angle also, as per version of the complainant his transformer became defective on 14.05.2011 which was reinstalled by the Ops after its repair in the month of July, 2011 after getting an amount of Rs. 10,000/- but no such receipt for charging Rs.10,000/-, as alleged in the complaint, has been placed on file. The complainant has totally failed to point out any date or month on which the transformer in question became defective again. Only general allegation has been leveled  and without any cogent evidence this Forum is unable to hold that complainant is entitled to get any relief. To decide such type of cases, elaborate evidence is required to know the genuineness of the complaint which is possible only by the Civil Court in regular proceedings not by the Consumer Forum in summary way.

12                    Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. However, complainant is at liberty to file his complaint before the Civil Court, if so advised. Exemption of time spent before this Forum is granted in terms of judgment of the Hon’ble Supreme Court of India in case titled as Luxmi Engineering Works vs. P.S.G. Industrial Institute (1995)III SCC page 583.The Assistant is directed to return the original documents, if any, to the complainant after retaining the photo copies of the same on the file. Copy of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.   

Announced in open court: 06.02.2017.                      

 

                                                                                                (ASHOK KUMAR GARG)

                                                                                                PRESIDENT

                                                                                                DCDRF,YAMUNANAGAR

 

 

 

                                                                                                (S.C.SHARMA)

                                                                                                MEMBER