IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA, Dated this the 5th day of August, 2010. Present : Sri. Jacob Stephen (President). Smt. C. Lathika Bhai (Member) N. Premkumar (Member) C.C.No.154/09 (Filed on 13.11.2009)Between: Sunil Mathew, Proprietor, M/s. Vallakalil Communication, Pandalam, residing at: Vallakalil House, Thonnalloor Muri, Pandalam. (By Adv. A.C. Eapen) .... Complainant And: 1. Vissy Abraham, Block No.7, Muttom.P.O., Pandalam. 2. Hashim Muhammed, Proprietor, M/s. Sahib Associates, P.B.No.2595, P.C. Kavala.P.O., Changanassery (By Adv. T. Harikrishnan) .... Opposite parties. O R D E R Sri. N. Premkumar (Member): Complainant filed this complaint for getting a relief from the Forum. 2. Fact of the case in brief is as follows:- Complainant is running a shop by name M/s. Vallakalil Communications at Pandalam, engaging in the distribution of prepaid vouchers and other allied materials of cell phone companies. In the same shop room the complainant is conducting the office of the dealership of Cadburys and and the franchisee of UAE Exchange. The complainant is using two computers, one tube light, and one ceiling fan in the said shop room. 3. The 1st opposite party is the agent of the 2nd opposite party. The opposite parties engaged in the sales and services of inverters. The complainant decided to install an inverter in the said shop. At that time the 1st opposite party who is the agent of the 2nd opposite party approached the complainant and made believe the complainant the qualities and guarantee of the Sine wave Inverter, the product which the opposite parties are dealing. On 20.9.08 the complainant purchased a ‘800 VA Sine wave Inverter with 118 AH Tabular Battery and an inverter trolley for a total price of Rs.20,500/- from opposite parties. 4. At the time of purchase of the said inverter, the opposite parties made believe the complainant that the product supplied is standard one in the State of Kerala and will provide uninterrupted power supply for two or three computers, one tube light and one fan for more than 8 hours continuously on failure of A.C power supply. But from the next week onwards after the supply of the inverter it shown complaints such as computer system working in the office of the complainant will stop due to the interruption in A.C power supply. The complainant intimated the complaints to opposite parties and the service persons had done certain maintenance works. But again the complaints repeated and the same was reported to opposite parties. Again the service persons came and replaced the inverter. The same complaint again repeated for the replaced inverter also and the complainant reported the complaint to opposite parties. But they did not attend the complaint. Now the complainant is using the computer system by providing a backup facility with another UPS. The non-attendance of complaints of the complainant and supply of defective product to the complainant are deficiency in service of the opposite parties. Several times the complainant reported the complaints to the opposite parties but they did not care to attend the complaint. This act of opposite parties caused several inconvenience and unpleasant situation to the complainant. The product supplied to the complainant is not a standard one as promised by the opposite parties. Without the support of another instrument for backup the complainant cannot use his computer system. So the opposite parties are liable to pay the amount of Rs.20,500/- with compensation and cost. Hence this complaint. 5. Opposite parties entered appearance and filed version stating that complaint is not sustainable either in law or on facts. According to opposite parties the inverter purchased and utilized by the complainant admittedly for a commercial purpose. The inverter is used with profit motive and the shop itself is only one among complainant’s several business ventures. Hence complainant is not a ‘consumer’ as defined under section 2 of the Consumer Protection Act. 6. Opposite parties admitted that on 20.09.2008 complainant purchased an 800 VA sine wave inverter for a total consideration of Rs.20,500/- from them. The first opposite party had only acted as an agent of the second opposite party. According to opposite parties, inverter will provide back up for continuous 8 hours as stated by the complainant is false. No manufacturer or dealer of inverters can or will promise continuous back up for a particular period of time as the back up time is proportional to the load involved. So when the load increases back up time decreases. Though the complainant alleges inadequate back up time what period of time he is actually getting is not seen mentioned in the complaint. The back up time of every inverter is fixed by the formula V x Ah/W + time. If the complainant connects as claimed 450 W connected load the inverter will back up for 2 ½ hours and not more. Opposite parties have not made any claims or promise of continuous back up time of 8 hours as falsely alleged. Neither the brochure of the product nor the guarantee agreement makes such a claim also. This fact is well known to the complainant. 7. The opposite parties had provided free service to the complainant on every 4 months and whenever demanded by the complainant. The only complaint raised by the complainant ever since the purchase of the inverter was that one of his computers connected to the system re-starts at times. The complainant attributes the said malfunction of his computer to the inverter. Initially on the eagerness for consumer satisfaction within a short span of the purchase itself, the opposite parties replaced the system purchased by the complainant with a brand new one free of cost. 8. The complainant’s trouble persisted even after such replacement; the service engineers of the opposite parties inspected the system and identified the trouble as that of the inferior quality of the SMPS installed in that particular computer. The opposite parties tried to convince the complainant of the said fact that restarting of the computer as not due to any defect of the inverter but was of the defect of the computer itself, the complainant adamantly refused to heed to the same. Even an attempt was made to convince the complainant by replacing the defective SMPS with a branded one for a whole day during which the computer did not restart. But the complainant was not interested in rectifying the defect but was intend to harass the opposite parties by alleging defects on the inverter. The service extended by the opposite parties was timely and free from negligence. There is no manufacturing defect. The defect is solely due to the defective equipment used in complainant’s computer. Hence opposite parties canvassed for the dismissal of the complaint with cost. 9. From the above pleadings, following points are raised for consideration: (1) Whether the complaint is maintainable before this Forum? (2) Whether the reliefs sought for in the complaint are allowable? (3) Reliefs and Costs? 10. Point No.1: In a caterna of decisions, Hon’ble National Commission has taken the view that even if the machinery is sold for commercial purpose, the purchaser will be ‘consumer’ under Section 2(1)(d)(i) during the period of warranty. In this case also defect in the inverter had started within the period of guarantee and there is no dispute that guarantee period has over. Therefore, the complainant in this case is a consumer of opposite parties and complaint is maintainable before the Forum. 11. Point Nos.2 & 3: In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents. Documents produced by him have been marked as Exts.A1 to A5. Ext.A1 is the delivery order No.934 dated 29.09.2008 issued by second opposite party. Ext.A2 is the guarantee card issued by the second opposite party. Ext.A3 is the office copy of the Advocate Notice-dated 08.08.2009 sent to opposite parties. Ext.A4 and A4(a) are the postal receipts of Ext.A3. Ext.A5 is the acknowledgment card signed by second opposite party. 12. In order to prove the opposite parties’ contention, second opposite party filed proof affidavit along with certain documents. Documents produced were marked as Exts.B1 and B2 series. Ext.B1 is the copy of service record pertaining to the complainant’s inverter. Ext.B2 is the reply notice of Ext.A3 notice. Ext.B2(a) is the acknowledgment card of Ext.B2. Ext.B2(b) is the postal receipt of Ext.B2. After the closure of evidence, both parties were heard. 13. On the basis of the averments and contention of the parties, we perused the entire material on record. It is seen that there is no dispute regarding the purchase of inverter and its guarantee period. The only dispute is that the inverter is faulty. Even though opposite parties replaced it, the same complaint repeated in the replaced are also. 14. According to opposite parties, the fault in inverter is due to the over load. Back up time is proportional to the load involved. When the load increases back up time decreases. Opposite parties have not made any claims or promise of continuous back up time of 8 hours as alleged by complainant. Moreover, opposite parties alleged that after the replacement of the system, the service engineers of opposite parties find that the cause of trouble is due to inferior quality of the SMPS (Switch Mode Power Supply) installed in a computer. Though the said matter was informed to the complainant, he has not even care to replace the defective SMPS. 15. On a perusal of Ext.A2, it is seen that the system is guaranteed against any manufacturing defect for 2 years from the date of purchase. It is learnt that due to complaint, the inverter was replaced with another one on the basis of Ext.A2. But still now the same complaint existing. Opposite parties also admitted that complainant’s system’s trouble persisted even after the replacement. 16. Evidence on record shows that the nature of complaint before and after the replacement of the system is one and the same. So long as the same complaint persisting within the guarantee period, opposite parties cannot simply deny the Ext.A2 guarantee. They are also estopped from denying the claim, the same complaint persisting in the replaced one. Moreover, nothing has prevented them to act upon Ext.A2. 17. Even though opposite parties raised the contention of over load connected with back up time, the same has not recorded as findings in Ext.B1. Opposite parties also claims that their service engineers inspected the system and identified the trouble as that of the inferior quality of the SMPS (Switch Mode Power Supply) installed in a computer. But opposite parties has not produced the said report apart from Ext.B1. Moreover, the contentions raised in Ext.B1, B2 and in version and proof affidavit are not compatible with each other. From the over all facts and circumstances of the case, we cannot sure that opposite parties has came with clean hand. It is the boundan duty of opposite parties to comply with Ext.A2 guarantee. Failure to comply with Ext.A2 is a clear deficiency of service. Hence complaint is allowable with compensation and cost. 18. In the result, complaint is allowed as follows:- (1) Opposite parties are directed to replace a new inverter at the same value as that of Ext.A1 or to refund the Ext.A1 bill amount. (2) Complainant is allowed to realise Rs.1,000/- (Rupees One thousand only) as compensation and a cost of Rs.500/- (Rupees Five hundred only) from the opposite parties. (3) On complying the order, complainant is directed to return the faulty inverter to opposite parties. (4) Opposite parties are directed to comply the order within one month from the date of receipt of this order, failing which the complainant is allowed to realise the whole amount with 10% interest per annum from this date, till the realisation of the whole amount. Pronounced in the Open Forum on this the 5th day of August, 2010. (Sd/-) N. Premkumar, (Member) Sri. Jacob Stephen (President) : (Sd/-) Smt. C. Lathika Bhai (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant : Nil. Exhibits marked on the side of the complainant: A1 : Delivery Order dated 20.09.2008 issued by the second opposite party. A2 : Guarantee card issued by the second opposite party. A3 : Photocopy of the Advocate Notice dated 08.08.2009 issued by the complainant to the opposite parties. A4 & A4(a) : Postal receipts of Ext.A3. A5 : Acknowledgment card of Ext.A3. Witness examined on the side of the opposite parties : Nil. Exhibits marked on the side of the opposite parties: B1 : Photocopy of the Service Record. B2 : Photocopy of the reply notice dated 20.08.2009. (By Order) Senior Superintendent. Copy to: (1) Sunil Mathew, Proprietor, M/s. Vallakalil Communication, Vallakalil House, Thonnalloor Muri, Pandalam. (2) Vissy Abraham, Block No.7, Muttom.P.O., Pandalam. (3) Hashim Muhammed, Proprietor, M/s. Sahib Associates, P.B.No.2595, P.C. Kavala.P.O., Changanassery. (4) The stock file.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
