III ADDL,DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

No.8,Sahakara Bhavan,Cunningham Road,Bangalore-560 052.

consumer case(CC) No. CC/2422/2008

Mrs. Sathyavathi. R.
...........Appellant(s)
Vs.

The Managing Director, Sunrise Solar PVT Ltd.
...........Respondent(s)

BEFORE:
1. Dr. Subhashini
2. H.M.SHIVALINGAPPA
3. N. SRIVATHSA KEDILAYA


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):




ORDER

ORDER Speaking through Sri H.M. Shivalingappa, Member

1. This Complaint is filed on 11.11.2008 u/s 12 of the Consumer Protection Act, 1986 alleging deficiency of service by the Opposite Party. The Complaint in brief is as hereunder; The Complainant submits that she has purchased 200 LPD Sunrise Solar Water Heating System (Delux Model) on 2.12.2005 from the Opposite Party by paying a sum of Rs.34,000/- (which consists of Solar Flat Plate Collector with leg Support 200 LPD deluxe insulated Tank with Stand). At the time of installation of the said Solar Water Heater Unit, the Complainant kept informed the Opposite Party about that she was using borewell water for the said Solar Water Heater Unit. The Opposite Party has assured that the said Solar Water Heater will suit for all types of water. It is the further case of the Complainant that the said Solar Water Heater has come for repairs nearly 5 times. Whenever the staff of the Opposite Party came for repairs, they used to take back the relevant parts of the said Solar Water Heater to their factory for repairs and after removing the defect, they used to fix the Solar Water Heater in the Complainant’s place. For all these repairs, the Opposite Party has collected Rs.5,000/- as repair charges inspite of there being warranty for a period of 10 years. Whenever the Complainant complains about the repairs and collection of repair charges, there was no proper response from the Opposite Party. Ultimately since January 2008, the said Solar Water Heater has completely gone defective and is kept unattended by the Opposite Party inspite of her Complaint. According to the Complainant, she has borrowed loan from the Canara Bank, Malleshwaram Branch, Bangalore for installation of the said Solar Water Heater which is being deducted every month from out of the account of the Complainant. Till date, a sum of Rs.23,982/- has been deducted and further a sum ofRs.12,000/- is yet to be deducted. Under these circumstances, on account of the deprivation of the use of the said Solar Water Heater, the Complainant was put to mental agony, sufferance and financial loss. Hence, this Complaint is necessitated to direct the Opposite Party to pay the loss of amount sustained by her and to pay a sum of Rs.70,000/- being the probable future expenditure touching the subject matter of dispute on the ground of deficiency of service by the Opposite Party.


2. The Complaint came to be admitted on 19.11.2008. Notice was ordered to the Opposite Party to produce its Version of the case on 5.1.2009, the Version was filed on behalf of the Opposite Party through its Counsel. In brief, it is as hereunder: In the Version the Opposite Party has denied that there was any deficiency of service on its part. It is the case of the Opposite Party that their people have explained to the Complainant about the function of various models of Solar Units. The Complainant being impressed about the present Solar Water Heater, expressed her willingness to buy 200 LPD (Delux Model) and availed the Solar Water Heater System on 2.12.2006. The said Unit was purchased by raising a loan from Canara Bank payable in 36 Equated Monthly Instalments. Thereafter, the Complainant has come up with a false allegation that the Solar Water Heater was not functioning properly. The Opposite Party had demonstrated in the presence of the Complainant how to handle the said Solar Water Heater at the time of purchase and also on several times at her residence. According to the Opposite Party, it was on account of negligent handling by the Complainant, the said Solar Water Heater led to repair. The Opposite Party has given service free of cost and advised the Complainant to maintain the Solar Water Heater with due care. It was on account of the negligent handling by the Complainant once again it has led to non-functioning. It is repeatedly asserted in the Version that without prejudice to the contentions raised by the Opposite Party, the Opposite Party is ready to service the Solar Water Heater at free of cost and make all convenience by making good the Solar Water Heater. It is also submitted that the Opposite Party staff serviced the said Solar Water Heater free of cost from the date of its delivery to the Complainant as per the warrantee and it has been duly accepted by the Complainant in her Complaint. The Opposite Party has denied receipt of Rs.5,000/- from the Complainant towards service charges as false. It is the say of the Opposite Party that on account of the mishandling and removal of the Solar Water Heater from its original place of fixture, the warranty does not hold good and the Opposite Party is not responsible for the same. Since the Complainant is unable to repay the balance amount due to the Bank, in order to avoid making payment, she has approached this Forum to make undue advantage. Denying all other allegations as false, the Opposite Party has prayed for dismissal of the Complaint with costs.


3. Since there arose a consumer dispute, the parties were called upon to produce their evidence by way of affidavits and documents. Accordingly, the Complainant has made available her evidence by way of affidavit on 7.2.2009. Along with the Complaint, she has produced xerox copies of documents. For the Opposite Party, an affidavit of one A. Palani, Managing Director of the Opposite Party is made available to an affidavit on 17.2.2009. At the end, this Forum heard on merits.


4. In the circumstances, the following points do arise for our consideration and decision and they are; (i) Whether the Complainant has become successful in establishing the alleged deficiency of service by the Opposite Party? (ii) If so, whether the Complainant is entitled for any relief against the Opposite Party in this case? (iii) What Order?



5. Our Findings to these points are as hereunder: i) Yes ii) Yes iii) As shown in the operative portion of the Order here below. 6. We shall substantiate our findings on the following:

R E A S O N S


POINT NO.1: From the material on record and the rival averments, it is not in dispute that the Complainant has purchased 200 LPD Sunrise Solar Water Heating System (Delux Model) from the Opposite Party for a sum of Rs.34,000/- under Invoice No.495 dt.2.12.2005 raising a loan from Canara Bank, Malleshwaram Branch, Bangalore. It is also clear that the Solar Water Heater is covered under warranty for a period of 10 years. However, the main contention of the Complainant is that inspite of assurance from the Opposite Party that they will give better service and the Opposite Party being award winner and a certified company for 9 years in a row, it has failed to give proper service to the Complainant touching the subject matter of dispute inspite of there being a warranty for a period of 10 years. It is the further contention of the Complainant that even though there was warranty for replacement against breakage, damage, colour and free service during the said period of 10 years, the Solar Water Heater in question came up for repairs within 6 months as water was not getting heated. According to the Complainant, when she complained to the Opposite Party, the staff of the Opposite Party came to the Complainant’s place, collected the said product for service and after service, they have charged Rs.5,000/- for the same and inspite of repeated Complaints against the defects subsequently, the Opposite Party could not find out the problem. According to her, she demanded replacement of the defective Unit, but, the Opposite Party did not oblige and on the other hand, the staff of the Opposite Party harshly, rudely and illogically refused to accept the plea of the Complainant. According to her, since the Solar Water Heater is completely not working since January 2008, she has brought the said state of things to the notice of the Canara Bank by letter dt.3.10.2008 and when the Opposite Party did not heed to the oral request of the Complainant, she has addressed a letter to the Opposite Party as per postal receipt dt.6.10.2008 stating therein about the defective state of the Solar Water Heating System and collection of Rs.5,000/- towards service charges. Although the Opposite Party has denied about the receipt of Rs.5,000/- towards service charges and the Complainant also failed to produce any piece of evidence for having paid the said sum ofRs.5,000/- towards service charge, still there remains why the Opposite Party did not specifically deny the receipt of the letter under the said postal receipt dt.6.10.2008 (a xerox copy of which is produced along with the Complaint) or evince any interest to get the defect in the said Solar Water Heater removed or act upon by replying the letter of the Complainant as per postal receipt bearing No.2630 dt.6.10.2008. Inspite of specific averment in the Complaint as to the said letter under the postal receipt, there is no whisper by the Opposite Party to the said statement of the Complainant. All that the Opposite Party has stated in its Version is that the Complainant has negligently handled the said Solar Water Heater which has lead to non-functioning of the said Solar Water Heater.


But, what is there to allege negligent handling or operating of the Solar Water Heater, is not made clear. In the absence of any concrete evidence, the mere bald allegation of negligent handling of the Solar Water Heater has no weight at all. Further, it is the contention of the Opposite Party that the Solar Water Heater has been dismantled from its original place of fixture in which event, warranty does not hold good. The Complainant has in turn not accepted this Version of the Opposite Party. There is no evidence of any independent witness to show that the said Solar Water Heater has been dismantled from its original place of fixture by or at the instance of the Complainant. Apart from the above, it is repeatedly asserted at Para-7, 11 and 12 of the Version by the Opposite Party that they are even now ready and willing to repair and make it good at the cost of the Opposite Party. After issuance of the letter by the Complainant to the Opposite Party under postal receipt dt.6.10.2008 and after filing of this Complaint, the Opposite Party has come forward with this plea. Had the Opposite Party taken steps to get it repaired after request of the Complainant or atleast after receipt of the above letter under postal receipt dt.6.10.2008, the Complainant would not have rushed to this Forum for redressal of her grievance.
Taking into consideration, the over all situation of the case, we are of the opinion that the Opposite Party is deficient in rendering services to the Complainant touching the Solar Water Heater in question. Accordingly, this point is answered in favour of the Complainant.



7. POINT NO.2: In the Complaint, the Complainant has prayed for payment of the loss sustained by her on account of deprivation of the use of the Solar Water Heater due to deficiency of service by the Opposite Party and for payment of a sum of Rs.70,000/- being the future expenditure that may occur for repairs to the Solar Water Heater since the same is covered under the warranty for a period of 10 years from the date of purchase. In the affidavit filed by the Complainant by way of evidence, she has prayed for compensation of Rs.70,000/- towards mental agony and sufferance and for refund of the cost of the Solar Water Heater in question and also for a direction to the Opposite Party to tender unconditional apology to the Complainant. In the absence of any material on record regarding any manufacturing defect, the question of refund of the cost of the product does not arise at all. However, as can be seen from the material on record, the Opposite Party has attended to the repair work of the Solar Water Heater in question during earlier dates, but, as alleged by the Complainant, in the month of January 2008, the said Solar Water Heater has completely went out of order. As revealed, since the oral requests for repair did not yield any positive result, she has caused a notice/letter to the Opposite Party as per the postal receipt dt.6.10.2008. Since the Opposite Party did not turn-up, the Complainant was forced to approach this Forum. We have opined that the Opposite Party is deficient in rendering service to the Complainant touching the subject matter of this dispute. The Opposite Party has neither specifically denied the receipt of the notice/letter of the Complainant sent under postal receipt dt.6.10.2008, nor in the event of receipt of the same, it is not forthcoming whether the Opposite Party has attended to the repair work or not. The Opposite Party has not even offered explanation as to why they could not attend to the repair work after receipt of the said letter/notice under postal receipt dt.6.10.2008. Therefore, taking into consideration the above aspects of the case and their contention in its Version as to their readiness and willingness to render service free of cost and to remove the defect in the Solar Water Heater in question at their own cost, we feel it proper that in this case, the Opposite Party need be directed to get the defect/defects in that Solar Water Heater removed without further loss of time, if necessary by replacing necessary parts with genuine spare parts at their own cost and reinstall at the Complainant’s premises in good working condition. As far as the compensation aspect is concerned, having regard to the facts and circumstances of the case and in the light of the evidence on record, it is proper to award a reasonable amount to the Complainant in the form of compensation and cost of this litigation. It has to be seen that there was deprivation of the facility of the Solar Water Heater from January 2008 and in addition to the same, the Complainant is constrained to enter into this litigation. Further, it has to be borne in mind that as per the documents produced by the Complainant herself, with effect from 23.5.2006, she has been extended the concession at 0.40 paise per Unit of electricity consumed by the Bangalore Electricity Supply Company Limited for having installed the Solar Water Heater in her premises. Wherefore, a reasonable amount by way of cost and compensation need be granted and according to us, it would be just and proper if the same is fixed at Rs.3,000/- (Rupees three thousand).

Accordingly, this point is answered.


8. POINT NO.3: In the result, we proceed to pass the following:


ORDER


The Opposite Party is hereby directed to get the defect/defects in the Solar Water Heater in question removed, if necessary by placing necessary parts with genuine spare parts at their own cost and reinstall the same at the premises of the Complainant in good working condition. The Opposite Party is further directed to pay a sum of Rs.3,000/- (Rupees three thousand) to the Complainant by way of cost and compensation. The Opposite Party is granted 30 days time from this date to comply this Order.