ORDER


COMPLAINANT/S 1. Sri.T.Srinivasa S/o Thimmegowda, 2. Smt.Prema Srinivasa W/o Srinivasa, Both are R/o Anedoddi Village, Hosakere Post, Maddur Taluk, Mandya District. (By Sri.G.K.Shivakumar., Advocate)

-Vs-

OPPOSITE PARTY/S 1. H.K.Jnanendra Kumar, Proprietor, Sun Technics, Sneha Enterprises, 8th Cross, Gandhinagar, Mandya. 2. Sun Technics, Energy Systems Pvt. Ltd., No.660/1, 100 Ft. Road, Indiranagar, Bangalore. (By Sri.M.Mahesh., Advocate for O.P.1 & Sri.S.K.Nagaraj., Advocate for O.P.2)


Date of complaint 20.11.2008 Date of service of notice to Opposite parties 13.12.2008 Date of order 13.04.2009 Total Period 4 Months

Result The complaint is partly allowed, directing the Opposite parties to rectify the cable system provided to the solar installation of the complainants with proper back up of the battery and further directed the Opposite parties jointly and severally to pay Rs.7,000/- with cost of Rs.1,000/- to the complainant. Sri.Siddegowda, President


1. This complaint is filed under section 12 of the Consumer Protection Act 1986, against the Opposite parties for claiming Rs.2,66,272/- as loss and compensation with costs.

2. The case of the complainants is that for the lighting facility to Poultry Farm in their village, the complainants purchased two sets of solar lighting system at the rate of Rs.31,564/- each and they were installed on 26.10.2007. The said amount was paid by obtaining the loan from Visveshvaraiah Grameena Bank, Rs.59,972/- by means of two D.D’s and directly Rs.3,156/- totally Rs.63,128/- was paid to 1st Opposite party who is the dealer and the 1st Opposite party has issued the receipt which is in the name of 2nd Opposite party. At the time of installation, the 1st Opposite party has issued certificate that each installation of solar system with six bulbs would function for 4 hours continuously and give the lighting, but instead of that the bulbs provided lighting only for two hours, thereby the Opposite parties in order to deceive the Complainants, mentioning false information, certificate has been issued. The complainants have two poultry farm centers and at a time to rare Rs.5,000/- chicks and the lighting temperature is also necessary like feeds. For want of sufficient lighting heat so many chicks died and alternatively, the complainant used electricity, generator and sustained loss. The complainant informed orally and also through telephone that the solar system equipments are defective nature and they are giving insufficient lighting facility, but the Opposite parties did not respond. Therefore, he sent a letter by registered post on 08.02.2008, but the Opposite parties did not make any attempt to rectify. Therefore, the legal notice letter dated 19.08.2008 was sent, but the Opposite parties have not claimed the legal notices, though they have received by C.O.P. Therefore, the Opposite parties are liable to refund the cost of the installations, transporting charge, interest and loss of died chicks and loss by using alternative electricity, generator and compensation for mental agony. The complainants have claimed Rs.2,66,272/- in total, giving the details of the amount in the complaint.


3. The 1st & 2nd Opposite parties are served with notice and they have filed version separately.


4. The 1st Opposite party has filed version admitting the solar lighting systems purchased by the complainants and they have paid Rs.31,564/- per unit on 26.07.2007 and the complainants totally paid Rs.63,128/- through D.D. Denying that certificate was given that each of the installation will generate electricity for 4 hours and through each installation 6 bulb will burn, but Opposite party has certified that installation will generate electricity for 3 – 4 hours. The writing in the certificate has been tampered by the complainant. It is denied that for want of required temperature, the chicks died. Denying that the defective equipments was brought to the notice of 1st Opposite party orally and also through phone and did not correct installations, the 1st Opposite party has not at all received legal notice. It is denied that 1st Opposite party installed lesser quality installations and caused loss through deficiency in service. After receiving the invoice from the 1st complainant on 26.07.2007 the 1st Opposite party installed the units on 28.07.2007 and issued the installation report specifying the load details. The Technicians of the 2nd Opposite party on 16.04.2008 made periodical warranty visit to the poultry farm and the report is very much signed by the 1st complainant. Again on 27.05.2008, the technicians of 2nd Opposite party visited the poultry farm and the complainant was present and further satisfying about the installations, he has put signature to the report. The complainants have themselves issued certificate dated 10.01.2008 about the satisfactory functioning of the units. The averments about the inferior units and complaints to the Opposite parties and financial loss are all false. Therefore, the complaint is to be dismissed. 5. The 2nd Opposite party has filed version contending that the complainants are not Consumers as defined under the Consumer Act, as the solar lighting system was purchased and installed at poultry farm i.e., for commercial purpose. The date of purchase of the solar lighting system is 26.07.2007 and not 26.10.2007 as stated in the complaint. The invoices Nos.8 & 9 dated 26.07.2007 and the Opposite party installed and commissioned the units on 28.07.2007 and issued the installation report on 26.10.2007, after availing loan from Visveshvaraiah Grameena Bank, under two D.D’s.
The Opposite party has produced the periodical warranty visit and accordingly, the service was done on 16.04.2008 by the technicians of 2nd Opposite party and it bears signature of the 1st complainant and during the 1st warranty visit which was done on 27.05.2008, the 2nd Complainant was present and signed the visits sheet without any complaint about the malfunctioning of the units. The complainant has also issued certificate dated 10.01.2008 regarding the satisfactory functioning. Issue of certificate by 1st Opposite party is not within the knowledge of 2nd Opposite party.
But the certificate is subject to usage of bulbs having definite load, wattage as specified in the installation report. The expert report produced by the complainant is false which states that the units have back up for two hours and not four hours. The complainants have filed a false and frivolous complaint to make wrongful gain. The other allegations of dieing of chicks and providing alternative arrangements and causing loss are denied. The service of legal notice is false. The complainants are not entitled for any amount claimed. Therefore, the complaint is liable to be dismissed with costs.


6. During trial, the Commissioner was appointed and he visited the units and submitted the report. The 1st Complainant is examined as C.W.1 and the Commissioner is examined as C.W.2 and the complainant has produced Ex.C.1 to C.16 documents and Commissioner Report is Ex.C.17. On behalf of the 1st Opposite party is examined and on behalf of the 2nd Opposite party one Director is examined as R.W.2 and Opposite parties have produced the documents Ex.R.1 to R.4. 7. The complainants have produced some documents later with notice to 1st Opposite party. 8. We have perused the records. 9. Now the points that arise for our considerations are:- 1. Whether the complainant is not a Consumer and the complaint is not maintainable? 2. Whether the Solar system installed by 1st Opposite party belonging to the company or 2nd Opposite party are defective and Opposite parties have committed deficiency in service? 3. Whether the complainants have sustained loss as claimed? 4. Whether the complainants are entitled to the loss and compensation as claimed?


5. What order?


10. Our findings and reasons are as here under:-

11. POINT NO.1:- The undisputed facts are that the complainants are husband and wife and they are villagers and they are having two poultry units and approached the 1st Opposite party and complainants paid Rs.31,564/- for each installation and totally Rs.63,128/- on 26.10.2007.


12. The 2nd Opposite party has contended that the complainants are not Consumers on the ground that the solar lighting systems are purchased for poultry farm and the same was for commercial purpose. The learned counsel for the 2nd Opposite party has relied upon the decision reported in II (1995) CPJ I (SC) in the case of Laxmi Engineering Works –Vs- P.S.G. Industrial Institute and 2000 CTJ page 751 (CP)(NCDRC) in the case of Sakthi Engineering Works –Vs- Krishna Coir Rope Industry and also AIR 1999 Supreme Court 3356 in the case of Kalpavruksha Charitable Trust –Vs- Toshniwal Brothers.


13. In the case of Laxmi Engineering Works, the Hon’ble Supreme Court has held that if the buyer of goods uses them by self employment, for earning his livelihood, it would not be treated as a “Commercial purpose”, what is a commercial purpose is a question of fact to be decided in the facts of each case. The facts of the 1996 CPJ 239 of National Commission in the case of Bhati Poultry Farm –Vs- Kewalramani Hatcheries are not similar to the facts of the present case, because in that chicks were purchased by the complainant, not for self employment for earning livelihood, but the purchase was for trading activity carried on profit on a large scale by the complainant. The grievance of that case was that the seller did not provide vaccination required to the chicks and hence the 5,700 chicks died to the disease. Though in 2000 CTJ 751 in the case of Sakthi Engineering Works – Vs- Krishna Coir Rope Industry, the Hon’ble National Commission has held, since the machinery purchased were not used exclusively for earning livelihood by way of self-employment, but he purchased the machine to run small-scale industry employing the trained persons apart from income from 5 acres of land and rearing 100 sheep. But, our Hon’ble National Commission in I (2009) CPJ 152 in the case of Larsen and Toubro Ltd., -Vs- Krishna Kumar Dhanker, has held that “Even though machinery is purchased for commercial purpose, if the defects started in the machine within warranty period, the purchaser will be consumer, even if machinery sold for commercial purpose”. Though, in the present case, the 1st Complainant has admitted in the cross-examination that he owns dry land, but it is very hard to lead life depending upon the dry land, which depends upon rainfall at appropriate time. Further, though as per the Commissioner report, there is a flour mill near the poultry farm, but there is no evidence whether it is functioning or not. It is not at all suggested to the complainant that he is running the flour mill and getting sufficient income. Even the facts are that the complainants only rare the chicks supplied by the company with feeds and other periodical medical care by the company and the complainants gets only Rs.2.40 paise per Kg. and he has not employed any person and only he and his wife look after the poultry farm. So, he is not the buyer of chicks at all and not selling any chicks, what the complainants do is only rare the chicks supplied by the Company with feeds and medicines and get wages per Kg. for raring of chicks. The installation of solar system lighting to the poultry farm of the complainant does not come under the term of commercial purpose and even otherwise in view of the latest decision of the Hon’ble National Commission, if the machinery even in case of commercial purpose, is defective, during the warranty period, the purchaser will be a consumer. Hence, the 2nd Opposite party has failed to prove that the complainants are not Consumers as defined under the Consumer Protection Act, 1986. Therefore, we answer the point against the Opposite parties.


14. POINTS NO.2 TO 4:- The complainants have pleaded that though the 1st Opposite party at the time of installation of the solar lighting systems issued a certificate stating that from each unit six bulbs burn continuously for 4 hours and give lighting, but they burn only for two hours and hence, the installations are defective. In this regard, he orally and through telephone informed the same and also by registered letter dated 08.02.2008 and Opposite parties did not respond and even the Opposite parties have not claimed the legal notice issued and hence they have committed deficiency in service. The Opposite parties have denied the same. According to the complainant, the installations were installed on 26.10.2007, but according to the Opposite party, on 26.07.2007 the installation was purchased and installed on the same day. As per Ex.C.3, the order confirm form is dated 26.07.2007. The 1st Opposite party has issued as per Ex.C.4 and C.5 i.e., installation certificates which states “we hereby confirm and certify that we have installed Solar Lighting System of Six lighting systems at the premises of T.Srinivasa. the above system is covered by our invoice No.008 dated 26.07.2007”. The 1st Opposite party has signed with seal putting the date 26.10.2007. So, the perusal of Ex.C.4 & C.5 clearly proves that the purchase is on 26.07.2007 and installation certificate is dated 27.10.2007 it is not mentioned on what date they were installed. Though, the Opposite parties have relied upon Ex.R.1 installation report and another installation report Ex.R.2 and one R.Maneesh + Venktesh have put the signature showing the date 28.07.2007 as the date of installation and test and 1st Complainant has put the signature on Ex.R.1 and R.2. But according to the complainant, the signatures were obtained when they brought some machinery and received the advance and obtained the signature. Ex.C.3 clearly proves that on 26.07.2007 advance of Rs.1,000/- was received and order confirmation form was issued to the complainant. If actually, the solar system installed was on 28.07.2007, there was no necessity for 1st Opposite party to issue installation certificate dated 26.10.2007. Though in Ex.C.3 advance of Rs.1,000/- has been paid, 1st Opposite party has gone to the extent of denying the same. The 2nd Opposite party has not examined the technicians who installed the units, because a doubt arises about the signatures of the alleged technicians, because one person has signed R.Maneesh + Venktesh and Ex.R.1 & R.2 are not proved by examining the technicians.



15. Now according to the Complainant, 1st Opposite party issued the certificate that the six bulbs in each unit will burn for 4 hours, but the bulbs burn only for two hours and therefore, the solar system is defective and for want of lighting heat in the poultry some chicks died and sustained loss. It is admitted by 1st Opposite party that he issued the certificate Ex.C.6, but according to him, the 4 hours is tampered by the complainant and he had issued the certificate that installation will generate electricity for 3 – 4 hours. The 2nd Opposite party has not stated, what is the duration of the lighting power at all except denying the allegations made by the complainant. If we peruse Ex.C.6, it is clear that initially it was written is struck of and small signature is put. So, it cannot be said that the complainant has altered these words, when 1st Opposite party has gone to the extent of denying the receipt of advance of Rs.1,000/- in spite of the document Ex.C.3.


16. By the consent of both the sides, a Commissioner was appointed and he has inspected the units in the presence of both sides and submitted report Ex.C.17 and according to him, on the basis of the configuration of technical specifications of each system installed by the Opposite party, it is clear that the load required is 80 WP solar module and 12 V, 120 AH solar tubular battery with 10 Amps charge controller to run for all the loads for 4 hours at standard length of transmission line with proper gauge. In this case, the system is only 40 as per witness it is incorrectly typed as 50) WP solar module, 62 AH battery and excess in cable length, which is running load for maximum of 2 hours only. The customer informed that on one more solar module is added of 30 WP without up gradation of battery. Hence, the load may increase for some extent.


17. It is contended by the Opposite party that the Commissioner is not a qualified person, but the Commissioner is a Project Engineer (IREP) Zilla Panchayath, Mandya and according to his evidence, he is a Mechanical Diploma Holder and he is looking after the solar system installations scheme and hence, he has the knowledge of solar systems. Even though, he has not tested for 4 hours by burning the bulbs at the time of inspection, but according to him, he tested the system by burning bulbs for one hour and on calculation he has opined that the system is only for 2 hours use and according to him, the system must give 3 to 4 hours burning service of the bulbs for 3 days, even if there is no sun light. According to him, he has tested the units on the basis of the certificate and brochure issued by the Opposite parties. According to him, that the equipments are of good quality, but the cable provided from battery to each light is at a distance of more than 5 meters and therefore, there is loss of energy due to the more length of the cable. Therefore, the 1st & 2nd Opposite parties have not properly installed the solar lightings system providing service of lighting for 3 to 4 hours per day continuously, which is essential for the poultry centre. The Opposite parties have produced Ex.R.4 the load calculation sheet, but it is not signed by any technician or the company person except obtaining the signature of 1st Complainant and it is not proved as to whether it was read over and explained and 1st Complainant has understood. Ex.R.3 is the brochure of the lighting system and it is mentioned that these systems are designed typically to give a daily working time of 2 – 4 hours with a fully charged battery. But, the grievance of the complainant is the bulbs did not burn for 4 hours as promised by the dealer by issuing certificate Ex.C.6.



18. According to the complainant, in view of the defective lighting, he orally and telephonically informed, they did not turned up and even he sent a letter by registered post and did not rectify it. The complainant has produced Ex.C.13 complaining that they are not giving two hours lighting power and they have not responded in spite of telephone and it is served on 1st Opposite party by registered post as per Ex.C.14, but there is no reply. According to the 2nd Opposite party, the service was done on 16.04.2008 by the technician and it bears the signature of 1st Complainant and his signature is Ex.R.1 (a) and further on 27.05.2008, the technician inspected and service was given and 2nd complainant has put signature. The complainant has admitted that after his letter dated 08.02.2008, on 16.04.2008 as per Ex.R.2 (b) and Ex.R.1(a) the company technicians inspected and provided service. He has denied that on 27.05.2008, the company technician person inspected and the wife of the complainant has put the signature. When the customer complained and service report is at separate page when on 16.04.2008 entries made, the subsequent service on 27.05.2008 should be made in the service report not on the preventive maintenance visits. The Ex.R.1 & R.2 reveals that the signature of the 2nd Complainant wife are obtained by putting a mark and the technician is not examined to prove on what date actually he visited. According to the complainant, the signature of his wife had obtained, when the units were brought and kept in the house. On 23.09.2008, 2nd Opposite party issued the certificate stating that on 23.09.2008 they inspected the units and the solar system provided only 1.56 hour in one unit and 2.05 hour in another unit. This inspection is before filing of the complaint.



19. When 1st Opposite party issued the certificate that the solar system will provide 4 hours lighting heat to the poultry, but when it has given less then 2 hours lighting heat, naturally in the presence of the Commissioner report that the connection from the battery to the light is more than 5 meters, there is loss of energy and hence, the solar system provided to the complainants is defective nature and though the 2nd Opposite party has provided some service on two days, but they have not rectified to provide solar lighting system for 3 to 4 hours as provided in their brochure Ex.R.3 and thus Opposite parties have committed deficiency in service.


20. The complainants have pleaded that due to want of sufficient lighting heat, chicks died and they made alternative arrangement for electricity and generator to provide lighting heat to the chicks. The complainant has produced the electric bills Ex.C.8 to C.11 and bill Ex.C.8 is for Rs.1,180/-, Ex.C.9 is for Rs.1,822/-, Ex.C.10 is for Rs.1,641/- and Ex.C.11 is for Rs.700/-, Ex.C.12 is for Rs.852/-. It is not the case of the Opposite party that these bills are not pertaining to electric connection to the poultry farm, and they are relating to flour mill. Therefore, it proves that the complainant has spent amount for electricity also for want of solar lighting system.



21. Even though the complainant did not produce the documents to prove the death of chicks and sustaining loss, but in his evidence and complaint, it is pleaded that for want of lighting system chicks died and sustained loss of Rs.60,000/- apart from the electricity, generator expenditure of Rs.18,000/-. After the arguments, with notice to the Opposite party Counsel, the complainant has produced 5 bills, which show death of chicks 247, 296, 499 and 226 and 296 and at the rate of Rs.2.40/- per Kg. and weight of each chick, the deductions are made and the complainant has calculated the loss. According to the complainant, these 5 bills are from 27.10.2007 to 31.12.2008. According to these calculation, complainant has sustained loss of more than Rs.7,000/-, but there is no reason to suspect the bills produced by the complainant. It is not the case that the chicks died to other reasons not for want of lighting heat provided by the solar system.




22. Therefore, considering the facts of the case, the claim of the complainants to some extent is exhogarative, because he has claimed Rs.10,000/- as transportation charges and interest of Rs.15,000/- on the loan and Rs.18,000/- for electricity and generator, mental compensation of Rs.1,00,000/- and Rs.60,000/- for the died chicks. Admittedly, the solar system installed on 26.10.2007 as per the complainant and in writing he complained on 08.02.2008 about the defective solar system lighting. In view of the Commissioner report that the system materials are not defective except the cable system and in view of the bills stating the death of chicks, some loss is caused due to defective lighting system provided by Opposite parties and hence it is reasonable to assess the loss at Rs.7,000/- and it is necessary to give direction to Opposite parties to rectify the solar system.



23. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed, directing the Opposite parties to rectify the cable system provided to the solar installation of the complainants with proper back up of the battery and further directed the Opposite parties jointly and severally to pay Rs.7,000/- with cost of Rs.1,000/- to the complainant.