V.N. Hari,

S/o. Late V.S. Nagaraj Shetty,

Resident of No.4/45,

Mahadevpet,

Madikeri,

Kodagu District.





OPPOSITE PARTIES:



1. Viraj Associates,

Franchise of Orb Energy Pvt. Ltd.,

No.38/5B, MBM Complex,

Bychanahalli, B.M. Road,

Kushalnagar.



2. The Manager,

Orb Energy Pvt. Ltd.,

3893, 3rd Cross, M.C. Layout,

Vijayanagar,

Bangalore.
O R D E R



M.R. DEVAPPA, PRESIDENT



The case of the complainant briefly stated is as follows;



1. That the complainant purchased a product by name SOLIO and electronic instrument used for mobile charging by using solar energy manufactured by the 2nd opposite party and the same was sold by the 1st opposite party.



2. That the complainant purchased the said product for Rs.4,500/- and was using for his personal use.



3. That within few days of purchase the said products failed to function and the complainant complained about the same over telephone to the 1st opposite party and the 1st opposite party told the complainant to hand over the defect instrument to them so that they would rectify the defect or replace with a new instrument.



4. That the complainant on 08-04-2008 handed over the said faulty instrument to the opposite party which was received by a Sales Executive Mr. Chandan working under 1st opposite party and issued an endorsement dated 08-04-2008 to that effect.



5. That inspite of several requests by the complainant the 1st opposite party has not returned the faulty instrument, neither repaired nor replaced with a new instrument as assured.



6. That the complainant got legal notice issued on 08-12-2008 to both the opposite parties calling them to handover the faulty instrument after repairing or to replace with that of new one to the complainant within seven days from the receipt of the notice. The 1st opposite party sent a reply wherein he has stated that the said product by name “SOLIO is tested and is performing well as recommended by them”. And further it is also stated that they have informed the complainant more than couple of times over telephone to collect the product from their office and they have not received any reply from the complainant and the product is lying in their office since 08-04-2008 and along with the reply the 1st opposite party has also enclosed a copy of their internal communication between the 1st opposite party and their sales executive Mr. Chandan where in it is disclosed that the 1st opposite party has under taken with assurance to repair the faulty instrument and also admitted that the said instrument was sold for Rs.4,500/-.



7. That the 2nd opposite party by his reply notice dated 13-12-2008 has stated that they had asked their franchisee to clarify in detail to the complainant and it is also stated that they are requested the franchisee to explain to the complainant in person along with the working SOLIO so as to sort out the issue.



8. That during the last week of December 2008 the 1st opposite party came to the complainant and had brought a SOLIO instrument similar to the faulty instrument given by the complainant for replacement, on close examination by the complainant the said instrument was roughly used and there were lot of scratches on the body of the product.



9. That it is also misrepresented by O.P’s that the product which is handed over by the complainant is repaired and the same is being returned but it is not so.



10. That the opposite parties by not rectifying the defective instrument within reasonable time and by not replacing the faulty instrument by a defect free one as assured by them have committed breach of warranty and deficiency of service which is illegal.



11. That the complainant pray for the following relief;



a) For a direction to the opposite parties to replace the faulty SOLIO solar mobile charge with a brand new SOLIO solar mobile charger in good working condition to the complainant together with damages valued at a sum of Rs.2,000/- and another Rs.4,000/- towards mental agony and Rs.10,000/- towards the cost of this proceedings.



12. The complainant has enclosed the delivery challan and the copy of the notice issued on behalf of the complainant, acknowledgment card and the copy of the letter issued by O.P.1 (namely Viraj Associates ) and another letter issued to the advocate of the complainant by O.P 2.



13. Upon admitting the complaint notice was sent to the opposite party no.1 and 2 and on receipt of the notice from this Forum O.P 2 remained absent on the date fixed for his appearance and for filing version; without sufficient cause and therefore O.P 2 namely the Manager Orb – Energy Pvt. Limited, Bangalore has been placed exparte. O.P 1 appeared through his advocate and has filed his version and affidavit and has taken following contention.



1. That the entire transaction in question has taken place beyond the jurisdiction of this Forum and this Forum cannot entertain the complaint and as such the complaint is liable to be dismissed.



2. That the complaint is false and the same is denied.



3. That as per the invoice and as per the purchase bill an enterprise by name M/s Prabhu Metals have purchased the product and it is a business enterprise and the product is purchased for the purpose of resale and the same is for commercial purpose and therefore complainant cannot be considered as a consumer as defined in the Consumer Protection Act and therefore the transaction does not come under the purview of the Consumer Protection Act.



4. That the complainant is put to strict proof of the claims made in para 4 of the complaint and it is specifically denied that the product was being used for the purpose of personal use of the complainant.



5. That the complainant has used the product for nearly a year after the purchase and there was no complaint regarding the functioning of the product during this period and infact nearly after an year of the purchase the complainant has approached the opposite party with some complaint regarding the instrument and on verifying the same O.P 1 found out that the complainant had not properly used the instrument and the charger in the instrument was fully drained and the said problem has arisen due to the improper usage of the product.



6. That in the interest of the customer O.P no.1 decided to get the instrument rectified and the product was duly made functional and the O.P 1 informed the customer to collect the instrument and the rectification was done free of cost, but the customer did not collect the same.



7. That the product is functioning well even today, but the customer was demanding for new set only to make unholy gain.



8. That the averments made in para 7 of the complaint is out rightly false and the same is denied.



9. That it is true that the complainant issued legal notice and the same was suitably replied by O.P 1.



10. Without prejudice to the above submission that any manufactural defect in the product this O.P cannot be made liable for the same and the manufacturer is liable for the same.



11. As there is no deficiency of service on the part of this opposite party the complaint is liable to be dismissed and complainant is not entitled for any reliefs.



14. Having regard to the averments made in the complaint and the documents relied by him and the defence taken by O.P 1 the following issues arise for determination.



1. Whether the complainant is a consumer and the product purchased by him is for resale purpose?



2. Whether opposite party no.1 and 2 have committed deficiency in service on their part?



3. To what order ?


R E A S O N S


15. Answer to issue No.1:- Delivery challan is carefully gone through and in the delivery challan the name of the complainant is not found but name of M/s Prabhu Metals, Madikeri is seen. Therefore according to the opposite party no.1 the product is sold in favour of Prabhu Metals Madikeri but in the complaint one V.N. Hari S/o. Late V.S. Nagashetty is shown as complainant and it is not made clear that how V.N. Hari is connected to Prabhu Metals. As per the say of the opposite party Prabhu Metals is a retail outlet who deal in business and the product which is purchased by them for the purpose of resale and it could be said that the same is purchased for commercial purpose and therefore the case does not attract Consumer Protection Act.



16. It is also contended that if there is any manufacturing defect the same is to be rectified by the manufacturer but O.P 1 is only a franchisee and no liability can be fixed on him.



17. As against the above submission the advocate for the complainant argued that the product in question has been purchased for the complainant’s personal use and though the address of Prabhu Metal is given for the purpose of delivery of the said product but the same was purchased for the personal use of the complainant and therefore the complainant can be considered as a consumer and hence Consumer Protection Act is attracted.



18. It is submitted by the advocate of the complainant that the complainant has handed over as long as back on 08-04-2004 the said faulty instrument to the opposite party No.1 and till the date of filing the complaint the opposite parties have neither returned the faulty instrument nor replaced with a new instrument as assured by them and therefore the complainant was compelled to issue legal notice through his advocate.



19. It is submitted that during the month of 2008 the 1st opposite party came to the complainant and had brought the instrument in question and the complainant examined the same and came to know that the instrument was roughtly used and there were lot of scraches on the body of the product and further the said official misrepresented that the instrument in question is repaired though it was not repaired and therefore the opposite party no.1 and 2 have not rendered proper service inspite of defective instrument is sold which amounts to deficiency in service on their part.



20. As against the above submission the advocate for the opposite party No.1 has vehemently argued that in the interest of the customer O.P 1 decided to get the instrument rectified and the product was duly made functional and the complainant was informed to collect the instrument without charging anything, but the customer failed to collect the same and the product is functioning well even today but the customer was demanding for new set only to make unholy gain.



21. It is pertinent to note that the Prabhu Metals has not filed the complaint and it is not made clear about the relationship of the present complaint with Prabhu Metals and if the Prabhu Metals has purchased the instrument as retail out let, it can be said that the same is purchased for the purpose of sale and the same is for commercial purpose and as such the provision of the Consumer Protection Act cannot be said to be attracted.



22. The complainant has not produced the warranty and has failed to convince the Forum, that the instrument in question is purchased for his personal use and also his relationship with Prabhu Metals. But O.P.1 has taken a stand that ‘ Prabhu Metals’ is a retail outlet and product in question is purchased for resale.



23. It is for the complainant to establish initially that he is the consumer. The available materials do not speak the same, when this is the case we have no option except to say that he is not the consumer and accordingly to answer issue No.1 negatively.



24. The above view is supported in a case law reproduced hereunder.



“Complainant, a small scale industry, purchased a universturing Central Machine from the O.P. Complaint filed alleging that the O.P. not only supplied the machinery six months beyond the stipulated date, but supplied defective machinery. The State Commission allowed the complaint but the National Commission set aside the order observing that the purchase was for commercial purpose. On appeal the Supreme Court also held that the complainant is not a consumer. Laxmi Engg. Works vs. P.S.G. Industrial Institute 1995(2) CPJ 1 SC = 1995(2) CPR II SC.”



25. With the above finding it is made clear that the complainant is at liberty to approach appropriate authority to seek his grievances redressed.



26. In view of the above discussion we proceed to pass the following order.


O R D E R

The complaint is dismissed. The parties to bear their own cost.