BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                           C.C.No.25/2012

Dated this the  22^nd  day of September 2016

(Date of Institution: 03.07.2012)

Mme. Tamby Marie Antoinette,                      

Plot No.72, Hollywood Farm Beach         

Kanagachetty Kulam                   

Puducherry. 605 014.

….     Complainant

Vs

Aurog Power Solutions Pvt Ltd., rep. by its

Managing Director Venugopalan alias Sivaraj

Plot No.5, Singapore Avenue, Moolakulam    

(Opposite BDO), Pondicherry – 605 010.

                                       ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru M. Lakshmi Narasimhan, Advocate

FOR THE OPPOSITE PARTY:  Thiru V. Govindaradjou, Advocate

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for directing the Opposite Party and its representatives to forthwith cause Repairs or Replacements of relevant equipments or system so as to ensure uninterrupted and Automatic supply of Electricity / Solar Energy in Residence of Complainant and to deliver all materials and papers (including for warranty) for system or in alternate to direct Opposite Party and Representatives to pay Rs.4,33,400/- to complainant as Return of price and payments (Rs.3,75,000/- + interest @ 18% per annum from next date of filing of complaint / 22.03.2012 and till full quits); to direct the opposite party to pay Rs.1,50,000/- as compensations for all losses and damages together with interest thereon @ 18% per annum from 03.04.2012 and till full quits and to pay a cost of Rs.10,000/-. 

2.  The case of the complainant is as follows:

          The Complainant stated that the opposite party met the complainant in her residence on 23.03.2011 and offered installation and service of Solar Power System in her residence on a cost of Rs.3,75,000/-.  The complainant agreed for the same and paid a sum of Rs.3,75,000/- on various dates in April and May 2011 to the opposite party.   The solar panels were installed in Open Terrace in building and the batteries and inverter were kept in storage room and thus installed on 16.05.2011 and the complainant began to use it from 17.5.2011.  The complainant further stated that within 10 days of installation, the system did not supply electricity to any of accessories as said equipments did not work because Automatic did not function.  On telephonic complaint to opposite party, the complainant was advised to use manual and physical efforts for on and off switch / control.  Thus the system could work only by manual touch.  Thereafter, central body of system had failed to operate or control or distribute Solar energy in time to relevant equipments.  The complainant was totally without Power / Electricity for all essentials of life and such circumstances caused serious dangers to persons and also caused physical and mental agony, sufferings by huge loss of money, time and efforts.  In August 2011, a boy from Opposite Party Company visited and seemed to inspect parts of System and stated that system could not function due to some technical faults and will come back with competent person.  Thereafter, the opposite party did not care to attend the complaint and the said system was in total non-function.  Thereafter, the complainant left to France and then returned to Pondicherry on 16.01.2012.  Again the complainant lodged complaint to the Opposite Party who visited the complainant's house on 18.1.2012 and removed and taken two cards by saying of need for repairs or replacements.  On 23.1.2012 the opposite party attempted to refit the said cards, but the equipments were not at all functioning.  Hence, the complainant sent a letter on 30.01.2012 to the opposite party but the opposite party did not respond for the same.  On 17.2.2012 the complainant sent another letter to Opposite Party.  On 27.02.2012 the opposite party sent a reply on false denials of truths of events and defects in goods and deficiencies in services.  Hence, the complainant filed this complaint. 

3. The reply version filed by the opposite party briefly discloses the following:

          The complaint is not maintainable either in law or on facts.  This opposite party denied the allegation contained in para-II (1) to (4) of the complaint as false and incorrect.  In fact, the complainant had met this opposite party and sought quotation for installation of solar power system in her residence at plot No.72 Holly Wood Forum Beach, Kanagachettikulam on 25.03.2001 and provided quotation for the installation of the Solar Power System to the complainant at the aforesaid residence on 25.03.2011.  This opposite party further submits that on 19.04.2011 the complainant has paid a sum of Rs. 1, 00,000/- towards advance for the installation of Solar Power system vide quotation No. QU 250320112.  Thereafter the system was installed at the residence of the complainant on 17.05.2011.  But to the utter surprise and shock of this opposite party though the complainant was satisfied with this installation work she has alleged that her mobile phone was lost and has blamed this opposite party for the lost of her mobile phone. It is further stated that though the complainant has to pay the balance amount of Rs. 2,75,00/-  she has paid only Rs. 1, 75,000/- and the balance amount of Rs. 1,00,000/- has to be paid on 10.05.2011.   However she has paid the amount only on 17.05.2011.  This opposite party submits that right from the date of installation, the system was working well.  That on 15.05.2011 the complainant has made a call to this opposite party and stated that the system was not working.  On inspection by one of the employees by name Segar on 15.05.2011, it has been found that the system was tripped due to over load.  Periodically this opposite party has also inspected the power system.  That on 20.09.2011 the complainant has reported that the system was not working.  On inspection by the staff of this opposite party it has been found that the MCB Breaker was cut.  That again on 18.01.2011 the complainant has reported that the system has failed.  On inspection it has been found that the PCU is defective. That on 11.03.2012 the complainant informed that the system was not working.  Whenever the employee of this opposite party went for inspection, he was not allowed by the complainant to do the service and she has insisted for replacement by new board.  Then, this opposite party has also accepted for replacement by new board and for that purpose he has visited the house of the complainant on 15.03.2012. On that day also the complainant has not allowed this opposite party to replace the new board.  In the aforesaid facts and circumstances, the allegation of the complainant that the system is not working right from the date of installation is utter false and the same has been alleged malafidely and for obvious reasons.  This opposite party stated that the system has totally collapsed on 29.12.2011.  Due to heavy rain and cyclone and heavy supply of  E.B power, the three phase power supply wires got was twisted together and more that 220 voltage of power loaded of a stretch damaged the solar power condition unit.  This opposite party stated that the system will function only on a load of 220 voltage of power.  The natural calamity is beyond the control of this opposite party.  It is a generally accepted norm that the warranty for any kind of machinery, system etc., will not cover the damages caused to the natural calamity.  The same is applicable for the system supplied by this opposite party also.  The complainant agreed to this contention and accepted to pay the cost for the repair of the system and asked this opposite party to provide the quotation.  Accordingly this opposite party has given a quotation for Rs. 14,000/-.  On 19.01.2012 this opposite party has also advised the complainant to get it reimbursed with the insurer since the party has informed this opposite party that she insured the solar system.  After that, there was no response from the complainant till 16.02.2012.  On 17.02.2012 the complainant visited the office of this opposite party and in his absence the complainant has made derogatory remarks against this opposite party and the company and created a scene in the presence of neighbours residing there.  It shattered the image of the company of this opposite party and the opposite party himself for which this opposite party has issued a notice to the complainant to tender unconditional apology, for having used derogatory remarks against this opposite party and the company.  So far, neither the complainant has regretted for her remarks nor has she denied the charge.  Though the complainant has degraded the company and this opposite party in order to maintain a cordial relationship between the customer and the company and with a view to prove the creditability of the company and of this opposite party this opposite party came forward to attend the snags and replace the damaged parts etc. in the system and sent the technical persons on 15.03.2012 at 4.30 pm. to the complainant's premises.  But the complainant has refused to allow the Technicians of this opposite party to attend the repair and asked them to get away from the place and told them that she shall meet the company before the court of law.  This opposite party submits that their sincere and good attempts have all failed because of the complainant's denial to accept their service to get the system repaired.  Hence, prayed for dismissal of the complaint.

4.       On the side of the complainant, the complainant herself was examined as CW1 and Exs.C1 to C6 were marked.  On the side of the opposite party, one Venugopalan alias Sivaraj, Managing Director of Aurog Power Solutions Pvt Ltd.,  was examined as RW1 and marked Ex.R1 only. 

5.       Points for determination are :

1. Whether the Complainant is the Consumer?
2. Whether the opposite party has committed deficiency in service?
3. To what relief the complainant is entitled for?

6.  Point No.1:

          The complainant has installed Solar Power System in her residence at Kanagachettikulam on 17.05.2011 on a cost of Rs.3,75,000/- vide Ex.C3 proforma invoice dated 10.05.2011 issued by opposite party.     Hence the Complainant is the Consumer for the opposite party as per the Consumer Protection Act.

          7.  Point No.2:

We have perused the complaint, evidence of CW1 and Exs.C1 to C6.  We have also perused the reply version of opposite party and his evidence  RW1 and Ex.R1.   The complainant alleged that the opposite party met her on 25.03.2011 and gave a quotation cum terms and conditions for installation of Solar Power System vide Ex.C1 dated 25.03.2011.  Accordingly, the complainant has paid a sum of Rs.1,00,000/- to the opposite party vide Ex.C2 receipt dated 19.04.2011 as advance.   Subsequently, she has paid a sum of Rs.1,75,000/- to the opposite party and the balance of Rs.1,00,000/- was paid on 10.05.2011 vide proforma invoice Ex.C3 and expressed satisfaction of the work performed by the opposite party, however,  claimed that a cell phone worth Rs.10,000/- was disappeared and hold the opposite party as responsible for this loss.  It is the further allegation of the complainant that within 10 days of the installation the system did not supply electricity to any of accessories since the automatic system did not function.  Upon the complaint made by the  complainant, she was advised by the opposite party to use the system manually for on and off.  Thereafter, the system had failed to function  and caused complainant's residence without power / electricity for all essentials of life.  On repeated  requests, a representative from opposite party visited the house of complainant who inspected the system and stated that the system could not function due to some technical faults and he will be returned back with competent person.  But the Opposite party had not cared to attend the alleged complaints.  Thereafter, the complainant left to France and returned back on 16.01.2012 and again complaint before the opposite party.  The opposite party visited the complainant's house on 18.01.2012 and had taken two cards to attend the repairs, but he did not return back.  Hence, on 17.02.2012 the complainant sent a letter dated 30.01.2012 vide Ex.C4 alleging the defects in the equipments, for which the opposite party did not respond.  Hence, the complainant sent another letter dated 17.02.2012 vide Ex.C5 by stating that she will take legal steps, the opposite party, on receipt of said letter gave a reply vide Ex.C6 dated 27.02.2012 alleging that the system was not functioning due to natural calamity which occurred on 29.12.2011, however, he agreed to make it in working condition which would cost Rs.14,000/-.   Therefore, the complainant preferred this complaint.

          8. On the other hand, the opposite party has submitted that right from the date of installation, the system was working well.  Further submitted that on receipt of complaint from complainant, he had sent his representative by name Segar on 15.5.2011 who inspected the equipment and stated that the system was tripped due to the over load.  Periodically, the opposite party was also inspected the system.  Further alleged that as soon as he get complaint from the complainant, the opposite party sent his representative and inspected the system.  Ex.R1 is the photocopy of inspection report.  Further this opposite party stated that whenever his employee went for inspection, he was not allowed by the complainant to do the service and she was insisting upon replacement by new board.  The same was accepted by the opposite party.  On 15.03.2012 the opposite party visited the house of complainant, but the complainant has not allowed the opposite party to replace the new board.  The opposite party further alleged that due to heavy rain and cyclone and heavy supply of  electric power, the wires got twisted and more than 220 voltage of power loaded at a stretch which caused damage to the Solar Power System.  The natural calamity is beyond the control of opposite party.  Further alleged that the warranty does not cover the damages caused due to natural calamity. 

9.       This forum has carefully perused the materials available on record.  Admittedly, there is no dispute with regard to the purchase of Solar Power System Equipments and installation.  It is the allegation of the complainant that within 10 days from the date of installation of the system, the central body which controls and distributes the solar energy failed to function and it was not able to charge the energy.  The non-functioning of  automatic charging function caused complainant's residence without power and thereby the complainant suffered severe physical and mental agony apart from sufferings by huge losses of money, time and efforts.  It is the further allegation of the complainant that the persons who visited the house of complainant to rectify the defects stated that there is some technical faults which requires rectification by competent persons. 

          10. On the other hand, the opposite party stated that whenever he went to the house of the complainant's house for replacement of new board, he was not allowed by the complainant.  Further stated that the defects caused due to heavy storm which caused twist of wires together and heavy voltage of electric power i.e. more than 220 voltages.  Since the system got defect due to natural calamity and the damages or defects caused by natural calamity will not come under the warranty clause, the defects could be rectified only on payment of costs and therefore, the opposite party asked the complainant to pay a sum of Rs.14,000/- for replacement of parts which was refused by the complainant. 

11. The complainant informed the non-working of the system to the  opposite party through phone and also by Ex.C4 letter dated 30.01.2012.  Since there was no proper response from the opposite party, the complainant approached the opposite party through Ex.C5 legal notice dated 17.02.2012.  On perusal of Ex.C1, the Solar Panel  has 10 years of warranty and the Battery has got 30 months of warranty and the other items covers warranty period of one year.  On perusal of Ex.R1 photocopy of maintenance card shows that on 20.09.2011, it described that the system not working, battery empty due to which MCB breaker got fault / neutral cut.  On 18.01.2012 it described that the system got failed and the PCU became defective.  The Ex.R1 clearly shows that the Solar Power System required frequent service.  The opposite party has stated that the service of the system was required by the complainant due to Cyclone that occurred on 29.12.2011.  Further the opposite party stated that due to heavy rain and cyclone and heavy supply of electric power, the three phase power supply wires got twisted together and more than 220 voltage of power loaded at a stretch, which caused damage to Solar Power Condition unit.  It is the further contention of the opposite party that due to natural calamity, the power system got failed and that in general, the natural calamity will not cover warranty.  To establish the above facts, the opposite party has not filed any proof that due to heavy supply of power on the alleged date of cyclone, the Solar Power System has got damaged.  Further, in the terms and conditions of  Ex.C1 also not  mentioned any clause as to any defect caused due to natural calamity will not come under the warranty.  The same was also admitted by the RW1 in his cross-examination that "…….It is true that I know tripping will happen if there is such over load.  It is true that such position is not printed in any of my papers to the complainant…….".    Further admitted that …."It is true that I don't have any proof to show that the system had suffered supply of 1600 Watts……..".  Hence, in the absence of any vital proof that the system got damaged due to natural calamity which caused heavy supply of power of 1600 watts, the opposite party could not avoid his liability for rectification of defective system. 

          12. The other contention of the opposite party is that whenever he or his representative visited to service the system, the complainant did not allow them to do so.  If the above contention is true, the opposite party might have obtained signature of the complainant in the Ex.R1 for the service rendered on 05.07.2011,  12.07.2011 and 12.11.2011 where the remarks column show that the system is in normal condition.     Hence, the above allegation of the opposite party cannot be taken into consideration.  It is quite natural that whenever a product is purchased by a person and if it covers guarantee / warranty period, it is the bounden duty of the seller to attend the defects if any, caused.  In this case also, in Ex.C1the terms and conditions clause does not whisper that if the system affects due to natural calamity, the warranty will not cover the same.  Further, both the complainant as well as the opposite party did not file any terms and conditions.  As per the documents filed, the warranty clause only exists.   In the absence of exclusion clause in the terms and conditions, it is the duty of the opposite party to rectify the defects and make the system to work properly, otherwise, the purpose for which the solar system was purchased would not be served.

          13. Further, due to the non-functioning of the Solar Power Systems the inability of the complainant to use the electrical accessories which required power from the same would have caused loss and injuries to the complainant and the same has to be compensated by the opposite party.

          14. In the result, this complaint is allowed.  The opposite party is directed to

1. To rectify the defects in the Solar Power System supplied by the opposite party to the complainant and make it in a good working condition with extended warranty.
2. To pay a sum of Rs. 25,000/-  being compensation for the loss and sufferings caused to the complainant.
3. To pay a sum of Rs.5000/- being the cost of this case.

Dated this the 22^nd day of September 2016.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           04.03.2014           Tamby Marie Antoinette

OPPOSITE PARTY'S WITNESS:

RW1           17.12.2014           Venugopalan alias Sivaraj

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

Ex.R1                                      Photocopy of Maintenance Card.

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER