DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 29th day of April, 2023
Filed on: 23/09/2017
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
CC NO. 382/2017
Between
COMPLAINANT
Jossy Joseph Alias Jose Olangattu, s/o. Iype, Olangattu House, West Morakala Kara, Kumarapuram P.O., Pin 683565.
(Rep. by Adv. Johnson Thomas, Antu C.G., Thayil Building, Opp. Specialist Hospital, KCM Mather Road, Ernakulam North, Kochi 682018
VS
OPPOSITE PARTIES
1. Justin Jose R., General Manager Marketing (W.H.) V Guard Industries Ltd., 8th Floor, Vennala High School Road, Vennala, Kochi 6820028.
(Rep. by Adv. V.V. Sadanandan, 42/2421, Thaliath Building, St. benedict Road, Kochi 682018)
2. Shaju Paul, Proprietor, V-LAND POWERSOL MARKETING, Nedumpillil Buildings, OLD XXII/632, Perumbavoor IVII, A.M. Road, Perumbavoor 683542.
(Rep. by Adv. M.P. Joseph, High Court of Kerala)
FINAL ORDER
Sreevidhia T.N., Member:
1. A brief statement of facts of this complaint is as stated below:
The complainant is a farmer cum small scale industrialist. Most of the works in the industrial unit are done by the complainant himself, which is his main source of livelihood. Complainant and 2nd opposite party are known to each other for the last 10 years and are friends. The small scale industrial unit of the complainant is at Erumeli in Pallikara under the name style J & G Toolings, near Erumeli Temple. The 2nd opposite party is the authorized dealer of the 1st opposite party and conducting his business at Perumbavoor. The 2nd opposite party had approached the complainant and induced to purchase solar water heaters of 200 ltrs. capacity for a price of Rs.31,000/- each. The 2nd opposite party is running dealership business of the 1st opposite party as a new enterprise. Since the 2nd opposite party is a friend of the complainant, had agreed to purchase 2 solar water heaters of 200 ltrs. capacity each for a total consideration of Rs.62,000/-. The order was placed by the complainant to the 2nd opposite party through telephone and on the demand of the 2nd opposite party, complainant had transferred Rs.62,000/- to the account of the 2nd opposite party from the account of the complainant with the Federal bank Ltd., Pazhamthottom Branch on 06/07/2017. After payment of the above amount complainant had requested the 2nd opposite party to install one of the water heaters in the residence of the complainant and other one in the Rest room attached to the office cum small scale unit of complainant for personal use.
The 2nd opposite party had delivered one solar water heater on 29/07/2017 at the residence of the complainant. As instruct by the 2nd opposite party, complainant had purchased steel rode and other accessories in addition to the stand provided by the 2nd opposite party, to install the solar water heater in a height more than that of the stand provided by the 2nd opposite party for arranging direct sun light to the panel of the solar water heater by spending Rs.20,000/-. Even though the complainant had made all the arrangement for the installation of the solar water heater in the premises of the complainant, the 2nd opposite party did not install the water heater unloaded in the premises. At the same time the 2nd opposite party did not supplied the 2nd one, even though the price of the 2nd one was also paid to the 2nd opposite party. 2nd opposite party being the authorized dealer and supplier of the product of the 1st opposite party, the 1st opposite party is also liable to ensure that the agent/dealer is complying with the orders and the 2nd opposite party is making installation of the products promptly, without any complaints from any corner. The non-supply of the 2nd solar water heater and accessories and non-installation of the one already unloaded in the premises of complainant was intimated to the 1st opposite party also but both the opposite parties did not acted upon such intimation from complainant. On expiry of one month from the date of payment and both the opposite parties did not acted upon the complaint of complainant and failed to supply the 2nd solar water heater ordered by complainant for which the 2nd opposite party had acknowledged the consideration. The opposite parties did not installed the solar water heater till date. The 2nd opposite party did not even attend the phone calls of complainant. The entire effort of the opposite parties is to make unlawful enrichment at the expenses of complainant. The non-supply of the 2nd solar water heater and non-installation of the one unloaded in the premises of complainant amounts to deficiency of service and unfair trade practice. Complainant ordered the 2 solar water heaters for his own personal use and not for any commercial purpose. Since the water heaters were not supplied in time, complainant is not interested in the solar water heater and opposite party is bound to take back the solar heater and to refund the price received by the 2nd opposite party in his account amounting to Rs.62,000/- in addition to the expenses of Rs.20,000/- incurred for purchasing stainless steel rode etc. for stand and Rs.7,000/- incurred for plumbing work. Thus the opposite parties are bound to pay an amount of Rs.89,000/- to complainant and shall take back the one supplied by the opposite parties. Since there was no response to the oral requests and demands of the complainant a notice dated 02/08/2017 was issued to the opposite parties through the counsel for the complainant demanding the entire amount of Rs.89,000/- and the notice charges. Notice was posted on 05/08/2017. 1st opposite party had acknowledged the notice and the 2nd opposite party did not accept the notice fully knowing the content of the notice. Thus both the opposite party received the notice. The 1st opposite party made a telephone call to the complainant but no refund was made till date. No reply was sent or the amount was refunded. Hence the complainant had no option than to approach this Commission.
2. Notice.
Notices issued to the opposite parties from this Commission on 19/10/2017. Opposite parties No. 1 and 2 appeared and filed their written version.
3. Version of opposite party No. 1
The above complaint is not maintainable either in law or on facts. The complaint is defective due to the mis-joinder of parties. This opposite party is not aware of the averments in paragraph 1 of the complaint and the same is denied by this opposite party for want of knowledge. It is emphatically denied that the 2nd opposite party is the authorized dealer of 1st opposite party. This opposite party submits that there is no principal-agent relationship between the 1st opposite party and the 2nd opposite party. The liability of the 1st opposite party is limited to any manufacturing defect in the product during the warranty period. This opposite party is not aware of the order placed by the complainant and non-supply of one solar water heater. It is submitted that the complainant has neither approached nor informed this opposite party about the entire transaction. This opposite party came to know about the transaction only upon the receipt of the lawyer notice dated 02/08/2017 which was sufficiently replied. It is denied by this opposite party that the 2nd opposite party is the authorized dealer of the 1st opposite party and hence no liability can be attributed to the 1st opposite party. As there is no principal-agent relationship existing between the opposite parties, 1st opposite party shall not be liable for the alleged commissions and omissions of the 2nd opposite party. This opposite party is not aware of the order placed by the complainant and non-supply of one solar water heater. The complainant has neither approached nor informed this opposite party about the entire transaction.
4. Version of opposite party No. 2
The above complaint is not maintainable either on facts or in law. The installation work done by the complainant is not as per the instruction of the 2nd opposite party. The steel rods used for the installation work was very poor in quality and is not having enough strength and thereby the structure is very unsafe to install such a delicate instrument like solar water heater. The tubes of the solar water heater are covered with glass and have every chance for the breakage of the equipment. This matter was informed to the complainant. There are no latches or lacuna from the part of the 2nd opposite party in installing the equipment. The 7th para of the complaint is a fabricated story and thereby denied. The 2nd opposite party even now is ready with installation of the water heater provided a proper installation was done by the complainant in a strongful manner. The complainant in his complaint stated that he is running a small industry and he intends to install a water heater for the welfare of his workers working in his unit. But in the 7th para it is clearly stated that the water heater is only for his personal purpose. The 2nd opposite party had not received the legal notice sent by the complainant’s counsel for demanding the amount allegedly paid by the complainant. From the legal notice itself it is clear that he is demanding money not the service of the opposite parties. One of the solar water heaters was already installed and commissioned in the premises of the brother of the complainant. The 2nd opposite party had no liability to refund the amount because the amount paid by the complainant is paid to the opposite party. Hence the 2nd opposite party had no liability to pay back the amount to the complainant. There is neither unfair trade practice nor any deficiency in service in the installation of the solar water heater. That the complainant had given an oral complaint before the Pattimattom Police Station and the complainant as well as the 2nd opposite party were summoned and the complainant agreed to make safe and firm structure for the installation of the solar water heater in the complainant’s house. This was violated by the complainant and was not allowed to install the solar water heater and the workers of the opposite parties were left the house of the complainant.
5. Evidence
Evidence in this case consists of the proof affidavit filed by the complainant and the documentary evidence filed by the complainant which are marked as Exbt. A1 to A5. Complainant is cross examined by 1st and 2nd opposite parties’ counsel and his depositions are recorded as ‘PW1’.
opposite party No. 2 filed photographs and one CD which are marked as Exbt. B1 and B2. No other evidence from the side of 1st and 2nd opposite parties.
Heard the complainant only. 1st and 2nd opposite parties are continuously absenting since 19/08/2020.
6. Points for consideration in this case are
1. Whether any deficiency in service or unfair trade practice is proved from the side of the opposite party towards the complainant?
2. If so, reliefs and costs?
The case of the complainant is that he had agreed to purchase 2 solar water heater of 200 ltrs. capacity each for a total consideration for Rs.62,000/- from the opposite parties. After paying the amount to the 2nd opposite party the 2nd opposite party had delivered one solar heater on 29/07/2017 at the residence of the complainant. The 2nd opposite party did not supply the 2nd solar water heater to the complainant. As instructed by the 2nd opposite party the complainant had purchased steel rode and their accessories to install the solar water heater in a height more than that of the stand provided by the 2nd opposite party. The complainant had incurred an additional expense of Rs.7,000/- for making plumping works for providing CPVC pipes and other fittings. Complainant had transferred Rs.62,000/- to the 2nd opposite party to purchase 2 solar heater of 200ltrs. of capacity each. Exbt. A1 is the copy of the statement of account of the Bank account of the complainant showing the payment of Rs.62,000/- to the 2nd opposite party on 06/07/2017. After payment of the above amount, the 2nd opposite party had delivered one solar heater on 29/07/2017 at the residence of the complainant. It is evident from Exbt. A2. Since the 2nd solar water heater was not supplied and the one unloaded in the premises was not installed the complainant was caused to issue a lawyer notice to the 1st opposite party and 2nd opposite party as evidenced by Exbt. A3. The lawyer notice issued to 1st opposite party was acknowledged by the 1st opposite party as evident from
Exbt. A4. The lawyer notice issued to the 2nd opposite party was returned as undelivered as evident from Exbt. A5. The complainant alleges that the opposite parties failed to supply the 2nd solar water heater ordered by the complainant for which the 2nd opposite party accepted the consideration amount and hence there is a clear instance of deficiency in service on the part of opposite parties, for which they are liable to compensate the complainant.
From the available documents and evidence in this case it is proved that after accepting money from the complainant, the 2nd opposite party not delivered the 2nd solar water heater so far. There is clear deficiency in service from the part of 2nd opposite party. 1st opposite party in their version contended that “there is no principal-agent relationship between the 1st opposite party and the 2nd opposite party. The 1st opposite party came to know about the transaction only upon the receipt of the lawyer notice dated 02/08/2017 which was sufficiently replied. As there is no principal-agent relationship existing between the opposite parties, 1st opposite party shall not been liable for the alleged commissions and omissions of the 2nd opposite party. The 1st opposite party is not aware of the orders placed by the complainant and non-supply of water heater. The complainant has neither approached nor informed the 1st opposite party about the entire transaction.”
On verification of Exbt. A1 and A2 produced by the complainant 2nd opposite party accepted money for the two solar water heater. Exbt. A2 sale bill is also issued by V-Land Power Sole Marketing. In the cause title 1st opposite party’s name is written as GM Marketing, V Guard Industries Ltd., 8th Floor, Vennala High School Road, Kochi. There is no evidence produced by the complainant to prove that the 2nd opposite party is the dealer and supplier of the product of the 1st opposite party. No evidence to prove that the 1st opposite party is the principal of the 2nd opposite party. There is no evidence produced by the complainant to prove that the consideration is paid to 1st opposite party also. In this situation 1st opposite party is excluded from paying any compensation to the complainant for the non-installation and non-supply of the solar water heater. The 1st solar heater sold by 2nd opposite party is not seen installed as per the available evidence filed by the complainant. During cross-examination by 2nd opposite party, PW1 deposed that the 1st solar heater was not installed by the 2nd opposite party. The complainant also alleges in this complaint that there occurred an additional expenses of Rs.27,000/- for the purchase of the steel rode, other accessories in addition to the stand provided by 2nd opposite party, and for providing CPVC pipes and other fittings to install the solar water heater in the height more than that of the stand provided by the 2nd opposite party, (as per the instruction of the 2nd opposite party). But the complainant has not produced any purchase bills towards the purchase of steel rode, pipe fittings, CPVC pipes etc.
Considering all the facts stated in the complaint, version filed by the opposite parties and the available documents and evidence in this case, clear deficiency in service is proved from the side of 2nd opposite party. Moreover 2nd opposite party have no case that they have not received the amount of Rs.62,000/- from the complainant or 2nd opposite party have not a case that they have supplied and installed the two solar water heater to the complainant as per the demand of the complainant.
In the result, issues No. (1) and (2) are found in favour of the complainant and the following orders are hereby passed.
1. The 2nd opposite party shall refund Rs.62,000/- (Rupees sixty two thousand only) to the complainant. The 2nd opposite party shall also take back one solar water heater unloaded in the premises of the complainant.
2. The 2nd opposite party shall pay a compensation of Rs.15,000/- (Rupees fifteen thousand only) to the complainant towards the deficiency in service committed by the 2nd opposite party.
3. The 2nd opposite party shall also pay an amount of Rs.5,000/- (Rupees five thousand only) as cost of proceedings to the complainant.
The above order shall be complied with within 30 days from the date of the receipt of a copy of this order. If the order is not complied within 30 days the amount ordered vide (1) shall attract interest at the rate of 6.5% per annum from 06/07/2017, the date of remittance of amount till the date of realization.
Pronounced in the Open Commission this the 29th day of April, 2023.
Sd/-
Sreevidhia.T.N, Member
Sd/-
D.B.Binu, President
Sd/- V.Ramachandran, Member Forwarded/by Order
Assistant Registrar
APPENDIX
Complainant’s evidence:
Exbt. A1: Copy of Bank statement of the complainant
Exbt. A2: Copy of bill issued by the 2nd opposite party
Exbt. A3: Copy of lawyer notice
Exbt. A4: Copy of AD Card
Exbt. A5: Undelivered lawyer notice
Opposite parties’ evidence
Nil.
Despatch date:
By hand: By post
kp/
CC No. 382/2017
Order Date: 29/04/2023
