IN THE CONSUMER DISPUTES  REDRESSAL COMMISSION, KOTTAYAM.

Dated this the 23^rd day of February,2021

Present:               Sri. Manulal V.S., President

                             Smt. Bindhu R. Member

                             Sri. K.M. Anto, Member       

CC No.207/18(filed on 1/10/18)

Complainant                             :  Bose Abraham,

                                                             S/o Abraham

                                                             Kunnel House,

                                                             Manarcad PO,

                                                             Kottayam.

                                                          (Adv. K.A.Prasad)

                                                          Vs.

Opposite parties                                 :  1) Proprietor,

                                                                  M/s.Sun –Solar

                                                                 Anugraha Building, Kottayam-31

                                                             2) Managing Director

                                                                 Racold Thermo Ltd

                                                                 Gat No.265/374/376

                                                                 Kharabwadi

                                                                 Chakan Talegaon, Chakan

                                                                 Pune-410501

                                                          (Adv. Manu.J.Varappally)

.

ORDER

Smt. Bindhu R. Member

          This complaint is filed under Section 12 of the Consumer Protection Act 1986.

          The complaint in brief is as follows.

                On 5/10/11 the complainant booked a solar water heater from the 1^st opposite party for Rs.56,390/- and the 1^st opposite party offered a reduction of Rs.13,200/-being the Govt.subsidy.  First opposite party is the dealer of 2^nd opposite party who is engaged in the manufacture and distribution of solar water heater, inverter, water level controller, solar lantern, solar lighting and other allied products.  The complainant paid Rs.43,190/- as advance amount.  The opposite party assured to give 7 years warranty to the Omega Collector and 5 years warranty to the Water Storage Tank in additional to periodical maintenance and service.  Further there was an assurance of replacement and repair of the water heater if found defective during the warranty period.  Believing the words of the opposite party the complainant paid the balance amount on 23-8-13 and bought the water heater of model No.SLT-130401271 from the 1^st opposite party.  Above all these assurances, the water heater remained unserviced for 3 years though the complainant informed the opposite parties several times.  The water heater became defective within four years of its purchase.  The main defect was that Omega Collector was not properly working and the heat retention power of the storage tank was very poor.  The insulation of the main pipe was mopped with in two years due to the lesser quality of materials used..    The opposite parties had given 7 years guarantee to the Omega Collector and 5 years guarantee to the tank.  It was answered that if any defect occurs within 7 years it would be rectified free of cost. The complainant approached the opposite parties several times but they did not turn up.  The defect of the water heater occurred due to the manufacturing defect and lack of service.  Hence this complaint is filed for the replacement or refund of the amount.

          Upon notice the opposite party 2 appeared and filed version.  Opposite party 1 served with the notice but did not appear and set exparte.  Opposite party 2 in his version contented that the complaint is frivolous, not maintainable and bad for limitation.  The 2^nd opposite party did not give any warranty to the water heater but only guarantee was given.  Opposite party 2 admitted that they were liable to replace the defective water heater or to refund the amount.  Once when the opposite party 2 approached the complainant to rectify the defect, the complainant did not cooperate.  It is not correct that the water heater was defective.  It was the 1^st opposite party who should have given service if needed.

          In the evidence part the complainant and the 2^nd opposite party has filed proof affidavit.  Both have no documentary evidence.

          On consideration of the evidence and pleadings we would like to consider the following points.

1. Whether the complainant has a genuine cause and whether he has succeeded in establishing the deficiency in service?
2. If so what are the reliefs?

For convenience Point No.1 & 2 together.

Point No.1&2

          The complainant alleges that the solar water heater purchased by him from the 1^st opposite party, manufactured by the 2^nd opposite party got defective within the warranty period but no service was offered by the opposite parties.  This is a clear deficiency of service.

          But even though such as allegation is put forward, the complainant has not produced any document before this commission.  There is no document to prove the purchase.  As there is no evidence to prove the consideration we cann’t consider the complainant as a consumer in the purview of the Consumer Protection Act.  Section 2(d) “ consumer means any person who-

1. Buys any goods for a consideration which has been pair or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than he person who buys such goods for consideration paid or promised or partly  paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person but does not include a person who avails of such services for any commercial purpose.

Explanation: For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood, by means of self-employment;

Moreoever, even though the complainant alleges that he had intimated the opposite parties several times about the complaints of the water heater but nobody turned up to give service.  For this also, the complainant has not produced a single copy of a complaint given to the opposite parties on one such occasion.  The non-production of such documents raises suspicion on the genuiness of the complainant.  Moreover, the 2^nd opposite party in their version and proof affidavit admits that he is bound to give replacement for a defective good if the same is found to be having manufacturing defect.  But he is also not intimated properly.  Even then he sent his people to the complainant to rectify the complaint if any but the complainant did not cooperate.  There is no evidence before us whether there was any complaint to the water heater and whether the opposite parties denied service.  So we find that the complainant has snot approached this commission with clean hands and therefore on the above discussed reasons, Point No.1 & 2 are found against the complainant.  The complainant has failed to prove his case if any.  Hence we dismiss the complaint.

Pronounced in the Open Commission on this the 23^rd day of February, 2021.

Smt. Bindhu R. Member                  Sd/-

Sri. Manulal V.S., President            Sd/-

Sri. K.M. Anto, Member                  Sd/-  

By Order,

Senior Superintendent.