OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.50/14
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
1) Sri Hemjyoti Saikia - Complainants
S/O Late D.K.Saikia
Resident of House No.20,Bashisha Rd,
Beltola Tiniali, Guwahati-28.
2) Sri Utpol Jyoti Saikia
S/O Late D.K.Saikia
Resident of House No.20,Bashisha Rd,
Beltola Tiniali, Guwahati-28.
-vs-
1) M/S Zeolite (India) Pvt.Ltd. - Opp.parties
209,A.J.C.Bose Road,17 Kamani Estate,
1st Floor, Kolkata-700017.
2) The Assistant Manager,
M/S Zeolite (India) Pvt.Ltd.
Dilip Chakraborty Path,R.G.Baruah Road.
Guwahati-781005,Assam. - Opp.Parties
Haralukunte, Haralur Road, HSR Layout,
Appearance-
Learned advocate Mr.Pritam Mahanta for the complainant
Learned advocate Mrs.S.Roy choudhury for the Opp.Party.
Date of argument- 26.7.2017
Date of judgment- 18.8.2017
Judgment
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Sri Hemjyoti Saikia and Sri Utpal Jyoti Saikia was admitted at 19.5.2014 and notices was served upon the opp.parties and opp.parties filed their written statement on 2.8.2014. The complainant filed their evidence in affidavit. After filing the affidavit by the complainant, the opp.parties are allowed to get the cross-examination of C.W.1 and C.W.2 (both the witnesses of the complainant sides’) their questionnaire and they have also served their questionnaires C.W.1 and C.W.2 . Both C.W.1 and C.W.2 formally answered the questionnaires on 21.1.16. Thereafter, the opp.party side filed evidence of Sri Pabitra Kr.Chandra on affidavit and he was cross-examined by the Ld.counsel of the complainant. Ld advocate Mr.Pritam Mahanta filed written argument on behalf of the complainant on 28.3.2017 while Ld advocate Mrs. S. Roy choudhury filed written argument on behalf of the opp.parties on 28.3.2017. On 26.7.17 we heard oral argument of Ld. advocate Mrs. S. Roy choudhury for the complainant and Ld advocate Mr.Pritam Mahanta for the opp.parties and today we deliver the judgment which is as below-
2) The pleading of the complainants in brief is that the complainants were facing problems with regard to their quality of ground water in their residence and after verbal enquiry with the opposite party, the complainants requested for a quotation from the opp.parties for a manufactured water pump in the name and style of “Iron Removal Filter(MS) with Alum Pot, Air Compressor and Oxidation Chamber”. On 2.4.13, the complainants received a quotation for the aforesaid product. According to the quotation the stipulated delivery time was shown to be within 6-8 weeks from the date of advance payment. The opp.parties committed that the said water filter would reduce the iron and turbidity of raw water to a level below 0.3 ppm and 5 NTU respectively. That after receiving the quotation, Complainant No. 1 made advance payment of Rs.65,000/-(Rupees sixty five thousand)only vide cheque No. “009548” drawn at ICICI Bank Ltd. to the opp.parties and ordered to install the filter by the end of June/2013 considering the maximum stipulated time eight weeks. In the meantime , they entered into an agreement dtd.2.7.2013 that Sai Vikas Junior College for letting out a part of their residential property for the purpose of opening a Boys Hostal. The complainants also agreed to provide the said Boys Hostel with good quality of water as they were with a bonafide belief that the opp.parties will deliver the product within 6-8 weeks from the date of receipt of the advance payment. Unfortunately, the complainants did not receive the ordered product within the time stipulated by the opp.parties. It is pertinent to mention herein that due to delay in delivery, the complainants sustained heavy financial burden as they had to dismantle their previous sand filter to make arrangements for the new pump which they were expecting by the end of June . Further , the complainants had to incur heavy financial loses as they had to buy clean water for their regular use. Being dissatisfied by the service by the opp.parties, the complainant sent a mail on 8.7.2013 to the Opp.Party No.1 enquiring about their order. On the same day, the Opp.Party No.1 replied that the product will be delivered to the complainants’ address on the 3rd/4th week of July. Immediately, the complainants replied that the delivery cannot be extended beyond 21.7.13. The complainants finally received their product on 26.7.2013 and made a payment towards installment of an amount of Rs.46,000/-(Rupees forty six thousand)only vide cheque No.”009554” drawn at ICICI Bank Ltd.. However, the pump was finally installed on 2.8.13 and the sample of water was taken by the opp.parties to get the same tested. In the intervening period, the complainants observed that the quality of water was not as per norms stated by the opp.parties. Moreover, the colour of the water was visibly orange in colour. On 12.8.13, the opp.parties sent a mail to the complainants enclosing the test report of the sample collected by the engineers of the opp.parties during installation. In replying to mail, the complainants informed the opp.parties that they have also sent water sample for Iron Testing in Guwahati. It is pertinent to mention herein that after receiving the test report conducted by the Guwahati based laboratory, the complainants were in a state of complete shock and disbelief as the results showed the Turbidity to be 25.5.NTU and the Total Iron as FE:0.95 mg/I, units being far higher than the acceptable limits. After receiving the test reports, the complainants promptly informed the opp.parties about the state of affairs vide dtd. 14.8.2013. In the said mail, the complainants also stated that necessary action shall be initiated to change/modify the filter and further intimated that cheque provided for the last installment will be cancelled. After the aforesaid mail dtd. 14.8.13, the opp.parties kept silence and there was no communication from their side. Consequent thereto, the complainants sent a mail on 26.8.13 stating their grievances about the quality of water and defect of the product and deficiency in service. It was also stated in the said e-mail that the complainants are not satisfied with the performance of the opp.parties and asked the opp.parties to take back the unit and return the entire amount paid along with the expenses incurred by them. But the opp.parties for reasons best known to them not even bothered to reply to the above mail. Again he on 9.11.13 sent a legal notice to the opp.parties demanding refund of money paid by him alongwith interest and consolidated damages i.e. Rs.1,11,500/- as the principal amount of Rs.50,000/-as compensation and the opp.party replied the said legal notice vide their letter dtd. 28.11.2013 and they contended the test report forwarded by him cannot be considered as authentic as said laboratory “Aquachek” is neither a Government Laboratory, nor a Government approved Laboratory and the sample collected was not drawn in presence of their representative and that is why testing of the treated water sample shall be arranged in presence of both the parties and sample shall be tested at a Government Laboratory or a Government authorized laboratory. After receiving the said reply they on 26.12.13 sent a e.mail to the opp.parties and informed them that they had agreed for joint testing of treated water sample by Government approved Laboratory and requested them to make necessary arrangement for the same and test may be carried out on any date mutually decide by both the parties on or before 31.12.13. Accordingly, on 7.1.14 the water samples from the pump in question was drawn in presence of both the parties and test was carried out in an independent govt. laboratory which declared the result on 21.1.14 from which it revealed that the iron and turbidity levels were much higher than the acceptable limits; and they communicated the opp.parties vide e.mail dtd. 31.1.14 and they also requested them to take back the pump and refund the money paid, but the opp.parties vide their e.mail dtd. 19.2.14 stated that test performed by govt.laboratory was wrong and therefore, sample shall be drawn again and test be conducted at Kolkata by them and sample was also be tested in govt. laboratory, other than the one , where the earlier test was conducted. The test carried out in a government laboratory as per desire the opp.parties and therefore, the opp.parties cannot insisted on going on conducting further test at their own sweet will conducting further tests on suggested by the opp.parties can only be a oblique motive to somehow cause delay. For supplying a defective pump they had to suffer huge amount of financial loss and harassment and being compelled they again reinstall their sand filter , which cause huge financial burden to them and they had to buy water from outside and thereby caused huge financial loss to the tune of Rs.51,192/- till date. The opp.parties could have repaired the defects of the filter or install a new filter, but they restored to harass the complainants and thereby they committed deficiency of service to them and also willfully deceived them and therefore opp.parties are liable to pay refund Rs.1,11,500/- which they had paid to them along with interest @18% per annum and also to pay Rs. 51,192/- as damages for causing financial loss and Rs.50,000/- as compensation.
3) The contention of the opp.parties is that as per request of the complainants, they provided quotation for supplying an iron removal filter and on the basis of said quotation, they installed an Iron Removal Filter at the residence of the complainant. The complainant suppressed from them that they had entered into an Agreement dtd. 2.7.13 that one “Sai Vikas Junior College” for letting out a part of their residential property for the purpose of a boys hostel and further agreed to provide water of the said hostel. The said iron removal water filter was purchased for selling water to the said boys hostel, which is an act for commercial purpose. The complainants has not made the full payment to them even after installation of the said filter. The said filter was to be delivered within 6/8 weeks from date of payment of the advance and not from the date of quotation. The complainants intentionally concealed that the filter would be installed within 6/8 weeks from the date of payment of advance as the complainant was to supply water to the boys hostel of “Sai Vikas Junior College”, they did hurry to get the said water filter and still they are to pay Rs.53,500/-. The water sample tested in private laboratory like “Aquachek ”. The water sample collected from the said filter was also tested in their laboratory at Kolkata and the test report was satisfactory as per required level. The test report collected from a acquachek has been manufactured one. The said filter was working properly and there was no deterioration in the water supply when water supply was collected for test by the representative of the opp.party. There is no contract to return the filter and to refund the entire amount. It was found that the said filter was not properly maintained by back washing and rinsing adequately at required intervals by the complainant. The complainant has no ground to return the filter. The report of “Acquachek” is highly suspicious because turbidity iron contents cannot be 25.5 NTU and 0.95 ppm respectively. They received the legal notice sent by the complainants and they they vide their letter dtd. 28.11.13 inform the complainants that they can only accept the report on testing of the treated water sample duly drawn in presence of the company’s representative and sealed by both before submission to any Government or Government approved Laboratory acceptable to both the parties and in presence of representative of the opp.parties, but the complainants intentionally avoided the said request of the opp.party so that the actual truth does not come out in open. The complainants are not entitled to get refund of Rs.1,11,500/- nor entitled to compensation and damage as prayed. The report of the test of samples done at Kolkata by the opp.party is absolutely satisfactory and the water was not found to be turbid and the iron content was within desirable limit. The complainant did not allow the representative of the opp.party to be present at the time of collecting the sample and on testing of a sample. They have no knowledge about the source of sample. While second water sample was collected by the opp.party from the said filter ,there was no doubt in the said filter. They rightly insisted for further test because, in the earlier two occasion, the opp.party company has no knowledge about the source of water sample. The complainant dismantled the filter in hast without informing that about and therefore, they cannot returned the said filter in dismantled condition. The complainant suffered no financial loss as alleged. As the filter was not defective, question of rectifying the defects or replacement does not arise at all. The complainants have no cause of action for filing the complaint and as such the complaint is liable to be dismissed.
4) We have perused the pleading as well as the evidence of the parties . We have also perused the pleading as well as the evidence of the parties. WE have also perused argument of both sides Ld.advocates. We have found that both sides admit that the complainant Sri Hemjyoti Saikia entered into an agreement with the Opp.Party No.1, namely, M/S Zeolite India Pvt.Ltd. through their Assistant Manager, Guwahati branch for purchasing one Iron Removal Water Filter (MS) with Alum Pot, Air Compressor and Oxidation Chamber from Opp.Party No.1 by receiving that quotation and Opp.Party No.1 agreed to deliver the item within 6-8 weeks from the date of advance payment and the said water filter is has the capacity to reduce the iron and turbidity of the raw water to the level 0.3 ppm and 5 NTU respectively and Opp.Party No.1 side also tested the ground water; and after receiving the quotation, the complainant made an advance payment of Rs.65,000/- to Opp.Party No.1 through cheque No. 009548 drawn at ICICI Bank Ltd.; and the complainants also entered into an agreement with Sai Vikas Junior College for letting a part of their residential property for the purpose of opening a boys hostel where they supply good quality of water. Both sides also admit that the opp.parties supplied the said filter on 26.7.13 and the same was also installed in their house and they also paid Rs.46,000/- to the opp.parties. Both sides also admit that the total value of the filter along with the installment cost is Rs.1,65,000/- and up till 26.7.13. The complainants paid Rs.1,11,000/- to the opp.parties and the filter was installed on 2.8.13 and the opp.parties also took sample of the water to get the same test and the sample was tested in their own laboratory at Kolkata.
5) The plea of the complainant is that after installation of the said water filter, they found the filtered water visibly orange colour and then they on 12.8.13 sent a e.mail to the opp.parties along with the test report and the complainants also sent the water sample for Iron Testing in Guwahati and complainants found the result of such test showed Turbidity – 25.5 NTU andiron –FE : 0.95 mg/1, units being far higher than the acceptable limits and after receiving the said reports the complainants inform the opp.parties about the state of affairs vide mail dtd. 14.8.13. but opp.parties kept mum and then the complainant again on 26.8.13 sent a e.mail to the opp.parties stating about the quality of water and in the said e.mail they asked the opp.parties to back the unit and return the amount paid. But the opp.parties did not response to them; and then the complainants on 9.11.13 sent legal notice to the opp.parties asking them to refund the amount paid i.e. Rs.1,11,500/- along with interest within two weeks and also to pay Rs.50,000/- for compensation for the expenses incurred due to defect of product and deficiency of service , and the opp.parties vide their letter dtd. 28.11.13 replied to said legal notice wherein they state that the test report forwarded by the complainants cannot be considered as authentic as the said laboratory is neither a Government Laboratory nor a Government approved Laboratory and that sample was not taken in presence of their representative and advised to arrange for collection of sample in presence of both the parties and sample shall be tested at Government Laboratory nor a Government approved Laboratory; and reply to that notice the complainants vide e.mail dtd. 26.12.13 inform the opp.parties that they agreed to their proposal and to arrange for collecting sample on any date on or before 31.12.13; and accordingly on 7.1.14 water sample of the said pump was drawn in presence of both the parties and test was carried in the State Public Health Laboratory to the Government of Assam and the said laboratory sent the report to the complainants vide letter memo No. VII/6(III)/435 dtd.21.1.14 and the said laboratory found turbidity level 16 NTU iron 12.5 who also opined that water is turbid and contents iron higher than desirable limit of 0.31 mg/1 maximum and hence the water needs proper treatment before drinking. The complainants also vide e.mail dtd.31.1.14, informed the opp.parties about the result of the said test. This part of pleading/statement of the complainants are admitted by the opp.parties.
6) From the pleading of the both the parties, it also reveals that after receiving the e.mail dtd. 31.1.14 sent by the complainant, the opp.party, vide e.mail dtd.19.2.14, rejected the test report done by the Government Laboratory, State Public Health Laboratory , Government of Assam, and suggested the test to be performed again at Kolkata and they also stated that the test performed by Government Laboratory, Government of Assam was wrong .
In this respect, the complainant sides plea is that the test was done by the laboratory of Government of Assam after taking sample in presence of both the parties and the report of the test is correct one but as the results are not in favour of the opp.parties , they are insisting for further test of the samples, and therefore, the further test cannot be allowed to done. The plea of the opp.parties is that the complainants avoided their request for further test of the sample to be conducted at Kolkata and therefore, the complainants are not entitled to refund the money which they had already paid. We have perused the report of the Assam State Public Health Laboratory , Government of Assam, which is Ex 16 and it is found that, that laboratory took the sample of the filtered water of the connected filter in presence of both the parties on 7.1.14 and took the sample to their laboratory and did the test and found that the sample turbidity is 16 NTU and iron is FE 12.5. We have also perused the first test that was done by Aquachek (Eureka Forbes Ltd.) which was done on 7.8.2013 and they found turbidity 25.5 NTU and iron FE 0.95 mg/1 and they opined that the water sample does not conforms to IS:10500-2012 (Second Revision), which is 5.0 NTU maximum (turbidity) 0.3 mg/1 (iron). We have found that the State Public Health Laboratory , Government of Assam, is government laboratory and the said laboratory did the test after collecting the sample in presence of both the parties. Therefore, the opp.parties should not have any ground to object the process of testing and to reject the test report. So, the opp.parties are not entitled to get opportunity for testing the sample in laboratory at Kolkata any further. Therefore, we hold that the result of the test done by State Public Health Laboratory , Government of Assam is acceptable report in connection with this case. Accordingly, the report of the test of filtered water of the filter installed by the opp.parties in the residence of the complainant is found turbidity 16 NTU and iron 12.5 mg/1. From the quotation (Ex 3) filed by the opp.parties, it is seen that the filter installed in the residence of the complainant has a capacity to reduce the iron (Fe) just above and just below 0.3 ppm and turbidity just above and just below 5 NTU while State Public Health Laboratory found turbidity 16 NTU and iron 12.5 mg/1 ppm, which shows up higher turbidity and iron content in the filtered water of the said filter. Therefore, we hold that, the installed filter failed to reduce the turbidity and the iron to the standard fixed by World Health Organization, which is turbidity < 5 NTU and iron 0.5 ppm, and thereby it failed to make the water of the residence of the complainants fit for consumption, meaning thereby the filter is either defective , or the company failed to manufacture it giving capacity to reduce the turbidity of <5 NTU and iron to 0.3 ppm. The opp.parties in their written statement indirectly admits that fact, but they wanted to save them from such stigma stating in written statement that the test report of sample done at Kolkata conforms the standard of World Health Organisation, and there is no defect in the said filter; They also state that due to lack of proper maintenance and back washing to be done by complainants, the filter failed to give proper result. It is found that the opp.parties has not filed the report of the test done at Kolkata, nor adduced any evidence prove their that the filter was not properly maintained and back- wash was also not done by the complainant. Therefore, these two pleas of the opp.parties stand not established. Accordingly, in such premises, we hold that the filter installed in the residence of the complainant is a defective filter or a filter having no capacity to reduce the turbidity and iron contents of the raw water to the level (standard) set by the World Health Organization (the standard agreed to be given by the filter ).
7) The counsel of the opp.parties Ld.advocate Mrs.S.Roychowdhury submits that the complainants are not consumers as they purchased the filter from them for commercial purpose having they agreed that Sai Vikas Junior College to provide water to a boys hostel to be established in their residence vide their agreement with them on 2.7.13. From evidence and the pleading of the complainant, it is found that, the complainant had actually entered into an agreement with Sai Vikas Junior 2.7.13 for establishmenting a boys hostel in their residence, whereto they would supply water from the said filter. The opp.party side adduced no evidence to show that the complainants have other business, Therefore, we have constrained to presume that the act of establishing a boys hostel in their house by the complainants is a source of income for their livelihood, and so, such activity is an act of self employment for their livelihood , although it is apparently seen that the filter would be used for commercial purpose. Secondly, it is also seen that the water from the said filter proposed to be used in their residence also. So, in such situation, we must hold that the benefits given by the said filter cannot be said to be used for commercial purpose, but for earning livelihood of the complainants by means of self employment. So, the complainants are consumers under the Opp.Party No.1 & 2 in connection with purchasing the said filter and therefore, the complainants are entitled to get benefit to be given by this forum.
8) It is already found that the filter fixed by the opp.parties in the residence of the complainant is a defective filter or a filter having no capacity to reduce the turbidity and iron contents of the raw water to the standard set by World Health Organization i.e. water fit for consumption by human. Secondly, it is also seen that the complainants repeatedly asked the Opp.Party No.1 and 3 to repair the filter or to remove it and to refund the advance amount paid, but in spite of receiving said requests from the complainants, they have not taken any step for repairing of the said filter or replacing the said filter, but illegally insisting on for testing the sample in laboratory in a Kolkata for the third time. Therefore, we hold that such conduct on the part of the Opp.Party No.1 & 2 is an act of deficiency of service towards the complainant, which also amounts to unfair trade practice. So, Opp.Party No.1 & 2 are liable to refund the advance amount paid, which is Rs.1,11,500/- and to take back the filter.
9) From the version of the complainants, it is found that, when they failed to get response from the opp.parties, they removed the filter and again started the sand filter in its place for getting human consumable water to be used in their residence and in the hostel in their house. The opp.party sides Ld. Advocate Mrs.S.Roychoudhury submits that as the complainant removed the filter and restarted sand filter there, the complainants are not entitled to get back the money paid by him rather they are liable to pay them the remaining amount Rs.50,000/- to them as per agreement. It is common to all that man cannot live without water. It is evident from the record that after making repeated requests by the complainants, the opp.parties neither repaired the said filter, nor replaced it. Therefore, we are of opinion that the complainants have justified ground to remove the said filter and restart sand filter there to get the water fit for human consumption. Therefore, the plea of Ld.advocate Mrs.S.Roy choudhury cannot be sustained. So, we are of opinion that opp.parties are liable to refund the advance money they had received and also to pay compensation for causing harassment to the complainants. We are of view that the opp.parties are liable to pay compensation atleast to the tune of Rs.10,000/- for causing harassment to the complainant. It is found that the , for no fault of the complainants, they become compelled to prosecute the opp.parties before this forum. Therefore, the opp.parties are liable to pay atleast Rs.10,000/- as cost of the proceeding. The opp.parties should have refunded the advance money after receiving first notice of the complainant dtd. 14.8.13 and therefore, they are liable to pay interest @6% per annum from 14.8.13, on the advance amount to be refunded by them. The complainant sides another plea is that , that the filter failed to give water fit for human consumption , they had to purchase water from outside and they have incurred a expenditure of Rs.51,192/- in purchasing the water from outside till filing of the complaint, but it is found that the complainants side has not filed any evidence to prove that plea, and on the other hand they state that they removed the said filter and restarted sand filter in that place. So, in such situation , it cannot be said that the complainants incurred a expenditure of Rs.51,192/- in buying water from outside while the said filter cannot function properly.
10) Because of what has been discussed as above the complaint against Opp.Party No.1 & 2 is allowed on contest and they are directed to refund the advance amount, which the complainant had paid i.e. Rs.1,11,500/- with interest @6% per annum from 14.8.13 and also to pay them Rs.10,000/- as compensation for causing harassment to them and as well as Rs.10,000/- for cost of proceeding, to-which, both opp.parties are jointly and severally liable. The opp.parties will be entitled to get back the removed components of the filter after full payment of the awarded amount. The opp.parties are directed to make the payment within 45 days, in default, other two amounts shall also carry interest at the same rate.
Given under our hand and seal on this the 18th day of August,2017.
Free copies of judgment be delivered to the parties.
(Smti.Archana Deka Lahkar) (Md.Sahadat Hussain)
Member President
