BEFORE THE DISTRICT CONSUMER

DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

C.C.No.371/2012     Filed on 18.10.2012

ORDER DATED: 20.04.2021

Complainant:

(by Adv. P. Babu)

Opposite parties:

(by Adv. Soumya S.)

(by Adv. Jason Manavalan)

This C.C having been heard on 11.02.2021, the commission on 20.04.2021 delivered the following:

ORDER

SMT. PREETHA G. NAIR.,  MEMBER:

The complainant having trusted the words of the 1^st opposite party entrusted the work of digging of bore well and installation of KSB submersible motor pump with the 1^st opposite party.  Accordingly the 1^st opposite party dug a bore well and subsequently installed a ¾ HP 125 inch KSB motor pump bearing serial no.026704177 on 13.05.2011.  On the same day the 1^st opposite party realised an amount of Rs.22,400/- as total cost out of which the 1^st opposite party informed that the cost of pump set is Rs.12,800/-.  The 1^st opposite party did not deliver bill for the purchase of the pump set despite repeated request made by the complainant.  Instead the 1^st opposite party has given a warranty certificate dated 13.05.2011 without stamp and seal of the manufacturer or dealer but only noting the phone number and mobile number of the dealer the 1^st opposite party.  As per the warranty certificate, warranty period for the KSB submersible pump is limited to 18 months from the date of invoice or 12 months from the date of commissioning whichever is earlier for rectifying, repairing, modifying or replacing the defective items.  But to utter dismay and disappointment of the complainant, the pumpset broke down abruptly on 06.03.2012 and the fact was immediately informed to the 1^st opposite party in person.  The 1^st opposite party visited the house and after having examined the pump told the complainant that the mechanic can only rectify the defects and he assured that he would arrange the company mechanic to repair the pump at the earliest.  However on 14.03.2012 the 1^st opposite party along with a person introduced that he is the mechanic authorised by the company.  Thereafter mechanic examined and took the same for repair and collected Rs.500/- as labour charges from the complainant despite the fact that the defect of the pump was occurred within the warranty period.  Further the mechanic as well as the 1^st opposite party assured that the pump will be returned within three days.  Even after one month the pump set was not returned.  On enquiry with the 1^st opposite party he informed that the pump set was sent to the manufacturer the 2^nd opposite party and the same would be returned soon after the repair.  On 24.02.2012 the 1^st opposite party has installed the pump after repairs and told the complainant that entire defects in the pump were rectified by the manufacturer, the 2^nd opposite party at Pune and convinced the complainant that repaired pump would henceforth function smoothly as a new one and the 1^st opposite party again collected Rs.500/- claiming to be labour charge.  On 25.04.2012, when the complainant was out of station, the 1^st opposite party came to the house of the complainant and delivered a piece of paper noting the cost of pump and fittings transportation and labour charge etc at Rs.4,950/- as that of installation of a new pump and realised the amount from the complainant’s daughter namely Suja who was alone in the house.  No receipt was issued on the receipt of the cash from the complainant’s daughter.  Moreover the date incorporated in the bit paper is 16.05.2011.  Since the 1^st opposite party received a total amount of Rs.5,950/- (i.e.500+500+4950) on three occasions from the complainant illegally under the guise of charges of repair of the motor pump within the warranty period and advocate notice was caused to sent to the 1^st opposite party on 09.05.2012 demanding to return the amount received by him illegally and to pay cost of the notice Rs.1,000/- within 15 days of the receipt of the notice.  The 1^st opposite party issued a reply notice dated 26.05.2012 raising false and frivolous contentions.  The motor pump have been repaired by the manufacturer, the 2^nd opposite party and installed by the 1^st opposite party was again broken down abruptly from 28.05.2012 onwards.  Immediately the fact of non working of the pump was informed to the 1^st opposite party and he promised to bring the company mechanic to check and find out the fault of the pump.  but contrary to his promise/assurance the 1^st opposite party never visited the complainant’s house along with the mechanic and pump remains idle till today.  The motor pump which was repaired and installed on 24.04.2012 after accepting total amount of Rs.5,950/- in three occasions within the warranty period worked hardly for one month.  As there was no response from the 1^st opposite party as he failed to bring the company mechanic to examine the defect of the pump an advocate notice was again sent to the 1^st and 2^nd opposite parties.  The pump set is remaining non functional from 25.05.2012 onwards.  The 1^st opposite party is not taking any steps either to rectify defects or replace the same with new pump set despite he has assured the same person and also by advocate notice.  The non functioning of the pump set is due to  the inherent manufacturing defect of the pump set and the 1^st and 2^nd opposite parties are jointly and severally liable for the deficiency in service and unfair trade practice.  Hence the complaint.

The opposite parties filed version stating the following contentions:

The 1^st opposite party had dug a bore well for the complainant in his residential plot and installed a submersible motor pump on 13.05.2011 as desired by the complainant.  The 1^st opposite party realised Rs.22,400/- from the complainant is false and denied.  The warranty of 12 months from the date of installation is enjoyable subject to instructions 8.1 in the manual of instructions of KSB Submersible pump.  The date of installation being on 13.05.2011 the 12 months warranty period expires on 12.05.2012.  The complainant has no case that he operated the pump set in strict conformity with the instructions in the manual.  On getting information on 06.03.2012 that the pump set installed on 13.05.2011 is not working the authorised mechanic’s services were made available and on digging out the installed pump set it was found by the mechanic that the trouble shoot out as a result of its operation in violation of general instructions in manual 8.1 by keeping the pump set idle for long.  It was taken out for repair and sent to the manufacturer at Pune and it was replaced with new one and installed on 24.04.2012.  Rs.500/- each at the time of installation of replaced pump on 24.04.2012 was met by the complainant as labour charges which he is obliged to meet.  As the complainant violated the conditions in the manual of instructions during the warranty period he is not entitled to enjoy the benefits of the warranty and was to pay for the replacement made including the labour charges.  The complainant has paid Rs.4,059/- to the 1^st opposite party is not correct.  The notice dated 09.05.2012 from the complainant was duly replied.  The installation of the pump set was on 13.05.2011 and the warranty period expired on 12.05.2012.  The replacement of the pump set with new one based on the defective working reported on 06.03.2012 was made on 24.04.2012 and the complainant was satisfied with the working of the replaced pump set.  The receipt of Rs.5,950/- as averred has already been denied.  The complainant failed to comply with the general instructions in the operation of the installed pump set and there exist the obligations under warranty during the period as contemplated in the warranty which in no way tantamount to deficiency in service on the part of the opposite parties or as unfair trade practice.  Complainant on 28.05.2012 on expiry of the warranty period by 12.05.2012 is only a tactics for the complainant to claim free service under warranty benefits for which is not entitled for even if such a complaint is actually made.  The opposite parties are not bound to provide service of company mechanic outside the period of warranty on free service.  The advocate notice dated 04.06.2012 was duly replied by the 1^st opposite party in the reply dated 11.06.2012 totally denying averments therein.  The 1^st opposite party never assured the complainant for rectification of defects or replacement.  There is no inherent manufacturing defects to the pump set.  But the alleged defects if any occurred due to operation of the pump set violating the general instructions in the manual supplied to him.  The opposite parties are not bound to replace the pumpset or to return Rs.12,800/- as claimed.  The 1^st opposite party is not bound to return any amount as claimed.  No compensation amount is liable to be paid by opposite parties as there is no defective service or unfair trade practice on their part.

            The 2^nd opposite party has several authorised dealers and the 1^st opposite party is not an authorised dealer of the 2^nd opposite party and  has not sold any pump sets to the 1^st opposite party nor the 1^st opposite party has been appointed as the dealer of the 2^nd opposite party.  The 1^st opposite party has supplied the pump set to the complainant without claiming any dealership charges.  The 1^st opposite party is a person who is engaged in the work of digging of bore well and at any rate he cannot be styled as the dealer of the 2^nd opposite party.  The warranty certificate alleged to be given to the complainant is without the stamp and seal of the manufacturer or dealer and instead what is noted is only the mobile number of the 1^st opposite party.  The warranty alleged to be given by the 1^st opposite party is not bearing or binding on 2^nd opposite party and the complainant cannot stake any claim against the 2^nd opposite party.  The pump has been inspected by some mechanic and some repairs have also been done on the pump by some unauthorised personnel without informing 2^nd opposite party or its authorised dealer.  The 2^nd opposite party cannot be made liable for any such defects to the pump or for any other matter.  The allegation that the 1^st opposite party informed that the pump set was sent to the manufacturer – the 2^nd opposite party and the same would be returned soon after the repair is absolutely false and hence denied.  The 1^st opposite party might have misrepresented to the complainant that the 1^st opposite party is the authorised dealer of 2^nd opposite party, which is absolutely baseless and incorrect.  The entire transaction was between the complainant and the 1^st opposite party and even money has been paid by the complainant to the 1^st opposite party.  The motor pump was not at all repaired by the 2^nd opposite party or its authorised person.  The 2^nd opposite party was never informed by anyone about any problem in the motor pump.  If any pump set has been sold by the 1^st opposite party to the complainant alleging that the same is manufactured by the 2^nd opposite party, the complainant ought to have verified those aspects and only after assuring that the 1^st opposite party is an authorised dealer of the 2^nd opposite party, ought to have purchased the pump set.   The 1^st opposite party is not the authorised dealer of the 2^nd opposite party and he has done fraud on the complainant by inspecting the pump set through some unauthorised personnel.   A lawyer’s notice has been issued by the complainant to the 2^nd opposite party.  To the lawyer’s notice appropriate reply has been sent on behalf of the 2^nd opposite party and not liable to pay any amounts to the complainant as claimed.  The 2^nd opposite party has no connection whatsoever with the complainant and there is no deficiency in service or any unfair trade practice on the side of the 2^nd opposite party.  If at all, there is any liability, the same has to be discharged by the 1^st opposite party because it was he who was instrumental in repairing the pump set as revealed from the complaint itself.

Issues to be considered are:

1. Whether there is any deficiency in service on the part of opposite parties?
2. If so, what is the relief and cost?

Issues (i) and (ii)

            We perused relevant documents on record.  Complainant filed chief affidavit and documents.  Ext.P1 to P7 marked.   An expert commissioner was appointed to examine and submit a report.  Commissioner filed report stating that “the pump has not been working for the last three years.   This may cause the clearance between bearing shaft and journal docked with rust and sand and hence might have damaged the bearing assembly”.  After marking the documents of the complainant opposite parties not turned up for cross examination of complainant.  Thereafter complainant and 1^st opposite party were ready for settlement.  Due to the settlement opposite parties paid Rs.10,000/-(Rupees Ten Thousand) as part payment.  A receipt dated 21.02.2018 was filed by the complainant.  Thereafter balance payment was not paid and the case was posted for evidence of opposite parties.  But the opposite parties not filed chief affidavit and documents.  Then the complainant filed argument notes.

            In the receipt filed by complainant it is stated that matter settled for Rs.22,000/-(Rupees Twenty Two Thousand).  Ext.P1 is the warranty card issued by KSB.  According to the complainant, 1^st opposite party not delivered the purchase bill to the complainant.  In Ext.P1 dated 13.05.2011 without stamp and seal of manufacturer or dealer seen and only the phone number and mobile number was seen.  Ext.P2 is the piece of paper stating the cost of repairing the pump set and marked with subject to objection.  The 1^st opposite party contented that the complainant violated the conditions in the manual of instructions during the warranty period.  But the 1^st opposite party has not produced evidence to prove his case.  2^nd opposite party stated that 1^st opposite party is not their authorised dealer.  But 2^nd opposite party has not produced evidence to prove their dealers and also they had not taken any legal steps against 1^st opposite party.

            In the memo dated 21.02.2018 filed by the complainant the matter was settled for Rs.22,000/-(Rupees Twenty Two Thousand) and paid Rs.10,000/-(Rupees Ten Thousand) as the 1^st instalment.  Thereafter both parties not filed settlement report and no evidence adduced by the opposite parties.  Complainant filed argument notes.          We find that there is deficiency in service on the part of the opposite parties        In the result complaint is partly allowed.  We direct the opposite parties jointly and severally liable to pay Rs.12,000/-(Rupees Twelve Thousand) as the balance amount of settlement with 12% interest from the date of settlement i.e. 21.02.2018 till the date of receipt of this order and Rs.2,500/-(Rupees Two Thousand Five Hundred) as cost of the proceedings failing which the amount except cost carries interest @ 9% per annum from the date of default till realization.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 20^th day of April, 2021.

C.C.No.371/2012

APPENDIX

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

5. COURT EXHIBITS

                                                                                                                               Sd/-                      

      PRESIDENT