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2013 DIGILAW 210 (UTT)

KOTO TRADE & SERVICES (P) LTD. v. SH. B. D. GUPTA

2013-04-22

B.C.Kandpal, C.C.Pant, Kusumlata Sharma

body2013
ORDER (Per: Mr. C.C. Pant, Member) This appeal is directed against the judgment and order dated 31.10.2011 passed by the District Forum, Dehradun, in consumer complaint No. 180 of 2010, whereby the District Forum has allowed the consumer complaint against the opposite parties, jointly or severally, and has directed them to pay an amount of Rs. 22,750/- to the complainant together with interest @ 9% per annum from the date of filing the consumer complaint till the date of actual payment, Rs. 2,000/- for mental agony and Rs. 2,000/- towards litigation expenses within 30 days from the date of the order. 2. The facts of the case, in brief, are that the complainant Sh. B.D. Gupta had purchased a solar water heater system from Sh. Anil Kumar Singh, Manager, Koto Trade and Services Pvt. Ltd., Dehradun – opposite party No. 1, which was installed in his house on 10.02.2010. The solar water heater system carried a warranty of one year. However, in the month of May, 2010, the tank of the solar water heater system started leaking from various points. The complainant informed the opposite party No. 1 personally as well as over the telephone and requested him to repair the defect of the tank. The opposite party No. 1 sent his employee to complainant’s house for repair of the tank, but the employee damaged the insulation of the tank during examining it and told the complainant that he cannot repair the tank. After this, the complainant contacted opposite party No. 1 and also the Director, Koto House, E-153, Forest Lane, Near Sainik Farm, Country Club, P.O. Neb Sarai, New Delhi – opposite party No. 2, who always assured him that the defect will be removed and, in case the defect is not removed, they will replace the solar water heater system. The complainant also lodged a written complaint on 16.06.2010 with the opposite party No. 1, but to no avail. Ultimately, the complainant purchased a new solar water heater system for Rs. 27,000/- and got it installed. Apart from the cost of the system, he spent an amount of Rs. 2,000/- on the purchase of parts and Rs. 1,000/- on labour. The complainant has also stated in his consumer complaint that he had paid sum of Rs. 28,350/- to the opposite party No. 1 for the solar water heater system. 27,000/- and got it installed. Apart from the cost of the system, he spent an amount of Rs. 2,000/- on the purchase of parts and Rs. 1,000/- on labour. The complainant has also stated in his consumer complaint that he had paid sum of Rs. 28,350/- to the opposite party No. 1 for the solar water heater system. Thus, for getting the refund of the said amount, the complainant filed a consumer complaint before the District Forum, Dehradun. The District Forum, on an appreciation of the facts of the case, allowed the consumer complaint and directed the opposite parties in the above manner. Aggrieved by the said order, M/s Koto Trade Services Pvt. Ltd., through its Director, E-153, Forest Lane, Sainik Farm, Neb Sarai, New Delhi, has filed this appeal. 3. We have heard learned counsel for the parties and also Sh. N.C. Aggarwal, Director and Authorised Representative of the appellant, in person. We have also perused the material placed on record. 4. Before advancing the arguments, the appellant submitted that the consumer complaint has been allowed against Sh. Anil Kumar Singh, Manager of the Dehradun Office of the appellant and also against the Director, Koto House, New Delhi. While Sh. Anil Kumar Singh has left the company, the opposite party No 2 and opposite party No. 3, i.e. Director, Koto House and Koto House are non-legal entities because Koto House is the name of the premises of registered office and branch office of the appellant company, i.e. Koto Trade & Services (P) Ltd. Even then, being a law abiding person, the appellant has preferred the present appeal. Coming to the arguments, the learned counsel for the appellant submitted that the warranty does not cover the breakage due to mishandling, impact or fall of any external object on the said system. It also ceases if the system is shifted/handled by outsider mechanic. The complainant –respondent had booked the solar water heater system on 03.02.2010 and had opted only one clause of the special terms and conditions for the supply and rejected all other conditions (Paper No. 26). Thus, the learned counsel argued that the respondent had not availed erection and installation services for the solar water heater system from the appellant and got the said system installed by his own means and sources and, therefore, the warranty does not remain valid in such cases. Thus, the learned counsel argued that the respondent had not availed erection and installation services for the solar water heater system from the appellant and got the said system installed by his own means and sources and, therefore, the warranty does not remain valid in such cases. The solar water heater system was purchased by the respondent on 19.02.2010 and he has signed the Invoice No. LS-100/09-10 dated 19.02.2010, wherein he has also accepted the terms and conditions annexed to the said invoice. The respondent opted to the erection and installation work of the said system from unskilled / local plumber. The learned counsel further submitted that grounding and foundation work is very important to prevent from wind pressure due to which the system may fall and get damaged. That is why the appellant used to do this work by highly skilled engineers of the company, which incurs much more price in comparison to the installation by local plumber. The respondent had totally ignored the advice and recommendation given by the representative of the appellant and, thus, violated the clause (vii) and (xi) of terms and conditions of supply. This rendered the warranty ceased. Despite the termination of warranty, the appellant sent its mechanic to respondent’s house on 09.06.2010, who removed / repaired the defects to the entire satisfaction of the respondent. The respondent was advised to get the grounding and foundation work done in a proper manner, but he wrote a letter dated 16.06.2010, alleging therein that the mechanic failed to repair the said system. Further, with a malafide intention, the respondent sent a legal notice to the appellant on 30.06.2010 stating therein that the system had dislocated and had fallen down from the second floor to first floor due to storm and had been destroyed completely. The notice was duly replied by the appellant, making it clear that the defect in solar water heater system was caused by the local plumber engaged by the respondent and the system had fallen down because of the poor grounding and foundation work. The learned counsel submitted that, in fact, the solar water heater system had fallen down on or before 19.06.2010. The respondent, with some malafide intention, sent a letter dated 16.06.2010 in a planned manner, as the letter was posted on 19.06.2010 and thereafter sent a legal notice dated 30.06.2010. The learned counsel submitted that, in fact, the solar water heater system had fallen down on or before 19.06.2010. The respondent, with some malafide intention, sent a letter dated 16.06.2010 in a planned manner, as the letter was posted on 19.06.2010 and thereafter sent a legal notice dated 30.06.2010. Further, the photographs submitted by the respondent in evidence, show the date as 23.06.2010 instead of 24.06.2010. This also proves the ulterior motive of the respondent behind filing the consumer complaint. The District Forum, without appreciating these facts in a proper perspective, has allowed the consumer complaint against the opposite parties and, therefore, the impugned judgment and order suffers from material irregularities in facts as well as in law and is liable to be set aside. 5. The learned counsel for respondent reiterated the facts of the case and argued in support of the impugned judgment and order. 6. We considered the submissions raised by the learned counsel for the parties. The contention of the appellant that the respondent had booked the solar water heater system on 03.02.2010 and had opted only one clause of the special terms and conditions for supply, is not tenable. A perusal of Paper No. 26 indicates that the Clause No. 1 of the special terms and conditions has been ticked with right mark, while for rest of the clauses, a line has been drawn across them and “As Per Actual” is mentioned. This means, the customer had agreed to pay the charges for unloading, erection, installation etc. as per actual. Therefore, it cannot be said that the warranty had terminated due to this reason. It is ridiculous to say that the system was booked without warranty. No prudent person will do that. Further, as the appellant referred to the Clause No. (vii) and (xi) of the Terms and Conditions of Supply, which state that:- “(vii) If the system is shifted/handled by outsider mechanic, the warranty will cease. (xi) Due to any substandard accessories, used by customer, the responsibility of damage will be of customers.” 7. The appellant has failed to adduce any evidence with regard to shifting and mishandling of the solar water heater system and also that the respondent had used substandard accessories. (xi) Due to any substandard accessories, used by customer, the responsibility of damage will be of customers.” 7. The appellant has failed to adduce any evidence with regard to shifting and mishandling of the solar water heater system and also that the respondent had used substandard accessories. Further, if the system was booked with only one clause of the special terms and conditions of the supply and the warranty was not effective due to that reason, then why the respondent was asked to sign the invoice stating therein that the terms and conditions were accepted to him. It is beyond our imagination that a solar water heater system can be erected and installed without the technical supervision of the manufacturing company. The averment made by the respondent that the installation of the system was done in the presence of the company’s employee shows that the entire work, including grounding and foundation, was as per the requirement for erection and installation of the system. The appellant, without any evidence, can not take the plea that the grounding and foundation work’s quality was very poor and, due to this, the said system had fallen on 24.06.2010 (or 23.06.2010), but the respondent, with some ulterior motive, tried to give the incident a different colour by sending a back dated letter on 19.06.2010 and then sending a legal notice. In our view, the District Forum has appreciated all the facts of the case in a right perspective and has passed a reasoned order, which does not call for any interference, except that the rate of interest appears to be on a higher side and the order in respect of awarding Rs. 2,000/- for mental agony needs to be set aside, because interest is always awarded in lieu of mental agony. In our view, an interest rate of 6% per annum would be just and proper. The impugned order is modifiable accordingly. 8. For the reasons aforesaid, the appeal is partly allowed. The judgment and order dated 31.10.2011 passed by the District Forum, Dehradun, is modified by reducing the rate of interest to 6% per annum and setting aside the order in respect of awarding Rs. 2,000/- for mental agony. Rest of the impugned order is confirmed. Cost of the appeal is made easy.