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2013 Supreme(UK) 165
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
Hon'ble Mr. Justice B.C. Kandpal, Hon’ble Mr. C.C. Pant and Hon’ble Mrs. Kusumlata Sharma, Members
KOTO TRADE & SERVICES (P) LTD. – Appellant
Versus
SH. B.D. GUPTA – Respondent
First Appeal No. 181/2012
Decided on : 22.04..2013
For the Appellant : Mr. Vikrant Gambhir, Learned Counsel
Headnote:Consumer Protection Act, 1986 — Deficiency in Service — Complainant purchased a solar water heater system and got it installed on 10.02.2010 — However, in May, 2010, the tank of system started leaking from various points — O.P. assured complainant that the defect will be removed or the system would be replaced — But, O.P. No. 1, took no avail — Thereby, consumer complaint for getting the refund — Appellant submitted that the warranty does not cover the breakage due to mishandling, impact or fail of any external object on the said system — Also it ceases if the system is shifted/handled by outsider mechanic — Held — A perusal of Paper No. 26 indicates that the Cl. No. 1 of the special terms and conditions was ticked with right mark, while for rest of the clauses, line has been drawn across them and “As Per Actual” is mentioned which means that 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 — Also, the appellant, without any evidence, can not take the plea that the grounding and foundation work’s quality was very poor and due to which the said system had fallen on 24.06.2010 — Concluded that the District Forum had appreciated all the facts of the case in a right perspective — No interference, except that the rate of interest i.e. 9% being on higher side reduced to 6% per annum — And the order of awarding Rs. 2,000/- for mental agony, set aside as interest is always awarded in lieu of mental agony. (Paras 2, 4, 6 to 8)
miHkksDrk laj{k.k vf/kfu;e] 1986 & lsok esa deh & f’kdk;rdrkZ us Solar water heater system 10-02-2010 dks [kjhnk o vf/k”Bkiu djk;k & ebZ] 2010 esa VSad txg txg ls yhd djus yxk & O.P. us f’kdk;rdrkZ dks vk’oklu fn;k fd VSad dks iw.kZr% Bhd djk;k tk,xk ;k fQj cny fn;k tk,xk & ijUrq O.P. us mldh dksbZ lq/k ugha yh] blfy, jkf’k okfil djus ds fy, miHkksDrk f’kdk;r & vihykFkhZ us rdZ fn;k fd okjaVh esa VwV&QwV] xyr mrjkbZ&p<+kbZ ;k fdlh cká oLrq dk flLVe ij vlj vkPNkfnr ugha & vkSj okjaVh [kRe gks tkrh gS vxj flLVe dks fgyk;k tkrk gS ;k fn[kk;k tkrk gS fdlh ckgjh eSdsfud dks & /kkfjr isij ua- 26 ds vuqlkj fof’k”V Terms & Conditions esa fucU/ku vkSj ‘krs± Cl. No. 1 ij lgh dk fu’kku Fkk tcfd nwljs Clauses ij ykbu f[kaph xbZ Fkh vkSj As per actual of.kZr Fkk ftldk vFkZ gS fd [kjhnkj us mrjkbZ&p<+kbZ o vf/k”Bkiu ds fy, [kpkZ fn;k Fkk] tSlk okLrfod Fkk & blfy, ;g ugha dgk tk ldrk fd okjaVh bl dkj.k ls [kRe dh xbZ Fkh & vihykFkhZ us fcuk fdlh lk{; ds ;g vfHkopu ugha ys ldrk fd flLVe dks yxkus dh xq.krk esa dHkh Fkh ftl dkj.k flLVe 24-6-2010 dks fxj x;k & ftyk Qksje }kjk lk{;ksa dh gj rjg ls lgh foospuk & dksbZ gLr{ksi ugha] flQZ ;g fd C;kt nj @ 9% p.a. vf/kdre gksus ds dkj.k ?kVkdj @ 6% p.a. dj nh xbZ & vkSj #- 2000@& dk vkfFkZd n.Mkns’k ekufld ihM+k ds fy, Hkh [kkfjt fd;k x;k D;ksafd C;kt ges’kk ekufld ihM+k ds fy, gh fn;k tkrk gSA ¼izLrj 2] 4] 6 ls 8½
(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. 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 (Pape
