State Consumer Disputes Redressal Commission
Indian Evangelical Team vs Hearwell Electronics Pvt. Ltd on 24 May, 2006
(f) IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 24-05-2006 Complaint Case No. C-280/96 Indian Evangelical Team Complainant 126,Andheria Modh, Mehrauli, Through New Delhi. Ms. Anjana Masih, Advocate. Versus (1) M/s Hearwell Electronics Pvt. Ltd. Opposite Party No.1 Through its Managing Director Through 87, Mahatma Gandhi Marg, Mr. P.K. Tripathi, Fort, Bombay. Advocate. (2) M/s Tata British Petroleum (I) Ltd. Opposite Party No.2. A-101, Block-II, KSIDC Mulstisorey Blocks, Electronic City, Hosur Road, Bangalore. (3) super Bazar the Cooperative Store Ltd. Opposite Party No.3. Connaught Place, New Delhi. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Complainant is a registered society and is engaged in social charitable activities. In order to meet out the emergency and contingencies arising out of intermittent power failure and short supply by DESU it started floating enquiries for installation of alternative source of power supply sometime in the year 1994 and came across an advertisement published by OP NO.3 and approached it for eliciting details about the alternative source of power supply which was as per advertisement solar energy which was suitable not only being backed by an Indias Largest Chain of consumer Cooperative Stores, a Government body but also was being subsidized by the Central Government and State governments. The enquiry of the complainant were routed by OP No.3 to OP No.1 (M/s Hearwell Electronics) being its registered sole supplier vide letter dated 22.11.1994.
2. The complainant approached OP No.1 who deputed its representative who visited the office of the complainant and assured that one KW-TATA BP Solar Power Plant was sufficiently equipped to meet out all the emergency demand of the complainant and also assured that this plan would run gadgets atleast for six hours continuously in case of regular power supply failure. OP No.1 raised proforma invoice of the said solar plan on 27-02-1995 favouring the complainant in detailing all the equipments to be supplied for the purpose amounting to Rs. 4,22,570/- and also sought to charge another sum of Rs. 10,000/- for installation and commissioning. The items detailed in the invoice were delivered at the site of the complainant vide challan No. 275 dated 03-06-1995. Though the payments were made by the complainant in February, 1995, unfortunately the plan did not work upto the satisfaction of the complainant. It is alleged that the said plant was dumped at the site on the excuse that unless and until balance payment of Rs. 1,05,880/- was paid OP No.1 is not authorised to install the plant. Despite delayed supply and non-installation of the equipment, the complainant was still without any emergency power back up system.
3. Despite having made aforesaid payments the complainant urged OP NO.1 to atleast install the system but according to OP No.1 some items were defective and unspecified and the complainant was apprised about it and informed that these items would be sent back to their principals at Bangalor for replacement and upon receiving correct type of modules, the equipment/supply can be made functional.
Consequently the equipment or part thereof was carted and the instalment was done sometime in July, 1995. During all this period the complainant suffered inconvenience, harassment torment with the short supply of the electricity by DESU or its failure.
4. However, the said solar system did not work according to the assurance given by OP No.1 during the month of July. Whenever the main power supply failed only one fan, tube-light and at best one computer worked and that too only for half an hour.
The aforesaid defects of the system were pointed out to OP No.1, OP No.1 advised the complainant to upgrade the system from 1 KWA to 3 KWA by putting additional amount of Rs. 5,47,960/-. However, the complainant got agitated over this attitude of OP No.1 and held meeting and negotiations with the parties and finally OP No.1 undertook to rectify the defects and make the equipment/plan functional. But still the work of the system remained the same.
5. After close checking by the independent persons of the system/plan it was found that the system supplied by OP No.1 was substandard, non-functional at all and was duping device to gullible buyers as the modules did not pass any electricity for storage in the cells/battery though even the regular electricity was being fed by a connection given to such batteries by the technical expert of OP No.1 & 2. It was found to be an ordinary electricity fed inverter instead of being a solar power supply plant of 1KWA. Having been duped and cheated by OPs the complainant approached this Commission in 1996 through this complaint for the following reliefs:-
(1)Order for return of principal amount/price of Rs. 5,39,015/- paid to OP No.1 for supply of defective material/unusable material.(2)
Order for payment of damages/compensation at the rate of Rs. 5,000/- per day since installation of defective material till realization of amount(s) so claimed; and tentatively totaled alongwith the principal amount/price at Rs. 10,00,000/- (Rs. Ten Lakhs) upto the date of filing of this petition;(3)
Order for payment of further damages at the rate of Rs. 5,000/- per day from filing of this petition till realization of amount thereafter;(4)
Order for costs/legal expenses so far upto date and at Rs. 12,000/- (Rs. Twelve thousand); and (5) Order for payment of interest at the rate of 24% per annum pendentelite plus other costs as deemed fit and proper, till realization.
6. While refuting the allegations of the complainant, OP No.1 through whom the system was purchased has taken a preliminary legal objection that the system was purchased for commercial purpose and therefore the complainant does not come within the definition of consumer In this regard the counsel placed reliance upon the following judgments:-
(1)Supreme Court Judgment (2000) I S.C.C. 512- Kalpavruksha Charitable Trust Vs. Toshniwal Brothers (Bombay) Pvt. Ltd.(2)
Supreme Court Judgment (1995) 3 S.C.C. 583 Laxmi Engineering Works Vs. P.S.g. Industrial Institute.(3)
National Commission Judgment I (1994) CPJ 78 (NC) Eagle Ultra Marine Industries Vs. Paramount Pollution Control (P) Ltd.(4)
Bihar State Commission II (2000) CPJ 408 Kurji Holy Family Hospital Vs. Boerhringer Manheim India Ltd.
(5)National Commission I (1993) CPJ 65 (NC) I.D.C. Electronics Ltd. Vs. Ajara Urban Coopt. Bank Ltd.
7. In our view the reliance are wholly misplaced. Even otherwise the question whether goods were bought for commercial purpose is the question of fact and has to be decided in the facts and circumstances of each case. It is not the case that the complainant had purchased system for further transmission or for further sale for earning profit. System was purchased only as an alternative to meet out their electricity requirement to run fan, lights, computers without printer or one computer with laser printer at six hours at a stretch. By no stretch of imagination purchase of such service or such goods can be termed as commercial purpose.
8. On factual matrix, OP No.1 has come up with the following version:-
(i) That the complainant placed the order upon OP No.1 for solar power plan (Hybrid) system of 1 KWA and it was made clear to the complainant vide letter dated 39-03-1995 that 1KWA solar power plant (Hybrid) would cater to the following loads;
(b) 20 numbers of CFL lamps for lighting purpose of 7 W/11 W rating for a total load of 200W.
(c) 10 ceiling fans in Complainants building at first floor to cater for a total load of 650 W.
(ii) By virtue of this information the entire load came to 850 W. However, the complainants representative agreed to revise the load to be catered for as under:
(a)One fan, 20 lights as stated herein below and three computers without printer or one computer with laser printer in view of the mentioned loads.
(iii) In view of the revised load agreed by the complainant another bill of Rs. 5,38,450/- was raised with the request to release the balance payment of Rs. 1,05,880/-.
Since the complainant expressed its inability to pay the said amount, OP No.1 also decided not to press for the payment for the time being and installed the plant for the computer of the complainant because of the vide fluctuations in voltage in that area.
(iv) Since the plant was not a 100 percent solar power plant but was a partial solar/partial AC hybrid plant it did not cater to the need of the complainant.
(v) Though the complainant had informed OP No.1 vide letter dated 06-09-1995 that they were not ready to upgrade the load from 1 KWA to 8 KWA for two years but at the same time they also thanked OP No.1 for services rendered to it for installation of the system. The system had been performing well but deficiency pointed out by the complainant might have been the result of non-availability of the full compliments of the AC power supply due to fluctuations as the system was to work partially on solar and partially on the electricity supply and could not yield full output in terms of number of hours and the electricity required by the complainant.
(vi) In letter dated 10-06-1996 the complainant admitted that everything in the system was set in order after replacing damaged and broken SPV module free of cost. It was further mentioned that wiring of solar power plant was tampered by the customer and checked by Tata BP Engineers has been fully restored. In the aforesaid letter there is no specific reference that annual service and maintenance have not been carried out that system checked by engineer from Tata BP Solar India Limited was found OK. Exx-RW1/35 dated 20th May 1996 says that general repair work has been done by Tata BP and everything is alright.
(vii) The equipment was delivered on 03-07-1995 and installed in July itself and complaint has been filed after the warranty period of one year was over i.e. September 1996.
Still as a goodwill gesture repair of damages was made as is apparent from RW1/32, the letter written by the complainant to OP No.1.
(viii) The photographs showed that the entire damage was done by complainant themselves which clearly indicates
(a) Stabiliser removed.
(b) Electric wires removed by the complainant and therefore charging was not possible.
(c) Dust, cobweb and termites were there on the infrastructure.
(d) Batteries were found corroded .
(e) Steel structure was erected which blocked the sunrays and as such the solar system could not have functioned.
(ix) Over and above the Tata Engineers came and inspected the system and repaired it and the complainant gave certificate (RW-1/35 dated 20th May 1996) to the effect that all repairs have been carried out by the TATA BP men and therefore the stand taken by complainant that the system was not manufactured by TATA is false as otherwise engineers of OP No.2 could not have come for repairs.
(x) RW-1/11 is a letter of OP No.2 whereby they admitted that there was a little delay in the despatch of the system which shows that the system was not only of TATA but was designed by TATA.
(xi) Complainant has misled about the payments made by them from time to time. In the complaint the complainant claimed that payments were made by February 1995 whereas in the affidavit of 30th March 1998 of Mr. John Mathai the last payment of Rs. 55,880/- was made on 20th July 1995. Thus by February 1995 the complainant had not made the entire payment towards the cost of the system.
(xii) As regards the allegation that the two modules were returned to OP No.1, RW-1/19, letter dated 12-06-1995 shows that these modules were returned to them on the same day.
(xiii) Allegation of delayed supply of equipment is false as the last payment was made in July 1994 and in the same month the system was installed.
(xiv) The system installed was neither defective nor substandard. Certification about the quality of the system has been made by the company by ISRO, Ministry of Space Research, Department of Electronics and DGS&D certificate to the effect that the system is as per specifications and standard prescribed.
(xv) As regards the claim of the complainant that non-hybrid system was supplied, this claim is false and wrong as demonstrated by Performa Invoice dated 27-2-95. Ex.
RW-1/3 shows that item No.3 Inverter was for utilizing electricity from mains and converting AC to DC which shows that OP No.1 was supposed to supply hybrid system and not the system solely based upon solar energy.
(xvi) Warranty did not extend to the equipment which was subject to misuse and negligence.
9. As regards OP No.2, it has taken the following pleas :-
(i) That there is no privity of contract between complainant and OP No.2 none of the parties has cited a single communication between them and OP No.2. OP No.1 appears to have been satisfied with its own system by merely purchasing some of the parts from OP No.2 and those parts are still functioning and there is no complaint against the quality of these parts.
So much so the articles were provided by the OP No.1 and not by OP No.2.
(ii) As regard the legal notice (RW-1/31) there was no reference against OP No.2 nor was the notice served on OP No.2. Moreover, the complainant has only claimed relief against OP No.1. Since OP No.1 used to be the dealer of OP No.2 at one point of time the engineers of OP No.2 at the request of OP No.1 went to examine the system which was installed by OP No.1 and certificate was given as to the repairs done by OP No.2s engineers. On inspection of the system it was found that the modules were still serviceable and since the batteries had self light they went dry and system become non-functional though it can be still made functional with the replacement of new battery.
(iii) The inherent problem in this case was that the complainant had gone for hybrid system and not total solar power. Hybrid system depends lot on energisation through power as admittedly the complainant has stated that power supply was irregular and there was frequent power failure. Even if the system is restored with new batteries it cannot function properly because of the irregular supply and failure of the electricity.
(iv) Letter Exc. C-1/15 is a document of record of minutes of the meeting that took place between complainant and OP No.1. It has been resolved in the said minutes that the system has been tampered with and at the same time has been overloaded. It further shows that complainant had agreed to reduce the load and this appears to be the main problem with the non-functioning of the system.
(v) Invoice RW-1/5 and CW-1/3 (produced by OP No.2) show that the warranty was given by OP No.1 and therefore OP No.2 is more or less a performa party. However in the warranty it was mentioned that responsibility will be that of the manufacturer.
10. As is apparent from the pleas taken by OP No.1 the main plank of the defence of OP No.1 is the letter dated 6-9-95 wherein complainant had gone to the extent of thanking OP No.1 for services rendered to it for installation of the system and also that the system had been performing well.
11. The complainant had never tampered with the installed S.P.P. Whenever the repair was required, matter was reported to the OP No.1. The OPs are shifting their liabilities on the complainant by taking the plea of tampering with the S.P.P. according to their convenience.
Complainant wrote to the OP No.1 for purchase of Solar Power Plant. The complainant had written letter dated 12-11-1994 to OP No.3 in pursuance of advertisement dated 9-11-1994 in the newspaper Hindustan Times of OP No.2.
The OP No.3 vide letter dated 22-11-94 directed the complainant to contact OP No.1 for further clarification and to place the order of Solar Power Plant. Complainant contacted the OP No.1 and on the assurance of representative of OP No.1 complainant placed the order of alleged Solar Power Plant with OP No.1.
The cost of the said plant cited by OP was Rs. 4,32,470/- including installation and commission charges which partly complainant had paid in advance to the OP. When the order was placed it was assured by the OP that the Solar Power Plant would meet all the requirements of the complainant which were narrated by the complainant to the OP but it never worked as promised by the OP. Whenever the complaints were made to the OP, the OP failed to rectify the defect.
12. Complainant never placed order for hybrid solar Power Plant. It had placed order for total Solar Power Plant on the assurance of the OPs that the same would meet all the requirements of electricity to run fan, lights, three computer without printer or one computer with laser printer for six hours at a stretch. OP No.1 is taking the plea that they were ordered by the complainant to supply hybrid solar power plant just to escape from its liabilities.
13. In fact the OP No.1 delivered the equipment at complainant premises on 3rd June 1995 and thereafter vide proforma invoice dated 5-6-95 sent bill of Rs. 5565/- for transportation charges and vide letter dated 6-6-95 directed the complainant to pay an amount of Rs. 1,05,880/- as per proforma invoices dated 6-6-95 towards the balance payment of Solar Power Plant, so that the OP No.1 can install the said Solar Power Plant in the complainants premises. The complainant paid the said balance amount as the OP No.1 had made it clear that they will install the said solar power plant only after clearance of the said amount. Instead OP installed S.P.P. (Hybrid) which was not at all asked for by the complainant and OP No.1 is putting unnecessary blame for causing damage to the plant due to the voltage fluctuation in the area. OP No.1 tried the defective installed plant to work by installing extra equipments but it could not get success. The Solar Power Plant never functioned properly since the day it was installed at the premises of the complainant. Rather OP No.1 made complainant believe that 1 KW TATA BP Solar Power Plant is total Solar Power Plant sufficient to meet out their electricity requirement. Representatives of the OP No.1 came to check the Solar Power Plant on 7-6-96 and assured complainant to rectify the problem. Despite the service of notice and the meeting which had taken place between the parties on 17-5-96 OP No.1 had done nothing to rectify the defects in the plant and make it work properly as per their assurance. OP No.1 never disclosed the fact to the complainant that the said S.P.P. was hybrid S.P.P. Plant and not a Solar Power Plant. There was no point in asking for a plant that would function partly on energy and partly on solar as problem of complainant was that he wanted at least fans, 20 lights, three computers without printer or one computer with laser printer. complainant had thus asked for Solar Plant because of irregular supply of electricity and frequent breakdowns.
14. There is no hesitation to arrive at irresistible conclusion that Solar System supplied by the OP was defective and not the one ordered for and therefore did not function properly due to which the complainant suffered immensely.
15. As regards OP No.2 there was no privity of contract between the complainant and OP No.2 nor has complainant any complaint against OP No.2. Merely because some parts were purchased from OP No.2 and there was no complaint against said parts and their quality by OP No.1, OP No.2 cannot be held liable. Rather OP No.2 helped due to their past dealings OP No.1 by sending its engineers to examine the system and they gave certificate as to the repairs.
16. It appears that main problem arose because of installation of hybrid solar power plant whereas the complainant had placed order for installation of total Solar Power Plant. OP No.3 was only an agent and cannot be held deficient in service for having supplied a defective article.
17. The cumulative fact of aforesaid discussion leads us to hold OP No.1 guilty for deficiency in service as well as for having sold and installed a different system than the system asked for and the system installed was such which could not have functioned properly without adequate energisation of electricity.
18. In our view lump sum compensation of Rs. 50,000/- inclusive of cost of complaint for the loss or injury suffered by the complainant due to the deficiency in service and selling goods which were not asked for as the nature of the goods was such that it was known to OP No.1 alone would meet the ends of justice. The payment shall be made within three months.
19. Complaint is allowed to the aforesaid extent.
20. 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 Record Room.
21. Announced on 24th May, 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj