Full Judgment
The Respondent as complainant filed a complaint before the District Forum against the opposite party praying for the direction to the opposite party to provide new solar water heater, or to refund RS.18000/- and to pay Rs.5000/- as compensation. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.19.05.2009 in CC.No.18/2003.
This petition coming before us for hearing finally on 03.06.2011. Upon hearing the arguments of the counsel on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
M. THANIKACHALAM J, PRESIDENT
1. Challenge in this appeal is the order dt.9.3.2007, on the file of District Forum, Namakkal, wherein directions were issued, not only to refund the amount, for the solar water heater purchased, but also for compensation.
2. The respondent/ complainant had purchased a solar water heater, from the opposite party, by paying a sum of RS.15,500/-, as well as installation charges, totaling a sum of Rs.17000/-, for which one year warranty was given, from the date of installation viz. 23.12.2003. The water heater failed to function, even from the date of inception, and despite report, legal notice, instead of rectifying the mistake, they have issued a false reply, as if the complainant himself had fixed the water heater, which is incorrect. By the deficiency and negligence, committed by the opposite party, the solar water heater was not properly functioning, resulting mental agony, for which the complainant is entitled to the refund of RS.18000/-, as well a sum of Rs.5000/-, towards compensation, totaling a sum of Rs.25000/-. Hence the complaint.
3. The opposite party, admitting the placement of the order, for solar water heater, resisted the case, contending interalia, that though as per the agreement, the opposite party manufactured the water heater, the complainant refused to take the same, thereby caused delay of 2½ years, that as agreed on 23.12.2003, the water heater and spare parts were delivered to the complainant, acknowledged by him, that as alleged by the complainant, the water heater was not installed by the opposite party, and the complainant himself had installed the water heater incorrectly, resulting problem, for which the opposite parties cannot be held responsible, since they have not committed any deficiency, praying for the dismissal of the complaint.
4. The District Forum, considering the merit and demerits of the case, felt that the opposite party had committed deficiency in service, and in this view, directed the opposite party to pay a sum of RS.18000/-, being the amount paid by him, for the solar water heater, in addition to pay a sum of RS.3000/-, as compensation, alongwith cost of RS.1000/-, as per order dt.9.3.2007, which is under challenge.
5. The learned counsel for the appellant would contend that the complainant, if at all had purchased or ordered the solar water heater, for commercial purpose, and therefore the consumer forum has no jurisdiction. Further submission was made, as if the consumer forum has no jurisdiction to decide the case, since the water heater was purchased at Coimbatore, whereas the case has been filed at Namakkal. A final submission was made, that as and when the defects were notified, they have attended, thereby not committed any deficiency, which are opposed.
6. As far as the jurisdiction is concerned, we find no merit, and the District Forum, Namakkal, will have jurisdiction in this case. As seen from the documents, purchase order was given by the complainant from Thiruchengode, which is within the jurisdiction of Namakkal District Forum, and the amount should have been paid, as evidenced by document/ invoices, only from Thiruchengode. Though the solar water heater was manufactured at Coimbatore, it was installed within the territorial jurisdiction of Namakkal Forum, thereby making it clear that part of cause of action had arisen within the jurisdiction of Namakkal For a, and therefore Sec.11(2)(c), the District Forum had jurisdiction, in which we find no error, hence this defence is rejected.
7. The complainant is running a rig service. Based upon this fact, submission was made, the transaction must be for commercial purpose, and we fail to see no acceptable reason, in this regard. The commerciality contemplated under the definition for consumer, should be profit oriented by the transaction. In this case, though the complainant had owned a rig service, purchasing/fixing solar water heater, has nothing to do with the rig service, and by purchasing the solar heater, the complainant has not achieved any profit motive, even by imaginative and therefore there is no element of commerciality, in the transaction, we are concerned. A person, who is doing business, is not barred from purchasing goods, for the utility, in the individual capacity or even for the commercial institution, not connected with the actual commercial transaction, and in this way alone, the complainant had placed order, for manufacturing solar heater, purchased installed in his place, which cannot be termed as commercial transaction. Therefore, the complainant comes within the definition of consumer, having purchased the goods for consideration, and on this ground also rejecting the case of the complainant is not possible.
8. As seen from the purchase order, on 8.1.2001, an order was placed, for the manufacture of solar heater, since it is said in those days, solar heaters are manufactured, or prepared only on placement of order, and not prepared in advance and sold, which is the submission of the learned counsel for the appellant also. Though the order was placed on 8.1.2001, as seen from Ex.A2, spare parts of the solar heater supplied on 23.12.2003, and the total amount as per the invoice was Rs.17000/-. As per the warranty card, the period of warranty was one year, that must be from the date of purchase on 23.12.2003. According to complainant, even before the expiry of the warranty period, the solar water heater failed to function, which was informed to the complainant, under Ex.A5, which elicited a reply under Ex.A6, wherein the opposite party wanted to escape, saying that the complainant himself and fixed the solar heater, for which we do not have any material, since the solar heater cannot be fixed, by ordinary person, other than the manufacturer, who had the knowledge of fixing and the operation etc. In Ex.A8, for the notice, it is not the case of the opposite party, that the water heater was not fixed by them, whereas it was fixed by the complainant himself. On the other hand, in Ex.A8 it is said, that the mistake had occurred due to mishandling, thereby accepting the repair of the solar water heater, which is proved by the affidavit of the complainant also. Thus, the opposite party having manufactured, installed the solar water heater, giving one year warranty period also, failed to perform their service efficiently, when the complainant had reported the defects, and this should be construed as deficiency in service, as rightly recorded by the District Forum, in which finding we are unable to differ. Thus by going through the material, affidavits, other documents, and in the absence of anyother contra evidence on the side of the opposite party, we are constrained to accept the finding of the District Forum, not only regarding the deficiency in service, but also regarding the quantum of compensation, since the solar water heater, cannot be used for any purpose. Hence refund of the amount ordered by the District Forum, alongwith compensation of Rs.3000/-, requires to be confirmed, and we conclude the appeal is devoid of merits.
9. In the result, the appeal is dismissed, confirming the order of the District Forum in CC.No.31/2004 dt.9.3.2007. There will be no order as to cost in this appeal.