Full Judgment
Oral Order: (R. Lakshminarasimha Rao, Incharge President)
1. The complainant is the appellant. He filed complaint claiming compensation to the extent of Rs.2,000/- and costs of the proceedings on the premise of the respondent supplying a defective water heater. The appellant submitted that he purchased a Lexi water heater from the respondent on 6.7.2011 and he used it as per the instructions and the heater got burnt which he had taken to the shop of the respondent and having found the shop closed, he approached the respondent few days later. The appellant submitted that the respondent refused to refund the cost of the water heater stating that the problem occurred due to defective electrical wiring in the house of the respondent and the respondents mother misbehaved with him compelling him to send notice on 6.07.2012 for which there was no reply from the respondent.
2. The respondent resisted the claim on the premise of the appellants refusal for replacement of water heater and that the appellant with his friends came to the shop of the respondent and threatened and blackmailed the respondent and her mother. The respondent submitted that the appellant filed the complaint with ulterior motive to gain wrongfully and the respondent prayed for dismissal of the appeal.
3. The appellant filed his affidavit and the documents, ExA1 to A4. The respondent filed her affidavit and she has not chosen to file any documents.
4. The District Forum allowed the complaint on the premise of unfair trade practice and deficiency in service on the part of the respondent to supply a defective water heater and on the foot of the respondents negligence in not refunding the cost of the water heater to the appellant. The District Forum having found the respondent guilty of rendering deficient service, it awarded costs against the appellant on the ground that the appellant had not approached the District Forum when he felt the goods defective and instead he had sent messages with regard to misbehavior of the respondents mother.
5. Feeling aggrieved by the direction against him to pay costs of Rs.2,000/- to the respondent, the complainant has filed appeal contending that the order of the District Forum is improper and vague and that the District Forum stepped into the shoes of the respondent while awarding costs in favour of the respondent . It is contended that the District Forum has passed the order unheard of by allowing complaint and awarding costs in favour of the opposite party. The appellant has contended that the District Forum awarded costs in favour of the respondent even though there is no prayer sought for, for costs and that the District Forum granted relief of refund of cost of water heater which has not been sought for by him.
6. The point for consideration is whether the order of the District Forum is vitiated by misappreciation of facts or law?
7. The appellant purchased water heater from the respondent on 6.7.2011 for consideration of Rs.220/- and the respondent issued cash credit bill dated 6.07.2011 for a sum of Rs.220/- in favour of the appellant. The appellant submitted that the wire supplied with the water heater was burnt on the same day and having found the shop of the respondent closed, the appellant complained of the problem to the respondent some time later and the respondent discarded his request for returning the cost of the water heater, on the premise of internal wiring problem in the house of the appellant. The appellant has stated that there is no wiring problem in his house and he has been using other electrical appliances and he has not experienced any problem thereof.
8. The respondent has not disputed the usage of the water heater by the appellant on the day of its purchase and burning of the wire while the water heater was being put to use as per the terms of the warranty. However, the respondent for the first time raised plea before the District Forum as to whether the appellant followed the instructions of warranty card. The respondent in her reply under ExA2 admitted the problem the appellant faced with the water heater supplied by her and she referred to the problem as to be solved by the manufacturer and the respondent has attributed the genesis of the problem to voltage fluctuation which according to her is not covered by the terms of warranty. Through her reply the respondent expressed her intention to replace the water heater, in the following words:
œThis is with the receipt of a letter received on warranty issue of LEXI Electric Water heater.
œWe understand that you have faced problem with the equipment purchased from our shop. It may have happened due to fluctuation of voltage in electricity which doesnt come under warranty of the equipment.
However, we will contact the manufacturing company and tryto replace your equipment with the new one if there is any manufacturing defect in the equipment.
You can please come with your equipment and get it replaced within 7 days of receipt of this letter?.
9. The appellant addressed letter dated 12.08.2011 narrating the series of events that had taken place ever since he purchased the water heater from the respondent till the respondent turned down his request to her to inspect the equipment. In the letter the appellant had stated that there is no wiring problem in his house which could be found in his using other electrical appliances and the water heater of other brand he has been using by the energy supplied through the same wiring. The first paragraph of the letter reads as under:
œI state that I bought the LEXI Electric water heater from your shop on 06.07.2011 and I used the heater on the same day at my home according to the instructions displayed on the warranty card then the wire comes with the water heater got burned immediately when I did switch on the heater. I got scared and my friends recovered me from the shock and the next day itself came to your shop to let you know the problem but your shop got closed. After few days, I contacted you personally to check about the warranty displayed on the warranty card but you rejected my request and said that there is wiring problem at our home but it is not rue as we are using all other electric appliances and also using electric water heater from other branch.?
10. A combined reading of the letter and the reply to it would make it clear that the wire supplied along with the water heater was burnt while it is used on the date of its purchase and the appellant has not deviated from the instructions issued in regard to warranty furnished on the equipment as also the respondent agreed to replace the water heater with a new water heater.
11. Things could have gone smoothly has the appellant accepted for replacement of the water heater or the respondent had made refund of cost of the water heater. It appears the appellant had sought for refund of the cost of the water heater and there appears to be difference of opinion arose between the appellant and the respondents mother as the respondent was absent when the appellant had visited to the respondents shop.
12. The appellant has submitted that the respondents mother misbehaved with him and she attempted to take away documents from him whereas the respondent has stated that the respondent the appellant along with his friends came to her shop and blackmailed and threatened her and her mother. Except the affidavit of the appellant and the affidavit of the respondent which is oath against oath and the parties have not adduced evidence in this regard and it goes without saying that the allegations regarding misbehavior of the respondents mother and the threatening of the appellant are not subject matter of consumer dispute and the parties can approach the competent authority on the aspect and not the consumer forum.
13. The statement of the appellant that on his complaining of the incident relating to burning of the wire supplied with the water heater, the respondent requested him to come to her shop either to receive cost of the water heater or for replacement of the water heater is partially correct as is seen from the contents of the reply of the respondent there is no offer to refund the cost of the water heater from by the respondent and the offer she made was limited to replacement of the water heater with a new water heater.
14. The appellant has stated that the District Forum has stepped into the shoes of the respondent and awarded costs against him though there is no relief sought for by the respondent for award of costs and that the District Forum awarded refund of the cost of the water heater which he had not sought for. The observation of the District Forum made at page 4 of the order might have made the appellant state that the District Forum has awarded costs even after allowing the complaint. Relevant portion of the order reads as follows:
œUpon perusal of the complainant and also contents of evidence affidavit, it is clear that the complainant has a vexatious and litigant nature. Complainant states in his complaintpara-5 that the opposite party gave him hard time to settle the matter and he sent the final message on 06.07.2012 to the opposite party about her mothers misbehavior. As he did not get any reply from the opposite party, he has filed the complaint on 30.07.2012 alleging deficiency of the product. Complainants legal notice dated 12.0.2011. After getting the response from the opposite party he failed to take the defective product within 7 days to the shop for replacement. Instead from then on till 06.07.2012 i.e. for nearly 10 months (the complainant himself admits that) “ he roamed to the opposite partys shop several times and he had sent her messages regarding her mothers misbehavior. This was not appropriate on his part as he always had the option of approaching the Forum for defect in the product. Even if the problem really existed and opposite party was prepared to resolve it, (as can be seen from Ex.A1 and A2); the complainant did not cooperate and ultimately preferred litigation.
If the opposite party replaces the defective product with a new one also; there is every possibility that the complainant will have scope for fresh litigation. It is also seen that complainant is not interested in replacement of product and wants only money. Hence in such circumstances it is appropriate that the opposite party refunds the amount collected as cost of product i.e.Rs.220/-. The opposite party was dragged to court unnecessarily even when she was prepared to resolve the problem. Hence the complainant is directed to pay cots of Rs.2,000/- to the opposite party as per Section 26 of C.P.Act, 1986.?
15. As held in aforementioned paragraphs of the order, the allegations regarding the respondents mother misbehaving with the appellant and that of the appellant blackmailing the respondent are merely based on affidavit of the appellant and the respondent and not the subject matter of consumer dispute. If the District Forum considered that the complaint is vexatious, it ought to have dismissed the complaint. The District Forum has held that the respondent played unfair trade practice and rendered deficient service and awarded refund of the cost of the water heater.
16. The District Forum proceeded further to hold the appellant is of litigant nature on the premise of appellant sending message to the respondent about her mothers misbehavior with him and opining that the appellant ought to have filed complaint before it, the District Forum awarded costs against the appellant though allowing the complaint of the appellant. The District Forum has awarded cost of the water heater making observation that œif the respondent replaces the product with a new one also, there is every possibility that the complainant will have scope for fresh litigation?.
17. Once the District Forum found deficiency in service on the part of the respondent it can either award replacement of the equipment or for refund of the cost of the water heater and it is not for the District Forum to foresee if replacement is ordered the appellant would make fresh litigation. As such the order of the District Forum is liable to be modified by holding the appellant entitled to compensation to the extent of Rs.800/-. The appellant can keep the water heater with him.
18. In the result, the appeal is allowed. The order of the District Forum is modified. The respondent is directed to pay an amount of Rs.800/-. The parties shall bear their own costs. Time for compliance four weeks.