The appellant as complainant filed a complaint before the District Forum against the respondent/opposite party praying for the direction to the opposite party to pay Rs.88,665/- along with interest at 18% p.a. from the date complaint till date of payment, the penalty levied by the Electricity Board till rectification of the capacitor or till refund of the amount and to pay the cost. The District Forum dismissed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.07.12.2007 in C.C.72/2006.
This appeal coming before us for hearing finally on 25.04.2011, upon hearing the arguments of the either counsels and perused the documents, Written Argument of respondent filed, as well as the order of the District Forum, this Commission made the following order:
M. THANIKACHALAM J, PRESIDENT
1. The unsuccessful complainant is the appellant.
2. The complainant having failed in their attempt to get a favourable, alleging deficiency, have come before us, as appellant, challenging the order dated 07.12.2007.
3. The complainant/appellant, in order to improve the power factor for their electricity connection, to meet the TNEB norms and avoid penalty, had purchased power factor relay/capacitor, manufactured by the opposite party, by purchasing the same, installed it in its premises, finally paying a sum of Rs.7,000/- on 09.08.2004. From the date of installation of relay/capacitor, it was not functioning, power factor has not improved, though the complainant had incurred an expenses of Rs.27,000/-. Because of the failure of Capacitor for the period from May 2004 till May 2005, the complainant was constrained to pay penalty to the TNEB, a sum of Rs.11,665/- and it was due to the non-functioning or failure of the relay/capacitor, which should be construed as deficiency in service, which had caused untold hardship and mental agony also.
4. The complainant having suffered mental agony, is not only entitled to the refund of value of the Capacitor of Rs.27,000/-, but also entitled to get the penalty amount paid by them, to the TNEB namely Rs.11,665/-. Claiming the said amount as well as compensation for mental agony, a sum of Rs.50,000/-, notice issued, there was no reply, thereby the complainant was constrained to file this case for the recovery of total sum of Rs.88,665/- with interest.
5. The opposite party questioning the case against them, since his wife is the Proprietrix of the opposite party, as well as questioning the maintainability on the basis of the commercial transaction, urging, the complainant will not come within the meaning of consumer, resisted the complaint, inter alia contending further that only at the request of the complainant, the opposite party provided an automatic Relay/Capacitor, which was installed, functioning properly, for which, log book is maintained, that the system should always be Switched on, in order to obtain the best results, but unfortunately, the complainant?s Company closed/shut down, resulting switching off of the Relay/Capacitor, consequentially not functioning properly, for which, the opposite party cannot be held responsible, for the improper usage of the system by the complainant, that after fully satisfied about the functioning of the Relay/Capacitor, final payment of Rs.7,000/- was paid and therefore, there is no question of negligent act or deficiency in service, praying for the dismissal of the complaint.
6. The District Forum by its order dated 07.12.2007, based upon the pleadings, as well as the Proof Affidavit, supported by documents, while evaluating the matter, has come to the conclusion that the complainant has not proved that the Capacitor was not functioning properly, by producing the log book, which should be the best evidence and in this view, find fault with the complainant, that he has not made out a case, resulting dismissal of the complaint, which is under challenge before us.
7. The opposite party/respondent is a proprietor concerned, in which, it seems, the respondent?s wife is the Propreitrix, but not impleaded. This averment, ascertaining so in affidavit also not challenged and in this view, we can come to the conclusion that the opposite party is not properly represented and the case is liable to be dismissed.
8. As pleaded in the complaint, they are the manufacturer of forged and machined components, aiming commercial activities, to have profit motive, for that purpose alone, energy was drawn from the TNEB, where they have insisted power factor, for which, Relay/Capacitor was purchased, installed by the complainant, from the opposite party, paying the sale consideration. Therefore, the very purpose of purchasing the goods is for commercial purpose in order to avoid penalty. Though this is not directly related to the profit motive, and the end result would be profit motive, since energy drawn to measure that alone, Relay/Capacitor was installed. In this view, it can be said, the complainant is not a consumer, and the case as such is not maintainable.
9. The District Forum has not given any finding, on the above points, whereas, it dismissed the case only on the ground that the complainant has not produced the log book, which would show the working condition of the Relay/Capacitor from the date of installation. It is the fundamental principle, that a person who accuses the other person, alone has to initially discharge the burden of proof, then shifting the burden to other side. In this case, the purchase of the automatic Relay/Capacitor is not in dispute. Even as pleaded in the complaint itself, it was installed at the complainant?s factory and thereafter alone, final payment of Rs.7,000/- was given by cheque dated 09.08.2004. In order to watch the power factor, log book is to be maintained and if that is produced, certainly as recorded by the District Forum, that would reveal whether the Relay/Capacitor was functioning properly, recorded the power factor etc., For the reasons best known to the complainant, a document which is in the possession of the complainant, which could prove the case of the complainant, has not been produced, for that, an adverse inference can be drawn, as if, if produced that will disprove the case of the complainant. The averments in the complaint and the payment also, would make it clear that the case of the complainant, that from the date of installation, it was not functioning must be incorrect.
10. After the installation of the Relay/Capacitor alone, final payment was made. Therefore, if the Relay/Capacitor was not functioning from the date of installation, certainly the complainant would not have paid the balance of the amount, as rightly contended by the opposite party in the Written Version, which is accepted by the District Forum also. Further, it is the case of the complainant that because of the non-functioning of the Relay/Capacitor, penalty was levied by TNEB from May 2004 till May 2005, for which, the opposite party should be held responsible. Even as per the pleadings, as seen from Para 4, the automatic Relay/Capacitor should have been installed only in the month of August 2004 since the complainant has paid a sum of Rs.10,000/- by cash and after installation, balance of Rs.7,000/- was paid on 09.08.2004. This being the position, if at all for the male-functioning or non-functioning, accusation could be leveled only from the date of installation, not prior to that, that is from May 2004, as pleaded in Para 5. Though in Para 4 of the complaint, it is said, on 27.5.2004, the opposite
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party promised and assured to supply and erect the Relay/Capacitor, received advance, later on, it was agreed between the parties to supply automatic Relay/Capacitor and this being the position, it is not known, how the opposite party could be held responsible, for the penalty leveled by TNEB from May 2004. The District Forum though not considered all these points in detail, taking a single point for non-production of the document, has reached a correct conclusion, that the complainant failed to prove the deficiency in service, in which finding, we endorse and this being position, the appeal filed is vexatious, deserves to be dismissed with costs. 11. In the result, the appeal is dismissed with cost of Rs.3,000/-, confirming the order passed by the District Consumer Disputes Redressal Forum, Coimbatore, in C.C.72/2006, dated 07.12.2007.