ALAVANDAR NAIDU And CO. vs C. KANNIAH NAIDU

THE complainants have come forward with this complaint for replacement of 15 HP motor submersible pump with a new one and pay a sum of Rs. 4,190/- towards the cost incurred in that connection, a sum of Rs. 50,000/- towards mental agony and Rs. 85,000/- towards loss of income.

THE complaint was resisted by the opposite party contending that what was supplied was a submersible motor pump set in good condition and the motor had to be operated in "delta" mode connection and if there is any voltage drop, the motor will not start in "star" mode, but it will run without any problem in "delta" mode for which the pump set was manufactured. THE complainant has not done the electrical installation properly. Due to wrong installation and connection, it had not run in "star" mode and after the complaint the opposite party inspected and rectified the motor and pump set without any charge. THErefore, the claim made by the complainant is unjustified. It is the duty of the complainants to have brought the motor and he pump set to the factory so that it could have been checked, but this they have omitted to do. During the initial hearings; it was suggested by the Hon''ble Court to substitute and replace it with a new motor for which the opposite parties were agreeable and the complainants also agreed to withdraw the application. But at the instigation of others, the complainants have now chosen to go back of their words. The lower Forum accepted the complaint and directed the opposite parties to replace the motor and pump set and also to pay a sum of Rs. 4,190/- along with a compensation of Rs. 5,000/- for mental agony and a sum of Rs. 10,000/- for loss of income. Hence the present appeal.

One of the points for the lower Forum to come to the conclusion is set out in paragraph 7 where it is stated that the opposite parties have agreed to replace the motor before the Forum and this would show that there must have been some defect and, therefore, it is that they have agreed to replace the motor within a month. The complainant cannot merely succeed on the ground of an event that took place after the filing of the complaint. When a complaint is laid and a famous manufacturer is accused of deficiency in service in manufacturing and supplying the machinery with defect, it is not uncommon for the manufacturer or the persons placed in their position to offer to settle the matter. But from that alone it will not follow that they have offered to settle it because there was a defect. In other words, such an offer of settlement or of a replacement cannot be equated to an admission of deficiency in service or defect in the manufactured goods. Such offers are made very often as a gesture of goodwill and trade promotion. Therefore, to base one''s finding upon that, is really surprising.

A reading of the records produced in this case would show that there is a likelihood of improper installation of the motor. It is not the complainant''s case that the motor was installed under the direction or supervision or in the presence of the opposite parties. He has installed it by engaging his own mechanic. Therefore, unless the complainant satisfies that the installation as done properly and in spite of that it has been frequently not functioning, then perhaps one can say something in favour of the complainant. It is clear from the records that the submersible motor sold to the complainant is provided with two modes of operation - one is called in "delta" mode and the other is called "star" mode. In such circumstances, if there is any carelessness in the installation it is possible that the functioning of the motor would be affected. It is to be pointed out that it is not the complainant''s case that when the motor was delivered it was not in good condition. Only after satisfying himself about the condition and performance of it he had taken delivery of the motor apparently in goods condition. For the first time, he made a complaint about the improper functioning or mal-functioning of the motor two months after he took delivery. The complainant has stated that the motor is running only in "star" mode and not in "delta" mode. Pursuant to the complainant''s letter dated 15.6.1994, an inspection of the motor was made by the opposite parties and the alleged defect was rectified. According to the opposite parties, they advised the complainant to check the electrical installation. Proper working of the motor would also depend upon the regular and assured supply of energy. When there is frequent disruption of energy or dripping in voltage, it would affect the functioning of the motor. Similarly, if water level goes down in the well, it is likely to have an impact upon the motor. The complainant did not make any complaint about the mal-functioning or non-functioning of the motor from 18.6.1994. It is only in May, 1995, he again sends a letter pointing out certain mistakes. On 14.5.1995 the opposite parties sent a mechanic. The mechanic, according to the opposite parties, found that the installation was done wrongly and, therefore, it was corrected. The service report of the mechanic has been signed by the father of the complainant. Thus we find that it is not the case of the complainant nor it is established that there is any manufacturing defect. Twice pursuant to the letters they have rectified the defect and every time it was pointed out to the complainant that the installation has not been done properly. Therefore, we find thus that the complainant is but a squandering on the litigation. The complainant bought the motor on 12.1.1994 and according to him he installed it in the last week of February, 1994. He files the complaint on 21.9.1995. The lower Forum has omitted to take into account this important aspect. The lower Forum has also chosen to a fix a sum of Rs. 10,000/- towards the loss of income for which absolutely no basis has been made out. The normal course of conduct of any person would be to remove the motor and pump set and take it to the opposite party''s factory to have it rectified. Therefore, in such circumstances, we are of the view that the order passed by the lower Forum cannot be sustained and it deserves to be reversed. In the result, this appeal is allowed, but in the circumstances without costs. The order passed by the lower Forum is hereby set aside. The complaint is dismissed without costs. Appeal allowed.