Complainant:


M.R. Bhandarkar
Flat G-1, “Samarth Apts.”
Plot 130, 19th Cross, 8th Main
CHBS Layout, Opp. BDA Complex
Vijayanagar
Bangalore- 560 040




/vs/





Opposite Party:

Sis Ortho Pvt. Ltd.,
“West Minister”, 2nd Floor
13, Cunningham Road
Bangalore- 560 052


O R D E R



SRI. G. SIDDANAGOUD, PRESIDENT:

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the Opposite party (Op in short) for the refund of an amount of Rs.10,100/-, compensation, with costs and for such other reliefs.

The brief facts of the case are that the complainant’s wife, Mrs. Nalini Bhandarkar (76), is an Alzheimer’s patient, also suffering from diabetes. She is bed-ridden since 17th March 2006. Initially, water-bed was being used to avoid bed-sores due to continuous sleeping. However, as the bed-sores could not be cured, Dr. Stanley Macaden of Bangalore Baptist Hospital, who examined the patient, suggested immediate replacement of the water-bed by an air-bed. In fact, he himself volunteered to contact the op and got up an air-bed from them on 14/11/2007 at a cost of Rs.7,500/- including the accessories, i.e. air pump and a twin tube. The vat invoice for Rs.7,500/- and the one sheet user manual given to him in this respect, are attached. One year warranty for both the Pad and the pump has been spelt out in the user manual. The air bed was installed on the cot used by the patient with the assistance of two members of the staff of the Op on the very day. Fortunately, the bed functioned very well for about 7/12 months or so. At one stage, there was leakage. They located a small hole on one of the tubes. To seal this leakage, they had to cut the affected portion of the tube and reconnect the same to the pump. However, on or about 28th July 2008, they found that the air-bed was not retaining air and had deflated fully. The complainant had therefore to keep the pump continually on to ensure that the air-bed remained inflated all the time for the comfort of the patient, and most importantly stay away from bed-sores. The complainant’s daughter and complainant contacted the Op several times on telephone for the replacement of the air-bed, but all the time they were in a negative mode. Finally, on 9th September 2008, Complainant wrote a letter to the OP to replace the entire unit.

Consequently, Mr. P.K. Rajan, Director of the Op, wanted the airbed to be sent over to his office for inspection. The airbed to be sent over to his office for inspection. The airbed was received by him on 11th September 2008 in the forenoon. Mr. Rajan contacted the complainant late in the afternoon on 11th September itself only to ‘emphasize’ that the air bed was functioning as per his observation. When they received the self-same air-bed the following day, their experience was quite the contrary when they operated it. On physical examination on 12th September 2008, they could locate a speck of a hole on the edge of a bubble which was instrumental for the leakage of air. Surely, as an expert, Mr. Rajan must have also detected this hole, but kept it concealed from them with an ulterior motive. The above narrative makes it abundantly clear that the said surfaced on or about 28th July 2008 during usage by the patient.

As the airbed was not functioning and the Op was obdurate enough in not honouring the warranty mandate, we decided that we should have a new airbed, which was functional. This was a necessity to prevent recurrence of bedsores. We therefore ordered a second air-bed from the Op, which was supplied to them on 20th September 2008 late in the evening, with the twin-tube, but not the pump. The pump which was delivered to us along with the initial bed, was used for operating the second airbed. The complainant was charged only Rs.2,600/- for the air-bed plus twin-tube. The Op tendered the self-same user manual for the second purchase as well. The second airbed was supplied to me in a used/crumpled plastic cover and not in a cardboard box which was the case with the initial bed.

When the second airbed also failed to function (in the normal way as we understood it, i.e. without the pump being kept operational) from DAY ONE. In hindsight, it was crystal clear that Mr. Yoganarasimha was enacting a ‘drama’ only to successfully palm off a reconditioned, second hand and decidedly substandard air-bed to them. When the complainant complained to the OP on 22nd September 2008 about the failure of the second air-bed to perform, which buttresses the feeling that it was a reconditioned, second hand bed. Mr. Yoganarasimha visited us the same evening, virtually for two minutes!! He sightened the tubes at both the points, held the pump near the ear and said that there was no leakage. A two minute observation at a time when the pump was on and the air-bed was fully inflated, cannot have any semblance of credibility. When therefore he further requested the Op to send him again to make a realistic assessment about the condition of the bed. Mr. Rajan categorically repeated that the pump should be kept on, on a continual basis as it has a built-in device by which the pump gets automatically switched off and on to achieve satisfactory level of performance. There is no such built in automatic device in the pump, and again Mr. Rajan was trying to mislead him by such innovative invention!! Indeed, if such a device was there, it ought to have been specifically mentioned in the user manual.

Because of the stiff resistance offered by the Op in honouring the warranty, complainant addressed letter dated 29th September 2008 placing all the facts before them and asked them to refund the entire amount of Rs.10,100/- to him against the return of the two beds + accessories. The Op has been committing a faux pas on an on going basis by deliberately withholding the name of the manufacturers, obviously to prevent the consumers from contacting the manufacturers to address their grievances about the product, particularly to seek replacement when the airbed malfunctions. Hence the complainant approached this forum.

Op appeared through its counsel, filed its version and also gave evidence by way of affidavit. Complainant gave his evidence by way of affidavit. Counsel of complainant submitted his written arguments. Counsel of OP was permitted to submit his written arguments.

It is an admitted fact that the complainant had purchased airbed for Rs.7,500/- and the second airbed for Rs.2,600/- from the Op. According to learned counsel for OP warranty does not cover reckless use of products. If the bed was puncture due to careless use of the bed placing sharp objects like needles, pins, syringes etc., for which it was the fault of the consumer but not the Op, the air bed was not used by the complainant or his wife as per the manual supplied to them. Always the pump should be kept on continuously to retain the air in the bed. He further submitted that the container of the bed contains name of the importers, customer care number and the printing of the MRP. He denied the other allegations made by the complainant.

When we peruse the pleadings of the Op, the main contention of the OP is that the complainant wife has not used the air bed as per the manual because of carelessness by placing the sharp objects, the bed was damaged for which the Op is not responsible. As per the submission of complainant himself they have used the said bed nearly for 7 ½ months. This is not the consequences if the sharp objects are placed on the bed. As per the observation of Op itself nowhere it is found the puncture on the bed, except taking of contention regarding the careless using of the bed. The Op has not placed any material in support of his contention. Therefore the contention of the OP is hereby rejected.

According to the Op, the container contains the name of the importer, customer care number and MRP. When we peruse the card board container in which the airbed was sold, nowhere it is mentioned the name of the importer or the customer care number or MRP of bed. The Op has sold the first bed for Rs.7,500/- and the second bed for Rs.2,600/- naturally the doubt arouse, whether it is manufactured by the Standard Company or the local made party by the Op. When the bed was not properly functioning for which purpose it was purchased, it is the bounden duty of the Op to rectify the defects or to replace with new one. As it was very much required to the wife of the complainant the Op by its acts and behavior forced the complainant to purchase another bed for Rs.2,600/- and the said bed was also not functioning. The Op has not disclosed the name of the manufacturer or the MRP on the packed box in which the bed was packed. It is clearly an unfair trade practice on the part of the OP and when the defects were brought to the knowledge of the OP within the warranty period either he has to replace with new one or to rectify the defects. But inspite of several efforts made by the complainant, Op never bothered but forced the complainant to purchase another bed. This sort of an act on the part of the Op definitely amounts to deficiency in service.

In view of the discussions made above, we are of the opinion that the complainant has proved the deficiency in service on the part of the OP. Accordingly, we pass the following order.

O R D E R

Complaint is allowed. Opposite party is directed to refund an amount of Rs.10,100/- (Rupees Ten Thousand One Hundred only) to the complainant within six weeks from the date of this order with cost of Rs.2,000/- (Rupees Two Thousand only).

The complainant is directed to hand over two air beds to the Opposite party at the time of receiving the amount.

In case, if the Opposite party fails to refund the amount within the period as ordered by this forum, Opposite party is directed to pay an interest @ 12% p.a. on Rs.10,100/- (Rupees Ten Thousand One Hundred only) from the date of this complaint to till the date of realization.