Before the District Consumer Dispute Redressal Commission [Central District] - VIII,      5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi

                                      Complaint Case No. 11/12.01.2018

Master Yash, aged about 11 years (minor)

S/o Sh. Mahender, R/o J-135, Mangolpuri, Delhi-110083

(through his mother Smt. Sonia, w/o Sh. Mahender,

R/o J-135, Mangolpuri, Delhi-110083                                         …Complainant

                                                Versus

OP1-Bengal Speech and Hearing Pvt. Ltd.

(through Managing Director)

Regd. Office: 11/1/1, Sultan Alam Road, Ground Floor,

Near Rabindra Sarobar Metro Station,  Kolkata-700033  

OP2- Ms. Poonam Kumari, Director

Hearing Plus Delhi Karol Bagh

(for Bengal Speech and Hearing Pvt. Ltd.)

57/17, Ground Floor, Bara Bazar Marg, Old Rajinder Nagar,

New Delhi-110005                                                                         

OP3-Managing Director, Phonak India Pvt. Ltd.

503-506, A&B Wing,, Kanakia Zillion,

LBS Marg, (West) Mumbai-40070, Maharashtra                        ...Opposite Party

                                                                                    Date of filing:            12.01.2018

Coram:                                                                       Date of Order:            06.03.2024

Shri Inder Jeet Singh, President

Ms. Shahina, Member -Female

                                                       ORDER

Inder Jeet Singh , President

1.1. (Introduction to case of parties) –The complainant has grievances of deficiency of services and of unfair trade practice that the complainant had purchased hearing aid machine/equipment from OP1 & OP2 and the OP3 is manufacturer of this equipment, however, the complainant was sold defective and repaired equipment, which was found so immediately after purchase of the same. It was returned for providing new equipment but OPs failed.  The complainant could not utilize the equipment in immediate need thereof.  It was returned to the OP1 & OP2, which is still lying with them. The refund asked was not made to the complainant.  That is why the complaint.

1.2. The OP1 & OP2 opposed the complaint that neither there is any deficiency of services or unfair trade practice; the complainant was sold new equipment but it was brought to them for its routine check-up; however, the complainant was insisting for another new machine. The OP1 & OP2 with their persuasion managed to obtain new equipment from the manufacturer/ Phonak India Pvt. Ltd. (viz. OP3), however, despite writing to the complainant to collect the new machine but he failed to collect the same.

1.3 Initially, the complaint was filed against OP1 & OP2, the contents of complaint were also framed accordingly.  However, subsequently complainant’s application was allowed by order dated 9.8.2019 and consequently OP3/manufacturer was impleaded as a party to the complaint. The OP3 was served and for want of appearance, it was proceeded ex-parte on 25.09.2019 (there was some clerical/typographical error in the proceedings dated 25.09.2019 that OP3 was served on 26.08.2019 for next date of 25.09.2019 but it was recorded/typed as OP2 in place of OP3, which stand clarified subsequently). 

2.1. (Case of complainant) –The complainant Yashpal is a minor aged about 11 years and the complaint is filed through his mother Smt. Sonia, a home maker. Yash was suffering from ear disease for several years and he was undergoing medical treatment. He was prescribed by doctor for hearing aid machine for regular use, otherwise his hearing capability may be ruined permanently, besides his speech capability may also be affected adversely.

            Thus, on 14.01.2017 the complainant purchased hearing plus machine for Rs. 1,05,000/- for her son Yash from OP1; the  OP2 is HOD for OP1/Bengal Speech & Hearing Pvt. Ltd. There is financial bad position, however, in order to cure deafness, the hearing aid machine was purchased for huge amount of Rs. 1,05,000/- as per prescription by the doctor. The amount was arranged for buying the machine for the welfare of child. The OP2 had assured that machine will perform very well and there is one year warranty.  

2.2. But, the OPs had provided old hearing plus machine on 14.01.2017 instead of new machine, the machine was not performing properly and it became out of order on 16.01.2017, which worried the complainant and she made call to the OPs. She was advised to return the machine and in its place new machine will be provided. On 16.01.2017 she visited OP2 and complainant was asked to submit the machine for repairing. The OPs provided hearing plus machine on 19.01.2017 stating to be a new machine but it was not new machine and it was another repaired machine. Even that machine could not help Yash smoothly and conveniently, thus she visited OPs and also made several calls, she was assured by the OPs to provide new machine but old repaired machine was being arranged several times without caring the health Yash. The hearing plus machine remained out of order since its purchase.   Thus, there is deficiency of services on the part of OPs, since Yash had suffered a lot and his hearing capacity impaired, his health condition reached from worse to worst. The OPs failed to provide new hearing plus machine intentionally and willfully to make gains by mala-fide intension. They did not care for health of complainant’s son Yash. There is deficiency of services by the OPs and complainant suffered financially, physically, other harassment and mental agony besides health of Yash.

            That is why the complaint for refund of Rs. 1,05,000/-, compensation of Rs. 18 lakhs for impairment of hearing capability of Yash and losing his speech also besides litigation cost of Rs. 20,000/-.

2.3 The complaint is accompanied with identity proof of complainant Sonia, medical record of prescription and treatment of Yash issued by concerned hospital inclusive of Sir Ganga Ram Hospital,  Lady Harding Medical College and Smt. Sucheta Kriplani Hospital, invoice, Meenakshi Speech & Hearing Clinics Pvt. Ltd., receipt issued by OP1 & OP2 and details/data of hearing plus machine by Hearing Plus-Karol Bagh, Delhi.    

3.1 (Case of OP1  & OP2)- The OP1 & OP2 filed their joint written statement under the signature of Ms. Gargi Dutta with authority letter in her favour and allegations of deficiency of services or sale of repaired hearing plus machine are denied. The complaint is barred by limitation as well as  it is bad for non-joinder of necessary party and mis-joinder of the OPs. The OPs do not deny that hearing plus machine was purchased by complainant for her son Yash, who was suffering from ear disease for several years. There was warranty of two years on the said machine               .

3.2. The OPs provided services to the complainant and her son since the machine was sold to them. The OPs deny  the allegations of sale of old machine in place of new machine. Since the purchase of machine by complainant, the OPs were rendering their best services regularly to the complainant for routine check-up of machine and after due examination by the Audiologist, the said machine was once sent to the manufacturer (Phonak) for inspection and for repairing, if any, after receiving the same from complainant on 16.08.2017. After repairing of the said machine, the manufacturer sent it to OPs and then it was delivered to the complainant. On 26.10.2017 the complainant had re-deposited the machine with OPs for its replacement and accordingly OPs had requested the manufacturer to replace both the hearing aids and on such request the manufacturer had replaced both the hearing aids. Thence, the OPs had requested the complainant by letters dated 15.12.2017, 27.12.2017 and 17.01.2018 to take/pick up new machine from the office of OPs but despite of receipt of those letters, the complainant had chosen the present legal proceedings action against OPs. The OPs are service provider, they are engaged in sales of the machine and they rendered their best services to the complainant but she did not want to avail the services thereof for wrongful gain. The complainant had refused to take the new machine from OPs, which was arranged in persuasion and discussion with the manufacturer. Since, there is no deficiency of services or any kind of harassment or want of suffering financially, physically or mental agony, the complaint is liable to be dismissed.  

3.3. The written statement of OPs is accompanied with extract of minute of 15.07.2016 of authorization in favour of Ms. Gargi Dutta, who authored the written statement. No other document was filed with the written statement. It is relevant to mention this written statement of OPs is styled as per own convenience, there are total 13 paragraph and some of the paragraphs have been replied together.

3.4 (Case of OP3)- The OP3 failed to appear or to file the written statement, that is why it was proceeded ex-parte.

4. (Replication of complainant to the reply of OP1 & OP2) –The complainant denies the objections of written statement of OP1 & OP2 that OP1 & OP2 are necessary party and that is why they were impleaded in the complaint. The hearing plus machine was purchased from them against payment of consideration amount but the machine was old and repaired machine, it was not new machine. The doctors  gave prescription, the machine was purchased for the treatment and welfare of child, the appropriate record was already filed with the complaint. The complaint is correct as there is deficiency of services on the part of OPs.  

5.1. (Evidence)-Smt. Sonia, being mother of Yash led her evidence by filing detailed affidavit, with the support of all the documentary record, which were filed with the complaint.  

5.2. OP1 & OP2 also led their evidence by filing affidavit of Ms. Gargi Dutta, who is also author of the written statement and this affidavit is on the lines of written statement. Paragraph-10 of the affidavit mentions filing of xerox copy of letter dated 27.12.2017 and 17.01.2018 alongwith postal receipt, however, no such record was filed with the affidavit.

5.3 For want of appearance, written statement of OP3, there was no evidence by the OP3.

6.1 (Final hearing)- At the stage of final hearing, the complainant and the OP1 & OP2 filed their written arguments, they are blend of pleadings and evidence. The OP1 & OP2 have narrated the written arguments by splitting it under various heads but the substance is as the case of OPs already produced. The OP1 and OP2 also filed supplementary written arguments.

6.2. Both the parties were given opportunity to make oral submissions, however, the complainant failed to avail this opportunity but Sh. Krishnandu Dey, Advocate for OP1 & OP2 made the oral submissions. [The OP1 & OP2 at the time of oral submissions has shown letter dated 27.12.2017 and 17.01.2018, which were referred in the affidavit of evidence. At the request of OP1 & OP2; the photocopy/scan copy of these two letters were placed in the file].

7.1 (Findings)-The case of both the parties are considered, keeping in view the material on record in the form of narrations given by the parties as well as the documentary record. Since, complainant has not made the oral submission but written arguments will be considered.

7.2. The OP1 & OP2 took the objection that the complaint is barred by law of limitation, however, its detail/computation is not mentioned as to how the complaint is barred by time. As per record this complaint was filed on 12.01.2018 and the machine was purchased on 14.01.2017 and there were grievances of machine from inception from 16.01.2017 onwards, consequently, the complaint filed on 12.01.2018 is within the prescribed period of two years. It is held that the complaint is within time.

7.3. The other objection of the OP1 & OP2 is of mis-joinder of the parties as well as non-joinder of the parties. Since the machine was purchased from OP1 & OP2,  machine was returned to OP1 & OP2 and refund of amount was also sought from these OPs,  therefore, both are necessary party and it is held that the complaint does not suffer from mis-joinder of OP1 & OP2.

            The OP1 & OP2 had also objection regarding non-joinder of necessary party, however, this objection does not sustain on the eve of impleadment of OP3/Manufacturer as a party to the complaint. Accordingly, this contention is also disposed off.

7.4 By taking into account stock of all the material, the following conclusions are drawn:-

(i) There are juxtaposition plea as on the one side complainant’s case is that old machine or repaired machine was sold or provided but the case of OP1 & OP2 is that the  machine sold was new machine and the machine was brought for routine check-up on 16.01.2017.

            The complainant has proved data of machine that the old machine was brought to the OP1 & OP2 on 16.01.2017 and that data clearly mentions that it was deposited and product was sent to vendor for repairing. The OP1 & OP2 would have accessed the machine, it was deposited and then sent for repairs . Thus, plea of OP1 & OP2 does not sustain that it was for routine check-up since the machine sold on 14.01.2017 was it expected for routine check up- on 16.01.2017, after two days of the sale?  Moreover, it is never the case of OPs that every machine needs routine check-up at interval of two days after its sale.

(ii) The data sheet of machine proved also shows that the machine was being repeatedly brought to the OP1 & OP2 after delivery on 14.01.2017 and the machine was being sent to vendor for repairing time and again. The machine was requiring repeated repairs, it is showing that the machine was not performing for what purposes it was purchased by the complainant.

(iii) It is admitted case of OP1 & OP2 that ultimately the new machine was provided to them by the manufacturer/OP3 in lieu of the returned machine, which was lying with OP1 & OP2 and it was left by the complainant. To say, the OP1 & OP2 had received new machine from the manufacturer in lieu of the machine returned by the complainant.

(iv) The complainant has also grievance that warranty period of one year was suggested and the time was being killed by OPs to elapse warranty period in repeated repairing; that is why refund of the amount was sought as child Yash was in dire need of machine. As apprised and duly recorded in proceeding 30.07.2019, that the complainant purchased new machine to avoid medical adverse consequences to Yash of his losing the hearing and speech. The circumstances are corroborating in favour of complainant and her son Yash.

(v) The OP1 & OP2, during their submissions, have also emphasized clause-6 of invoice (which reads as Bengal Speech & Hearing Pvt. Ltd. cannot be held liable for any defects in the instrument or adverse effects to the customer and all claims and complaints in relation to the guarantee/warranty for the goods sold shall be made to the manufacturer of the instrument) that the OP1 & OP2 are not liable at all.

            However, it would not help OP1 & OP2 on three counts viz. (a) the OP1 & OP2 maintains that there is no defect in the hearing plus machine, (b) the machine movement data reflects that machine was sent to vendor on many occasion for repairs since 16.1.2017 and (c) the OP1 & OP2 got replaced new hearing aid machine in place of machine returned by the complainant but in between the complainant was constraint to buy new machine for health of the child Yash and subject machine was not available timely.

(vi) The OP1 & OP2 had neither filed with reply nor proved the letters dated 27.12.2017 and 17.01.2018, however, the same were shown during final arguments that complainant failed to collect the new machine replaced by the manufacturer. However, it further support the case of complainant by reading sub-clause-(v) above that since about one year had elapsed from the date of purchased on 14.01.2017, the machine was repeatedly not working properly, victim child Yash was facing difficulty and it was adversely affecting his health for want of hearing aid, the dates of letter of 27.12.2017 and 17.01.2018  are also corroborating case of complainant that there was substantive delay of offering new machine in lieu of returned machine. It is relevant to mention, it is  a pair of machine as per invoice but the complaint was not so worded.

(vii) In 2019, during the pending of this complaint, the OP1 and OP2 had offered to complainant to take the machine, however, that offer was not accepted since the complainant had already purchased the new equipment. The OPs cannot derive any benefit from such proceedings in view of conclusions in sub-clauses (vi) and (v) above.

7.5  The analysis of the case and conclusions drawn in sub-paragraph 7.4 above are enough to prove the circumstances of deficiency of services on the part of OP1 & OP2 to provide timely needed usable pair of hearing plus machine to complainant for her son Yash to avoid deterioration of health vis-à-vis the complainant was constraint to purchase another equipment from the open market; OP1 & OP2 failed to refund the amount when asked for. The OP1 & OP2 have already got replaced new machine from the manufacturer, therefore, the case stand proved against OP1 & OP2.

8.1 In view of the above, the complainant is held entitled for refund of price amount of pair of hearing plus machine of Rs. 1,05,000/-.

8.2 The complainant claims compensation of Rs. 18 lakhs and litigation cost of Rs. 20,000/- on account of facing trauma, harassment, mental agony and then constraint to file the complaint. The circumstances are speaking themselves that there was harassment and mental agony because of uncertainty of availability of machine vis-à-vis it was required urgently to make daily use to avoid adverse health effect but the complainant purchased another machine. Thus, to strike the balance for both sides, compensation of
Rs. 15,000/- in favour of complainant and against the OP1 & OP2 will  meet both ends. Since the complainant has to knock the door of this Commission for redressal of grievances of refund of the amount, therefore, cost of Rs. 10,000/- for the purposes of this complaint is allowed in favour of complainant and against the OP1 & OP2.

8.3 The complaint against OP3 is dismissed.

8.4 Accordingly, the complaint is allowed in favour of complainant and against the OP1 & OP2 while directing the OP1 & OP2 to pay jointly and/or severally a sum of Rs.1,05,000/- , damages of Rs. 15,000/- and costs of Rs.10.000/-, payable within 45 days from the date of this order. In case the OP does not pay the amount within stipulated period, then there will be interest at the rate of 5%pa on principal amount of Rs.1,05,000/- from the date of complaint till realization of amount. The OP may also deposit the amount in the form of pay order/demand draft in the name of complainant in the Registry of this Commission; in that eventuality the complainant may be informed such deposit.

8.5. The complaint against OP3 stands dismissed.  

9.  Announced on this 6th day of March 2024 [फाल्गुन 16, साका 1945].  Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.         

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