Date of filing: 01/09/2021                                        

Date of Judgment: 24/07/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complaint is filed by Sri Biswanath Mondal under section 35 of the Consumer Protection Act, 2019 alleging deficiency in rendering of service on the part of opposite parties (referred as OPs hereinafter) namely (1) Calcutta Hearing Clinic and  (2) Phonak India Pvt. Ltd. (name of OP 2 was expunged/striked out vide order dt. 25.08.2022 on the prayer of the complainant).

Complainant’s case in short is that OP 1 is the distributer of various Hearing Aid Machines and Hearing Clinic. OP 2 is the manufacturing company of the Hearing Aid. Complainant had purchased a Hearing Aid of OP 2 being Model No. Basco-Q5-SP from the OP 1 on 30/04/2018 on payment of sum of Rs. 10,000/-. OP 1 & 2 provided two years warranty of the said Hearing Aid which ended on 30/04/2020. There was some problem in the machine on 01/04/2020. The incident was reported by the complainant to OP through telephonic conversation. But due to the lockdown for Covid – 19 pandemic, complainant was unable to deposit the machine at that time. In the meantime the machine was totally dead and complainant was unable to hear anything, for which he faced tremendous problem in daily life. Complainant deposited the said hearing aid at the office of OP 1 on 05/07/2021 in a dead condition. OP 1, after analysing the subject machine, claimed Rs. 5,000/- for repairing to which complainant did not agree to pay.  So OP 1 returned the said machine without repairing on 06/08/2021. Thus, the present complaint has been filed praying for directing the OPs to repair the subject Hearing Aid in alternatively to refund consideration amount of Rs. 10,000/-, to pay 30,000/- as compensation and Rs. 5,000/- as litigation cost.

On perusal of the record it appears that on service of notice, OP No. 1 did not take any step. So the case was directed to be proceeded exparte. The name of OP 2 was however expunged / striked out on the prayer of the complainant as already mentioned above.

During the course of the trial complainant has filed examination in chief on affidavit with the documents relied upon by him.

So the only point requires determination is whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASONS

In support of his claim, complainant has filed the bill showing the purchase of the said Hearing Aid of Phonak Co., Model No. Basco-Q5-SP product type BTE on payment of sum of Rs. 10,000/- from OP 1 on 30/04/2018. He has also filed the warranty card wherefrom it appears the machine was under warranty for two years. According to the claim of the complainant, machine had some problem on 01/04/2020 but he could not take the machine due to the prevalent situation at that time of lockdown.

It may be pertinent to point out that during the period when the machine had problem i.e. on 01/04/2020 the same was under warranty period. It is a known fact that during the said period due to the lockdown for pandemic of Covid – 19, the movement of the people were restricted as well as the shops were also closed. So the claim of the complainant that he could not take the Hearing Aid after it stopped functioning due to the said situation of pandemic, cannot be ruled out. It is the specific case of the complainant that he could take the Hearing Aid to the OP 1 only on 05/07/2021 for repairing, but OP 1 charged Rs.5,000/- for such repairing. However, complainant refused to pay.  It may be mentioned here that taking into consideration of the situation of pandemic of Covid-19 at that time, Hon’ble Apex Court also in a suo moto writ petition,  had extended the period of limitation. Said decision even though has no relevance in this case, but the very objective was that a litigant does not suffer due to expiry of limitation during the period of such pandemic.  In this case also situation was such for which complainant could not deposit the hearing aid on 1.4.2020 within the warranty period and was compelled to take it when the situation became bit normal.  So the claim of the complainant that for non-repairing of the said Hearing Aid there has been deficiency in service on the part of OP 1 cannot be discarded. However as the name of OP 2 has already been expunged who is manufacturer of the said product, OP 1 being distributer is liable to pay compensation for the harassment and mental agony suffered by the complainant. There cannot be any denial that the complainant who was hard of hearing needed to use the said Hearing Aid for his day to day life. So he is entitled to the compensation. We find, an amount of Rs. 10,000/- as compensation and Rs. 5,000/- as litigation cost will be justified.

Hence,

              ORDERED

CC/394/2021 is allowed exparte against OP 1 the distributor. OP 1 is directed to pay Rs. 10,000/- as compensation to the complainant and Rs. 5,000/- as litigation cost within 45 days from the date of communication of this order. In default of payment the entire sum shall carry interest @ 7% p.a. till realisation.