DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 15th day of February, 2023.
Filed on: 18/02/2020
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N
C.C. NO. 425/2020
Between
COMPLAINANT
Cherian V.K., Vazhappilly House, Peechanikkad, Puliyanam PO, Angamaly-683572.
VS
OPPOSITE PARTIES
1. India Mart Intermesh Ltd. 6th Floor, Tower 2, Assotech Business Cresterra, Plot No. 22, Sec 135, Noida-201305, Uttar Pradesh.
2. Sri Balaji Trading Company 10/10, Chakrapani Road, Narasingapuram, Guindy, Chennai-600032.
3. Noushad, GREEN WATER SCIENCE, 129, MG Nagar, Puliyathumukku, Kollam-691004.
4. GREEN WATER SCIENCE, 129, MG Nagar, Puliyathumukku, Kollam-691004.
(OP No. 3&4 Rep. by Adv. R. Gopakumar, Dwaraka Madam, Thevally P.O., Kollam 691003)
F I N A L O R D E R
D.B. Binu, President.
1. A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The brief facts, as averred in the complaint, are that the complainant is a farmer. For renovation of his house the complainant was looking for steel water tank. The petitioner searched the steel tank in the internet. In the internet petitioner found an advertisement in the 1st opposite party online platform called “India Mart”. In 1st opposite party online platform the complainant find out the 4th opposite party company's advertisement stating that they are the manufacturer as well as the distributors of the steel tanks. The complainant had called the opposite party in the enquiry phone given in the online portal. In reply the 3rd opposite party attended the phone call and promised to give tank in the required specifications as per the complainant demand. The complainant submitted a detailed specification of the tank and the 3rd opposite party quoted Rs.32,000/- for tank. The complainant and the 3rd opposite party later communicated by WhatsApp application. The 3rd opposite party had promised to deliver the tank as soon as possible. On 25/05/2020 the complainant purchased a 2000 Ltr. SS Water Tank for Rs.32,000/-. The complainant had paid money by online bank to the 3rd opposite party’s account number of Axis bank, Kollam branch. (A/c no:21801010004988). The name of the water tank was shown in the online site as "AYUSH TANKS". The tank was delivered at the address of the complainant by the 2nd opposite party. The complainant was asked to pay the transportation expenses for the delivery of the tank and complainant had paid Rs.6000/-to the transportation agent. The complainant had ordered a tank, upon delivery of the tank, it was found that the tank delivered was of extremely different specifications. There was a change even in the manufacturer of the tank. The name of the tank ordered by the complainant was "AYUSH TANKS" but the name of the tank delivered was "LOTUS TANKS". Moreover, the tank delivered was of inferior quality. The price of the tank ordered by the complainant was Rs.32,000/- but the cost of the tank delivered was only Rs.19,500/-. When the complainant contacted the 3rd opposite party to inform about this change of price, what he said was that if a bill for the amount of Rs.32,500/- is to be provided, the complainant was again to pay another amount. Despite being delivered a tank of different specifications, the complainant installed the same upon the belief that it will satisfy his expectations. However, within two and half months after installation of the tank it was found that this tank started to rust and got covered with rust both outside and inside. The result was that when water was pumped from this tank for drinking for household purposes and for bathing, the water that came out was fully brown colour due to rust in the tank. The complainant contacted "LOTUS TANKS" but they said that since they did not have any direct dealings with the complainant, he has to contact the 3rd opposite party. However, this is a wrong action on part of "LOTUS TANKS" since they being the manufacturers are bound to know about the defects with their tanks. The complainant thereupon contacted the 3rd opposite party and informed him of the defects and also asked him for a replacement of the tank. The complainant had also sent photos revealing the bad and rusty condition of the tank. However, in spite of seeing the photos, the 3rd opposite party was not willing to accept the defects of the tank and instead tried to put the blame upon the complainant's land and its contour. The 3rd opposite party kept on trying to establish that the tank has not rusted and failed to admit that the tank delivered is of inferior quality. He asked the complainant to wash the tank with clean water and then send another photo. The complainant sent photos as asked by the 3rd opposite party but even then, the 3rd opposite party was not ready to accept the defective condition of the tank. The complainant then sent a message to the 3rd opposite party asking him to come and inspect the tank so that he himself can know as to the poor performance of the tank. The complainant asked the 3rd opposite party to come to inspect the tank and to provide a decent replacement within 2nd September, 2020. The complainant also informed the 3rd opposite party that if at all he was not ready to come and inspect the tank within the said date, then he will have to inform the complainant of the date of his arrival with the new tank so that the complainant can make necessary arrangements for disconnecting the already installed tank such as contacting the plumber etc. However, even though the 3rd opposite party at last said that he will replace the tank, till date there has been no positive response from his side which attitude clearly reveals that he is not at all going to provide the complainant with a decent replacement. This inaction on the part of the 3rd opposite party it is clear that he is neither going to repair the tank nor to replace it with a new one. The complainant much aggrieved by this, demanded to replace the water tank and the 3rd opposite party denied such demands. Since the opposite party was not ready to offer a decent replacement nor showing any initiative to inspect the tank, the complainant had to purchase another tank otherwise the complainant's affairs will be affected much. The complainant had approached the Commission seeking an order directing the opposite parties to Rs.32,000/-the purchase price of the tank, with interest, Rs.1,00,000/- as compensation for the mental hurt, loss, agony and hardship caused to the complainant by the opposite parties due to their deficiency in service and the cost of the litigation.
2. Notice
Notice was issued from the Commission to the opposite parties. The opposite parties received the notice but did not file their versions with in the statutory period . Consequently, the opposite parties are set ex-parte.
3) . Evidence
The complainant had produced 4 documents that were marked as Exhibits-A-1- to A-4.
Exhibit A-1. Copy of the invoice issued by the 2nd opposite party.
Exhibit A-2. Print out of the payment details made by the complainant towards the purchase price of the tank.
Exhibit A-3. copy of the lawyer notice dated 15.10.20.
Exhibit A-4. copy of the statement of account
4) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
In the present case in hand, the complaint was filed under Section 35 of the Consumer Protection Act, 2019. As per Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant had produced a copy of the invoice issued by the 2nd opposite party. (Exhibit A-1 and 2). These documents revealed that the complainant had paid the requisite consideration for the product to the opposite parties. Therefore, we are only to hold that the complainant is a consumer as defined under the Consumer Protection Act, 2019. (Point No. i) goes against the opposite parties.
The counsel for the complainant submitted that the complainant contacted the 3rd opposite party almost on a daily basis to inform him about the defects in the tank. However, the 3rd opposite party stopped attending the complainant's calls. Even after repeated calls and messages from the complainant, the 3rd opposite party was neither ready to offer a decent replacement nor to respond to the calls and messages of the complainant. Due to procrastination of the opposite party, the complainant suffered monetary loss, mental agony and hardships. The activities and attitude of the opposite parties are unfair trade practice. They have caused monetary loss to the complainant by selling him defective water tank. The opposite parties are liable for unfair trade practice. The manufacturer of the water tank is in fact selling defective products at the same time advertise/expose it to be of good quality. The opposite parties are under utter neglect. The action/inaction on the part of the opposite parties is clear deficiency of service and it also amounts to unfair trade practice. The opposite parties are well aware that the water tank sold to the complainant is having manufacturing defect. The complainant is liable to be compensated for the deficiency of service as well as for supplying defective product. The 2nd opposite party being the service provider and the 3rd opposite party being the seller have assisted the 1st opposite party in selling the defective product and appropriating the money belonging to the complainant. In fact, the opposite parties are offering defective products through online sale and at the same time extracting money by means of such unfair trade practice. The complainant sent a lawyer notice to the opposite parties who did not even bother to send a reply to the same. Even after receiving the lawyer notice, the opposite party neither inspected the tank nor replaced it.
It would be quite appropriate to quote here the relevant part of the lawyer notice dated 15.10.20 sent by the complainant to the 3rd opposite party. (Exhibit A-3)
“The name of the tank was shown in this online site as "AYUSH TANKS" but the name of the tank delivered to me was "LOTUS". This tank was delivered at my client's address by Sri Balaji Trading Company, Chennai. The detailed specifications of the tank ordered by my client is: Capacity: 2000 Ltr., Weight: 60 kg, Height: 6.3 feet. Diameter: 3.8 feet., Thickness: 0.8 mm, Grade :304, Price:32,000/-. However, instead of sending a tank of the value and quality as specified by my client, you defrauded my client and sent him a tank of inferior quality of only Rs. 19,500/-. And my client also paid rs.6000/- as transporting expenses by cash to your agent during the delivery of the tank. My client however installed the said tank on the belief that the tank delivered will be of good quality and will function according to the needs and requirements of my client. However, within two and half months of delivery of the said tank, it was found that this tank started to rust. My client contacted "LOTUS TANKS" but they said that since they did not have any dealings with my client, he was to contact you. My client contacted you many times to rectify the said defect and to replace this tank with a new one. My client had even sent you photos revealing the bad and rusting condition of the tank. However, in spite of seeing those photos you were not willing to accept the defective condition of the tank. You were also not ready and willing to accept or to inspect the rusty condition of the tank. “
The complainant who had purchased the product of the opposite parties were made to suffer due to the deficiency of service on part of the opposite parties. The opposite parties are liable to compensate the complainant for the deficiency of service on their part. The coordination between the manufacturer and the service provider is also not being carried out in an effective manner.
We have also noticed that Notices were issued from the Commission to the opposite parties but did not file their versions. Hence the opposite parties set ex-parte. The complainant had produced 4 documents which are marked as Exbt.A-1 to A-4. All in support of his case. But the opposite parties did not make any attempt to appear in the case and participate in the above proceedings before this commission and did not make any attempt to set aside the ex-prate order passed against it. It was further stated that this illegal, arbitrary and unjustified act of the Opposite Parties amounted to deficiency in service, indulgence in unfair trade practice, and caused mental agony and hardship to the complainant.
The opposite parties’ conscious failure to file their written version in spite of having received the Commission’s notice to that effect amounts to an admission of the allegations levelled against them. Here, the case of the complainant stands unchallenged by the opposite parties. We have no reason to disbelieve the words of the complainant. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
The Opposite Parties had inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of Opposite Parties in failing to provide the Complainant desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainant.
We find the issue Nos. (II), (III) and (IV) in favour of the complainant for the serious deficiency in service that happened on the side of the opposite parties. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite parties.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
i. The Opposite Parties shall refund Rs. 32,000/- (Rupees thirty two thousand only) towards the purchase price of the tank to the Complainant.
i. The Opposite Parties shall pay Rs.10,000/- (Rupees ten thousand only) as compensation for the mental hurt, loss, agony and hardship caused to the complainant .
ii. The Opposite Parties shall also pay the complainant Rs.5000/- (Rupees five thousand only) towards the cost of the proceedings.
The opposite parties shall be jointly and severally liable for the above-mentioned directions which shall be complied with by the Opposite Parties within 30 days from the date of the receipt of a copy of this order. Failing which the amount ordered vide (i) and (ii) above shall attract interest @7.5% from the date of receipt of a copy of this order till the date of realization.
Dictated to the Confidential Assistant Smt. K.P. Liji transcribed and typed by her corrected by me and pronounced in the Open Commission on this the 15th day of February, 2023
Sd/-
D.B.Binu, President
Sd/- V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
APPENDIX
COMPLAINANT’S EVIDENCE
Exhibit A-1. Copy of the invoice issued by the 2nd opposite party.
Exhibit A-2. Print out of the payment details made by the complainant towards the purchase price of the tank.
Exhibit A-3. copy of the lawyer notice dated 15.10.20.
Exhibit A-4. copy of the statement of account
OPPOSITE PARTIES’ EVIDENCE
Nil
Despatch date:
By hand: By post
kp/
CC No. 425/2020
Order Date: 15/02/2023
