Punjab

Ludhiana

CC/20/69

Sachin Sehgal - Complainant(s)

Versus

Mannu Hearing Aid Centre - Opp.Party(s)

Complainant in person

14 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                             Consumer Complaint No:  69 dated 18.02.2020.                               Date of decision: 14.11.2024. 

Sachin Sehgal, D-21, Focal Point, City Khanna, Punjab.                                                                                                                            ..…Complainant

                                                Versus

1. Mannu Hearing Aid Centre (Mayank Dua), Chandla Market Near Gulshan Book Shop, Khanna, Punjab.
2. M/s. DANAVOX, having Regd. Office at 309, Oriental House, Yusuf Sarai community Center, above Kotak Bank, New Delhi .                                                                                                      …..Opposite parties 

Complaint Under Section 12 of Consumer Protection Act, 1986

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Sachin Sehgal in person with Sh. Sunandan                                          Gaind, Advocate.

For OP1                         :         Sh. Vishal K. Dua, Advocate.

For OP2                         :         Exparte.  

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant is hard of hearing from both ears and on 03.07.2018, he purchased hearing aid machine of Danavox company for Rs.73,000/- having Rs.60,000/- in cash and Rs.13,000/- being discount of used hearing aid machine. The machine was having two years warranty and the machine is still under warranty. Within one month of the purchase of hearing aid machine, it became non-functional for which the complainant contacted Mayank Dua, the owner of OP1, upon which he told the complainant that due to moisture the machine has stopped working and he will send the same to company for refresh. The complainant stated that at the time of purchase of machine, OPs assured that the machine is waterproof. However, after repair the machine was handed over to the complainant after 15 days. But after 10-15 days the machine further went out of order and every time the machine was got repaired by sending the same to company and it took 15 days time every time due to which the complainant had to suffer mental and physical harassment. The complainant further stated that whenever the machine stopped working, OP1 every time told that the machine is not working due to moisture. The complainant shocked when Mayank Dua, owner of OP1 told him that the machine does not suits you and you can purchase new machine from him having cost of Rs.1,50,000/-. Even the earlier machine was for Rs.40,000/- which was got replaced on the asking of OP1 with new machine worth Rs.73,000/- on the assurance that the same will work efficiently. The complainant requested OP1 to refund of Rs.73,000/- but he flatly refused to do so. The complainant sent a notice dated 03.02.2020 upon the OPs but no reply was received. In the end, the complainant has prayed for directing the OPs to refund Rs.1,30,000/- i.e. Rs.73,000/- of new machine and Rs.40,000/- of earlier machine.

2.                Initially, OP1 did not appear despite service of notice and as such, OP1 was proceeded against exparte vide order dated 03.11.2020. However, Sh. Vishal Kumar Dua, Advocate appeared on behalf of OP1 and filed application for permission to join the proceedings. The said application was allowed vide order dated 04.06.2021 from the stage the complaint is pending at.

3.                During the pendency of the complaint, the complainant filed application for impleading Danavox i.e. OP2 as party in the present complaint. The said application was also allowed vide order dated 27.04.2022 with an order to implead M/s. Danavox as OP2.

                   Notice to OP2 was issued, but OP2 did not appear and was proceeded against exparte vide order dated 15.06.2022.

                   Further, Sh. Ritesh Mohindra, Advocate appeared on behalf of OP2 and filed an application for setting aside exparte order dated 15.06.2022. The said application as also allowed vide order dated 1201.2023 subject to payment of costs of Rs.500/-. However, neither OP2 filed written statement nor deposited costs of Rs.500/- despite grant of last change. As such, OP2 was proceeded against exparte vide order dated 28.02.2023.

4.                In evidence, the complainant tendered his affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents i.e. Ex. C1 is the copy of invoice dated 03.07.2018, Ex. C2 is the copy of warranty card, Ex. C3 is the copy of certificate of Best Hearing Care, Ex. C4 is the copy of legal notice dated 03.02.2020, Ex. C5 is the copy of postal receipt, Ex. C6 is the copy of Audio Logical Evaluation report dated 27.01.2020, Ex. C7 is the copy of Aadhar Card of Jitesh, Ex. C8 is the copy of Audio Logical Evaluation report dated 01.03.2016 and closed the evidence.

5.                On the other hand, Sh. Mayank Dua, owner of OP1 along with his counsel  tendered his affidavit Ex RA by deposing that he is only the retailer of the hearing aid machines and not the manufacturer of the hearing aids. Even he is not repairing, servicing or replacing any product of any hearing product and is not having any responsibility, guarantee or warranty regarding any product of hearing aid. OP1 further deposed that the complainant purchased the hearing aid machines duly manufactured by OP2 and delivered by OP1 having total amount of Rs.73,000/- and out of which, Rs.13,000/- was discounted. The complainant only paid Rs.50,000/- out of Rs.60,000/- and the balance Rs.10,000/- is still due towards the complainant. On the invoice itself it has been mentioned that “Goods once sold are not returnable and exchangeable.” However, after purchasing the hearing aid by the complainant, OP1 got the machine replaced several times from OP2. However, when OP1 demanded Rs.10,000/- from the complainant, he threatened OP1 several times to face dire consequences as he is an Advocate. OP1 further deposited that the complainant intentionally inserted the niddle in the inner part of the machines due to which the machines destroyed and did not work properly and this fact was disclosed by the complainant himself to OP1. As such, OP1 is not liable for any kind of replacement, warranty, guarantee, repairing, exchanging or any defect in the hearing aid as OP1 has no concern with the manufacturing defect/default in the hearing aid machine. The complainant has filed present complaint to harass OP1 and to grab money from him.

                   OP1 also tendered documents i.e. Ex R1 is the copy of delivery note dated 05.12.2018, Ex. R2 is the copy of delivery note dated 29.01.2019, Ex R3 is the copy of delivery note dated 25.02.2019, Ex. R4 is the copy of delivery note dated 07.01.2020, Ex R5 is the copy of balance sheet,  as on 31.03.2019, Ex. R6 is the copy of balance sheet as on 31.03.2020 Ex. R7 is the copy of balance sheet as on 31.03.2021, Ex. R8 is the copy of balance sheet as on 31.03.2022, Ex. R9 is the copy of balance sheet as on 31.03.2023,  Ex R10 is the copy of price list of Danavox hearing aid products, Ex. R11 is the copy of statement of GN Hearing India Pvt. Ltd., Ex. R12 is the copy of motto of Danavox company and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents as well as affidavit and documents produced on record by both parties.

7.                Admittedly, the complainant purchased a LEVA 310 CIC hearing aid machine of Danavox company vide invoice dated 03.07.2018 Ex. C1 which was having two years warranty up to 01.08.2020 as per warranty card Ex. C2 As per Ex. R10, the product in question stated to be a moisture, sweat and shock resistant and was having a replacement warranty. However, the complainant experienced malfunctioning in the hearing aid machine regarding which a complaint was lodged with OP1. Since the product was in warranty and as such, the machine was replaced with new one having serial No.1859186381 and was delivered to the complainant vide delivery note dated 05.12.2018 Ex. R1. On subsequent occasions, as and when the complainant raised grievance with regard to incompatible audio quality of the machine, his grievance was promptly redressed and on 29.01.2019, 25.02.2019 and 07.01.2020 vide delivery notes Ex. R2 to Ex. R4 respectively, the machines were replaced with new ones. Replacement of the machines was done free of costs by the OPs. However, the complainant remained dis-satisfied which lead to the filing of the present complaint. The OPs have redressed the grievance of the complainant effectively and promptly keeping in view the special needs of the complainant by ad-hearing to warranty conditions. As such, there is no deficiency in service or adoption of unfair trade practice on the part of the OPs. Reference can be made to Supriyo Raychaudhuri vs Gtpl Kolkata Cable & Broadband Pariseva 2020 (SC) online NCDRC (114) where the Hon’ble National commission has held that after using the first set top box for many years and when new set top box was replaced free of costs, the complainant cannot say that there was any deficiency in service by alleging that the replaced set top box was defective.

8.                 Seeing from the other angle, the aforesaid fact of replacement of the machines by the OPs were well within the knowledge of the complainant and the disclosure of these material facts were essential for the adjudication of the case. First of all the complainant concealed these material facts and did not approach the Commission with clean hands. Even when these facts were presented before this Commission, the complainant neither filed any rejoinder or counter affidavit to the averments of OP1.  Further during the course of arguments, the complainant was reluctant to admit the factum of replacement of the machines. The conduct of the complainant lacks bonafide which eclipse his entitlement to seek equitable relief from this Commission. In this regard, reference can be made to 2022(3) Apex Court Judgments 511 (SC) in case titled Yashoda (Alias Sodhan) Vs Sukhwinder singh & Ors. wherein the Hon’ble Supreme Court of India has made the following observations:-

“Clean hands – Non disclosure of filing of earlier suit and withdrawal thereof without liberty to file another suit – It is a material fact – Plaintiff thus failed to approach Court with clean hands – Judgment and decree passed by trial Court dismissing suit upheld.”

Further reference can be made to 2022(1) Civil Court Cases 209 (SC) in K. Jayaram & Ors. Vs Bangalore Development Authority & Ors. whereby the Hon’ble Supreme Court has made the following observations:-

“Suppression of material fact – Non disclosure of filing of suit and its dismissal and also dismissal of appeal – Appellants have to be non suited on the ground of suppression of material fact – They have not come to Court with clean hands and they have also abused the process of law – They are not entitled for the extraordinary, equitable and discretionary relief.”

 

9.                Also the complainant has failed to discharge initial onus to prove the deficiency in service on the part of the OPs by any cogent and convincing evidence.  The Hon’ble Supreme Court of India in its judgment in SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India while relying upon on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. As well as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544), has held as under:-

“19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.”

10.              As a result of above discussion, the complaint is hereby dismissed being devoid of any merits. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.           

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

 

Announced in Open Commission.

Dated:14.11.2024.

Gobind Ram.