DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 31st day of July, 2024
Filed on: 07/06/2019
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. NO. 226/2019
COMPLAINANT
S Remesh S/o C. Sreedhara Bhat, M-94, Sreenilayam, Changampuzha Nagar P.O. Kochi 682033.
(Rep. by Adv. P.T. Govindan, Murikan & Mangot, Chittoor road, Valanjambalam, Kochi 16)
VS
OPPOSITE PARTY
- Amplifon (India) Pvt.Ltd 40/3144, Ground Floor, Asvass Tower. Palarivattam, Kochi 682025.
- Keerthi M. Nair, Audiologist, Amplifon (India) Pvt. Ltd., 40/3144, Ground Floor, Asvass Tower, Palarivattam, Kochi 682025.
- op deleted as per order date 05.11.2023 I.A.No.499/2022)
FINAL ORDER
D.B. Binu, President
1. Brief statement of facts of this complaint:
The complaint is filed under Section 12 of the Consumer Protection Act, 1986. The complainant, a 79-year-old retiree from FACT, Udyogamandal, has been experiencing significant hearing problems, with partial hearing capacity in his right ear and almost none in his left ear, causing daily difficulties. On 09.08.2018, he consulted with the Opposite party paying Rs.100 as a consultation fee. He was then advised by audiologist Ms Keerthi M. Nair to use a hearing aid device costing Rs. 49,899. He paid Rs. 4,900 as an advance and Rs. 44,999 on 21.08.2018 upon delivery of the device. The hearing aid, a Starkey model 'Muse i2400 BTE P', was manufactured in Mexico and had an MRP of Rs. 3,20,000, offered at a special price of Rs. 49,999 with a 4-year warranty.
Contrary to the assurances from the Opposite party and Ms. Nair, the hearing aid did not improve his hearing. Instead, it caused swelling and pain in his left ear. Despite multiple attempts to contact the opposite party, their response was evasive and dismissive, exacerbating the complainant's difficulties and mental agony. The hearing aid was ultimately found to be unsuitable and unhelpful, leading to claims of gross deficiency of service and unfair trade practices.
The complainant sent a legal notice on 11.09.2018, requesting a refund and compensation. The opposite party responded by offering to repair or replace the device under warranty, but the complainant found this unacceptable and insisted on a refund and compensation for the pain and suffering caused.
The complainant seeks an order directing the opposite party to refund Rs. 49,999, and pay Rs. 50,000 as compensation for deficiency of service, and an additional Rs. 50,000 for mental agony, along with reasonable interest and costs of the proceedings.
2. Notice
The commission sent notice to the opposite party. However, they did not submit their version within the statutory period, and as a result, the case was set to proceed ex parte.
3. Evidence
The complainant submitted a proof affidavit along with 10 documents, marked as Exhibits A1 to A10.
- Exhibit A1: Receipt no.702067 dated 09.08.18.
- Exhibit A2: Receipt no.702064 dated 09.08.18
- Exhibit A3: Receipt no.707685 dated 21.08.18.
- Exhibit A4: Receipt no.707682 dated 21.08.18
- Exhibit A5: Receipt no.707618 dated 21.08.18.
- Exhibit A6: Office copy of legal notice dated 11.09.18
- Exhibit A7: Postal acknowledgement card from the first opposite party.
- Exhibit A8: Reply from first opposite party dated 20.09.18
- Exhibit A9: Bill no.A/-04920 dated 25.07.23 .
- Exhibit A10: Bill no.A/-04921 dated 25.07.23 .
4. Issues for Consideration
The main points to be analyzed in this case are as follows:
i) Whether the complaint is maintainable?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party?
iii) If so, whether the complainant is entitled to any relief?
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, as per Section 2 (1) (d) of the Consumer Protection Act, 1986,, 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 produced the recipes (ExhibitsA1 to A5) and made payments, is thus a consumer as defined under the Act. The receipt evidencing payment to the opposite party (Exhibits A1 to A5) supports this.
6. Argument Note filed by Sri. P.T. Govindan Learned the Counsel for Complainant:
The complainant, a 79-year-old retired senior citizen suffering from a partial hearing problem in his right ear and almost total hearing loss in his left ear, filed the original complaint against two opposite parties. The second opposite party was later removed from the case as per order in I.A. No.499/2022. On 09.08.2018, the complainant visited the first opposite party’s office at Palarivattam seeking to improve his hearing through suitable methods or hearing aids. After paying a consultation fee of Rs.100, he was referred to the second opposite party, an audiologist, who advised the purchase of a hearing aid device for his left ear costing Rs.49,899.
The complainant paid Rs.4,900 as an advance and the remaining Rs.44,999 on 21.08.18. The hearing aid device, manufactured in Mexico by Starkey (Model 'Muse i2400 BTE P', Serial Number 180889477), was delivered on the same day. The device’s box stated an MRP of Rs.3,20,000 with a special offer price of Rs.49,999. As per the warranty card (Exhibit A5), the device had a four-year warranty for replacement/repair.
The opposite party assured the complainant that the device would improve his hearing capacity, but it failed to do so. Instead, it caused swelling and pain in his left ear. Despite repeated contact, the opposite parties took an evasive attitude, showing no concern for the complainant’s difficulties and mental agony. This led to a gross deficiency of service and an unfair trade practice of selling an unsuitable device.
The complainant sent a legal notice on 11.09.18 (Exhibit A7) demanding the opposite parties take back the device, refund Rs.49,899, and pay Rs.50,000 as compensation for the mental agony caused. The first opposite party replied, offering to rectify/repair the device under warranty. However, the complainant insisted on a refund and compensation, as the device was entirely unsuitable.
The notice from this Commission was served on the first opposite party, who filed a version beyond the limitation period, hence it was not accepted. The second opposite party, who had left the services of the first opposite party, could not be traced and was removed from the party array (I.A. No.499/2022).
Out of necessity, the complainant purchased a new hearing aid from Anchala Hearing Aid Centre, Angamaly, on 27.05.2023 for Rs.24,820, plus Rs.180 for GN Resound Battery (Exhibits A9 and A10). This new device works properly to the complainant’s satisfaction.
Along with the complaint, nine documents were produced, and two additional documents (bills for the new device) were later submitted. The proof affidavit filed by the complainant marked all documents except document no.8 as Exhibits A1 to A10.
The complainant limits his prayer for relief to items (a), (b), (d), and (e) in the complaint. He seeks the return of the defective hearing aid device, a refund of Rs.49,899, compensation for the mental agony, and additional costs incurred due to the deficiency in service by the opposite party.
We have meticulously considered the detailed submissions of both parties, as well as thoroughly reviewed the entire record of evidence, including the argument notes.
The evidence presented included an ex-parte proof affidavit filed by the complainant, and it was unchallenged by the opposite party. Therefore, the complainant's claims were considered credible and supported by the evidence. The opposite party's conscious failure to file their written version despite having received the Commission’s notice amounts to an admission of the allegations leveled against them. The case of the complainant stands unchallenged by the opposite party. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
After careful consideration of the submissions, evidence, and relevant case laws, we find the following:
i) Maintainability of the Complaint:
As per Section 2 (1) (d) of the Consumer Protection Act, 1986, a consumer is defined as 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 produced the receipts (Exhibits A1 to A5) evidencing payment to the opposite party, establishing him as a consumer under the Act. Therefore, the complaint is maintainable.
ii) Deficiency in Service and Unfair Trade Practice:
The complainant provided evidence that the hearing aid device did not improve his hearing and caused physical pain and mental agony. The opposite party's failure to provide a functional device and their evasive attitude constitute a deficiency in service and unfair trade practice as defined under the Act. This is supported by case laws such as Lucknow Development Authority v. M.K. Gupta (1994) and Ghaziabad Development Authority v. Balbir Singh (2004), where the courts held that failure to provide proper service constitutes a deficiency under the Consumer Protection Act.
iii) Entitlement to Relief:
Given the deficiency in service and unfair trade practice, the complainant is entitled to a refund of the amount paid for the defective hearing aid device and compensation for the mental agony suffered. The opposite party's offer to repair or replace the device does not suffice as the device was unsuitable from the outset.
iv) Costs of the Proceedings:
Considering the circumstances, the complainant is also entitled to costs of the proceedings.
In considering this complaint, we are deeply moved by the plight of the complainant, a senior citizen who placed his trust in the opposite party, only to be met with disappointment and distress. The complainant's pursuit of a solution to his hearing problems, driven by the simple desire for a better quality of life, was met with a product that not only failed to deliver on its promises but also caused him physical pain and emotional anguish. The indifference and evasiveness shown by the opposite party are particularly disheartening. Service providers need to remember the human element in their transactions, recognizing that behind every complaint is an individual seeking fairness and dignity. This case highlights the importance of accountability and the need for businesses to uphold their commitments, especially when dealing with vulnerable individuals. We hope that this judgment serves as a reminder of the ethical responsibilities that accompany commercial transactions and reassures consumers that their grievances will be heard and addressed with the compassion and justice they deserve.
We determine that issue numbers (I) to (IV) are resolved in the complainant's favour due to the significant service deficiency and the unfair trade practices on the part of the opposite party. Consequently, the complainant has endured considerable inconvenience, mental distress, hardships, and financial losses as a result of the negligence of the opposite party.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite party is liable to compensate the complainant.
Hence, the prayer is partly allowed as follows:
- The opposite party shall refund ₹49,999 (Rupees forty-nine thousand nine hundred ninety-nine only) to the complainant as evidenced by Exhibits A1 to A5.
- The opposite party shall pay ₹50,000 (Rupees fifty thousand only) as compensation for monetary loss, mental agony, and hardship suffered by the complainant. This amount is awarded for the deficiency in service and unfair trade practices, as well as for the mental agony and physical hardships endured by the complainant.
- The opposite party shall also pay the complainant ₹10,000 (Rupees ten thousand only) towards the cost of the proceedings.
The Opposite Party is liable for the fulfilment of the above orders, which must be executed within 30 days from the date of receiving this order. Failure to comply with the payment orders under points I and II will result in interest at the rate of 9% per annum from the date of filing the complaint (07-06-2019) until the date of full payment realization.
Pronounced in the Open Commission on this the 31st day of July, 2024
Sd/-
D.B.Binu, President
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/By Order
Assistant Registrar
Appendix
Complainant’s Evidence
- Exhibit A1: Receipt no.702067 dated 09.08.18.
- Exhibit A2: Receipt no.702064 dated 09.08.18
- Exhibit A3: Receipt no.707685 dated 21.08.18.
- Exhibit A4: Receipt no.707682 dated 21.08.18
- Exhibit A5: Receipt no.707618 dated 21.08.18.
- Exhibit A6: Office copy of legal notice dated 11.09.18
- Exhibit A7: Postal acknowledgement card from the first opposite party.
- Exhibit A8: Reply from first opposite party dated 20.09.18
- Exhibit A9: Bill no.A/-04920 dated 25.07.23 .
- Exhibit A10: Bill no.A/-04921 dated 25.07.23 .
Opposite party’s Exhibits
Nil
Despatch date:
By hand: By post
kp/ CC No. 226/2019
Order Date: 31/07/2024
