Haryana

Panchkula

CC/116/2020

VARUN SHARMA. - Complainant(s)

Versus

M/S KAPOOR BROTHERS ROLLER FLOOR MILLS . - Opp.Party(s)

21 Oct 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

 Varun Sharma, son of Shri Vinod Kumar Sharma, resident of House No.948, Sector-12, Panchkula.

                                                                ….Complainant.

Versus

1.     M/s Kapoor Brothers Roller Floor Mills, World of Titan, SCO        No.367, Sector-8, Panchkula through its authorized signatory.

2.     Titan Company Limited, 3^rd Floor, IFCI Tower, 61, Nehru Place, New Delhi-110019, through its CEO.

….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

Before:              Sh.Satpal, President.

Dr.Sushma Garg, Member.

For the Parties:   Complainant in person.

                        Sh. Vivek Sheoran, Advocate for OPs No.1 & 2.

ORDER

(Satpal, President)

1.                Briefly stated, the facts of the case are that the complainant purchased a watch Model Number 9159 WL in black colour vide bill dated 26.03.2019 for Rs.4,295/- from OP No.1. The complainant handed over the said watch in evening to his father, who noticed that the needles of the said watch interlocked with each other; accordingly, the complainant visited the OP No.1 and brought the said defects into the knowledge of OP No.1, who replaced the said watch with other one of the same model but different colour and issued a fresh bill in this regard vide invoice no.100004222 dated 27.03.2019 for Rs.4,295/-; after 5-7 days of the replacement of the said watch, the complainant again visited the OP No.1 informing him  that the said watch had again become defective; on this, the executive of the OP No.1 asked him to bring the watch and they would  check the same and in case of manufacturing defects, they would replace the same.  It is alleged that father of the complainant was not having good health as he was detected with a vocal cord cancer and had visited the complainant in the month of May, 2019 and immediately, the complainant took the watch to the OP No.1 and requested to check the same; after checking the watch, the engineer of OP No.1 informed that the hour and minutes needles were colliding with each other, due to which, the watch was not working properly and the defect was rectified. It is averred that the said watch stopped functioning again within 10-12 days and thereupon, the complainant visited the OP No.1 and requested to replace the same; the officials of the OP No.1 demanded the original bill, but the complainant was not having the original bill as the same was lying at Yamuna Nagar at father’s place, who was at Delhi, as he was under medical treatment there. The father of the complainant returned, during the month of August, 2019, from Delhi and then he obtained the bill and visited the OP No.1 and requested to replace the said defective watch with new one; but this time, the OP No.1 totally refused to replace the said watch; after that, the complainant lodged his complaint on the toll free number of the OP No.2 but no positive response was received from the OP No.2. The complainant remained in contact with the OP No.2 through its toll free number from August to October 2019 but the OP no.2 did not redress the grievances of the complainant.  Due to the acts and conduct of the OPs, the complainant has suffered a great mental agony, harassment and financial loss; hence, the present complaint.

2.             Upon notice, the OPs No.1 & 2 appeared through counsel and filed a joint written statement raising preliminary objections qua complaint is not maintainable being baseless and false; estoppels; no cause of action and no locus standi. It is stated that the customer care executive of the OP No.2 tried to contact the complainant to resolve the issues raised by him on toll free number but the complainant did not pick the call of the customer care executive, who dropped a message also to the complainant, but the complainant did not respond. It is averred that the complainant did not deposit the watch with the OPs till date; it is pertinent to mention that any defect occurred in the watch/product could be verified only upon physical receipt of the watch. It is also averred that as per policy, any defective watch is replaced within 30 days of its purchase, if the customer produces a validly issued invoice along with the warranty card for the product(in original); in the absence of the watch being in a saleable condition or for the lack of production of original bill/warranty card, the company reserves its right of refusal to replace the product; after 30 days of the purchase of a watch, if a customer presents the same with original invoice of sale along with the warranty card for inspection, in the event of a defect, the same is repaired free of cost by the service center of the OP but the Complainant failed to produce the original bill along with warranty card of the said watch and hence, he was not entertained. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OPs and as such, the complaint of the complainant is liable to be dismissed.

3.             The complainant has tendered his affidavit as Annexure C-A along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement. On the other hand, the Authorised representative of OPs No.1 & 2 has tendered affidavit as Annexure R1-A and closed the evidence.

4.             We have heard the complainant and the learned counsel for the OPs No.1 & 2, and gone through the entire record including written arguments filed by the ld. counsel for OPs No.1 & 2, minutely and carefully.

5.             Admittedly, the watch bearing model no.NK9159WL01 was purchased by the complainant on 26.03.2019 vide bill amounting to Rs.4,295/- from OP No.1. As per admitted factual position, the said watch, on account of problem of interlocking of its needles in it, was replaced by another watch, vide invoice dated 27.03.2019 and the replaced watch again became defective after 5/7 days on account of collision between its needles and the same was rectified by the OP No.1.

6.             The grievance of the complainant is that the said watch again became defective just after 10-12 days and the OP No.1 was requested to replace the same as having manufacturing defect in it. As per the version of the complainant, he approached the OP No.1 several times but watch in question, having manufacturing defect in it, was not replaced. In the present complaint, the complainant has requested for refund of the amount of a sum of Rs.4,295/- along with interest and  compensation of Rs.1,00,000/-  and Rs.51,000/- on account of mental agony and harassment and litigation charges respectively.

7.             During the arguments, the complainant reiterating the averments made in the complaint contended that he approached the OP No.1 several times in person as well as through e-mail. In this regard, the complainant invited our attention to emails(Annexure C-3, C-4 & C-5) wherein complaint was lodged at the help desk of OP No.2 requesting for the Redressal of his grievance. The complainant has prayed for acceptance of the complaint by directing the OPs to refund the cost price of the watch of Rs.4,295/-along with compensation as prayed for.

8.             The OPs resisted the complaint by raising preliminary objections as well as on merits in its written statement. The learned counsel for the OPs reiterating the averments made in the complaint contended that as per policy of OPs, replacement was permissible within 30 days of its purchase and that the watch in question was duly replaced on 27.03.2019, when it was presented before OP No.1 along with its original invoice and guarantee card and after that the complainant failed to produce the watch in question with OPs for its inspection and thus, the complaint is liable to be dismissed. The learned counsel emphasized that without the physical inspection of watch in question, the manufacturing defect as alleged cannot be ascertained. Continuing the arguments, the learned counsel contended that as per policy of OPs, a product if it can be repaired than the same cannot be replaced or its price cannot be refunded. Concluding the arguments, the learned counsel contended that the Ops are still ready and willing to inspect the product in question provided the complainant approaches the OPs with the original copy of invoice/ warranty card.

9.             The main submissions of the learned counsel for the OPs are summerised as under:-

i.      That the complainant has failed to get his watch examined from         any lab as required vide Section 38(2)(c ) CP, Act.

ii.      That the complainant had not deposited the said watch with the Ops for its inspection or checking. Therefore, adverse inference is   liable to be drawn against the complainant as per Section 114(g)   Evidence Act.

iii.     That the complainant is estopped by his own act and conduct as         he had failed to provide the original bill to the OPs in time. As per         Section 53 of the Contract Act, the contract becomes voidable at the instance of the party which is prevented from performing its     part of promise. A buyer must produced a bill of the product to the seller and that too within the prescribed period.

10.            After hearing the rival contentions of both the parties and perusing the relevant record on the file, it is found that the OPs have contested the claim of the complainant primarily on two grounds.

11.            The first ground is that the replacement of the product as per policy is permissible only within a period of 30 days. Since 30 days from the date of purchase had expired, so, the request of the complainant for replacement was denied.

12.            The aforesaid contentions raised on behalf of the OPs are not acceptable as the OPs were, admittedly, intimated about the defect in watch just after 5-7 days from 27.03.2019. Admittedly, the defect was rectified but the watch again had become defective and thus, the defect was continuing and the period of 30 days would be deemed to have continued till the defect was rectified or the watch was replaced.

13.            The next plea taken by the OPs is that the complainant never submitted the watch in question for its inspection by the OPs so as to ascertain the manufacturing defect in it.

14.            This contention is also devoid of any merits, as we find several emails sent by the complainant on the toll free number and help desk of the OP no.2 in the month of September and October. As per e-mail dated 16.08.2019 sent by the complainant to OP at its help desk vide Annexure C-3, it has been found that the complainant was conveyed by one Sh.Raj Kumar Yadav that the machinery of watch is not functioning properly. There is no affidavit of alleged Raj Kumar Yadav, on record so as to rebut and controvert the contentions of the complainant. Further, the email(Annexure C-4) sent by complainant  is quiet relevant to show the inaction and deficient attitude on the part of the OPs; so, the same is reproduced as under:-

FWD: Complaint still pending-47538148317559360

To: CC:          How much time will your  company  take to revert  for my complaint?

          I have visited  your store 4 times, called your customer  care number 4 times and marked  several mail on your  help  desk and corporate communications email id in last 4 months however you are behaving like a third class  company.

          Your company claims to be a international brand but your After sales service and customer care support is pathetic.

None of your staff or employee is bothered to revert to clients.

15.            At this juncture, it is relevant to mention here that there is no email or letter on record, wherein the complainant was asked to submit the watch in question for its inspection. The only email sent by the OPs to the complainant, is available as Annexure C-5, wherein the complainant was informed that his concern was being forwarded with TKT-0000018631 for investigation and best possible solution. Thus, there is no documentary evidence in the shape of email or letter sent through ordinary post to the complainant asking him to submit the product in question for its inspection so as to ascertain the manufacturing defect in it. It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value. Therefore, we find no merits in the contentions of the Ops and thus, the complaint is partly allowed holding the Ops to compensate the complainant jointly and severally for their lapses and deficiencies in the matter.

16.            Resultantly, the OPs are directed to refund the cost price of the watch in question i.e. Rs.4,295/- to the complainant alongwith interest @9% per annum w.e.f. the date of filing of the complaint till its realization subject to return of the watch in question to OP No.1. The Ops are also directed to pay a lump sum amount of Rs.4,500/- to the complainant on account of mental agony and harassment and litigation charges.

17.            The OPs No.1 & 2 shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OPs No.1 & 2 failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

Announced on: 21.10.2022

        Dr.Sushma Garg         Dr.Pawan Kumar Saini            Satpal

                Member                     Member                             President

Note: Each and every page of this order has been duly signed by me.

                                               Satpal

                                              President