DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 26th day of June, 2023
Filed on: 27/08/2019
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
C.C. N0. 328/2019
Between
COMPLAINANT
Najitha Thameem, 13B, Noel Touch Stone, Crash Road, Vazhakkala, Kochi, Kerala -682021
(Rep. by Adv. Rahna Shukkur, KHCA Golden Jubilee Building, Kochi – 18)
VS
OPPOSITE PARTIES
- RELIABLE EQUIPMENT, Represented by Manoj Kurian, Manager. F-700, 2nd Floor, Near DDA Flats, Lado Sarai Aurobindo Marg, New Delhi-110030
- RELIABLE EQUIPMENT (Kochi Branch Office), Represented by the Branch Manager No. 700 B, N.H-47 Opp MILMA Plant, Pattanakad, Cherthala, Alappey District, Kerala - 688531
FINAL O R D E R
DB.Binu, President
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainant visited the website and purchased a Convection Oven with Humidity from the first opposite party. The first opposite party, represented by Mr. Manoj Kurian, claims to be a renowned supplier of imported kitchen, bakery, and confectionary equipment. They have a website showcasing their products and claim to have a wide range of customers across India. They offer online inquiries and electronic transactions for purchases. They also have a branch office in Kochi, known as the second opposite party.
The product was delivered to the complainant's residence by a transporter nominated by the first opposite party. However, upon delivery, the product was found to have dents and scratches on its surface, although the packaging appeared undamaged. The complainant contacted the first opposite party and their service engineer inspected the product, confirming the damage. The first opposite party offered only cosmetic repairs but did not guarantee the absence of internal damage caused by the incident. The complainant refused this solution, fearing potential hazards associated with using a damaged oven. They requested a replacement or a refund but received no response from the first opposite party.
The complainant sent emails and messages to the manager of the first opposite party, but there was no satisfactory response. They also contacted the manufacturer to report the incident and the lack of responsibility on the part of the first opposite party. The complainant alleges that the first opposite party knowingly sold a defective product, which could pose a safety risk when used. They argue that the product's defects make it unsafe for use at their residence. The terms of delivery stated "Ex-Stock," indicating that the product was immediately available from the first opposite party's stock. Therefore, they cannot avoid responsibility for the product's condition prior to transportation.
The complainant seeks the resolution of replacing the damaged product with a new one of the same make and model, refunding the product's cost and transportation cost of Rs. 1,33,917 with interest, and receiving compensation of Rs. 75,000 for mental agony and the delay in obtaining the product.
2) Notice
Notices were sent to the opposite parties, but they did not appear or file their versions in response. As a result, the opposite parties are set ex-parte.
3) . Evidence
The complainant had filed a proof affidavit and 6 documents that were marked as Exhibits-A-1- to A-6.
Exhibit-A1: A true copy of the Tax Invoice dated 12.10.2018.
Exhibit-A2: A true copy of the E-Way bill (Part A Slip) dated 12.10.2018.
Exhibit A3: Photographs of the damaged product.
Exhibit-A4: A true copy of the Consignment Receipt - VRL Logistics Ltd. dated 23.10.2018.
Exhibit-A5: A true copy of the email communications dated 23.10.2018 and 29.10.2018.
Exhibit A6: A true copy of a print-out of the email from the manager dated 27.10.2018, addressed to the complainant.
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 party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
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 which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant submitted a true copy of the Tax Invoice dated 12.10.2018, which serves as evidence of the payment made to the 1st opposite party. (Exhibit A-1). Hence, the complainant is a consumer as defined under the Consumer Protection Act, 1986.
The complainant has filed a case seeking compensation for the deficiency of service caused by the opposite parties. The deficiency arises from the opposite parties' inaction in knowingly selling a defective Convection Oven with Humidity to the complainant.
The learned counsel for the complainant submitted she purchased a Convection Oven with Humidity (Model: XFT 135 - Dynamic Version, Make: UNOX - Italy) from the 1st opposite party, a dealer/seller of kitchen equipment, through their website http://reliableequipment.co.in. The product cost Rs. 1,32,160, and the transportation cost was Rs. 1,757.
Upon delivery of the product on 23.10.2018, the complainant noticed dents and scratches on the surface of the oven. Although the packaging appeared undamaged, the 1st opposite party denied the defect. The complainant requested a replacement or refund, expressing concerns about the safety of using a damaged oven. The 1st opposite party did not respond to the complainant's requests.
The complainant argues that the 1st opposite party knowingly sold a defective product that could be hazardous when used. The complainant believes that the defects in the product render it unsafe for use at their residence. The 1st opposite party attempted to shift the blame onto the transporter, but the complainant asserts that the damage was evident when the product was in the 1st opposite party's custody before transportation.
The complainant accuses the 1st opposite party of neglecting to check the saleability of the damaged product or intentionally sending it to the complainant. This action may constitute an Unfair Trade Practice as per the Consumer Protection Act. The complainant has suffered mental agony due to the inaction of the 1st and 2nd opposite parties.
The complainant, who visited the website and purchased a Convection Oven from the first opposite party, has raised valid concerns regarding the product's condition upon delivery.
The first opposite party, represented by Mr. Manoj Kurian, is a renowned supplier of imported kitchen, bakery, and confectionary equipment. They operate through a website and claim to have a wide customer base across India. The product was delivered to the complainant's residence by a transporter nominated by the first opposite party. However, the product exhibited dents and scratches, despite the packaging appearing undamaged.
The complainant promptly contacted the first opposite party, who sent their service engineer to inspect the product. The engineer confirmed the damage, but the first opposite party only offered cosmetic repairs without guaranteeing the absence of internal damage. The complainant expressed concerns about the safety hazards associated with using a damaged oven and requested a replacement or refund. Unfortunately, the first opposite party did not respond to these requests.
The complainant made efforts to communicate with the first opposite party's manager through emails and messages but received no satisfactory response. They also reported the incident and the first opposite party's lack of responsibility to the manufacturer. The complainant alleges that the first opposite party knowingly sold a defective product, which could pose a safety risk.
Based on the evidence provided by the complainant, including the proof affidavit and the documents marked as Exhibits-A1 to A6, it is clear that the complainant has taken appropriate steps to address the issue and seek a resolution. The exhibits include the tax invoice, E-Way bill (Exhibit-A-2), photographs of the damaged product (Exhibit-A-3), consignment receipt (Exhibit-A-4), email communications (Exhibit-A5), and a print-out of an email from the manager (Exhibit-A6).
We have also noticed that notices were sent to the opposite parties but they did not appear or file their versions in response. As a result, the opposite parties are set ex-parte. The complainant had produced 6 documents which are marked as Exbt.A-1 to A-6. 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 physical harassment to the complainant.
The opposite parties’ conscious failure to file their written version 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 as against the opposite parties. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
The complainant alleges that the first opposite party engaged in restrictive or unfair trade practices by selling defective goods. This allegation falls within the purview of Section 2(1)(c) of the Consumer Protection Act, 1986.
Section 2(1)(c) of the Act states that any allegation made by a consumer regarding restrictive or unfair trade practices adopted by traders includes cases where goods purchased by a consumer are defective or services hired or availed by the consumer suffer from deficiencies. Additionally, it covers situations where goods or services that are hazardous to the life and property of the consumer have been offered for sale to the public by the trader or service provider.
The right to safety is an important consumer right that protects individuals from potentially dangerous goods and services. It emphasizes the need for businesses to provide secure and reliable products, while also holding them accountable for ensuring safety and quality. Consumers have the reasonable expectation that the products and services they purchase will not pose any unnecessary risks to their well-being or property.
In this case, the complainant asserts that the goods purchased from the first opposite party are defective, which aligns with the provision under Section 2(1)(c) of the Consumer Protection Act, 1986. The complainant argues that the defects in the product make it unsafe for use, thus posing a potential hazard to their life and property.
Therefore, based on the allegations made by the complainant and the relevant legal provision, it can be observed that the complainant's claims fall within the scope of Section 2(1)(c) of the Consumer Protection Act, 1986, pertaining to allegations of restrictive or unfair trade practices and the sale of defective or hazardous goods to the public.
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 the 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. The aforesaid acts of the opposite parties would stand to show their callous attitude, utter negligence, and deficiency of service, for which they are solely answerable.
We find the issue Nos. (I) to (IV) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite party. 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 and orders are issued as follows:
- The Opposite Parties shall replace the damaged product with a new one of the same make and model as requested by the complainant OR refund the complainant the product's cost and transportation cost, totalling Rs.1,33,917.
- The opposite parties shall compensate the complainant with Rs.25,000 for the mental agony and delay caused by the defective product and their inaction.
- The Opposite Parties shall also pay the complainant Rs.5000/- towards the cost of the proceedings.
The opposite parties will be jointly and severally liable for the directions mentioned in the order. The directions should be complied with by the opposite parties within 30 days from the date of receiving a copy of the order. If they fail to comply within the given timeframe, the amount ordered in points (i) and (ii) will attract interest at a rate of 9% from the date of receiving the copy of the order until the date of realization.
Pronounced in the Open Commission on this the 26th day of June, 2023
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia T.N., Member
Forwarded/by Order
Assistant Registrar
Forwarded by Order
Senior Superintendent
APPENDIX
COMPLAINANT’S EVIDENCE
Exhibit-A1: A true copy of the Tax Invoice dated 12.10.2018.
Exhibit-A2: A true copy of the E-Way bill (Part A Slip) dated 12.10.2018.
Exhibit A3: Photographs of the damaged product.
Exhibit-A4: A true copy of the Consignment Receipt - VRL Logistics Ltd. dated 23.10.2018.
Exhibit-A5: A true copy of the email communications dated 23.10.2018 and 29.10.2018.
Exhibit A6: A true copy of a print-out of the email from the manager dated 27.10.2018, addressed to the complainant.
OPPOSITE PARTY’S EVIDENCE
Nil
Despatch date:
By hand: By post
kp/
CC No. 328/2019
Order Date: 26/06/2023
