Before  the District Consumer Dispute Redressal Commission [Central], 5th Floor                                                   ISBT Building, Kashmere Gate, Delhi

                                      Complaint Case No.-82/2020

Jyotsna r/o 11255/2, Gali No. 3, Doriwalan,

Karol Bagh, New Delhi-110005                                                        ...Complainant

                                      Versus

OP: Tools Villa, Chetan Khaitan, CEO,

Owner of Tools Villa, c/o Shree Hardware

&Sanitary Store, Near Reliance all, Nachan

Road, Benachity, Durgapur, Bardhaman,

WB-7132136 IN

                                                                                    Date of filing              27.10.2020

                                                                                    Date of Order:            04.08.2023

Coram: Shri Inder Jeet Singh, President

              Ms. Shahina, Member -Female

             Shri Vyas Muni Rai,    Member

                                                       ORDER

Vyas Muni Rai , Member

1.1. Present complaint has been filed by Ms. Jyotsna (in short the complainant) under Consumer Protection Act, 2019 against Tools Villa and Chetan Khaitan, CEO, owner of Tools Villa (in short OP).

1.2. The complainant ordered to purchase online an oil extracting machine from Tools Villa e-services based on the telephonic conversation with representative of the OP, it was conversed between complainant and the OP’s representative that the oil extracting machine would cost Rs. 11,460/- including GST and she was asked to pay Rs. 1,000/- for transportation charges. Complainant agreed and on 05.11.2019 paid to OP Rs. 1,000/- through SBI Branch, Saket Court (photocopy of the transferred amount  is at page no. 9 of the complainant’s paper-book), and complainant has also attached the invoice for Rs. 11,460/- issued on 05.11.2019 which was paid to OP (the tax invoice is at page 7 of the paper-book). The machine was sent through courier which was received after 10-15 days at the residence of the complainant. The complainant complained with OP on 19.11.2019 about defect in machine; OP assured to change machine.

1.3. The product/ machine was consigned by OP through courier  and was received by complainant at her residence. However, machine was to put to use to extract oil, mustard seeds was poured in the machine by the complainant but after some time it was noticed that machine was not properly working and started revolving in unbalanced manner. There was also rubbing in the parts  of the machine. The complainant brought this problem to the notice of the company. OP through their support team/ the customer support executive. Mr. Viraj, Shyam, Rahul, Ankita and many other supportive executives visited at different times and at all occasions the support team executive asked the same things (what support team said not disclosed). The complainant had sent mail to Tools Villa and they gave assurance that they will resolve the matter. Sometimes they asked complainant to send photographs and video of machine online through email and complainant did so. Complainant was informed by the OP that the machine has been repaired and being delivered to the complainant, but it is the allegation of the complainant that new machine was ordered but same machine was again delivered after repair and complainant was reluctant in getting the repaired machine after service as there was problem in the machine. Complainant was assured by OP that they will send a new machine to the complainant later on.

1.4. On 19.11.2019, the complainant was delivered a inboxed product by OP and complainant noticed that the machine was having number of scratches and there was only change of gloves and nothing else; OP had returned the same machine with more scratches and the problem was the same which was brought to the notice of OP, therefore, complainant had sent back again non-working machine to the OP.

1.5. In the month of November, 2020 no communication was made with the OP due to lockdown as the office was closed, however, when the office was opened on 27.08.2020 mail was received from support tools villa informing therein that OP will send a new machine to complainant subject to payment of transportation fee of Rs. 1,000/-. Complainant had already sent Rs. 1,000/- at the time of booking of the machine, so, there is no chance of paying transportation charges again for sending defective machine which is unfair trade practice. OP sent the defective machine second time, which resulted in mental tension and agony of the complainant. The complainant had long wait for about one year and OP has retained the money of the complainant and also machine in their custody.

1.6. At last, feeling depressed with behavior of company team, complainant contacted to Mr. Chetan Khaitan, who is stated to be owner and the CEO of the company on his Twitter account through her son and had sent email and got assurance from Mr. Chetan Khaitan that the problem would be solved, he also asked complainant to send emails and she sent copy of the emails to Mr. Chetan but no efforts was done on his part to resolve the matter.

1.7. The machine had manufacturing defect and proper service were also not made on behalf of the OP and its staff. The complainant was constrained to purchase another oil extracting machine in spite of spending Rs. 11,460/-. Thus OP be directed to refund Rs. 11,460/- with penal interest to the complainant, compensation amount of Rs. 5,00,000/- for deficiency in service and causing mental agony, physical harassment.

1.8. The complainant has submitted on record different emails sent to OP along with cash voucher for Rs. 11,460/- and statement of transfer of amount from her bank account to OP. Complainant has also filed photocopy of the texts sent to Mr. Chetan Khaitan on his Twitter account detailing problem and defect in the product.

2.1. OP has filed the reply under the signature of Ms. Varsha Garg Khaitan, authorized signatory and CEO, owner of Tool Villa for himself and for the company. OP has in its Preliminary Objection has alleged that complainant has concealed true and material facts. Complainant has paid Rs. 11,460/- for product i.e. Rs. 1,000/- was given advance money online through SBI. As per order working machine was sent to complainant and after checking the same a complaint was received regarding defect in machine. OP assured to replace the machine, if not serviceable. OP sent a fresh machine to complainant through courier; despite request not to open the box before taking delivery, complainant unboxed the product and refused to take the delivery of machine. Mail dated 01.03.2020 of complainant and mail at 02.03.2020 sent by OP are annexed. Complainant refused to take product; and there is no process of refund. OP sent reminder mail to complainant dated 21.03.2020 but no reply was received.

2.2. After lock down in the month of October, 2020, OP sent mail to complainant that it will send a new machine to the complainant with condition to pay transportation charges but complainant never sent sum of Rs. 1,000/-.

2.3. Complaint refused to pay transportation charges, hence, no cause of action has arisen in favour of complainant. Complainant has mishandled the machine, therefore, machine was not properly functioning which was caused due to negligent act of the complainant. Product was re-sent after service but complainant did not receive and was adamant to get the amount refunded. Complaint may be dismissed with costs.

3.1. Complaint has filed rejoinder. Article was sent online by the OP to the complaint without display of its condition and complainant received the same under bona fide belief. OP tried to extract additional money on the pretext of re-sending its product. Allegations of mishandling the machine by the complainant is absolutely false and after thought as same does not appear to have been whispered in any of the written correspondence/mails filed by OP along with reply. It is also not understood as to how and under what circumstances OP assured to replace with another oil extracting machine when the same was in well working condition as alleged. OP’s intention is not above board. OP did not send fresh machine; since OP had deceived the complainant, therefore, complainant tried to dispel her doubts by opening box and found that same was not fresh piece but the old product bearing so many scratches, so, she was justified to refuse to take delivery.

            The complainant denied that the OP is not liable to refund the amount received from her for defective machine. None of the letters referred in para 1 of the reply were sent to complainant. It was not required to pay additional transportation charges for defective machine. Mishandling of machine by the complainant in any manner is allegations on the part of OP. OP is liable to refund the entire amount.

4. Complainant has led her evidence by way of affidavit which is on the line of complaint; OP’s Ms. Varsha Garg Kahitan, CEO/owner of Tools Villa has led evidence which is also on the line of facts and features of the reply.

5. Both the parties have filed their written arguments which are repetition/ narration of the facts given in pleadings & evidence.

6.1. (Findings)-We have perused the records, documents, and rival contentions of the parties.

6.2. It is admitted facts that complainant had purchased online an oil extracting machine from OP for Rs. 11,460/- including Rs. 1,000/- as transportation charges. It is also not disputed that the product/ oil machine was not working properly. On complaint of the complainant, the machine was taken by the employee of the OP for service and to get the defects removed twice but complainant found that the machine was in the same condition and not functioning properly. On complaint  to replace the machine, OP took the machine with assurance to get the same replaced if it is not serviceable after service, machine was sent through courier to the complainant and complainant was requested not to unbox the machine before taking delivery from the courier boy, however, since complainant was not satisfied with the earlier service of OP, she did not believe that replaced/new machine has been sent through the courier boy, therefore, she decided to open the packing box of machine before taking the deliver and found that it was not the new machine but it was the same having paint with different colour and many scratches, she refused to take the delivery. Thereafter, exchange of mails took place between the complainant and the OP finding faults with each other.

6.3. Perusal of the record clearly indicates that product sold by the OPs to the complainant was defective, that is why, OP, took the machine twice to get the same repaired. Complainant purchased the product online on 05.11.2019 from the OP’s company; and after the purchase of the machine the problems in smooth functioning of the product was detected by the complainant, series of emails were exchanged between the complainant and OP either to get the machine operational by way of service or to replace it by a new one.

6.4. Perusal of proved record shows that when the complainant failed to get remedy, she sent the text through email on the twitter account of Mr. Chetan Khaitan who was CEO of the company and Mr. Khaitan requested the complainant to send all the emails sent to the company with regard to defects in machine; and assured to get the needful done. The complainant on assurance of Mr. Chetan Khaitan sent copy of all the emails exchanged by her with OP but nothing was done and her problem persisted.

6.5. OP took the machine from the complainant to get the same repaired or replaced if the same is not serviceable. After service, OP sent the machine but complainant refused to take it as she found the same machine having scratches when it was unboxed and refused to take delivery. The machine is still in the custody of OP. On request of the complainant to replace the defective machine by new one, OP through its email informed the complainant to pay additional Rs. 1,000/- but complainant refused and informed that why she should pay extra transportation charge of Rs. 1,000/- when the product/ machine sold by the OP was defective and non-operational since beginning. On request of the complainant to refund the purchase price of the product, OP refused to refund it saying that there is no such policy of refund. If that was so, OP should have disclosed the terms and conditions of the sale of the product at the very beginning to the complainant but they did not do so, nor OP has proved such terms and conditions. Ordinarily, a prudent buyer purchases product online from the market or platform, because of provision of refund/ reimbursement/ replacement when the product is defective or it would have been in mercantiable. It would have been fair on the part of the OP to play the functioning of the product, when the negotiations took place between complainant and the OP or at the time of delivery.

6.6. OP’s instruction through the courier boy/ delivery man, not to unbox the product before taking delivery in itself creates suspicion about the condition of the product in box.

6.7. Complainant through her mail dated 17.10.2020 informed the OP about problems in the machine that while working the machine, it was sprinkling/ throwing oil from the front of the tube and machine starts dwindling. In the said email, complainant also sent the videography of functioning of the machine to the OP on their request but problem in the product continued to persist.

6.8. OP’s defence that the machine was mishandled by the complainant or in negligent manner does not inspire confidence as this defence of the OP was never its case in their email/ correspondence of contemporary period but this defence was taken as an after thought in reply to complaint. OP took this defence to shield it  but it was non-existence, thus, it would not help OP.

6.9. OP refers various documents in para 1 of reply, however, complainant had denied them. The OP failed to prove those documents referred in para 1 of reply.

6.10. The complainant being not satisfied with the services of OP was constrained to buy another oil extracting machine from the market inspite of spending money for purchasing subject product from the OP. Since machine is still lying possessed in the of OP , which is not disputed by OP.

7. In view of the above discussion and proof of circumstances, it is concluded that there has been deficiency of service on the part of OP.

8.1. Since the complainant has succeeded to prove deficiency of service, therefore, she is held entitled for refund of product price i.e. Rs. 11,460/- with interest at the rate of 6% from date of filing of complaint till realization of amount.

8.2. The complainant seeks compensation and it should be commensurate to the situation. Complainant faced trauma and inconvenience for about a year after making payment for the products which was defective and defect perpetuated and it could not be cured despite possible attempts; there were no fault of complainant. Thus, it would justify both end to quantify damage/ compensation of Rs. 5,000/- and accordingly it is awarded.

            Complainant was constrained to file complaint. Now cost is also quantified as Rs. 5,000/- in favour of complaint and against OP.

8.3. So, we conclude that the purchase amount of the product i.e. Rs. 11,460/- along with 6% interest in addition to Rs. 5,000/- as compensation will suffice in.

9. We direct the OPs to pay Rs. 11,460/- along with 6% interest pa from the date of filing of complaint till its realization to the complainant, apart from Rs. 5,000/- as compensation & cost of Rs. 5,000/- in favour of complainant and against OP, which is payable within 30 days from date of receipt of this order.

If the aforesaid amount is not paid within 30 days the amount of Rs. 11,460/- shall carry interest 7% pa instead of 6% pa.

10:  Announced on this  04 August, 2023.

11. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.

[Vyas Muni Rai]                                 [Shahina]                                 [Inder Jeet Singh]

              Member                                Member (Female)                              President