IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Dated this the 22^nd day of November, 2019

Present:  Sri. Manulal V.S. President

Smt.  Bindhu R,  Member 

C C No. 275/16 (filed on 04/10/2016)

Petitioner                                  :         Anoop Philip,

                                                          S/o. t.J. Philip,

                                                          Thaipparampil House,

                                                          31^st Mile P.O.

                                                          Mundakkayam V8illage,

                                                          Kanjirappally Taluk, Kottayam.

                                                          Rep. by Father T.J. Philip,

                                                          Thaipparampil House,

                                                          Ranny Taluk,

                                                          Vadasserikkara Village,

                                                          Pathanamthitta.

                                                          (Adv. Prakash Pampady)

.                                                        

                                                                   Vs.                            

Opposite Party                         :   1)   Ultrapure Technology & Appliances

                                                          India Ltd.  Rep. by Mr. Gopal Singh,

                                                          Corporate Office, CB – 345,

                                                          2^nd Floor, Ring Road,     

                                                          Nariana, New Delhi – 110028,

                                                    2) Shaji M. Kurup,

                                                          Assistant Manager,

                                                          Regional office South India,

                                                          Ultrapure Technology & Appliances

                                                          India Ltd. Zonal Office – South Q 99,

                                                          SLV Towers, 3^rd Floor, Third Avenue,

                                                          Anna Nagar, Chennai – 600 040.

                                                    3)   George Thomas M.

                                                          Business Development Officer (BDO),

                                                          Ultrapure Technology & Appliances

                                                          India Ltd. 39/4083 Krishnanjali Building,

                                                          Sannidhi Road, Ravipuram,

                                                          Cochin – 16.

                                                          4) Cochin Saniwares & Granites,

                                                               20^th Mile, K.K. road, Ponkunnam,

                                                                Rep. by Manesh Joy.

                                                              (Adv. Arun Michael)

                                                          O  R  D  E  R

Sri. Manulal V.S. President

The crux of the complaint is that,

The complainant had purchased an ultra fresh chimney dyna glass 90SS– 1 on 09/12/2013 from the 4^th opposite party for Rs.25,000/-.  The 1^st opposite party is the manufacturer of the equipment.  There was no regular use of the chimney because the said house is used as a holiday home.  The equipment became defective and the matter has been informed the 4^th opposite party and 4^th opposite party sent a technician to check the defects.  The technician told that only the men of the manufacturer could cure the defect.  Then the complainant contacted the customer care unit of the 1^st opposite party and 1^st opposite party sent a technician to check the equipment.  One Unaise, who is the technician sent by the 1^st opposite party told that the board of the chimney is defective and it can be repaired within 2 days and took the chimney to his office.  After 2 days, he informed the complainant that the complaint could not be repaired and the items are sent to Chennai and sought the complainant’s permission.                      The complainant sent Rs.800/- to the 2^nd opposite party towards the repairing charge of the equipment.  On 16/04/2016 the articles were received from the courier office at Pathanamthitta.  On the examination by the technician, it was found that the chimney was in defective condition and nothing has been done to repair the defect.  On 26/04/2016 the equipment has been again sent to Chennai through the courier.  When the complainant contacted the opposite parties, they told that the equipment had to be sent to Delhi for repairing.  After a few days, the 2^nd opposite party told that the articles were lost from their custody and this model chimney was withdrawn by the company in the year 2010 from the market and the 4^th opposite party cheated the complainant by telling that fact and full responsibilities rest on them.  The complainant purchased the chimney on the guarantee given by the 4^th opposite party.  The act of the opposite parties amounts to unfair trade practice and deficiency in service.  They are liable to compensate the loss of chimney, pain and mental agony defamation and difficulties suffered by the complainant.

The notice was sent to the opposite parties.  On receiving the notice, the 4^th opposite party alone appeared before this Forum and filed his version.  Though the paper publication was published, the 1^st and 2^nd opposite parties did not care to appear before the Forum.  Hence they were set exparte.  The 3^rd opposite party is deleted from the party array by Order in IA 229/17.  The version of the 4^th opposite party is that the complaint is not maintainable.  The 4^th opposite party denied the sale of the chimney and hob to the complainant.  The estimate produced by the complainant is not to prove the sale.                           The complainant did not disclose the date on which the chimney became defective.  The complainant never approached the 4^th opposite party with the complaint against the ultra fresh chimney and hob.  Nobody was sent by the 4^th opposite party to check the alleged defect of the chimney.  The complainant directly approached the 1^st opposite party to get the grivences resolved and allegation in the complaint that the 4^th opposite party sent a technician for rectifying the defect is a cooked up story for incorporating the 4^th opposite party in the case.  The 4^th opposite party has not given any guarantee to the complainant.  Always the guarantee is given by the manufacturing company, and not the dealer.  The 4^th opposite party is only a dealer of the manufacturers like the 1^st opposite party.  The 4^th opposite party has no role in sending the chimney to Chennai or Delhi for repairing as directed by the 2^nd opposite party.  The 4^th opposite party never asked the complainant to sent it to Chennai or Delhi for repair.  As the article was not with the complaint at present, it is not possible to ascertain whether the article became defective at any point of time.  The allegation that the 1^st opposite party has withdrawn this model of chimney in 2010 is not correct.  Once the product is withdrawn from the market, it is a clear admission that the product is defective.  When the company withdraw its product from the market, all the unsold products must be taken by from the dealers and such a thing never happened in the case of any chimney and shop from the 4^th opposite party.  The 4^th opposite party is not liable to pay any amount to the complainant towards damages or compensation as claimed. 

          Power of attorney holder of the complainant T.J. Philip filed proof affidavit in lieu of chief examination for and behalf of the complainant and Ext.A1 to A8 were marked.  Manesh Joy who is the Managing partner of the 4^th opposite party filed proof affidavit in lieu of chief examination and no documentary evidence from the side of 4^th opposite party. 

On going through complaint, version and evidence on record we would like to frame the following issues for consideration.

1. Whether the complaint is maintainable?
2. Whether there is any deficiency in service on the part of opposite parties?
3. Relief and costs?

Point No.1

          The 4^th opposite party contented that the complaint is not maintainable on the ground that the complainant is not a consumer under Consumer Protection Act.  On going through the evidence, we can see that the complainant is the owner of ultra fresh Hob bleze-1 and ultra fresh chimney dyna glass 90SS-1.  The complainant deposed in the affidavit that he had purchased the said chimney from the 4^th opposite party on 09/12/2013.  In order to prove this contention, the complainant has produced estimate dtd.09/12/2013 and it is marked as Ext.A1 series.  Ext.A1 series are estimate showing the value of certain articles including the disputed chimney.  In Ext.A1 (c) ie. estimate bearing No.9764 dtd. 09/12/13, it is stated that Rs.25,000/- as the value of ultra fresh chimney dyna glass 90SS.

According to Section2 (1) (d) of the Consumer Protection Act, any person who buys any goods or hires or avails any service for consideration paid or promise to pay or partly paid and partly promise to pay is a consumer.  In this case, the Ext.A1 shows that the complainant has promised to pay Rs.25,000/- for chimney.  Apart from this available evidence we can see that the complainant had availed the service of the 1^st opposite party to rectify the defects of the chimney.  Therefore, we are in the opinion that the complainant is a consumer and the complaint is maintainable.

Point No.2 and 3

          For the sake of convenience, we would like to consider point no.2 and 3 together.

          As discussed above, the complainant is an owner of ultra fresh hob bleze-1 and the ultra fresh chimney dyna glass 90SS-1 chimney. Though the complainant deposed that the 4^th and 1^st opposite party offered warranty to the chimney,  Ext.A3, which is the warranty card shows that the warranty is valid only for 12 months from the date of purchase.  Admittedly the complainant had purchased the chimney on 09/12/2013. According to the complainant, the chimney became defective in the year 2015.  Hence we can arrive at a conclusion that the chimney has became defective beyond the warranty period.                 The chimney has sent to the 1^st opposite party for the repair through the Professional couriers.   Ext.A4 is the receipt issued by the Professional Courier to the power of attorney holder of the complainant.  On perusal of Ext.A4, we can see that the chimney has been sent to the 1^st opposite party and an amount of Rs.100/- is spent by the complainant as courier charges.  An E-mail communication  between the 1^st opposite party is produced before the Forum and marked asExt.A5.  On going through Ext.A5 we can see that the 2^nd opposite party informed the complainant on 05/09/2016 that the model (dyna glass 90SS) with remote control which the complainant was using, was discontinued in December, 2015 by the 1^st opposite party.  It is further stated by the 2^nd opposite party in Ext.A5 that the touch control PCB’s programe IC is having a complaint and it cannot be repaired or replaced as it is not available in public market.  And it is recorded in Ext.A5 that the PCB was missing from the cargo at New Delhi airport.  The 2^nd opposite party through Ext.A5 message adviced the complainant to visit 1^st opposite party’s website and select any model of the chimney and further offered that the new model can be exchanged with the old model at the rate of 50% of the market price.  On mere reading of Ext.A5 we can see that the defective part of the chimney which is entrusted to the 1^st opposite party for curing the defect has been losted while the same was in the possession of the 1^st opposite party. 

          Section 2(1) (g) of the Consumer Protection Act defines “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

          From the available evidence, we found that there is a clear deficiency in service from the part of the 1^st and 2^nd opposite party.  Therefore we are in the opinion that the 1^st and 4^th opposite party committed unfair trade practice from selling the defective goods to the customer.  The complainant has suffered much loss and sufferings by the act of deficiency in service and unfair trade practice done by the opposite parties. 

Therefore, allowing the complaint, along with Rs.25,.000/- as a compensation to the  sufferings of the complainant  meets the ends of justice.  In the circumstances, we allow the complaint in part and pass the following Order.

1. Opposite party 1 and 4 is directed to pay Rs.25,000/- (Rupees Twenty five thousand) as compensation to the complainant
2. We hereby direct to 1^st and 4^th opposite party to pay Rs.5,000/- (Rupees Five thousand) as cost to the complainant.

Dictated to the Confidential Assistant, transcribed and typed by her,

corrected by me and pronounced in the Open Forum on this the 22^nd  day of November, 2019.  

Sri. Manulal V.S. President Sd/-

Smt. Bindhu R. Member    Sd/-

Appendix

Exhibits marked on the side of the complainant

Ext.A1 series :  Original of the estimate dtd.09/12/13 (4 nos.)

Ext.A2  :  Visiting card.

Ext.A3  : warranty card

Ext.A4  :  Original of bill issued by Professional Courier

Ext.A5  :  Copy of the contact information

Ext.A6  :  Brochure of chimney

Ext.A7  :  Copy of bank account details

Ext.A8  :  Power of attorney.

                                                                                                                        By Order

                                                                          Senior Superintendent