Date of Filling: 26.02.2016
Date of Disposal: 08.06.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
THIRUVALLUR-1
PRESENT: THIRU.S.PANDIAN, B.Sc., L.L.M. ….PRESIDENT
THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP., …MEMBER
CONSUMER COMPLAINT No.25/2016
FRIDAY, THE 08 DAY OF JUNE 2018
V.Murugappan,
No.49/2, Sami Street,
Egmore, Chennai -600 008. ….. Complainant
//Verses//
1.Eureka Forbes Limited,
Rep. By its Manger
Swetha Swarnam Complex,
No.29, 2nd Floor,
Ponnan Kinaru Street,
Villivakkam, Chennai -49.
2.Eureka Forbes limited,
Rep. by its General Manager,
B1/B2, 701, 7the Floor, marathon Innova,
Marathon Next Gen,
Off. Ganpat Rao Gadam Marg,
Lower parel, Mumbai - 400 013. ….. Opposite Parties.
This complaint is coming upon before us finally on 29.05.2018 in the presence of M/s.K. Senthil Kumar, counsel for complainant, M/s,A.R.Poovannan, Counsel for opposite parties and having perused the documents and evidences, written and oral arguments of both sides, this Forum delivered the following.
ORDER
PRONOUNCED BY THIRU.S.PANDIAN, PRESIDENT
1.This complaint has been preferred by the complainant U/S 12 of Consumer Protection Act,1986 against the opposite parties for refund sum of Rs.17,490/- towards the cost price of the goods per charged by him, and for claiming compensation for a sum of Rs.50,000/- with cost.
2.The brief averments of the complainant as follows:-
2.The complainant placed an order for the purchase of an Aquaguard Water Purification system (Dr.Aqurguard Magna HD RO+UV) on 04.10.2015 and paid the full amount of Rs.17,490/- through net banking by his debit card and the same was confirmed by the opposite parties through mail on the same date and delivery was promised in 8 days.
3. That the machine was delivered through courier on 08.10.2015,and the 1st Opposite party’s representative came to install the machine on 12.10.2015, but the machine was not functioning properly even during installation and complainant was promised for a new machine. The installed machine could not be used by him and he had to constantly called and remind for a replacement. Since, there was no communication from the 1st opposite party’s side, the complainant sent a mail dated16.10.2015 confirming the complaint lodged by him and requesting the brand new machine instead of the defective machine has supplied and installed.
4. That, there was no follow up and the complainant was once again forced to send a reminder through e-mail dated 23.10.2015 giving full details of the sequence of events and requesting for the issue to be sorted out. The complainant had to send two reminders dated 28.10.2015 and 02.11.2015 informing that he would be forced to initiate legal action, if the issue was not sorted out. After the 2nd mail as stated above, the complainant received a mail from the 1st opposite party on the same date 02.11.2015 promising for replacement and installation before Friday of the said week 06.11.2015. The complainant sent a mail dated 03.11.2015 informing that there is already a big delay and requested for expediting the replacement or to refund the amount paid by him. Inspite of this mail by him, the machine was neither delivered within 2days nor the amount refunded to him. To add insult to injury, the replacement machine was not delivered and installed within the date committed by the opposite party 06.11.2015. Have as shocked by this attitude of the opposite party and sent a mail on the next day 07.11.2015 seeking full refund. After the mail, the complainant and his wife had visited the 1st opposite party’s office and waited for the refund but there was no refund. Then, complainant sent another mail on the same day confirming the day’s events. The complainant was constantly informed that the refund would be made, but the same was not done, though another reminder dated 12.11.2015 was sent.
5.That, this act of opposite parties in taking order for a product, getting the full consideration in advance, delivering and installing a faulty machine, promising to replace the machine and failing to do so, promising to refund the full consideration and not doing so, clearly amounts to unfair trade practice and deficiency of service.
6. The Opposite parties have resulted in untold misery and hardship to the complainant and his family has to be compensated by the opposite party. Then he caused a notice to the 1st opposite party dated 17.11.2015 through his counsel demanding the above, but the 1st opposite party has neither cared to comply with the same, though the same was received by the 1st opposite party. The complainant after getting no response from the 1st opposite party, the complainant issued another notice dated 25.01.2016 to the 2nd opposite party, which is the principal office of the opposite parties calling upon it to see that the previous notice was complied. Though the notice was served on both the parties, both the parties have shown supine indifference and have not even contacted the complainant to solve the problem. Hence this complaint.
The contention of the written version of the opposite parties 1&2 is briefly as follows.
7. The opposite parties denied all the allegations and averments made in the complaint are all false and frivolous, except, for those that are specifically admitted by them hereunder.
8. The opposite parties submit that they are the leading marketing company of extensive products which are very much essential in daily life like water purifiers, Vacuum Cleaners, Air Purifiers, RO Water purifiers, UV Water Purifiers and wet and dry cleaners for both domestic and industrial purpose. All the products introduced by the opposite parties are successful and accredited in the market. They are the Asia’s largest Direct Sales organization and the technicians have been trained by the company. They were also ranked among the India’s Most Admired Consumer Durable Companies and have also been awarded with the Nest employers Awards. Further, they are the Winners of the Most Admired Knowledge Enterprise “MAKE” – of Asia Awards, Winners of Awards for Customer Response and winner of Winners of Water Digest Awards.
9. The Opposite parties are not the manufacturer of these products. The opposite parties are only the marketer and service provider to the customers. Since the manufacturer of this product is not included as a party in this complaint, this complaint is liable to be dismissed on the ground of non – joinder of necessary parties. These opposite parties states with regard to the purchase of Aqua Guard Magna HD RO+UV water purifier and installation of the machine in the complainant’s house by the technician of the 1st opposite party as true.
10. The opposite parties state that the said water purifier was installed in the house of the complainant and at the time of installation the machine was functioning in a good condition. It is false to state that the machine was not working properly from the date of installation. After the installation, the water purifier was working well. The allegation made by the complainant is vague and he failed to mention the repair or what was deficiency in the water purifier after the installation for the reason best known to him. The opposite parties failed to understand that how the complainant came to a conclusion that the water purifier is not functioning properly and demanded for the replacement of new water purifier. If there is any repair or not working of water purifier, the complainant should have contacted the customer care, he failed to do so for the reason known to him. The opposite parties state that the said product is still with the complainant. It is highly unacceptable that the aid product installed was a defective machine.
11. That the complainant never lodged any complaint with the customer care centre Number -39883333 of the opposite parties. Instead, the complainant has contacted the sales representatives of the 1st opposite party for replacement of unit rather than make the request for replacement through the website of the opposite parties. It is false to state that the staff of the 1st opposite party assured replacement of the product.
12. That, it was clearly informed to the complainant by the 1st opposite party that the return or refund of the product purchased through online should be made only through online adhering to the process that is mentioned in the website. But the complainant despite of this approached the Sales Manager of the 1st opposite party and unreasonably demanded replacement of a new machine. The opposite parties state that even at that time they politely explained the complainant that the process of request for a product purchased through online.
13. The complainant arbitrarily demanded for the replacement of a new machine to the sales manager of the 1st opposite party. The opposite parties states that they told the complainant that the 1st opposite party is not authorized to take the request for replacement or refund if the purchase was made online.
The opposite parties state that immediately on receipt of the complainant the sales manager of the 1st opposite party Mr.Bhaskar told the complainant that the company is ready for replace and refund. The opposite parties have always been keen in providing best services to the customers and have always tried to maintain a good relationship with their customers. But strangely, the complainant did not respond to it and told them that he would decided on it after consulting his advocate but subsequently stopped responding. The online marketing and sales division is a different one. The opposite parties state that the complainant and his wife repeatedly visited the 1st opposite party despite of having been told many times the procedure to request for replacement or refund of a machine purchased through online Despite the explanations made, the complainant has demanded that the 1st opposite party has to refund the immediately.
14. That, as a sign of goodwill gesture and maintain the good relationship with the complainant, the manager of the 1st opposite party has escalated this matter to its management and also to the online division of sales of the opposite party to sort the complainant’s expectation. When this issue was escalated to its higher authority, they immediately offered a remedy either for replacement of a new machine or refund, despite the complainant not having followed the appropriate steps for the same. He also instructed the complainant, if the complainant wanted a replacement, they are willing to provide through the online division. Otherwise, if the complainant wanted a refund of amount, then he has to send the machine through courier of hand over the machine to the 1st opposite party and then only the company will process the refund of amount. But the complainant was vacillating and bluntly refused to avail the options with an ulterior motive. Hence, there was no delay or deficiency of service on the part of the opposite parties.
15. The adamant complainant filed this instant complaint for his illegal enrichment by harassing the opposite parties. The opposite parties have tried their level best to make a compromise. The complainant is trying to make out any case against the opposite parties. The efforts taken by the opposite parties ended in vain because the complainants neither ready to receive the Aqua Guard Water Purifier machine not the refund of money from the company. The complainant has not approached with clean hands and therefore the complaint is liable to be dismissed. There is no unfair trade practice as portrayed by him.
16. The complaint is false and there is no cause of action to maintain the complaint. Immediately on notice of the complaint, the opposite party yet again approached him stating they are willing to replace the machine or refund the amount for which the complainant obstinately refused with the ulterior motive to claim illegal enrichments by approaching this Forum. Hence, it is clear that there is no deficiency in service or negligence on the part of the opposite parties and hence the same is deserved to be dismissed.
17. In order to prove the case, on the side of complainant, the proof affidavit submitted for his evidence and the documents from Ex.A1 to Ex.A8 are marked. While so, on the side of the 1&2 opposite parties, the proof affidavit is filed and the document Ex.B1 is marked for their evidence.
18.At this juncture, the point for consideration before this Forum is:-
1. Whether there is any deficiency of service on the part of the 1&2 opposite parties as alleged in the complaint?
2. To what other reliefs, the complainant is entitled to?
19. Written arguments have been filed by the both sides. While so, oral arguments adduced on the side of the complainant and opposite parties 1&2.
20.Point No.1
It is learnt from the complaint that the complainant had purchased a Aquaguard water purification system namely (Dr.Aquaguard Magna HD RO+UV) on 04.10.2015 from the opposite parties on payment full consideration of Rs.17,490/-through online purchase and thereby in continuation the representative of the op1 install the machine on 12.10.2015. But the said machine was not functioning properly and thereafter in spite of several request made on different dates to rectify the defects or to replace a new machine instead of defective machine which already installed, but the ops have not chosen to come forward either to replace the new machine or to refund the cost price of the said machine and therefore this complainant compelled to prefer this complaint.
21. On the other hand, it is contented by the ops 1&2, that at the time of installation, the machine was functioning in good condition and infact the op1 has not authorized to take the request for replacement or refund the purchase amount, if the purchase was made online. It is further contented that ops1&2 have always keen providing best services to the customers but, the issue was escalated to its higher authority and inturn they immediately offered a remedy either replacement of a new machine or refund. In spite of, that the complainant not having followed the appropriate steps for the same and also the complainant refused to avail the options with an ulterior motive and therefore there is no deficiency of service on the part of the ops.
22. At the outset, the point for consideration before this Forum is that whether the complainant has come forward to prove the allegations made against regarding the service on the part of the ops1&2 by means of sufficient and acceptable evidences which is the prime duty of the complainant. First of all, on careful perusal of the evidence of the complainant, it is seen that the complainant had purchased the Aquaguard water purification system for the cost of Rs.17,490/-through Ex.A1, online purchase. The Xerox copy of the tax invoice which is marked as Ex.A2 and Courier receipt which is marked as Ex.A3. It is further stated that the complainant has sent several correspondence to the ops1&2 with demand of either replace of the machine or refund the money through e-mail on different dates while the installed machine was not functioning which is marked as Ex.A4(serious), in spite of sending ExA4(s) the opposite parties have no response and therefore the complainant had issued legal notice to op1 which is marked as Ex.A5 and the same was received the by op1 which is marked as Ex.A6 similarly, the legal notice issued to op2 which is marked as Ex.A7 and the acknowledgement for the receipt of the same by op2 which is marked Ex.A8.
23. While being so, on going through the evidence of the op1&op2, it is admitted fact that the complainant had approached the opposite parties 1&2 for the purchase of Dr.Aquaguard magna HD RO+UV through online purchase on payment of full consideration and the policy of return and replacement policy has been furnished by ops1&2 to the complainant and the same is marked as Ex.B1. It is further seen from the evidence and documents that though ops1&2 denied the non function of the said machine and also contented all the allegations made by the complainant against the opposite parties 1 &2 are all false and in order to maintain good relationship with the customers, the opposite party offered the complainant to replace the machine or to refund the cost payment. But the complainant patently refused and therefore there is no deficiency of service against the opposite parties.
24. At this juncture, on careful perusal of the rival submissions putforth on either side, it is crystal clear that the purchase of the aforesaid water purification system machine by the complainant from the ops1&2 through online on payment of full consideration and the same was installed is an admitted fact. Similarly, the request made by the complainant on different dates through e.mail, for non-functioning of the said machine after installed by the representative of the op1. It is well known fact that several e.mail communications Ex.A4(s), either the opposite parties 1&2 have not chosen to sent any of the representative to rectify the defects as alleged by the complainant. It is further learnt that, because of the ops1&2 failed to rectify the defects, in spite of Ex.A4(s) communication, the complainant was compelled to issue Ex.A5 and Ex.A7 the legal notices to the opposite parties 1&2 respectively, for demand of new machine or to refund the cost of the aforesaid water purification said machine which is installed in the house of the complainant. Though the Op1&2 on receipt of the notice ops1&2 they have not come forward either to reply or replace the machine or to refund the cost price of the said machine. In fact, in the written version filed by the ops1&2 before this Forum, they have mentioned about the term of compromise that true after filing of the complaint by the complainant.
25. Whereas, the opposite parties have stated that they have offered the complainant for compromise that they were ready for providing the new machine or refund the purchase amount of the machine, in order to prove the fact of making compromise with good intention. But the complainant has patently refused, no documents produced on the side of the opposite parties 1&2 both this Forum for the same which clearly shows that the version of the ops1&2 cannot be acceptable and also creates doubt in this regard. So, this Forum can easily presumed that after filing of the complainant only, the opposite parties have come forward to such stand in order to evade the compensation as rightly pointed out by the complainant. Therefore it is crystal clear that the ops1&2 have not taken immediate steps to rectify the defects for the non functioning of the aforesaid water purification machine installed in the complainant’s house in spite of repeated communication and legal notices, and the failure of the opposite parties1&2 to comply request of the complainant in time and thereby the ops 1&2acted negligently in doing services to the customer while purchasing the product of the opposite parties. In the light of the above facts and circumstances, it the quite clear that there is deficiency of services on the part of the ops 1&2 and the same has been proved by means of proper and consistent evidences on the side of complainant.
26. At this point of time, the plea taken by the opposite parties 1&2 only for purpose of evading to pay compensation and therefore the said plea is hereby rejected. Similarly, all the other contentions raised by the ops1&2 in the written version are all devoid of merits. Thus, the point no.1 is answered accordingly.
Point:2:-
27. As per the decision taken in point no.1, the complainant is entitled for the refund of cost price of the water purification system which was purchased by him from the opposite parties1&2 through online purchase and also for reasonable compensation for suffering mental agony and financial loss committed by the opposite parties due to the deficiency of services and with cost.
In the result, this complaint is allowed in part. Accordingly, the op1&op2 are jointly and severally liable to refund the sum of Rs.17,490/-( Seventeen thousand four hundred and ninety only) towards the cost of the Aquaguard water purification system namely (Dr.Aquaguard Magna HD RO+UV) supplied by the Opposite parties to the complainant with interest at the rate of 9% per annum from the date of complaint i.c 26.02.2016 till the date of this order(08.06.2018) and to pay sum of Rs.5,000/- (Five thousand only) towards compensation for causing mental agony and financial loss due to the deficiency of service of the opposite parties 1&2 and Rs.5,000/- (Five thousand only) towards the cost of the proceedings to the complainant.
The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.
This order was dictated by the President to the Stent-typist, typed by his, corrected, signed and pronounced by us in open Forum, today on this 25th day of June 2018.
Sd/- Sd/-
MEMBER PRESIDENT
List of documents filed by the complainant.
Ex.A1 | 04.10.2015 | Aquagaurd Magna machine pay receipt | Original copy |
Ex.A2 | 07.10.2015 | Tax invoice | Xerox copy |
Ex.A3 | 08.10.2015 | Courier receipt | Xerox copy |
Ex.A4 | 12.11.2015 | e.mail with the complainant to ops | Xerox copy |
Ex.A5 | 18.11.2015 | Legal notice with the complainant to op1 | Xerox copy |
Ex.A6 | 20.11.2015 | Postal Acknowledge cord Xerox | Xerox copy |
Ex.A7 | 25.01.2016 | Legal notice with the complainant to op2 | Xerox copy |
Ex.A8 | 30.01.2016 | Postal Acknowledge card | Xerox copy |
List of documents filed by the opposite parties.
Ex.B1 | | Return and replacement policy | Original copy |
Sd/- Sd/-
MEMBER PRESIDENT
