Haryana

Yamunanagar

CC/200/2015

P.S.Mehta S/o Sita Ram Mehta - Complainant(s)

Versus

Anand Dham Noblesse Total Health & Fitness Care. - Opp.Party(s)

R.K.Radauri

11 May 2017

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                                Complaint No. 200 of 2015.

                                                                                                Date of institution: 09.06.2015

                                                                                                Date of decision: 11.05.2017.

P.S. Mehta aged about 81 years son of Shri Sita Ram Mehta, resident of House No. 39-B, Hostel Road, Professor Colony, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar. Mobile No. 9466740555.                                                                                                                                                                                                …Complainant.

                                    Versus

Anand Dham Noblessee Total Health & Fitness Care, SCO 105, Sector-17, HUDA, Jagadhri, through its Proprietor/Partner/Authorized Signatory.

                                                                                                                                                …Respondent.

BEFORE:       SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

                        SMT. VEENA RANI SHEOKAND, MEMBER.

 

Present: Sh. Ram Kumar Radauri, Advocate, counsel for complainant.

               Sh. Chander Mehta, Advocate, counsel for respondent.

 

ORDER   (ASHOK KUMAR GARG PRESIDENT)

 

1.                     Complainant P.S.Mehta has filed the present complaint under section 12 of the Consumer Protection 1986 amended up to date. 

2,                Brief facts of the present complaint, as alleged by the complainant, are that complainant remained under treatment of the respondent ( hereinafter respondent will be referred as OP) and the OP suggested to purchase automatic massager and assured that complainant will be fully cured by using the said automatic massager. Accordingly, the complainant purchased the automatic massager vide bill No.7 in the 2^nd week of December 2014 for a sum of Rs. 1,10,000/- from the OP. At the time of selling the said massager, the OP gave guarantee of two (2) years and stated that in case any defect occurred during the guarantee period the automatic massager will be replaced with new one. After 3 days of the purchase a bend occurred in the lower portion of the said massager and complainant made a complaint to the OP. Accordingly, complainant brought the said massager to the OP and after making some minor repair the OP returned the said machine after 15 days. Again after the intervals of 15 days the machine in question became defective 2-3 times and the same returned to the complainant after its repair.  It has been further mentioned that again after 20 days the massager machine again stopped giving problem of heating up, upon which, the complainant reported the matter to the OP but the OP refused to accede the genuine request of the complainant and since 10.05.2015, the massager machine is lying dead. Lastly, prayed that the OP be directed to replace the defective automatic massager machine with new one at the earliest or to pay back the cost of automatic massager machine alongwith interest and also to pay compensation as well as litigation expenses.

3                      Upon notice, OP appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable against the OP as the OP is rendering free services to the public; the complainant has not come to this Forum with clean hands and suppressed the true and material facts. It is a case of sale, out of which the complainant is getting benefits so this Forum has no jurisdiction to adjudicate the present complaint; the OP has not made sale of the alleged automatic massager, in fact, one Sh. Rohit Babar has sold the same, there is no relationship of consumer and supplier between the parties and on merit it has been stated that the complainant used to come to the fitness centre and procured free treatment for 3 months. Except this, nothing else is true and based on nothing but to extort money from the OP. The Op never sold the alleged automatic massager vide Bill No.7, as alleged in the complaint. The bill in question has no date. In fact, the alleged machine has been fraudulently sold by one Rohit Babbar there was deal between Shanu Kamboj, Vikas and Mohit and the OP has no concern whatsoever with the same. Rest contents of the complaint were controverted and reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint.

4                      In support of his case, counsel for the complainant tendered into evidence short affidavit of complainant as Annexure CW/A and documents such as photo copy of bill bearing No.7 dated Nil as Annexure C-1, Photo copy of user manual as Annexure C-2 and closed the evidence on behalf of complainant.

5                      On the other hand, counsel for the OP tendered into evidence affidavit of Smt. Taruna Malhotra wife of Sh. Parveen Malhotra as Annexure RW/A and documents such as Photo copy of Bill No.7 dated Nil as Annexure R-1, Photo copy of Bill No.8 dated 18.07.2014 as Annexure R-2, Photo copy of bill bearing No. 9 dated 19.07.2014 as Annexure R-3, Photo copy of Bill No. 10 dated 31.07.2014 as Annexure R-4, Photo copy of Bill No.11 dated 21.08.2014 as Annexure R-5 and closed the evidence on behalf of OP.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

7.                     It is pertinent to mention here that complainant moved an application for appointment of some expert from ITI Yamuna Nagar as Local Commissioner on 09.08.2016 which was allowed vide order dated 09.09.2016. Accordingly, the local commissioner submitted his report on 13.10.2016.

8.                     The only version of the complainant is that he purchased an automatic massager machine vide bill No. 7 in the second week of December, 2014 for a sum of Rs. 1,10,000/- from the OP and the machine in question was under the warranty of two years. During the warranty/guarantee, the massager machine became defective 2-3 times, upon which, the complainant lodged the complaint with the OP. Firstly, the OP repaired the machine for 2-3 times, however, later on refused to do the same which constitute the deficiency in service and unfair trade practice on the part of OP. Learned counsel for the complainant further draw our attention towards the local commissioner report and argued that local commissioner appointed from ITI, Yamuna Nagar has pointed out that machine in question was defective and not working properly. Learned counsel for the complainant further draw our attention towards the bill Annexure C-1 vide which he purchased the machine in question from the OP. Learned counsel for the complainant further argued that the version of the OP taken in the written statement that OP has not sold out the massager machine in question to the complainant and OP has no concern whatsoever is totally false and manipulated just to save the skin and draw our attention towards the photo copy of bills bearing No. 8 to 11 dated 18.07.2014, 19.07.2014, 31.07.2014 and 21.08.2014 (Annexures R-2 to R-5) and argued that these bills have also been issued by the OP to other persons from the same bill book as these bills are having the serial number in continuity to the bills issued to the complainant. So, from these bills (Annexures R-2 to R-5) and bill No.7 in question (Annexure C-1) issued to the complainant, it is clear that OP has sold the massager machine to the complainant. Learned counsel for the complainant further argued that when the OP himself placing the bills Annexures R-2 to R-5, then how he can say that complainant has manipulated and forged the bill bearing No.7 vide which the massager machine was sold to the complainant. Learned counsel for the complainant in support of his case referred the case law titled as Nilambar Mishra and another Versus A.K.Dutta and Others, Revision Petition No. 1571 of 2002 decided on 21.02.2008 wherein it has been held that “Consumer Protection Act, 1986 Sections 2(1)(f) and 21(b) Claim for insurance for deficiency of service- Manufacturing defects arose in power tiller- Trouble arose within 10 days of purchase- Complainant poor agricultural farmer, suffered financially settling bank loan- Defective machines checked by various mechanics, who tried to rectify defects- Manufacturing defects within warranty established- Held, OAIC and manufacturer jointly and severally liable- Revision petition allowed”. Lastly, prayed for acceptance of complaint.

9.                     On the other hand, leaned counsel for the OP argued at length that a false and manipulated complaint has been filed by the complainant just to extract money from the OP in fact neither the OP had sold the massager machine in question to the complainant nor any complaint regarding defect as alleged in the complaint was lodged with the OP. Learned counsel for the OP further argued that complainant has totally concocted the false story as the OP is rendering free service to the public. Learned counsel for the OP further argued that in fact one Rohit Babbar who is in league with Shanu Kamboj has sold the machine to the complainant by way of flimsical manner and by stolen the invoice bill from the record of the OP as neither the said bill is signed by OP nor by any authorized agent or servant. Learned counsel for the OP further argued that the local commissioner has nowhere mentioned in the report that the machine in question was having any manufacturing defect. Learned counsel for the OP draw our attention towards the Para No.2 of the report wherein it has been mentioned that the automatic massager machine was not having any manufacturing defect and the defects are removable. Learned counsel for the OP further argued that neither the complainant has filed any warranty/guarantee card nor there was any guarantee or warranty mentioned in the alleged bill. Lastly, prayed for dismissal of complaint.

10.                   After hearing both the parties and going through the arguments advanced by both the parties, we are of the considered view that the plea of the OP that the Massager Machine in question was not sold by the OP vide Bill No.7 is not tenable as from the perusal of other bills (Annexure R-2 to R-5) placed on file by the OP himself, it is clear that all these bills have also been issued from the same bill book as these bills are in continuity of serial numbers. Furthermore, the OP has placed on file the photo copy of the same bill bearing No.7 as (Annexure R-1) which has been placed on file by the complainant as Annexure C-1 and both the copies are the same. So, if the complainant had forged or manipulated the bill Annexure -1 then how this bill comes into the possession of the OP. Although the bill No.7 (Annexure C-1) does not bear any date but it does not mean that this bill has been manipulated and forged one. The photo copy of bill placed on file by the OP as (Annexure R-1) is also not bears the date, so it may be due to oversight or due to reason best known to parties, so, he cannot take the benefits by saying that the alleged bill (Annexure C-1) is forged one as it bears no date. So, we are of the considered view that the OP has sold the massager machine to the complainant for a sum of Rs. 1,10,000/- vide bill No.7 (Annexure C-1). However, from the perusal of next bill i.e. bill No. 8 (Annexure R-2) issued by the OP to someone else is dated 18.07.2014, so, the version of the complainant that he purchased the machine in second week of December, 2014 is not correct. The complainant might have purchased the machine in question on or before 18.07.2014 as the bill issued to the complainant bears serial No.7 just one step prior to the bill bearing No.8 dated 18.07.2014 (Annexure R-2.)

 11.                  Now, the next question arises whether the massager machine in question was having any manufacturing defect or not and whether it was under any warranty or guarantee and if yes to what extent the complainant is entitled to get relief?

12                    We have gone through the entire file but the complainant has totally failed to prove on file that the machine in question was under any warranty or guarantee for a period of 2 years, as alleged in the complaint as the complainant has neither placed on file any guarantee/ warranty card nor impleaded the manufacturer of the massager machine in question as party. The complainant has only placed on file photo copy of bill No.7 (Annexure C-1) and user manual Annexure C-2 but in these 2 documents not a single iota of word has been mentioned regarding any guarantee or warranty. So, in the absence of any cogent evidence the version of the complainant that the machine in question was under warranty of two years is not tenable. However, to prove the defects in the machine in question complainant moved an application on 09.08.2016 i.e. after a period of near about 2 years from the date of purchase i.e. from July 2014 to 09.08.2016 which was allowed by this Forum and Local Commissioner Sh. Rajan Electrician Instructor and Manish Kumar Electrician Instructor of the ITI Yamuna Nagar after inspection/checking automatic massager machine submitted their report on 13.10.2016. After going through the report of the local commissioner, it is clear that massager machine in question was not having any manufacturing defect and the defects whatsoever were removable. So, the version of the complainant that the massager machine was having any manufacturing defect is also not tenable. Although, the massager machine in question has been examined by the Local Commissioner after a period of 2 years from the date of purchase even then when the OP has not come to the court with clean hands then we have no option except to partly allow the complaint of complainant.

                        Resultantly, we partly allow the complaint of complainant and direct the OP to pay Rs. 15,000/- in lump sum as compensation for mental agony, harassment and Rs. 2200/- as litigation expenses within a period of 30 days failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.11.05.2017.

                                                                        (ASHOK KUMAR GARG)

                                                                        PRESIDENT

                                                                        DCDRF, YAMUNANAGAR.

 

 

 

            (VEENA RANI SHEOKAND)      (S.C.SHARMA    )

            MEMBER                                        MEMBER