Punjab

Ludhiana

CC/21/257

Ripudaman Sharma - Complainant(s)

Versus

Bhatia Carpet House - Opp.Party(s)

Mohit Kapila Adv.

03 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:257 dated 12.05.2021.                                                        Date of decision: 03.03.2023.

 

Ripudaman Sharma son of Shri Devi Parkash, r/o.B-34/7400/D, Durgapuri, Haibowal Kalan, Ludhiana.                                                                                                                                                             ..…Complainant

                                                Versus

1. Bhatia Carpet House, Shop No.8/1, Jawahar Nagar, Near Bus Stand, Ludhiana through its partners/proprietor/Authorized signatory.
2. Coirfoam India Private limited, 14/6, Mathura Road, Faridabad-121003, Haryana through its Directors.
3. Coirfoam India Private Limited, 3^rd Floor, 59, N.S. Road, Kokata-700001, West Bengal through its Director.                                                                                                                         …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Mohit Kapila, Advocate.

For OPs                         :         Sh. Ankur Ghai, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that the complainant who is a senior citizen, approached opposite party No.1 for purchase of mattresses on which opposite party No.1 made a tall claim that the mattresses Coirfoam Figo manufactured by opposite party No.2 and 3 are the best quality and give full  comforts to the user. The complainant came under the trap and purchased mattresses Coirfoam Figo, 43-1/2 x 71/1/2.5” from opposite party No.1 vide bill No.530 dated 14.06.2017 for a sum of Rs.9976/-   including all taxes, having guarantee of 5 years. The complainant further stated that within the guarantee period, the said mattresses started giving problem as the spring and centre portion of the mattresses bend and entire mattresses disfoamed and disfigured from its actual size and there was up and down on different size of mattress giving acute pain while sleeping as the centre of the mattresses has stressed, resulting in unsmooth surface. The complainant also developed medical complications due to use of the mattresses. The complainant visited opposite party No.1 many times who ultimately sent his employee to check the same who told the complainant that the mattresses are having manufacturing defect and the employee of opposite party No.1 assured that the mattresses being under guarantee period shall be replaced with new one but with no result. On 19.02.2021, the complainant again explained his miseries to opposite party No.1 with requesting to replace the said mattresses but opposite party No.1 had been lingering on the matter. The complainant further stated that he sent request/reminder for replacement of the mattresses to opposite party No.2 and 3 vide email dated 03.03.2021 for replacement of the said mattresses but in vain. As such, there is deficiency in service and unfair trade practice on the part of the opposite parties which has caused mental tension, pain, agony to the complainant. The complainant got served a legal notice dated 23.03.2021 upon the opposite parties to replace the said defective mattresses with new one and to pay Rs.50,000/- as compensation. Opposite party No.1 sent a vague reply dated 06.04.2021 and opposite party No.2 and 3 sent one letter dated 09.04.2021 to the complainant in which they demanded the documents, invoice copy etc. which the complainant supplied the same. Opposite party No.2 and 3 sent one letter dated 17.04.2021on vague and false averments and refused to replace the mattress by saying that they have withdrawn Figo Model from the market. Hence this complaint whereby the complainant has prayed for seeking directions to opposite parties to replace the mattress and to pay the compensation of Rs.50,000/- and legal expenses of Rs.10,000/-.  

2.                Upon notice, opposite party No.1 appeared and filed written statement and assailed the complaint on the ground of maintainability of the complaint, complaint is misuse and abuse of process of law and concealment of material facts by the complainant. Opposite party No.1 alleged that it deals in mattresses and selling the same under the name and style of Bhatia Cloth House. The complainant purchased the mattress model “Figo” in June 2017 having guarantee/warrantee card issued by the dealer as per guidelines of the company with replacement warrantee of one year on Figo 5” model and pro rata warranty for further period of 2 years. Moreover, the model Figo 4” are having replacement warranty of ½ years and pro rata warrantee for further period of ½ years as per terms mentioned on the card. The complainant purchased the mattresses model Figo 4” on 14.06.2017 vide invoice/bill No.530. Opposite party No.1 further alleged that the company as a good gesture were ready to replace the mattress by giving two options wherein the mattress of another model were being offered at almost half of their price though it was not under any obligation to offer any replacement as the product had crossed its warrantee/guarantee period yet in order to keep a customer happy and satisfied, an exceptional offer was made by the company but the complainant did not accept the offer. Opposite party No.1 further alleged that there was no manufacturing defect in the product.

                   On merits, opposite party No.1 reiterated the crux of averments made in the preliminary objections. Opposite party No.1 further alleged that it cannot give guarantee more than company’s policy though the MRP of one mattress was Rs.6235/- and he provided a pair of mattress to the tune of Rs.9976/-. The guarantee card did not display the guarantee of 5 years qua the product in question. Opposite party No.1 denied any deficiency in service on its part and in the end, prayed for dismissal of the complaint.

3.                Opposite party No.2 and 3 filed separate written statement and took preliminary objections by assailing the complaint that the complaint is not maintainable and the complainant has concealed the material facts. The complaint is misuse and abuse of process of law. Opposite party No.2 and 3 alleged that they are the leaders in manufacturing of mattresses and selling the same under the name and style of Coirfoam and their products are having unbeatable quality and have high sales in market. They are selling their mattresses through their dealers in the market. The complainant purchased mattress model “Figo” in June 2017 and was issued guarantee/warrantee ward by the dealer vide which the mattresses of model Figo 5” are having replacement warrantee of one year and pro rata warrantee for further period of 2 years. Further model Figo 4” are having replacement warrantee of ½ year and pro rata warrantee for further period of ½ years. The complainant purchased the mattresses model Figo 4” on 14.06.2017 vide invoice/bill No.530. The complainant vide email received by the company on 22.02.201 and received on whatsapp on 15.04.2021 brought to the knowledge of the company that after use of three years, the mattress started giving pain while sleeping and that center of the mattress stressed, resulting in unsmooth surface. Opposite party No.2 and 3 alleged that vide letter dated 17.04.2021, they brought to the knowledge of the complainant that the model Figo 4” as purchased by the complainant was having replacement warrantee of ½ year and pro rata warrantee for further period of ½ years in total one year. It was further conveyed that though the model Figo has been withdrawn from the market, yet they as a good gesture were ready to replace the mattress by giving two options wherein the mattress of another model were being offered at almost half of their price though it was not under any obligation to offer any replacement as the product had crossed its warrantee/guarantee period yet in order to keep a customer happy and satisfied, an exceptional offer was made by the company but the complainant did not accept the offer. Opposite party No.1 further alleged that there was no manufacturing defect in the product.

                   On merits, opposite party No.2 and 3 reiterated the crux of averments made in the preliminary objections. Opposite party No.2 and 3 denied any deficiency in service on their part and in the end, prayed for dismissal of the complaint.

4.                The complainant filed replication to the written statement of opposite party No.1 reiterating the facts mentioned in the complaint and controverting those made in the written statement.

5.                The complainant also filed replication to the written statement of opposite party No.2 and 3 reiterating the facts mentioned in the complaint and controverting those made in the written statement.

6.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of invoice No.530 dated 14.06.2017, Ex. C2 are the copies of photographs of the product, Ex. C3 is the copy of email, Ex. C4 is the legal notice dated 23.03.2021, Ex. C4A are the copies of postal receipts, Ex. C5 is the reply dated 06.04.2021 to legal notice dated 23.03.2021, Ex. C6 and Ex. C7 are the copies of letters dated 09.04.2021 and 17.04.2021 of Coirfoam India Pvt. Ltd. and closed the evidence.

7.                On the other hand, counsel for the opposite parties tendered affidavit Ex. RA of Sh. Ravi Bhatia and affidavit Ex. RB of Sh. Narinder Kumar Garg, authorized person of M/s. Coirfoam India Pvt. Ltd. along with documents Ex. RW2/1 is the resolution, Ex. RW2/2 are the copies of photographs of the product, Ex. RW2/3 is the copy of email, Ex. RW2/4 is the copy of warranty card and closed the evidence.

8.                We have heard the arguments of the counsel for the parties and also gone through the complaint, replications, affidavit and annexed documents and written statements along with affidavit and documents produced on record by both the parties.     

9.                           We have given thoughtful consideration to pleadings of the parties and have examined evidence on record. It would be most appropriate to examine the definition of ‘defect’ as enshrined in Section 2 (10) of the Consumer Protection Act, 2019 which is re-produced as under:-

“ ‘Defect’ means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression “defective” shall be construed accordingly.”

The definition is wide enough to include any fault, imperfection or shortcoming in quality, quantity, potency, purity or standard. A seller is under legal obligation to maintain goods free from any defect. In Tata Motors Jivan Tara Building Vs Rajesh Tyagi in 2013 SCC Online NCDRC 1031whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that whenever a brand new vehicle is sold to a consumer, there is an implied contract that the vehicle being sold does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.      

10.              Moreover, perusal of bill/invoice No.530 dated 14.06.2017  shows that it has been issued by opposite party No.1 whereby in the particulars column, word ‘5 year G’ has been mentioned. Opposite party No.1 is a product seller and he has made a promise for 5 year guarantee to the complainant. Although law requires that any statement or promise made by the seller should be genuine and a true statement. It amounts to “Express Warranty” which has been defined by Section 2(20) of the Consumer Protection Act and the same is reproduced as under:-

“Express warranty” means any material statement, affirmation of fact, promise or description relating to a product or service warranting that it conforms to such material statement, affirmation, promise or description and includes any sample or model of a product warranting that the whole of such product conforms to such sample or model.”

 

11.              Further Section 84 of the Consumer Protection Act provides for the liability of the product manufacturer and Section 86 of the Act provides for the liability of the product seller which is reproduced hereunder:-

“84. Liability of product manufacturer: (1) A product manufacturer shall be liable in a product liability action, if-

1. the product contains a manufacturing defect; or
2. the product is defective in design; or
3. there is a deviation from manufacturing specifications; or
4. the product fails to contain adequate instructions of correct usage to prevent any harm or any warning regarding improper or incorrect usage.

(2) A product manufacturer shall be liable in a product liability action even if he proves that he was not negligent or fraudulent in making the express warranty of a product.

86. Liability of product sellers-  A product seller who is not a product manufacturer shall be liable in a product liability action, if-

(a) he has exercised substantial control over the designing, testing, manufacturing, packaging or labeling of a product that caused harm; or

(b) he has altered or modified the product and such alteration or modification was the substantial factor in causing the harm; or

(c) he has made an express warranty of a product independent or any express warranty made by a manufacturer and such product failed to conform to the express warranty made by the product seller which caused the harm; or

(d) the product has been sold by him and the identity of product manufacturer of such product is not known, or if known, the service of notice or process or warrant cannot be effected on him or he is not subject to the law which is in force in India or the order, if any, passed or to be passed cannot been forced against him; or

(e)      he failed to exercise reasonable care in assembling, inspecting or maintaining such product or he did not pass on the warnings or instructions of the product manufacturer regarding the dangers involved or proper usage of the product while selling such product and such failure was the proximate cause of the harm.

 

12.              In the given set of circumstances, the case squarely falls within the ambit of Section 84 and 86 of the Act and the product liability action initiated by him against the opposite parties on account of sale of defective product i.e. mattresses is sustainable. Considering the usage of pair of mattresses, its month and year of purchase i.e. June 2017 and its consequent depreciation, it would be just, appropriate and reasonable, if a partial refund of Rs.5000/- is awarded to the complainant.

13.              As a result of above discussion, the complaint is allowed with an order that the opposite parties are directed to partial refund the price of mattresses of Rs.5000/- to the complainant within 30 days from the date of receipt of copy of order failing which the complainant will be held entitled to interest @8% per annum from the date of order till actual payment. The opposite parties shall further pay a composite cost of Rs.2,000/- (Rupees Two Thousand only) to the complainant. The opposite parties are jointly and severally held to pay the above said amounts to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

14.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:03.03.2023.

Gobind Ram.

 

 

Ripudaman Sharma Vs Bhatia Carpet House               CC/21/257

Present:       Sh. Mohit Kapila, Advocate for complainant.

                   Sh. Ankur Ghai, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is allowed with an order that the opposite parties are directed to partial refund the price of mattresses of Rs.5000/- to the complainant within 30 days from the date of receipt of copy of order failing which the complainant will be held entitled to interest @8% per annum from the date of order till actual payment. The opposite parties shall further pay a composite cost of Rs.2,000/- (Rupees Two Thousand only) to the complainant. The opposite parties are jointly and severally held to pay the above said amounts to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:03.03.2023.

Gobind Ram.