Chandigarh

StateCommission

A/114/2021

M/s Kurlon Enterprises ltd. - Complainant(s)

Versus

Dr. Prem Swaroop Gaur - Opp.Party(s)

Arun Dogra Adv.

11 May 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

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Appeal No	:	A/114/2021
Date  of  Institution	:	07/12/2021
Date   of   Decision	:	11/05/2022

 

 

 

 

 

M/s Kurlon Enterprises Limited, 3^rd Floor, North Block, Manipal Centre, 47, Dickenson Road, Bangalore – 560042, Karnataka, India, through its Authorized Signatory.

…. Appellant

 

V E R S U S

 

 

1.   Dr. Prem Swaroop Gaur, Resident of H.No.5510/2, Modern Housing Complex, Manimajra, Chandigarh.

 

…… Respondent

 

2.   M/s Bombay Collection, Showroom 9-10, Opposite Local Bus Stand, Manimajra, Chandigarh-160101.

 

…… Performa Respondent

 

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI    PRESIDENT

MRS. PADMA PANDEY            MEMBER

          MR. RAJESH K. ARYA           MEMBER

 

PRESENT	:	Sh. Arun Dogra, Advocate for the Appellant.
		Respondents ex-parte vide order dated 22.03.2022.

 

PER PADMA PANDEY, MEMBER

 

 

 

          This appeal is directed against the order dated 01.10.2021, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh, vide which, it allowed the Consumer Complaint bearing no. CC/900/2019, in the following terms:-

 

“9.  In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. The OPs are directed as under: -

 

i)   To refund Rs.20,000/- the invoice of the value of the mattresses in question the complainant along with interest @ 9 p.a. from the date of its purchase i.e. 06.11.2016 till its realization.

 

ii)   To pay Rs.3,000/- to the complainant as compensation for mental agony and physical harassment suffered by them.

 

iii)  To pay Rs.5,000/- as costs of litigation.

 

10.  This order be complied with by the OPs within 45 days from the date of receipt of its certified copy, failing which the amount at Sr.No. (ii) shall also carry interest @9 % per annum from the date of this order till actual payment besides compliance of other directions. The complainant shall return the mattresses in question to the OPs on receipt of the awarded amount.”

 

2.      Before the District Commission-II, it was the case of the Respondent/Complainant that he purchased one pair mattress (Kurlon) of the brand name of New Ortho  (straight and correct in sense as per medical terminology) for his wife Smt. Santosh Kumari, aged about 70 years, who was orthopedic patient and liver cirrhosis with cancer (A, B, C & D) for Rs.20,000/- from M/s Bombay Collection (Performa Respondent/Opposite Party No.1), who is Authorized Dealer of Appellant/ Opposite Party No.2 - M/s Kurlon Enterprises Ltd. vide Bill dated 06.11.2016, having three years warranty. During six months of warranty period, the mattresses started sagging which resulted in harming the patient instead of assisting her as per terms & conditions of Ortho mattresses of particular standard, claiming to be possessing the quality for serving the patient in straight, right and correct without any kind of depression which actually appeared to be false representation. The Respondent/Complainant requested Performa Respondent/ OP No.1 to replace the same, but to no effect and finally, he served a legal notice dated 24.04.2019 upon it. The representative  of the Company checked the mattresses and assured to replace the same with a new one shortly. When after a lapse of three months, no action was taken, the complainant served a legal notice dated 02.08.2019 upon the Appellant/Opposite Party No.2, but to no effect. Hence, the aforesaid Consumer Complaint was filed before the District Commission-II, alleging deficiency in service and unfair trade practice on the part of the Appellant/Opposite Parties.

 

3.      In the reply filed before the District Commission-II, while admitting the factual matrix of the case, the Appellant/Opposite Party No.2 pleaded that immediately after the receipt of the notice dated 24.04.2019, they visited the premises of the Respondent/ Complainant, identified the defects and replaced the defective mattresses with a new one vide invoice dated 05.10.2019. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on their part, a prayer for dismissal of the complaint has been made. Denying all other allegations and pleading no deficiency in service, the Appellant/Opposite Party No.2 prayed for dismissal of the Complaint.

 

4.      It is pertinent to mention here, Appellant/ OPs put in appearance through Sh.Pawan Kumar, Branch Accountant and availed repeated adjournments even on payment of costs, but no evidence in support of the written statement has been filed, due to which the  Ld. District Commission-II, U.T. Chandigarh vide order dated 05.08.2021 proceeded to struck off the defence of the Appellant/OPs.

 

5.      On appraisal of the pleadings and the evidence adduced on record, Ld. District Commission-II, U.T. Chandigarh allowed the Complaint of the Respondent/Complainant as noticed in the opening para of this order.     

 

6.      Aggrieved against the aforesaid order passed by the Ld. District Commission-II, U.T. Chandigarh, the instant Appeal has been filed by the Appellant/ Opposite Party No.2.

 

7.      The Respondents were served through e-mail but they did not appear, as such, they were proceeded against exparte vide order dated 22.03.2022.

 

8.      We have heard the Learned Counsel for the Appellant and have gone through the evidence and record of the case with utmost care.

 

9.      The core question that falls for consideration before us is as to whether the Ld. District Commission-II, U.T. Chandigarh has rightly passed the impugned order by appreciating the entire material placed before it. 

 

10.      After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be dismissed for the reasons to be recorded hereinafter.

 

11.      On going through entire records placed before us, we find that in order to show that his wife was suffering from Ortho diseases, liver cirrhosis with cancer etc., the Respondent/ Complainant had placed on record the prescription slips dated 25.01.2018 issued by Fortis Medicentre, Sector 11-D, Chandigarh; Saket Orthopedic Hospital, Panchkula and the PGIMER, Chandigarh. Further, purchase of the mattresses in question by the Respondent/Complainant from the Appellant/OP No.1 for Rs.20,000/- along with its warranty card of three years had duly been substantiated by the invoice dated 06.11.2016. It has come on record that on receipt of legal notices dated 24.04.2019 and 02.08.2019 regarding defective mattresses, the Appellant/Opposite Party No.2 replaced the mattress on 05.10.2019. However, the replaced mattresses supplied were not in real sense New Ortho mattresses, resulting in further deterioration of the condition of the wife of the Respondent/Complainant.

 

12.      Pertinently, for not filing evidence, despite availing numerous opportunities, even on payment of cost, the defence of Appellant/ OPs was ordered to be struck off vide order dated 05.08.2021. The net effect of which was, no reliance/credence could be placed upon the averments made in the written statement of Appellant/OP No.2. It is relevant to mention, the Appellant/Opposite Parties did not chose to assail the said order dated 05.08.2021 whereby their defence was ordered to be struck off, for the reasons best known to them. Thus, the order dated 05.08.2021 attained finality and in such circumstances, it was held that the assertions of the Complainant/Respondent had gone un-rebutted & un-controverted and accordingly, the Opposite Parties were proved to be deficient in service, as also indulged into unfair trade practice by supplying the defective mattresses.

 

13.      On the aforesaid precincts, it was rightly observed by the Ld. District Commission that no useful purpose would be served by directing Appellant/OP No.2 again to replace the product in question as the same has already been replaced.  The Ld. District Commission, therefore, aptly ordered to refund Rs.20,000/- i.e. the invoice value of the mattresses to the complainant, along with interest @9% p.a. from the date of its purchase i.e. 06.11.2016, till its realization, along with compensation of Rs.3,000/- and cost of litigation.

 

14.      Taking into consideration the facts & circumstances of the present case, we are of the concerted opinion that the adjudication on the merits of the case has taken place since there was apparent deficiency in service and unfair trade practice on the part of the Appellant/Opposite Parties. In nutshell, the Ld. District Commission-II, U.T. Chandigarh had dealt with all the above said deficiencies threadbare and allowed the Complaint, which we feel does not suffer from any legal infirmity.

 

15.      In the wake of the position, as sketched out above, we are dissuaded to interfere with the impugned order rendered by the Ld. District Commission-II, U.T. Chandigarh. The appeal being bereft of merit is accordingly dismissed. The order of Ld. District Commission-II, U.T. Chandigarh is upheld.

 

16.      Certified copies of this order be sent to the parties free of charge.

 

17.      The file be consigned to Record Room, after completion.

Pronounced

11^th May, 2022                                 

Sd/-

                                  (RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

Sd/-

                                  (PADMA PANDEY)

MEMBER

 

 

Sd/-

                                  (RAJESH K. ARYA)

MEMBER

“Dutt”