DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 5^th  day of October   2021

Present   : Sri.Vinay Menon.V  President

                : Smt.Vidya.A, Member                                                                           Date of Filing: 24/12/2019

CC/300/2019

Joy V Thomas

S/o.Late Thomas Master

Joy Villa, Moongamakunnel House

Olimkadave Post Pin 678 706

Alathur Taluk Palakkad                                                                  -                       Complainant

 (Party in Person)

                                                                                                Vs

1.Eldhose

   Thannikottil House

   Proprietor – Vismaya Collection

   Managalamdam PO, Pin – 678 706

   Alathur Taluk Palakkad

  (By Adv.Shiju Kuriakose)

2.Quality Manager

   Luxor Writing Instruments Pvt.Ltd.

   A-40, Hosiery Complex,

   Phase II, Extension Noida, Pin – 201 305

   District Goudham Budh Nagar (UP)                             -                       Opposite parties   

O R D E R 

By  Smt.Vidya.A., Member   

Brief facts of the complaint

1. The complainant  purchased a Parker Pen branded as “Parker Jotter London Gold” for Rs.450/-on 1/12/2019 from the 1^st opposite party’s shop namely “Vismaya Collection” in Mangalamdam Town .  The 2^nd opposite party is the manufacturer of the pen. The 1^st opposite party had issued a cash bill No.581 dated 1/12/2019 for the purchase.

When the complainant opened the box and tried to use the pen, it was noticed by him that the nib of the pen was not functioning properly andthe ink was also not coming out. He realized that the pen had some manufacturing defect and so he immediately contacted the 1^st opposite party and made him understand the defect and requested for replacement as it had a warranty for 2 years. But the 1^st opposite party refused to attend the grievance of the complainant inspite of repeated requests. This had caused great mental agony and hardship to the complainant who is a senior citizen. It is clearly stated in the warranty card attached to the pen that there will be 2 years warranty against product defects.

Both opposite parties are liable to compensate the complainant for the mental agony and hardship suffered by the complainant.

The complainant had issued lawyer notice to both parties. But they did not send any reply or did not take any steps to redress the complainant’s grievance. So this complaint is filed for directing the opposite parties to replace the defective product with a new one and to pay Rs.10,000/- as compensation towards mental agony and hardship suffered by the complainant.

2. Complaint  admitted. Notice issued to both opposite parties. First Opposite party appeared and filed version. Even though notice was served, 2^nd opposite party did not appear before the Forum. So 2^nd opposite party’s name called absent and set exparte.
3. The main contention raised by OP1 in the version

The pen had no defect at the time of purchase by the complainant and it became defective probably due to his improper use. The1^st opposite party had not given any guarantee or warranty for the pen and if at all there is any, the manufacturer is responsible for that. The complainant did not make any complaints regarding the pen to the 1^st opposite party. The pen was purchased after properly examining it. The complainant is not entitled to get any cost or compensation from the 1^st opposite party. There is no deficiency in service or unfair trade practice on the part of the 1^st opposite party and so the complaint has to be dismissed with cost.

4. Complainant filed chief affidavit and Ext.A1 to A3 (series) were marked. OP1 also filed affidavit.

Heard both parties.

5. Main points to be considered

1. Whether there is any deficiency in service / unfair trade practice on the part of the opposite parties ?
2. If so, what is the relief as to cost and compensation ?

Points 1 & 2

6. Ext.A1 cash bill dated 1/12/2019 issued by the first opposite party shows the purchase of Parker Pen Gold by the complainant for Rs.450/-.  Ext.A2 is the warranty card. It clearly shows 2 years warranty against product defects.
7. According to the complainant, when he opened the packet and started writing, the nib was not functioning properly  and the ink was also not coming out.
8. The complainant produced the pen before the Forum and on examination, it is found that the pen’s spring mechanism is struck and it cannot be used. So as per the warranty condition, he is entitled to get replacement of the product.    
9. As per the complaint, the complainant approached the 1^st opposite party several times for the redressal of his grievance but he did not care to attend to the complaint.  Complainant   issued lawyer notice to both opposite parties. Copy of the lawyer notice with postal receipts and A/D card are produced and marked as Ext.A3(series). Even after the receipt of notice, the opposite parties did not make any effort to solve the issues. This caused the complainant, who is a senior citizen to approach the Forum for the redressal of his grievance.  The conduct of the opposite parties had caused mental agony, financial loss and inconvenience to the complainant for which they are jointly and severally liable to compensate the complainant.

10. The complainant is a senior citizen of 70 years. He purchased a pen for Rs.450/-. The 1^st opposite party has resorted to hyper technicality  and has failed to replace the pen. The 2^nd opposite party is set exparte and it is not practical or possible for the complainant to take recourse  against the 2^nd opposite party at Noida. The 1^st opposite party is having an ongoing  relationship with the 2^nd opposite party and represents the business interests of the 2^nd opposite party. Furthermore 1^st opposite party is also profiting  from  the business arrangement with  the 2^nd opposite party. Hence, a liability  is cast  on the  1^st opposite party for dragging a senior citizen to court, rather than amicably settle the ignorable claim of a senior citizen, which we find regrettable. 

11. In the result, the complaint is allowed.

In the circumstances of the case,

1. We direct the first opposite party to replace the defective pen with a new one of the same specification to the complainant’s satisfaction
2. We further direct the 1^st opposite party to pay Rs.3,000/- (Rupees Three thousand only)  as compensation for their deficiency in service and Rs.2,000/-  (Rupees Two thousand only) as cost of this litigation.
3. Once the order is executed, we direct the complainant to return the defective pen to the first opposite party.

The first opposite party is at liberty to recover the amount from the 2^nd opposite party, the manufacturer.

The order shall be complied  within 45 days from the date of receipt of this order; otherwise complainant is also entitled to get interest @ 9% per annum on the total amount due to them from the date of this order till realization.

    Pronounced in the open court on this the 5^th  day of  October,  2021.

                                                                                        Sd/-

                                                                               Vinay Menon V

                                                 President

 Sd/-

 Vidya.A

                    Member     

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 –  Original Bill No.581 dated 1/12/2019 issued by 1^st OP to the complainant

Ext.A2 –  Original warranty card attached with the Pen 

Ext.A3(series) – Copy of lawyer ‘s notice  dated 14/12/2019  along with Postal receipts and 

                             A/D card

Exhibits marked on the side of the opposite party

Nil

Witness examined on the side of complainant

 Nil

Witness examined on the side of opposite party

 Nil

Cost : Rs.2,000/- allowed cost of the proceedings.

NB : Parties are directed to take back all extra set of  documents submitted in the

         proceedings in accordance with Consumer Protection (Consumer Commission

         procedure) Regulations, 2020 failing which they will be weeded out after 30 days of

         issuance of the order.