Before  the District Consumer Dispute Redressal Commission [Central], 5th Floor                                         ISBT Building, Kashmere Gate, Delhi

                               Complaint Case No.94/03.11.2020

Sheetal Gupta W/o Pankaj Gupta

R/o. 3157, 2nd floor Mohalla Dassan

Cherkhe Walan,  Haus Qauzi, Delhi 110006                                      ..Complainant

                                      Versus

Eureka Forbes Limited 17A/41 WEA 3rd Floor

Opposite Jassa Ram, Karol Bagh, New  Delhi 110005             ...Opposite Party

                                                                    Order Reserved on:   02.02.2023

                                                                           Date of Order:   24.03.2023

Coram: Shri Inder Jeet Singh, President

              Shri Vyas Muni Rai,    Member

              Ms. Shahina, Member -Female

Inder Jeet Singh

                                             ORDER

1.1 (Introduction to case of parties) : The complainant had entered into contract with OP on 16.10.2019 for period of one year for serves of RO/water purifier, however, the OP failed to provide two periodical services agreed upon, consequently the complainant along-with her family was compelled to drink unhygienic water.   The complainant seeks compensation of Rs. 9,51,930/- along with interest from day of filing this complainant against OP for unfair trade practices. deficiency in service as OP failed to provide services apart from grabbing money of complainant & causing mental, physical and pecuniary losses.

1.2. OP was proceeded ex-parte on 04.11.2022 for want of appearance despite service as well as no reply was filed. However, at the time of final hearing on 02.02.2023, OP's Service Supervisor Shri Devender Kumar had appeared and his presence was recorded.

1.3.  The complaint is in English, there are many syntax flaw, or of complete expression or appropriate wordings,  however, care has been taken in this Order to describe the case of complainant as actually it is intended by her, by depicting appropriate words, expression and syntax.

1.4. The complaint was filed on 03.11.2020 when the Consumer Protection Act, 2019 was notified w.e.f. 20.07.2020, but title of complaint is u/s 12 of Consumer Protection Act, 1986 but it is being considered under new Act of 2019.

2.  (Matrix of case of complainant) : The complainant is law abiding citizen of India, having permanent address mentioned above. OP is service provider of RO/Water Purifier/Aqua-guard. OP's agent approached the complainant and assured for the best services of RO/Water Purified apart from that in case any part is damaged, the OP shall replace the parts during the tenures of policy and two periodical service of RO/water purifier. Thus, on the assurances of agent of OP, the complainant purchased contract vide receipt no. 809-0154806 duly executed between OP and the complainant against payment of Rs.1,930/-  on 16.10.2019 till 15.10.2020 for providing the service to complainant. The contract receipt was signed by Customer Service Division. As per the contract there is two periodical service and in case of any defect in RO, then to replace the defected/damaged parts during tenure of contract. However, OP failed to provide the services to complainant. Complaint faced problem, due to  such problem to drink the unpurified/unhygienic water, which was bad for health of complainant and her family. Complainant was unable to take service from other agencies  because of  term and conditions of OP. The complainant  made several requests to OP for providing services but OP's response was not satisfactory. OP wants to take advantage of Covid 19 and its reply was unreasonable, thus OP failed to comply the term and condition of agreement, there is breach of the contract and it it is  deficiency in service, dishonesty and unfair trade practice. The complainant suffered Rs 1,930/-, which was paid at the time of agreement, it is pecuniary loss and also suffered mentally and physically agony, which is not possible to be filled in being irreparable loss and complainant claims much meager amount of Rs 9,50,000/- besides monetary loss of Rs.1,930/-, which makes out total claim of Rs.9,51,930/- on account of deficiency of services, misrepresentation to customers, unfair trade practices by OP,  losses to complainant.  The  OP grabs and enjoy money of customers by playing with health of customers. The complainant had also called upon the OP to pay Rs 9,51,930/- by serving notice but OP failed to pay the amount. That is why the complaint. The complaint is accompanying contract receipt, copy of legal notice and postal receipt with track report to establish service of legal notice.

3. Since there was no reply by the OP as well for want of appearance it was proceeded ex-parte.

4.1 The complainant filed her affidavit of evidence fortified with documentary record filed with complaint and it is on the lines of complaint.

4.2  It was followed by filing of written arguments and then oral submissions by Shri Rajesh Kaushik, Advocate for the complainant.  During the course of oral submission, Ld. Counsel has also referred a few clauses of contract receipt, stated to be basis of the complaint, they are reproduced as follows:

Under this contract, Eureka Forbes Limited undertakes to maintain your product used at the address mentioned above.

(1). This contract provides for free replacement of consumables applicable and periodical service to the product as below per year:

(a) two periodical service would be provided for all domestic products R.O water purifier. For all institutional products and Domestic RO water purifier three periodical services would be provided. Eureka Forbes Ltd. has the right to combine mandatory service along with break down service.

(b) One set of consumable would be replaced for all the products. For compact model water purifier one more additional set of consumable will be provided

xxx

(4).The Contract shall not cover visits/replacement of parts under the following circumstances:

xxx

 (e) Defects/failures resulting from servicing/ repairs done by a person other than the authorized representative of Eureka Forbes Limited.

xxx

(12). Every visit by our authorized service technician will be made within reasonable time from receipt of a complaint for breakdown of the equipment and will  be made only during working hours of our Service Department and no visits will be made on Sundays / Holidays.

xxx

5.1 (Findings) : The contention of complainant is considered, analyzed and assessed, keeping in view the oral narration of events explained and documentary record of 'contract receipt' & legal notice. In order the appreciate the contentions, the relevant felt clauses referred by the complainant has already been reproduced, however, some other related relevant clauses are also   necessary to be produced, the same are:-

Clause no. (20). In the event of any complaint, please quote your name, address and the contract number to the nearest authorized service centre / call centre.

xxx

Clause no (23). Force Majeure: Neither party shall be liable for the non-performance of its obligations under this agreement where such failure is due to force majeure i.e. due or attributable to any act of God, orders, restrictions or regulation of Government, Central or State, war working conditions, hostilities, riots, civil commotion, strike, lock out, labour trouble, explosion, or any other cause or circumstance of whatsoever nature beyond control.

5.2: By co-joint reading of contract clauses and other circumstances explained, it is held that complainant could not prove her case against OP for the following reasons:-

(i)  the contract receipt specifically mentions in capital letter in bold  'To log a service request at telephone number mentioned or send message <REQ> to number mentioned for availing services, however, no where either in the complaint or in the legal notice or in affidavit, any fact of date or booking is mentioned by the complaint as to when the service request was made by her to OP,

(ii)  the complainant could not establish as to whom OP was contacted and by which mode or what was the response or by which mode it was responded, which she construed being not satisfactory response, no iota of fact of such contact or detail of such response is mentioned anywhere,

(iii) the complainant could not establish that she had contacted the nearest service centre by mentioning her name, address or contact number for appropriate service of device and as to when it was contacted being requirement of clause no.20,

(iv) as appearing, it was first time the complainant had entered into this service contract, how she was constrained to consume bad or unhygienic water or when she contacted the service centre is not proved,

(v) how it is to be construed deficiency in services or unfair practise, when the complainant could not prove that she had made request for service or sent message for service,

(vi) the complainant just mentioned claim amount as damages, how she suffered losses of Rs.9,51,130/- has also not been proved, whereas it was also required to be proved with appropriate facts and figures with reasons,

(vii) there was Covid-19 pandemic from end of March 2020 onwards and first national wide lock-down was declared in March 2020 beginning from Janta curfew and then there were further lockdown and restricted movement guidelines from time to time, which prima facie makes out case of exception of clause no.23, and

(viii) despite the OP is ex-parte, the burden was on the complainant to prove her complaint, which she failed to prove.

5.3. The complaint fails and it is dismissed.

6. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.

7. It is appropriate to record that this Commission is facing great difficulty in day to day its functioning for want of regular PA and stenographer, since only one stenographer Gr-III is posted for all work.

8: Announced on this 24th March , 2023 [चैत्र 3, साका 1945]

[Vyas Muni Rai]                        [ Shahina]                            [Inder Jeet Singh]

      Member                       Member (Female)                              President