Date of Filing 23.06.2023

                                                                                                             Date of Disposal: 28.11.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

CC.No.56/2023

THIS TUESDAY, THE 28^th DAY OF NOVEMBER 2023

Mr.K.Ragupathy,

S/o.Kanniyappan,

No.48, RM Vishranth, C.V.Naidu Salai,

Thiruvallur 602 001.                                                                                ......Complainant.

                                                                              //Vs//

1.Eureka Forbes,

   Rep. by its CEO,

   Corporate Office B1/B2, 701,

   7^th Floor, Marathon Innova Marathon nextgen,

   Opp. Ganpatro kadam marg lower parel,

   Mumbai 400 013.

2.The Manager,

    Eureka Forbes,

    No.92, G.N.Chetty Road,

    East Coast Chambers, Near By Vani Mahal,

    T.Nagar, Chennai 600 017.                                                           .…..Opposite Parties.

Counsel for the complainant                                : Mr.D.Sathish Kumar, Advocate.

Counsel for the opposite parties                         : Ms.Hemant Daswani, Advocate.

This complaint coming before us on various dates and finally on 20.11.2023 in the presence of Mr.D.Sathish Kumar, counsel for the complainant and Ms.Hemant Daswani, counsel for the opposite parties and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties with respect to purchase of the product from them along with a prayer to direct the opposite parties to refund the sum of Rs.79,999/- with interest at the rate of 24% from September 2022 to till the date of realization, to pay a sum of Rs.3,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of the proceedings to the complainant.

Summary of facts culminating into complaint:-

2. Complainant in order to make his hard water soft tested the ground water quality on 13.08.2022 through one SMS Lab Services private Limited and received the report. Based upon the report with regard to his ground water while he was searching to buy water softener machine one Mr.Karthick Circle Head of the opposite party’s company contacted the complainant and after thorough testing they referred to buy AWS 2000 type Water Softener Machine costing Rs.53,000/- for which complainant also accepted and paid Rs.50,000/-.  After installing the machine they found some difficulties in softening the water they assured and informed the complainant that AWS 2000 machine would not fit his house and also added that AWS5000 machine would be Apt for complainant’s house and asked him to pay Rs.27,999/-extra to get the AWS5000 machine by exchanging previous one.  As per their advice the complainant also paid the additional cost to the company Account on 10.09.2022. AWS5000 machine was delivered and the AWS2000 machine was taken back by the opposite party’s company staff.  From the day one of installation of the machine there was no change in the quality of water and even after installation of machine the quality of water getting worse day by day. Thus complainant complained about this issue to the 2^nd opposite party and he even lodged the complaint in the company’s call centre, but the technicians who came and inspected the machine left without giving any proper reply.  In spite of paying a huge amount of Rs.79,999/- complainant was unable to get softened water to the assured quality as promised by the opposite parties. Thus aggrieved by the acts of the opposite parties complainant sent a legal notice to the opposite parties on 17.03.2023.  After receiving the notice the opposite party approached the complainant and told him that due to technical defects they could not fix the machine and also assured him that they would take back the machine and that entire amount would be refunded in a week through account deposit. Believing the words of the opposite party the complainant accepted for the same.  Then one of the officials of the opposite party came to the complainant’s house and dismantled the machine on 23.04.2023.  Later the dismantled machine was taken back by the opposite party on 08.05.2023 through ST Courier. After that when the complainant contacted the opposite party and requested them to repay the price of the machine they are evading themselves from repayment. Thus aggrieved by the acts of the opposite parties the present complaint was filed to direct the opposite parties to refund the sum of Rs.79,999/- with interest at the rate of 24% from September 2022 to till the date of realization, to pay a sum of Rs.3,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of the proceedings to the complainant.

The crux of the defence put forth by the opposite parties:-

3. The opposite parties filed version disputing the complaint allegations contending interalia that the allegations made by the complainant were false and frivolous and were devoid of any merit and have not been substantiated by any cogent legible documentary proof whatsoever. Complainant had not submitted any documentary evidence or complaint id number as he claims to be registered with the opposite party call centre. It was submitted that that the notice served to the 2^nd opposite party they contacted the complainant and allotted the technician to offer immediate service and replacement of product in case any major issues found in the product.  Further there were no terms and conditions to refund the money as per company rules and the complainant’s motive was to extort money from the opposite parties in an illegal manner. It was submitted that the complainant has agreed for exchanging the product and taken back the complainant’s product.  Despite exchanging the product AWS2000 with AWS 5000the complainant still went on to find faults and complaint about the product.  The complainant was harassing the opposite party to extort money from them. In the above reiterate that there was no policy for refund the money.  Wherein the complainant was refunded with the said amount of Rs.80,989/- and the product AWS5000 was installed by replacing the previously purchased product AWS2000. Instant complaint was not maintainable against the opposite parties. It was submitted that the complainant was making false and frivolous allegations which were devoid of any merit whatsoever and the subject deserves to be rejected in view of the same.  It was further submitted that despite exchanging the product and refunding the amount of Rs.80,989/- the complainant was not satisfied and the present complaint was filed by the complainant to extort money from the opposite parties.  Thus they sought for the dismissal of the complaint.

4. On the side of complainants proof affidavit was filed and documents marked as Ex.A1 to Ex A14 were submitted. Inspite of sufficient opportunities provided by this Commission, the opposite parties did not appear and present the written arguments and oral arguments though they filed written version. They also did not file any proof affidavit and hence the proof affidavit stage and arguments stage was closed for the opposite parties and the written version alone considered for deciding the case on merits.

Points for consideration:-

1)   Whether the complaint allegations with respect to purchase defective product from the opposite parties, consequent return of the product and non refund of the money has been substantiated by admissible evidence?

2) If so to what reliefs the complainant is entitled?

 Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

1. Tax Invoice issued by the opposite party dated 17.09.2022 was marked as Ex.A1;
2. Receipt for Rs.50,000/- issued by the opposite party dated 26.08.2022 was marked as Ex.A2;
3. Receipt for Rs.2000/- dated 26.08.2022 was marked as Ex.A3;
4. Receipt for Rs.27,999/-issued by the opposite party dated 10.09.2022 was marked as Ex.A4;
5. Legal notice issued by the complainant to the opposite parties dated 17.03.2023  was marked as Ex.A5;
6. Acknowledgement card from the 1^st opposite party for proof of delivery was marked as Ex.A6;
7. Return cover from 2^nd opposite party was marked as Ex.A7;
8. Legal notice sent by the complainant to the 2^nd opposite party’s new address dated 25.03.2023 was marked as Ex.A8;
9. Acknowledgement card from the 2^nd opposite party for proof of delivery was marked as Ex.A9;
10. Courier receipt dated 08.05.2023 was marked as Ex.A10;
11. Photo taken after dismantle of the machine was marked as Ex.A11;
12. Photo taken while the machine was taken aback by the courier was marked as Ex.A12;
13. Photo of the vehicle in which the machine was sent to Eureka Forbes was marked as Ex.A13;
14. Acknowledgement from the Eureka Forbes for receiving the machine was marked as Ex.A14;

            5. Heard oral arguments adduced by the complainant.  Inspite of sufficient opportunities provided by this Commission the opposite parties did not appear and present the written arguments and oral arguments though they filed written version. They also did not file any proof affidavit and hence the proof affidavit stage and arguments stage was closed for the opposite parties.

6. The main arguments advanced by the learned counsel for the complainant is that the complainant for treating his ground water had purchased AWS 2000 only as per advice of opposite party and subsequently AWS5000 also upon their advice.  However both did not function and hence several complaints were made and finally it was admitted by the opposite parties that the purifiers did not function and hence it was agreed by the parties to return the product AWS5000 and that the opposite parties to refund the amount.  However, no refund was made though the machine was sent back to the opposite parties.  Thus he sought for the complaint to be allowed with compensation.

7. It is seen that the opposite parties in their version had stated that as per the Company Rules refund could not be made and only to extort money the complaint has been filed.  However, in their version it is stated that a refund of Rs.80,989/- was made to the complainant.

8.  Sufficient evidence was produced by the complainant for payment of an amount of Rs.79,999/- on 26.08.2022 and 10.09.2022 via Ex.A2 to Ex.A4 towards purchase of the product.  The photos taken during dismantling of the machine was also filed as Ex.A11.  The dismantled machine was taken back by the opposite parties by courier was also amply proved by Ex.A12 and Ex.A13.  The acknowledgement by the opposite parties for receiving the machine back was also submitted as Ex.A14.  In such facts and circumstances we hold that the complainant had successfully substantiated his allegations by admissible evidentiary documents.  Though in their written version the opposite parties had stated that they had refunded Rs.80,989/- no proof affidavit was filed by them and no documentary evidence was filed in proof for payment of Rs.80,989/-.  Thus, this commission could safely arrive at a conclusion that the opposite parties had committed clear deficiency in service and unfair trade practice in receiving the product from the complainant but not refunding the amount.

9.  Though it is stated in their written version that refund could not be made as per the Rules no material was produced and even if it is so the said term/contention could not be accepted when they have agreed and got back the product supplied to the complainant.  Thus this point is answered accordingly holding that the complaint allegations were successfully proved by the complainant.

Point No.2:-

10. With regard to the relief to be granted as it is a clear case of deficiency in service and unfair trade practice on the part of opposite parties, we are of the view that apart from refund of the amount of Rs.79,999/- the complainant should be adequately compensated for the mental agony and hardship suffered by the deceptive practice by the opposite parties. Thus, we direct the opposite parties to pay a sum of Rs.50,000/- towards compensation.  We also award a cost of Rs.10,000/- towards the  litigation expenses to the complainant.

In the result, the complaint is partly allowed against the opposite parties 1 & 2 directing them jointly and severally

a) To refund the sum of Rs.79,999/- (Rupees seventy nine thousand nine hundred ninety nine only) to the complainant within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant;

d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 9% will be levied on the said amount from the date of complaint till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 28^th day of November 2023.

      -Sd-                                                                                                                     -Sd-

MEMBER-I                                                                                                           PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite parties:-

Nil

     -Sd-                                                                                                                       -Sd-

MEMBER-I                                                                                                         PRESIDENT