By. Smt. Renimol Mathew, Member:
The complaint is filed under section 12 of the Consumer Protection Act against the opposite party to get replacement of defective fitness machine and to get refund of its vehicle.
2. Brief of the complaint:- On 29.01.2013 the complainant purchased a Tread Mill-Goliath from the opposite party's Kozhikode showroom by paying Rs.1,16,000/-. The machine was having warranty of one year from 29.01.2013 against all sorts of manufacturing defects. After the warranty period of the machine, it has began to show some defaults and the machine has been totally stranded in the month of April 2016 and when the complainant has contacted the opposite party their men visited the complainant's place and opined that the machine is having some major complaints and to rectify the same the machine is to be taken to their premises at Sulthan Bathery and all the expenses incurred for the same has beard by the complainant himself. Thereafter the complainant has approached the opposite party on several occasions but the opposite party has not cared to repair the Tread Mill. The Tread Mill is kept in the premises of the opposite party till today without curing the defects. The opposite party is not prepared either to repair or to return the machine to the complainant but whenever the complainant visit the opposite party ,their men compelled the complainant to purchase a new Tread Mill from them. The intention of the opposite party is to force the complainant to purchase a new Tread Mill and hence they are purposefully not repairing the machine. Due to the above said attitude of the opposite party the complainant was compelled to close his fitness centre which affected his livelihood itself. The opposite party has supplied a low quality tread mill to the complainant after obtaining the amount of Rs.1,16,000/- as its price. Moreover the opposite party's has not returned the Tread Mill in working condition even after six months it is nothing but deficiency of service on their part. The complainant had subjected to innumerable inconvenience and mental agony on account of the deficiency of service on the part of the opposite party. The entire loss, damage, mental agony and inconvenience were caused to the complainant due to the deficiency of service of the opposite party by selling the products of inferior quality. Therefore the complainant is entitled to get the sum of Rs.1,00,000/- as compensation for the loss, damage, mental agony and inconvenience. Moreover, the complainant had to spare the sum of Rs.600/- towards the transportation of the unit from the complainant's fitness center to opposite party's premises. Therefore the complainant is entitled to realize the same also from the opposite party. Hence this complainant filed this complaint to get replacement of machine with a new one or to return its price together with cost and compensation.
3. On receipt of notice, opposite party appeared and filed version stating that this complainant purchased a treadmill from their Kozhikode showroom admittedly on 29.01.2013 having 1 year warranty. The complainant purchased the machine in January 2013 and after its excessive use of 4 years in commercial basis and without providing any services with malicious intention to trying to replace the PCB drive board with a new one by misusing the provisions of Consumer protection act. The PCB drive board had some complaint due to improper handling and intimated on 10th day of November 2016 and sent to excel international the supplier immediately and the same was intimated to the complainant, then the supplier repaired the same and returned to the opposite party, but the complainant did not take delivery of the same on payment of repair charges, but instead of payment repair charges, the opposite party received the notice from the hon'ble consumer Forum. Opposite party further stated that this complaint is filed after the expiry of warranty period and if there is any problem with the machine as it is for commercial use of the complainant. There is no deficiency of service on the part of opposite party.
4. Complainant adduced evidence as PW1. Ext.A1 and A2 documents were marked through him. Ext.A3 is confronted and marked through OPW1. Opposite party also adduced evidence as OPW1.
5. On considering the complaint, version and evidences the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite parties?
2. Relief and Cost.
6. Point No.1:- Complainant argued that this machine purchased in the year 2013 having one year warranty. But immediately after the expiry of warranty it showed defect and after inspection opposite party's men reported that the defect is due to the complaint of its drive. As per his advice the machine was taken to opposite party's premises. But they have not repaired it so far instead insisted to purchase a new treadmill from them. Due to this attitude of the opposite party this complainant was forced to close the fitness centre, which affected his livelihood. Hence approached before this Forum.
7. Opposite party objected the case of the complainant by stating that the complaint is not maintainable before this Forum because the machine is using for commercial purpose. The complainant has admitted that several persons are practising at the Gymnasium and keeping register. On verification the PCB found defective. It was send to service centre they stated that, it has major defects and repair cost will come around the cost of a new PCB. Since the machine expired warranty and it has to be done on payment. This matter was communicated to the complainant. Thereafter the petitioner did not contacted the opposite party and filed this complaint. Due to the excessive use of machine for 4 years in commercial basis and without providing proper services leads to the machine defective, now the complainant trying to replace the PCB drive board with a new one and there is no manufacturing defect in the machine. The complainant successfully used this product upto 4 years. Now it becomes out of warranty opposite party admitted that complainant entrusted the MO-1 to them. Thereafter it was produced before the Forum and marked as MO-1. Opposite party argued that it is the complainant who should bear the cost of rectification since it is out of warranty but the complainant has not approached the opposite party or not paid any amount as repair cost. Hence there is no deficiency of service on the part of them.
8. On going through the evidence and records, we are of the view that admittedly the MO-1 expired warranty it can be rectified on payment basis. Complainant successfully used this machine for the last 4 years. Hence there is no deficiency of service or unfair trade practice on the part of opposite party. Point No.1 is found accordingly.
9. Point No.2:- Since the Point No.1 is found against the complainant, he is not entitled for replacement of machine or return of its price. Point No.2 is decided accordingly.
In the result, the complaint is dismissed. No Order as to cost and compensation.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 6th day of July 2017.
Date of Filing: 26.12.2016.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Khader. Fitness Master.
Witness for the Opposite Parties:-
OPW1. Shamil. M. Manager, Fitness Forum, Sulthan Bathery.
Exhibits for the complainant:
A1. Warranty Card.
A2. Service Call Report. Dt:20.04.2016.
A3. Treadmill Manual.
MO-1. Treadmill.
Exhibits for the opposite parties:-
Nil.
Sd/-
PRESIDENT, CDRF, WAYANAD.
a/-
