PER SHRI. S.S. PATIL - HON’BLE MEMBER :

1)        This is the complaint regarding defective mattresses sold by the Opposite Parties to the Complainant.

            The facts of this complaint are that, the Complainant purchased two Vertebra Mattresses alongwith Eros King bed on 11/05/09 from the Opposite Party Showroom.  The mattress carried warranty of one year (attachment 5). In March, 2010 the Complainant booked a complaint with Opposite Parties showroom about sagging of the mattress.  The technician visited the Complainant’s residence and observed -“One mattress found to be replaceable condition (attachment 3). The Complainant was charged for an amount of Rs.1,153/- (attachment 6) and one mattress was delivered to him, but this mattress was different in colour and thickness with other mattress which was not replaced. The Complainant therefore, is having one mattress yellow with 4.75 inches thickness and the other new one is blue and 4 inches thick (attachment 8 photograph).

 2)        The above new delivery was on 03/06/2010.  Since that time the Complainant is requesting for yellow mattress of same thickness or one more blue mattress as new one to be given to him at extra cost of their revised prize of Rs.1,153/-, but in vain.

 3)        The Complainant has prayed for the cost of the mattresses i.e. Rs.11,675.25 + Rs.1,153/- = i.e. Rs.12,828/-, compensation of Rs.64,140/- for mental torture, anxiety and harassment and cost of the complaint. 

 4)        The Complainant has attached the xerox copies of the following documents in support of his complaint –

1)  Receipt No.20/49 dtd.11/05/09.

2)  Order confirmation form 85948 dtd.11/05/09.

3)  Challan dtd.11/05/09.

4)  Page 13 blurred document only date 12/05/09 is seen.

5) Warranty card attachment 4.

6)  Receipt No.025352 dtd.24/04/2010.

7)  Tax Invoice dtd.01/04/06.

8)  Photograph.

9)  Letter dtd.19/06/2010.

 5)        The complaint was admitted.  Notices were served the Opposite Parties.  They filed their written statement, wherein they submitted that the complaint is not tenable in law.  The complaint is filed for the cost of the mattress and compensation.  This is bad in law and not within the purview of the Consumer Protection Act, 1986.  The complaint is to extract money from the Opposite Party. 

6)        The Opposite Parties have admitted that the Complainant had made a complaint in March, 2010, for sagging of both the mattresses.  But it was due to high handling.  The Opposite Parties had sent their technician for inspection on 07/04/2010.  He observed that one of the mattresses has sagged due to high handling.  Hence, the Complainant was offered a new mattress of same type & quality and the Complainant was supposed to pay the difference in the price i.e. Rs.1,153/- due to rise in price (each mattress was costing Rs.5,838/- in May, 2009.  It was duly agreed by the Complainant. The Opposite Parties then prayed that the complaint be dismissed with cost.

 7)        Thereafter, the Complainant filed his rejoinder to the written statement of the Opposite Parties, affidavit and written argument wherein he denied all the points raised by the Opposite Parties and reiterated the facts of his complaint.  The Opposite Parties have also filed affidavit of evidence wherein the Opposite Party has reiterated the points and facts mentioned in the written statement. In addition to that the Opposite Parties filed an intend inspection report a replacement policy dated Nil, signed by nobody.  Opposite Party No.1 also filed his affidavit of evidence wherein he repeated the facts and points mentioned in the affidavit of one Mr. Daryus Chappager.  The Opposite Parties have also filed written argument wherein they have reiterated the facts and points raised by them in their written statement & affidavits of evidence. 

 8)        The Complainant is not present at the time of oral argument.  However, he has given in wiring on the written argument that his written argument be treated as his oral argument.  We heard the Ld.Advocate for the Opposite Parties and perused the papers submitted by both the parties and our findings are as follows –

 9)        The Complainant is a consumer of Opposite Parties and he had purchased the Vertebra Mattresses from the Opposite Party vide annexure dtd.11/05/09.  After use of 10 months but within the warranty period, the Complainant made a complaint sometime in March, 2010 of sagging of the mattresses.  On 07/04/2010, the technician of the Opposite Parties visited the place of the Complainant and found one of the mattresses is replaceable.  The Opposite Parties also in their written statement have admitted that their technician inspected the mattresses on 07/04/2010 and gave his report that one of the mattresses have sagged due to high handling but we have noted that there is no such remark as high handling on the paper which was produced by the Complainant (vide attachment 3 to the complaint).  In the inspection note prepared by the Opposite Party, the person of the Opposite Party who prepared this note has put the remark “as Depression 14 m.m.  because of high handling.”  It is not understood as to how this inspecting person knew that the depression of 14 m.m. was due to high handling.  However, this inspection notes clearly bears a remark as “One mattress has been found sagged.”

 10)      Therefore, from the above papers and contentions of both the parties it is clear that during the validity of the warranty issued by the Opposite Parties, the goods sold to the consumer were defective.  It was the contractual obligation of the Opposite Parties to either replace the goods of the same quality and quantity or to remove the defects found in these goods completely. After making a complaint by the Complainant, the Opposite Parties replaced the defective goods with another mattress which was not of the same quality but less in thickness and different in colour. What is more objectionable is that they charged Rs.1,153/- more for the replaced mattress which was not of the same quality but inferior to what was sold by them on 11/05/09. Therefore, the Opposite Parties are not only guilty of providing a defective goods to the consumer but also guilty of adopting unfair trade practice as contemplated in the Consumer Protection Act.

 11)      The main submission of the Opposite Parties in their written statement is that the Complainant’s complaint is for the cost of the mattress and not for other defects in the goods.  However, though, the Complainant has not mentioned these words in the complaint & in the pleading there is no difficulty for us to ascertain the above findings that the Opposite Party has sold a mattress to the Complainant which became defective within a warranty period and for replacing it they charged extra money for the inferior mattress which amounts to unfair trade practice.

 12)      Though it is found that the Opposite Party are guilty for selling a defective goods to the Complainant and for adopting unfair trade practice, the Complainant has prayed for the cost of both the mattresses. The Complainant has bought two mattresses in May, 2009.  We are in May, 2013.  The Complainant has used these mattresses for 4 years.  One of the mattresses is not defective.  Only one is of less size ad of different colour.  Therefore, the prayer for the cost of both the mattresses and after 4 years use would not be just and proper.  Same is the case with the compensation for his mental torture, tension, anxiety, harassment, etc. Because of the less sized mattress, the Complainant must have experienced inconvenience only. Therefore, taking into consideration the facts and circumstances of the case we think it just and proper that the Opposite Parties are liable jointly and severally for selling the defective goods to the Complainant.  They are liable to substitute a blue mattress of less size with one mattress which is similar in colour to one which was not sagged during the warranty period.  It should also be of same size of that mattress.  If such mattress is not available with the Opposite Parties, they should pay to the Complainant the cost of one mattress (Rs.5,837/-) + Rs.1,153/- which were charged extra by the Opposite Parties under the excuse of rise in price of the mattress.  The Opposite Parties are also liable to pay the compensation of Rs.5,000/- to the Complainant for causing inconvenience by selling him a defective mattress and adopting unfair trade practice as discussed above.  The Complainant is also entitled for the cost of Rs.3,000/- of this complaint.  In view of the above findings we pass the following order –

                                                                                                            O R D E R

            1.    Complaint No.219/2010 is partly allowed.

2.         The Opposite Parties are directed to provide jointly and/or severally to the Complainant a defect free mattress resembling in colour & size to the one which was not defective (sagged) during the warranty period.  If such mattress is not available with the Opposite Parties, they should pay to the Complainant jointly and/or severally an amount of Rs.5,837/-(Rs. Five Thousand Eight Hundred Thirty Seven Only) original cost of the defective mattress + Rs.1,153/- (Rs. One Thousand One Hundred Fifty Three Only) total amount being Rs.6,990/- (Rs.Six Thousand Nine Hundred Ninety Only).

3.         The Opposite Parties are also directed to  pay to the Complainant jointly and/or  severally a compensation of Rs.5,000/- (Rs. Five Thousand Only) for  inconvenience caused to the Complainant due to defective mattress sold by the Complainant and unfair trade practice  adopted by the Opposite Parties.

4.         The Opposite Parties are also directed to pay to the Complainant jointly and/or severally Rs.3,000/- (Rs. Three Thousand Only) to the Complainants as the cost of this complaint.

5.         Opposite Parties  are  directed  to  comply  with  the  above said order jointly and/or severally within 30 days of the receipt of this order.

6.    Certified copies of this order be furnished to the parties.