BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 31^st DAY OF AUGUST 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to refund Rs.1,00,000/- being the value of the inferior quality sofa set together with Rs.50,000/- towards mental agony and torture with cost of litigation.

 2. The brief averments made in the complaint are as under:

The complainant purchased EVOK leather Sofa (Paris L Shape Fine Italian Leather Sofa) for a sum of Rs.1,00,000/- from OP-2 through credit card on the representation that the said sofa set is made out of Leather and it is durable for more than a decade and warranty for one year from the date of purchase was given.  That based on the assurance and guarantee the complainant purchased the above said Sofa set with an intention to enjoy the same without trouble but to his surprise the complainant found that the Sofa set turned to be inferior quality of cushion and leather.  That arm rest place torn out and it was found that the material used is of Indian made and not Italian Leather and thereby OPs cheated the complainant and have induced him to purchase the said item on false representation that it is made out of fine Italian Leather.  That on 28.08.2014 the complainant after having noticed the torn out portion informed the same to OP-2 and one Mr.Purushotham for OP-2 came and took the photographs of the damaged parts and assured to rectify the defect and asked the complainant to pay her the transportation charges.  That the said reply shocked the complainant because he was asked to bear the transportation charges for having supplied a defective sub-standard Indian made sofa.  That the complainant insisted for refund of the cost of the sofa set.

That the complainant made several e-mail correspondences with the OPs but no action was taken from the OPs either for rectification or for replacement or for refund of the value of the product.  That the OPs knowing fully well that the said sofa set is not made out of fine Italian Leather have sold the same to the complainant on false representation and on false guarantee.  That the said defects have been noticed within one year from the date of purchase and within the warranty period.  Since the OPs failed to respond to the request made by the complainant, she caused a legal notice dated 20.04.2015 calling upon the OPs to refund the value of the sofa set and for paying a sum of Rs.50,000/- for the inconvenience and mental agony undergone by her due to inferior quality of sofa set.  Despite service of notice, the OPs failed to comply the demand made in the notice.  Therefore, the complainant was compelled to approach this Forum with this complaint.

3. In response to the notice issued both the OPs appeared through their advocate and OP-2 alone filed their version contending in brief as under:

That it is true that the complainant has purchased a sofa set in question for a sum of Rs.1,00,000/- on 26.10.2013.  That the said sofa set has been delivered as per the order made by the complainant at the door step with all satisfaction.  That after lapse of 11 months the complainant wrote a letter with ulterior motive, will-fully making allegations about the said product by creating false story.  That the OPs never represented that the said sofa set was made by using leather and never assured/promised that it was made using Italian leather.  That in the description of the product in the sale order it is not mentioned that it is ‘leather sofa’ if at all the said sofa set was made up of leather the same must have been mentioned in the sale order.  That the complainant is not a ‘consumer’ as defined under the Consumer Protection Act.  That there is no deficiency of service as alleged in the complaint.  That OPs have provided best services to the complainant.  That the complainant has failed to make out a case of deficiency of service and also failed to point out any defect in the product.  That OPs are not liable to pay any damages as claimed by the complainant.  That the complainant has come up with false and frivolous complaint by suppressing the material facts.  Therefore, the OPs prayed for dismissal of the complaint with compensatory cost.  

4. To substantiate the allegations made in the complaint, the complainant tendered her evidence by way of affidavit reiterating the allegations made in the complaint and also placed reliance on certain documents including the photographs of the damaged sofa set.  OPs despite sufficient time and opportunity provided failed to tender their evidence.  The complainant also filed her written arguments.  OPs neither filed their written arguments nor submitted oral arguments.

5. The points that arise for our determination in this case are as under:

        6. Our answer to the above points are as under:

REASONS

7.  OP-2 in their version admitted that the complainant purchased the sofa set in question on 26.10.2013 from them for a total sum of Rs.1,00,000/-.  The complainant has also produced the copy of sales order for having paid a sum of Rs.1,00,000/- to the OPs towards the price of the sofa set in question.  According to the complainant at the time of sale, the OPs represented to her that the said sofa set is made up of a fine quality Italian leather and believing the words of the OPs she purchased the said sofa set.  However, the OPs deny that they represented complainant that the said sofa set is either made up of any leather or fine Italian leather.  Even assuming that the said sofa set is not made up of Italian leather, it would be not wrong on the part of complainant to expect the said sofa set is made up of reasonable good leather/foam which could last for a reasonable period of 4-5 years, having paid a sum of Rs.1,00,000/- for the same.

8. Admittedly the said sofa set is covered by a warranty.  On the over leaf of the copy of the sales order, terms and conditions governing the sale of the said sofa set have been mentioned.  The clause pertaining to warranty is mentioned at serial No.7 and the same reads as under:

“Warranty, if and as applicable, is indicated with the product/brand and is limited to manufacturing defects only.  Warranty terms & conditions are applicable on back to back basis with product/brand and the Company reserve the right to repair/replace defective product/components as required.  All such defective products/components replaced shall become the property of the Company”.

9. Though no specific warranty period is mentioned in the warranty clause but it is made clear that the warranty of the product is limited to manufacturing defects.  However, under the said warranty clause, the OPs have undertaken to repair/replace the defective product/components as required and necessary.  Thus from the said warranty clause, it is clear that, the OPs are liable to repair/replace a defective product/component if the same has occurred due to manufacturing defect.  OP-2 in their version did not deny the terms and conditions as mentioned on the overleaf of the sales order.  OPs for the reasons best known to them also did not submit their affidavit evidence to substantiate the averments made in their version.

10. Admittedly the defects as noticed by the complainant have occurred within one year from the date of purchase.  The complainant has also produced the photographs of the sofa set showing the damage caused to the sofa set together with CD.  It can be made out from the said photographs that the said sofa set has been damaged at several places.  Admittedly the said damage/defect has occurred within 11 months from the date of purchase.  It is also not the case of the OP that the damage to the sofa set has been caused either due to mis-handling or improper maintenance/use by the complainant.  From defects which have been noticed in the photographs, one can safely say that the said defects are because of the poor quality of leather/foam used in manufacturing of the said sofa set.  The complainant has brought to the notice of the OPs the defects found in the sofa set immediately after noticing the same.  The complainant has also written a letter to the OPs on 07.10.2014, the copy of which is produced, pointing out the defect in the sofa set and requesting for rectification/replacement.  The complainant has also mentioned in the said letter that one Mr.Purushotham from OPs visited the location of the complainant on 28.08.2014 and confirmed the defect in the sofa set and also he has taken photographs of the defective portion of the product.  The complainant claims that the warranty period is one year from the date of purchase which fact has not been denied by the OPs in their version.  As already pointed out that, the clause-7 of the terms and conditions does not prescribe definite period of warranty except stating that the warranty is limited to manufacturing defects.  Therefore, the complainant is justified in asking for replacement of the sofa set since the same is riddled with manufacturing defects.

11. As could be made out from the version of the OPs that they refused either to rectify the defects or replace the sofa set.  When the OPs have failed to respond to the letter and several other communications by the complainant, she has insisted for refund of the money paid for purchase of the sofa set.  Even after service of legal notice in this regard OPs have failed either to replace the sofa set or refund the price.  The conduct of the OPs in selling a sub-standard product representing to be a good quality product and failing to replace defective product or refund the price of the same amounts to grave deficiency of service.  In the given circumstances of the case, we feel it appropriate to direct the OPs to refund Rs.1,00,000/- being the price of the sofa set to the complainant together with litigation cost of Rs.5,000/-.   

12. The order could not be passed within the stipulated time due to heavy pendency. 

13. In the result, we proceed to pass the following:

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs are directed to refund Rs.1,00,000/- (One Lakh Rupees only) being the price of sofa set to the complainant together with litigation cost of Rs.5,000/-.

OPs shall comply the said order within four weeks from the date of communication of this order.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 31^st day of August 2016)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 10.12.2015.

1. Mrs. Anusha T

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party/s - Nil

Documents produced by the Opposite Party/s - Nil

  MEMBER                           MEMBER                     PRESIDENT

   Vln*