Complainant Raj Kumar Malhotra through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that opposite party may kindly be directed to replace the defective tub and return Rs.50,000/- for change of part (Remote Sensor) and also ordered to pay an amount of Rs.30,000/- for causing harassment to him including Rs.10,000/- as litigation expenses all in the interest of justice.
2. The case of the complainant in brief is that he had purchased a bath tub i.e. “Aruba Bath Tub” for an amount of Rs.8,50,000/- from the opposite party no.2 i.e. the dealer of ROCCA Company (Manufacture) and the opposite party no.1 is the service provider of the product i.e. Aruba bath tub. It was pleaded that the above said tub was purchased by the complainant about three years before from the opposite party and later on the same was installed by the engineers of the opposite parties in the bathroom of the complainant and he was also purchased all the bathroom ware for his home from the opposite parties and at the time of purchasing the said bath tub the opposite party claimed that this product is almost high end range tub of this company and it was also assured that this tub will provide best service and it was also claimed by the opposite party that this tub is multifunctional tub. It was pleaded that after 4-5 months of the installation the said tub stopped working/functioning and complainant informed the opposite party no.2 regarding the non-functioning of the tub who send their two engineers for checking the fault in Aruba Bath tub but they failed to rectify the same and the opposite party no.2 contacted the opposite party no.1 who is the service providers of the products of Rocca Company and they sent their experts/engineers for checking/rectifying the fault in the tub in question. It was further pleaded that the engineers/experts and plumbers of the opposite party no.2 visited the premises of the complainant for about 3-4 times but all the times they could not found any fault and failed to rectify the problem which was in the tub and during their visits tub started working for some time but again and again it suddenly stopped functioning and on the last visit the experts/engineers demanded Rs.50,000/- for the change of one part of the tub and had said that this part had to be replaced because it could not be repaired and they reached at the conclusion that this part was faulty from the very beginning and after importing the said part from Spain (where these tubs are being manufactured) will be replaced with old part and as per the demand of experts/engineers of the opposite parties the amount was paid to them. It was also pleaded that after about two and half years of the purchase of the tub in question the part was replaced by the opposite parties but even then the fault could not be rectified and tub did not start functioning and on this old and original part was reinstalled and the new part was taken by the said experts/engineers with them on the pretext that this part was also likely to be defected and as such they will bring another part and also told the complainant that the part in question is receiver of the remote of the tub and due to fault in this tub the receiver was not functioning. It was next pleaded that after the expiry of more than two months nobody turned from the offices of both the opposite parties whereas complainant approached the opposite parties many times but they did not respond to his requests. It was pleaded that complainant also approached the mechanic shop as he was fed up with the functioning/service of the opposite parties and it was highly strange that only after physical verification mechanic set the tub in mode and said that there was no fault with the part of the tub and said that there was some manufacturing defect in tub due to which it suddenly stopped functioning and after it complainant again approached the opposite parties but they did not respond and complainant also emailed the Rocca Company but all in vain. It was pleaded that prior to the present complaint complainant filed similar complaint but the same was withdrawn by him due to the wrong mentioning of name of the owner/managing partner of the Company i.e. Kaka Ram Sardari Lal (Dealer), hence this complaint.
- Notice of the complaint was served upon the opposite parties but they did not appear and was proceeded against exparte vide order dated 19.7.2016.
4. Complainant had tendered into evidence his own affidavit Ex.CW1/A, affidavit of Amarjt Ex.CW2/A along with documents Ex.C1 and Ex.C2 and closed his evidence.
5. We have carefully examined all the documents/evidence as available on the complaint records (as duly put forth by the complainant) along with the scope of the adverse inference that may be judicially but discretionarily drawn on account of the intentional absence/optional ex-parte proceedings by the titled opposite parties despite the proven dispatch of the summons; of course, in the very back-drop of arguments as put forth by the learned counsel for the present complainant. We find that the complainant had allegedly purchased an Aruba Bath Tub (ROCCA Make) from the OP2 Vendor for an amount of Rs.8.50 Lac that was duly installed by the OP1 service provider. Another Rs.50,000/- was allegedly paid to the OP1 service provider for replacement of one malfunctioning part of the Bath Tub and that has raised the amount spent (by the complainant) to Rs.9.0 Lac on the non-functioning Bath Tub Equipment. The delivery & installation of the Bath –Tub at the complainant’s Residence at Pathankot does raise the necessary ‘cause of action’ at Pathankot/Gurdaspur and that accords ‘jurisdictional’ admissibility & maintainability to the present complaint at this Forum.
6. We further find that the OP1 Service Provider has refused to receive the dispatched Summons & instead preferred to face the ex-parte proceedings whereas the OP2 Vendor preferred to stay absent in spite of having received the dispatched summons and thus were ordered to be proceeded against ‘ex-parte’ vide the forum’s orders dated 19.07.2016. However, we shall be at a judicious discretionary liberty to draw an adverse ‘judicial inference’ by virtue of a plethora of superior courts judgments that the opposite parties had no defense to prosecute and thus they instead preferred to go ‘ex-parte’.
7. The learned counsel for the complainant has produced in evidence affidavits exhibited as: Ex.CW1/A & Ex.CW2/A and the documents exhibited as: Ex.C1 & Ex.C2 in support of the ‘allegations’ as made out in the body of the complaint and that wins our confidence to pronounce an adverse statutory award against the titled opposite parties. Moreover, the OP’s callous attitude resulting into an inordinate delay in redressing the complainant’s grievance surely amounts to ‘deficiency in service’ on the part of the opposite parties and demanding the cost of spare parts (resulting from ‘delay’ on its own part) from the complainant does amount to ‘unfair trade practice’ and that for sure, lines up them up to an adverse award under the statute. However, we (in line with the settled law) are inclined to subject the ‘award’ to the restrictions of ‘moderation’ so as not to cause undue enrichments to the ‘awardee’ and/ or to cast undue excessive ‘distresses’ to the delinquent.
8. In the light of the all above, we partly allow the present complaint and ORDER the titled opposite party 2 vendor to replace (free of any cost) the mal-functioning Bath Tub (in question) with a new piece of Bath Tub with similar specifications besides to pay him Rs.5,000/- as cost and compensation within 30 days of the receipt of these orders otherwise proceedings u/s 27 CPA shall be initiated against the Opp. Party no 2.
- Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
SEPT. 19, 2016 Member.
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