Haryana

Panchkula

CC/356/2020

TARUN MADAAN. - Complainant(s)

Versus

KISHORE FOAM AGENCIES. - Opp.Party(s)

MUKESH KUMAR.

17 Aug 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	356 of 2020
Date of Institution	:	25.11.2020
Date of Decision	:	17.08.2022

 

 

1.     Tarun Madaan son of Shri Ramji Dass Madaan,

2.     Jyoti Madaan wife of Shri Tarun Madaan

 

        Both residents of House No.228, Sector-9, Panchkula.

 

                                                                           ….Complainants

Versus

1.     Kishore Foam Agencies, SCO No.67, Sector-11, Panchkula through     its authorized signatory.

2.     Sleepwell Corporate, Sleepwell Tower #14, Sector-135, Noida,   Uttar Pradesh-201301 through its authorized signatory.

                                                                          ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President

                        Dr. Pawan Kumar Saini, Member

Dr. Sushma Garg, Member

 

 

For the Parties:   Sh. Mukesh Kumar, Advocate alongwith complainants.

                        Sh.Rajeev Gupta, Authorised Representative of OP No.1.

                        Sh. Pankaj Sharma, Authorised Representative of OP No.2.

                                         

 

                                        ORDER

(Dr.Pawan Kumar Saini, Member)

1.             Briefly stated, the facts of the case are that believing on the version of the executives of the OP No.2, the complainants purchased the mattresses comfort Cell-Series 1.0 for amounting to Rs.31500/- vide invoice no.S1DLH120/YI/1597 dated 18.03.2018. It is stated that in the month of September, 2020 the mattress bloated unexpectedly and as the said mattress was in guarantee period; hence the complainant no.1 immediately sent a mail to OP No.2 on their Customer Care mail ID on 22.09.2020 and also attached the photographs of the mattress and it further became more difficult to sleep over the said mattresses. In response to the said mail, the OP No.2 directed the complainant no.1 to send the copy of warranty card, invoice copy and house address with pincode. The mail was duly replied by the complainant No.1 with the desired documents on 25.09.2020. Thereafter, the officials of the no.2 visited the residence of the complainants and inspected the   mattress and observed the defects as “Bulging Problem in Mattress”. The said official suggested the complainants for warranty settlement and assured that the mattress will be replaced in warranty after making some payment by the complainants. Thereafter, the OP No.2 sent a letter dated 01.10.2020 whereby the OP No.2 assess the value of the manufactured defective mattress as Rs.22,050/- and directed the complainants to make additional payment of Rs.24,415/- as the product value of the same model is Rs.51,628/- but the complainants refused to make the additional payment because the product was in warranty. The complainants sent mails dated 03.10.2020, 05.10.2020 and 17.11.2020 and requested to refund the amount of the value as assessed by the OP no.2 but the OP No.2 failed to do the needful and even failed to reply the said mails. Due to the above said act and conduct on the part of the OPs, the complainants have suffered mental and physical agony, financial loss and harassment; hence, the present complaint.  

2.             Upon notice, the OP No.1 appeared through his representative and filed written statement. It is stated that OP No.1 is the seller of the mattress. They are not being a manufacturer of the mattress and do not have any rights towards the mattress guarantee/ warranty terms as the same was provided by the manufacturer. It is also stated that the procedure to register the complaint with the manufacturer is provided in the guarantee/warranty card along with the mattress. So, there is no deficiency in service and unfair trade of practice on the part of OP No.1 and prayed for dismissal of the present complaint

                Upon notice, the OP No.2 appeared through his representative and filed written statement raising preliminary objections qua complaint is not maintainable. It is stated that OP No.2 being a manufacturer provides guarantee of 1+6 year and guarantee provided with the mattress are for manufacturing defect and both the parties are well aware about it and the term and conditions associated with it. The complainant sent a mail dated 22.09.2020 to OP No.2 about the manufacturing defect in the mattress i.e. mattress bloated unexpectedly. The officials of the OP No.2 replied the said mail and inspected the mattress and observed the defects as “bulging problem in mattress”.  It is stated that as per guarantee/warranty term if there is any manufacturing defect found in the mattresses within one year, they replace the mattress and after that there is pro-rata guarantee as per the warranty terms. Once the customer registered the complaint with their customer care department, they took the appointment with the customer to evaluate the mattress and provide the report prepared by the technician to the complainant. Thereafter, the OP No.2 sent letter dated 01.10.2020 whereby the OP no.2 assess the value of the manufactured defective mattress as Rs.22,050/-(pro-rate value as per warranty terms) and directed the complainants to make the additional payment of Rs.24,415/- as the product value of the same model is Rs.51,628/- because the price of the mattress increased during the period but the complainants were not ready to pay an hefty amount of Rs.24,415/-.It is stated that as we inspected the mattress and found defective, we have provided pro-rata value as per warranty term. They adjusted the warranty value while replacing the mattress and customer has to pay the difference of current price and the warranty value. They are ready to replace the mattress within one year of time as per the terms and condition mentioned in the warranty card, as the cost of the mattress is increased. It is also stated that they inspected the mattress and inspection report was given to the complainant and also they confirmed the detail information through letter dated 01.10.2020. So, there is no deficiency in service and unfair trade of practice on the part of OP No.2 and prayed for dismissal of the present complaint

3.             To prove the case, the complainant no.1 has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-14 in evidence and closed the evidence by making a separate statement. On the other hand, the evidence of the OPs No.1 & 2 are closed by the court order dated 31.05.2022.

4.             We have heard the learned counsel for the complainants, and gone through the record available on record, minutely and carefully.

 5.            The purchase of mattresses by complainants for a sum of Rs.31,500/-vide invoice dated 18.03.2018(AnnexureC-2) is not disputed. Further, the fact that the said purchased mattresses by the complainants got defective after a period of 2 two years and six months from the purchase on account of bulging problem is also not disputed. The OP no.2, who is manufacturer of said mattresses, had denied the request of the complainant for the replacement of the defective mattresses with new mattresses on the ground that as per terms and conditions of the warranty, replacement was permissible within a period of one year only. During arguments, the authorized representative of the OP No.2, while reiterating the averments made in the written statement contended that the mattresses which had become defective after one year of the purchase, are allowed to be replaced on pro-rata basis. It is contended that the value of the defective mattresses was assessed on pro-rata basis, which was found as Rs.22,050/-. It is further contended that OPs are ready to replace the defective mattresses subject to the payment of Rs.24,415/- by the complainants. Concluding the arguments, the authorized representative has prayed for the dismissal of the complaint being baseless and meritless.

6.             The authorized representative on behalf of the OP No.1 has stated that OP No.1 is simply a seller of the product which was manufactured by OP No.2 and thus, no liability can be fastened upon it for any defect in the mattresses.

7.             Before going into merits of the case, it is pertinent to mention here that the OPs have  not adduced any documentary evidence in support of their contentions so as to negates and falsify the assertions and contentions of the complainants. It is well settled legal proposition that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

8.             Now, adverting to the merits of the case, it is found that the OP No.2 vide email(Annexure C-8) had assessed the value of the old mattresses as Rs.22,050/-. No such terms and conditions which authorized the OP No.2 to deduct the depreciation value of the old mattresses has been placed on record. Therefore, the act on the part of the OP no.2 while assessing the value of defective mattresses as Rs.22,050/- is neither correct  nor justified. It is pertinent to mention here that the mattresses in question had a warranty of 7 years, which had become defective within a period of 2 years 5 months and therefore, there was no justification on the part of the OPs to ask the complainants to make the extra payment of Rs.24,415/- for the replacement of the defective mattresses with new one.

9.             In the light of the aforesaid discussion, we conclude that OPs No.1 & 2 had been deficient while rendering services to the complainants, hence, the complainants are entitled to relief.

10.            With regard to relief, we find that the complainants have utilized the mattresses in question for about a period of 2 years and 5 months approximately and thus, depreciation @ 10% on the purchase price on account of usage of the mattresses would be just, fair and reasonable.

11.            As a sequel to above discussion, we partly allow the present complaint with the following directions:-

1. The OP No.2 is directed to refund the amount of Rs.28,350/- i.e. after making deduction @10% on the cost price of the mattresses, to the complainants along with interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization subject to return of the old mattresses to the OP No.1. It is clarified that the OP No.1 shall accept the old mattresses in question when submitted by the complainants against proper receipt/ acknowledgment.
2. The OP No.2 is further directed to pay an amount of Rs.5,000/- to the complainants on account of mental agony and harassment.
3. The OP No.1 is directed to pay an amount of Rs.5,500/- to the complainants as litigation charges.

12.        The OPs No.1 & 2 shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OPs No.1 & 2 failing which the complainants shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

Announced on:17.08.2022

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

            Member                       Member                               President

 

Note: Each and every page of this order has been duly signed by me.

 

                                  Dr. Pawan Kumar Saini,                              

                                 Member