Chandigarh

DF-I

CC/690/2022

ASHOK KUMAR - Complainant(s)

Versus

KURLON LTD. - Opp.Party(s)

ARSH AGGARWAL

01 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/690/2022
Date of Institution	:	26/07/2022
Date of Decision	:	01/02/2024

Ashok Kumar son of Sh. Mela Ram, aged about 80 years, resident of H.No.3021, Near Uttam Sweets, Sector 46, Chandigarh.

… Complainant

V E R S U S

1. Kurlon Ltd., 3^rd Floor, North Block, Manipal Centre-47, Dickenson Road, Bangalore-560042 (India).
2. Bombay Collection, SCF No.9,10, Near Local Bus Stand, Mani Maja, Chandigarh Pin 160101.

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Arsh Aggarwal, Advocate for complainant
	:	Sh. Gaurav Kant Goel, Advocate for OPs

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Ashok Kumar, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations, as projected in the consumer complaint, that on 23.11.2018, complainant had purchased mattresses from OP-2, which were manufactured by OP-1, on payment of ₹18,000/- in cash. While delivering the mattresses by OP-2 on behalf of OP-1, five years guarantee was given, which was duly signed by OP-2 in guarantee card (Annexure C-1). When the complainant used the said mattresses, it was found that the middle side of the said mattresses were pressed badly and accordingly he called OP-2 and made complaint.  On this, OP-2 had given phone number of OP-1.  The complainant called OP-1, which was attended by its representative and accordingly complaint was registered on 28.7.2020.  However, neither the representative of the OP came to redress the grievance nor replaced the defective mattresses in spite of repeated requests of the complainant.  The complainant issued legal notice dated 11.3.2021 (Annexure C-2) through counsel.  On 20.3.2021, complainant received WhatsApp message from OP-1 stating that his complaint has been reviewed and approved for replacement and the replacement is under process and executive of OP-1 will reach the complainant soon.  On 6.4.2021, complainant again requested the customercare of OP-1, but, the needful was not done. After some time, complainant received a call from representative of OP-1 that the model, which the complainant is having, is not available with the OP and the complainant can choose another model of mattresses on payment of difference of the amount i.e. ₹1,900/-.  The complainant accepted the said offer of the OP, but, again when nothing was done, he requested OP-1 through email and requested to change the mattresses and further call was received from the representative of OP-1 that the change of mattresses would cost ₹3,800/- and on 15.12.2021 complainant received a call that the difference of ₹7,000/- is to be paid for the replacement of the mattresses. As five years guarantee was given by OPs to the complainant, he was not required to pay anything.  However, the OPs have neither replaced the defective mattresses nor have refunded the amount thereof. In this manner, the aforesaid act of OPs amounts to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result. Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action and also that the complainant has not approached the Commission with clean hands. However, it is admitted that the complainant had purchased the subject mattresses from OP-2 on 23.11.2018 and he had approached the OPs in the month of July 2020.  It is further alleged that as per clause 23 of the warranty terms and conditions, in case of sagging beyond 1.5 inches in the mattresses, it has free replacement warranty during first year, but, during subsequent years, the schedule of rebate on MRP is provided in clause 23 of the warranty terms and since the complainant has approached the OPs within two years of the purchase of the subject mattresses, he was entitled to get 80% rebate on MRP of replaced mattresses and he was required to pay the difference of 20% of price of replaced mattresses. The complainant was asked on tele-call dated 25.8.2022 to pay an amount of ₹7,656/-, which he had not paid, as a result of which the mattresses could not be replaced and there is no deficiency in service or unfair trade practice on the part of the answering OPs as the complainant himself has not abided by the terms and conditions of warranty.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In replication, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant had purchased the subject mattresses from the OPs on payment of ₹18,000/-, which fact has not even been disputed by the OPs, and within two years of purchase, complainant had approached the OPs for replacement of the said mattresses and the OPs asked him to pay the difference of the MRP of the purchased and replaced mattresses to the tune of ₹7,656/-,  the case is reduced to a narrow compass as it is to be determined if the OPs are unjustified in not replacing the subject mattresses with new one or refunding the amount paid and the said act amounts to deficiency in service and unfair trade practice on their part and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the complainant himself has not paid the difference amount as per the terms and conditions of the warranty and the consumer complaint of the complainant, being not maintainable, is liable to be dismissed as is the defence of the OPs.
   2. In the backdrop of foregoing admitted and disputed facts on record, one thing is clear that entire case of parties is revolving around the guarantee card (Annexure C-1), having been proved and relied upon by complainant, and warranty card (Annexure R-1), having been relied upon by the OPs.
   3. As per the case of the complainant, OPs had given five years guarantee on the subject mattresses from the date of purchase whereas the defence of the OPs is that, in fact, only warranty of the product was given to the complainant vide Annexure R-1 through which the complainant was required to pay the difference amount, as has been tabulated in the said card and the OPs have particularly relied upon clause 23 of the warranty card, which is reproduced below for ready reference :-

"23. Please note that when you use your mattress initially, there may be a sight depression as the mattress conforms to your body shape. This is normal and in no way will it reduce your comfort level. The rebate on the MRP at the time of warranty claim is applicable as tabulator below:-

5 years	1 yr. free replacement.
	1-2 yrs = 80% rebate on MRP
	2-3 Yrs = 60% rebate on MRP
	3-4 Yrs = 40% rebate on MRP
	4-6 Yrs = 20% rebate on MRP

4. Perusal of copy of guarantee card (Annexure C-1), original of which has also been placed on record by the complainant, clearly indicates that, in fact, OPs had given five years guarantee on the subject mattresses and the guarantee card is duly signed by OP-1 at the time of sale of the subject mattresses to the complainant.  The guarantee card nowhere refers that the purchaser was required to pay the difference amount in case of any defect in the subject product, as has been mentioned in the warranty card (Annexure R-1). 
5. Moreover, when it has come on record that the warranty card (Annexure R-1) has never been given by the OPs to the complainant, rather OPs had given guarantee for five years through the guarantee card (Annexure C-1), it is safe to hold that both the parties are bound by the terms and conditions of the said guarantee card and not the warranty card (Annexure R-1), which is neither signed or stamped by the OPs nor bears the signature of the dealer or having reference of any cash memo or date of purchase.
6. As it has further come on record that the OPs have demanded an amount of ₹7,656/- from the complainant for the replacement of the mattresses, despite of the fact that five years guarantee was given to the complainant for the replacement of the product in case of any defect and even the defect in the subject mattresses has not been disputed by the OPs and still the OPs have neither replaced the subject mattresses nor have refunded the amount thereof, it is safe to hold that the said act certainly amounts to deficiency in service and unfair trade practice on the part of the OPs and the instant consumer complaint deserves to succeed.
7. So far as the quantum of amount to be awarded to the complainant is concerned, since it is an admitted case of the parties that the same model of mattresses is not available, it would not be prudent to order for replacement of the mattresses.  Hence, we are of the opinion that it would be in in the interest of justice if the OPs are ordered to refund the paid amount by the complainant for defective mattresses alongwith interest and compensation etc. for the harassment caused to the complainant.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and the OPs are directed as under :-

1. to pay ₹18,000/- to the complainant alongwith interest @ 9% per annum from the date of filing of this consumer complaint i.e. 26.7.2022 onwards.  However, the OPs shall collect the defective mattresses from the complainant at their own risk and cost.
2. to pay ₹4,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹3,000/- to the complainant as costs of litigation.

5. This order be complied with by the OPs within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

01/02/2024 hg	Sd/- [Pawanjit Singh] President
	Sd/- [Surjeet Kaur] Member
	Sd/- [Suresh Kumar Sardana] Member