Complainant a student of B.A.LLB and he is staying with his parents who intended to purchase popular types of home exercise equipment’s manufactured by op no.3 from the show room of op nos. 1 & 2.  In the first part of the month of May-2013 with a view to start a exercise routine for the parents of the complainant as per advice of the doctors and ultimately the said exercise equipment namely treadmill considering its product quality and longevity the said treadmill was purchased on 22.05.2013 by paying Rs. 36,000/- and op no.1 issued Tax Invoice to that effect being Tax Invoice No. S/094 and the said Treadmill was T-963 and after purchase, complainant asked for manual book but op no.1 assured the complainant to hand over the same after some day and also assured that the op no.1 would deliver the warranty and manual book at the house of the complainant very soon and further assured that money receipt would serve the purpose of guarantee and warranty card and being convinced by the representation of op no.1 this complainant returned home with the said treadmill and just after setup and configured the said treadmill on the very next day the said treadmill started some problems with defects and probably it was manufacturing defect and further it was observed that the front part of the machine was not working properly and the machine stopped suddenly while on motion and then and there complainant informed the said problem to op no.1 as well as customer care office of the op no,1 over telephone but it was surprising to note that in spite of repeated reporting on the part of the complainant since long the op nos. 1 & 2 did not take any positive step and did not care to give any service from the part of op nos. 1 & 2.

          After a long delay one technician of the ops came to the complainant’s house and somehow repaired the said treadmill and the music system therein for the time being and it is very much pertinent to mention here that after repairing the defects of the said treadmill the technician demanded an amount as tips and under the compelling circumstances complainant avoided complications and paid it.  But subsequently just after few days the said treadmill again created problem, technical defect and failed to function like as before and in this occasion complainant also reported the matter to customer care center and also prayed for replacing of the defective treadmill by a new one.  But ops neglected to attempt and did not render service.  But ultimately sent a person who claimed himself technician of the ops and he somehow repaired the same and again demanded tips against such repairing and as usually complainant had to pay the same.

          But even after that the said treadmill did not function and practically it is still in an idle condition and in the above situation complainant rushed to the op no.1.  with a request to replace the defective machine by a new one and also requested to handover the guarantee card of the said treadmill to op no.1 who declaimed to deliver the guarantee card in question and assured this complainant if the defect in question arise again and op would take necessary step.  But just after few days the treadmill went out of order again and the said treadmill has caused harassment and practically it is unfit to use by the parents of the complainant and for which again complainant reported the matter to ops as usually and on repeated persuasion on 22.08.2013 one technician of the op no.1 came and reported that the treadmill shall be taken by him to the workshop of the op no.1 for repairing and it was stated that the machine in question was not in a position to be repaired at the house of the complainant and accordingly it was taken away for repairing and subsequently after belated stage it was delivered and after delivery complainant was compelled to pay Rs. 700/- along with Rs. 300/- as mandatory tips which is no doubt an unfair trade practice on the part of the ops.

          But even after that the said treadmill did not function properly and created much trouble to handle and manufacturing problem was there and practically complainant suffered much for causing repeated problem in running the said treadmill.  So, complainant asked them for replacing a new one.  But ops did not pay any heed for which complainant prayed for relief and redressal by directing the ops to replace a new one and by avoiding to refund cash amount of Rs. 36,000/- to the complainant and also compensation for causing harassment and for not able to use the same since purchase.

          On the other hand op by filing written statement submitted that complainant being satisfied about the goods purchased and tested the treadmill at the time of purchase and there was no manufacturing defect or problem and as and when the treadmill was not functioning it was repaired as and when called for by the complainant.  But fact remains that the complainant exercised the product and as a result of which the handle of the said treadmill was repaired twice by the ops and in fact the complainant with most malafideintention filed this complaint and failed to produce even a scrap of paper or any detail in support of his contention as claimed and in fact they never suffered any deficiency or service on the part of the op nos. 1 & 2 and further submitted that op nos. 1 & 2 are ready and willing to replace the said treadmill to the complainant and op always asked them to take delivery of the new one but only for the purpose of getting money, this complaint is filed and it is completely a motivated are which the complainant is not entitled to get any such relief.

Decision with reasons

          On in depth study of the complaint including the written version and also the argument as advanced by the Ld. Lawyers of both the parties and further considering the receipt, it is clear that Nundy Brothers (Cycle) sold away the same to the complainant on 22.05.2013.  Truth is thatop nos. 1 & 2 did not handover the warranty card along with manual book to the complainant and that has not been denied by the op no.1 in their written version such an act on the part of the op nos. 1 & 2 is no doubt an unfair trade practice as a seller.  Further from the ops’ own admission, it is clear that op no.1 received Rs. 36,000/- in cash at the time of selling the said treadmill to the complainant and model of the treadmill is T-963.  From delivery challan it is found that it was delivered on 22.05.2013 to the complainant.  Further from the ops’ own written version, it is proved that just after purchase, complainant faced problems and op sent one after another technicians but the problem of the said treadmill was not cured for which again and again complainant rushed to the op nos. 1 & 2.  But ultimately that problem could not be solved by the op nos. 1 & 2. 

          Most interesting factor is that complainant for the purpose of his parents physical treatment by using the same by his parents purchased it but they failed to use for their daily physical checkup i.e. physical exercise and no doubt any son like complainant with high hope intended to purchase to give some health relief to the parents and for which he invested that money.  But ultimately his parents did not get any fruitful result by using the same because it was not functioning just after purchase and about repeated repairing there is no denial on the part of the op.  At the same time op has admitted in his own written version that they are willing to replace the said new treadmill in place of disputed one that means op has directly admitted that there is manufacturing defect in the said treadmill.

          Further from the allegation of the op as made in the written statement, we have gathered that they have tried to say that the user of treadmill did not properly handle and for which two handles were broken and that was repaired twice by the op.  Now question is whether the op nos. 1 & 2 after delivery of the said treadmill gave such time to train up the user of the said treadmill for one or two days or not.  But in this regard we have gathered that they did not train up the user of the said treadmill for use and at the same time it is proved beyond any manner of doubt that op nos. 1 & 2 have not yet handed over the warranty books and manual invariably for some purpose.

          Further op nos. 1 & 2 have not supplied any such documents about any manufacturing intactness in respect of the said treadmill issued by the manufacturer or by op nos. 1 & 2.  Considering all the above facts and materials and particularly from the written version of the op we are convinced that the treadmill which was purchased by the complainant on payment of Rs. 36,000/- from the op nos. 1 & 2 became useless and complainant failed to use the same properly as there was defect and that was invariably manufacturing defect from its date of delivery and one after another complainant was sent when op nos. 1 & 2 sent mechanics.  But those mechanics are worthless in nature and they did not handover any repairing receipt by maintaining what type of repair were made by them.  So, apparently the business run by the op nos. 1 & 2 is no doubt an unfair trade practice and only for the purpose of selling the goods to the customer this process has been adopted by the op nos. 1 & 2 for not handing over the consumer the warranty card and manual book and other instructions book to the customer that is no doubt a deceitful act on the part of the op nos. 1 & 2 and at the same time it is unmerchantable act on the part of the op nos. 1 & 2 and particularly in this case further introspection of the defence of the ops we are rest assured that op nos. 1 & 2 adopted unfair trade practice. Their manner of selling the article is no doubt immoral activities as merchant and that is not the practice of the seller because sellers has his liability to discharge his duty at the time of selling article to the customer but sellers liability has not been discharged and no doubt it is unmerchantable act on the part of the op for not handing over instruction book, guide book, warranty card and manual book.  At the same time op nos. 1 & 2 did not give any training in handling the said machine.  But in this regard it is to be mentioned that treadmill can be used by anyone because it can be used without any force for which it is called treadmill and it is a scientific instrument and if the instrument bears any defect from its inception, then there is no question of using the same by the old persons and it is practically invented for the use of the same by old persons without any physical exhaust and old persons can ply it.

          But in the present case it is proved beyond any manner of doubt that the said treadmill was defective in its inception and it was no doubt manufacturing defect for which ultimately op appeared before this Forum and submitted their written version wherefrom it appears that they are willing to replace it that means complainant’s allegation against the ops is well proved and practically op nos. 1 & 2 have nothing to say against the selling of the said defective treadmill to the complainant.  But at the time of argument, the complainant submitted that they are no more willing to get the said new treadmill on the ground that the production of such sort of treadmill is not befitting and it is not useable properly and many other customers are not satisfied about the same, so the complainant is claiming for refund of the same.

          Considering the dissatisfaction of the consumers, the present complainant we find any grievances of the complainant cannot be solved only by replacing if any consumer lost faith about any product after using even if the seller intends to replace it, in that case invariably consumer must be compensated by directing the seller to refund the entire amount with compensation and that shall be the positive and active order on the part of the Forum to protect the interest of the consumer and that is the theorization of the world famous Nobel Laureto Arthur Simon who has invented the theorization “satisfying” that means satisfaction of the consumer must be looked into in every respect by the seller and if it is not properly redressed by the seller in that case the protecting authority shall have to satisfy the consumer at first if the allegation against the seller is proved beyond any manner of doubt.

          Considering that theorization of Nobel Laureto Arthur Simon and present fact and circumstances we are convinced to hold that the present complaint should be redressed not by handing over a new treadmill because complainant is dissatisfied about that type of item or so.  So, in the present circumstances we are convinced to hold that the complainant should be properly compensated and redressed for his satisfaction and on the ground complainant is dissatisfied about the op nos. 1 & 2’s behavior, conduct and manner of selling the defective article knowing fully well about its defect by op nos. 1 & 2.  So, allegation as made by the complainant is proved beyond any manner of doubt for which we are convinced that complainant is entitled to get back the entire amount of Rs. 36,000/- and also some compensation in view of the fact that the said treadmill was purchased on 22.05.2013 but till filing of the complaint on 17.04.2014 complainant did not get any relief from the op nos. 1, 2 & 3.

          So, invariably he has been harassed by investing Rs. 36,000/-(price of the said treadmill) and invariably he filed this complaint to get proper relief because the purpose to give relief to his old parents for exercising daily has been frustrated.  But in place of exercising daily his parents has been suffering mental pain for not using the same that means satisfaction of the purchaser had been overlooked by the op nos. 1 & 2 and for that reason invariably some compensation should be awarded against the ops.

          Accordingly the complaint succeeds.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest with a cost of Rs. 5,000/- against the op nos.  1 & 2 and same is allowed exparte against op no.3 with a cost of Rs. 5,000/-.

          Op nos. 1, 2 & 3 jointly and severally are hereby directed to refund and pay Rs. 36,000/- (price of the said treadmill) and also shall have to pay a sum of Rs. 10,000/- as compensation for harassing and causing mental pain to the complainant and his parents and also for selling such sort of defective articles in a deceitful manner by op nos. 1, 2 & 3 and the said amount i.e. Rs. 36,000/- + Rs. 10,000/- including cost of Rs. 5,000/- i.e. total Rs. 51,000/- shall be paid by the ops jointly and severally within 15 days from the date of this order failing  which penal interest at the rate of Rs. 300/- shall be assessed till full satisfaction of the decree and if the penal interest is collected it shall be deposited by the ops to this Forum in the Account of President, DCDRF, Kolkata Unit-II.

          If ops failed to comply the order of this Forum within the stipulated time and disobey the order of this Forum, in that case penal proceeding u/s 27 of C.P. Act 1986 shall be started against the ops for which they shall be imposed further penalty and fine and even they may be sent to jail for non-compliance of the order of this Forum for which they shall be responsible.