MRS. MANJUSRI SARKAR CHOWDHURY MEMBER This is a complaint u/s 35 of the CP Act, 2019 made by Mr. Md. Ali Azad alleging unfair trade practice and deficiency in service on the part of the OPs i.e. M/s Jagannath Bastralaya (OP No.1), M/s Kurl -on Ltd. (OP No.2) and Kurl – on Enterprise Limited. (OP No.3) and accordingly prays for a direction upon the OPs to replace the defective mattress with same model or alternatively to refund the entire consideration of Rs.9,000/- along with 10% interest, to pay compensation of Rs.40,000/- along with litigation cost of Rs.30,000/-. THE COMPLAINT IN BRIEF The Complainant purchased one Orthopedic Kurl-on mattress for his old aged ailing mother for Rs.9,000/- from OP No.1 on 10.06.2020. After a few days of purchase, Complainant found that the mattress was causing extreme discomfort to her old aged mother instead of giving comfort for which she started having back pain. The Complainant himself found that the mattress was not in good condition as it was not properly stitched for which a portion of it came off which is unsafe for the human body. The Complainant immediately made a complaint about the same to OP No.3 on 27.07.2020 against which a complaint ID No.1860348 was docketed. Thereafter, Complainant sent written correspondence through email and Whats App with the request to the OPs to take necessary steps for the replacement of the said mattress in question. But the same was still not replaced by the OPs except for verbal assurances as alleged. The Complainant even approached OP No.1 and requested to visit the Complainant’s house for inspection of the mattress. But OP No.1 did not pay any heed to the request although the distance between the Complainant’s residence and the shop of OP No.1 is within 1 k.m. As stated in the petition of complaint, the Complainant even sent receipt, photos of the damaged mattress and guarantee tag to the retailer and the manufacturers. But the abovesaid complaint docket no.1860348 was closed without the disputes of the Complainant being resolved. Finally, the Complainant had to send legal notice to the OP No.1 & 2 on 23.09.2020 and OP No.3 on 25.09.2020 with the request to replace the said mattress within 30 days to which OPs failed and neglected to replace the said mattress, citing the reasons of Covid. Thus, having suffered with mental agony and harassment, Complainant filed the instant case before this Commission, seeking reliefs as discussed above. Notices were served upon the OPs. OPs contested this case by filing written version. But, thereafter OP No.1 appeared and filed separate written version. OP No.1, in their written version has stated, inter alia, that the sagging of the mattress was communicated to the Complainant prior to the purchase of the mattress and the Complainant had also verified the terms of warranty before purchasing. It is also averred by OP No.1 that they have not received any complaint from the Complainant. On the contrary, they have stated that due to monetary benefits without any factual ground, the Complainant filed this case. In the end, OP No.1 had denied all the disputes as alleged by the Complainant and prayed for dismissal of the instant case. OP No.2 & 3, in their written version have stated, inter alia, that the Complainant had never sent proper sagging measurement and tax invoice for which the OPs could not proceed for the replacement as mentioned in their warranty card. It is also stated that they tried to contact the Complainant after the filing of this case. But, the Complainant did not receive their calls even after repeated calls from their end. It is also averred in their written version that the Complainant was also aware of the terms of warranty prior to the purchase of this mattress. So, they have denied all the allegations and disputes raised against them and prayed for dismissal of the complaint. Complainant and the OPs adduced their evidences and questionnaires and the replies thereto. Separate Brief Notes of Arguments are filed by the Complainant, OP No.1 and OP No.2 & 3. POINT FOR CONSIDERATION - Whether the complainant is entitled to get relief (s) as prayed for in this case?
FINDINGS The Annexure -A produced by the complainant is found to be a receipt dated 10.06.2020 being no.572 of Jagannath Bastralaya (OP No.1) issued in the name of the complainant for purchasing of a mattress measuring about 72`` X 84`` X 4`` made of pure coir and the price shown is Rs.9,000/-. Though this paper shows payment of Rs.5,000/-, out of Rs.9,000/- and Rs.4,000/- remaining due. However, there is no case of the opposite parties that the balance of Rs.4,000/- of the said price of the mattress was not paid before the item was taken delivery by the complainant. The main defect as per the complainant is found to be the sagging issue of the mattress and it suffered from manufacturing defect. Also said that the outer cover was not properly stitched and a portion of it came off. So, complainant complained through email and Whats App messages and requested for replacing the said damaged mattress. He on being asked also sent the receipt and photographs of the damaged mattress and also the tag of the warranty attached with the mattress. But, nothing was done by the opposite parties and his complaint was closed. So, he filed this instant complaint. The main contentions of the opposite parties are that the proper tax invoice and sagging measurement were not sent to them for further inspection and no other document was also produced to check the authenticity and the genuineness of the individual and the product. During his reply to the query of the opposite parties, the complainant is found to have claimed that he was not given any separate warranty card at the time of purchase and the same is said to be attached with the mattress which is sufficient to claim a warranty. The complainant produced several communications with the opposite parties and one of such communications is dated 20.07.2020 which is addressed to the complainant from the Kurl On company informing him that technician would call him shortly for product inspection. From this, it is clear that the company was satisfied prima facie with the documents filed by the complainant. However, nothing was done thereby compelling the complainant to seek redressal knocking at the door of this Commission. Therefore, on going through the materials on record, we are of the view that the complainant should get relief(s) in this case. A direction is required to be issued upon the opposite parties to replace the said mattress with a new one of the same specification or to refund the price of Rs.9,000/- with interest of 9% p.a. and pay compensation for Rs.2,000/- and the litigation cost of Rs.2,000/-. Accordingly, it is ORDERED That the instant case be and the same is allowed on contest against opposite parties. Opposite parties are directed to replace the said mattress bought by the complainant vide invoice no. 572 dated 10.06.2020 issued by opposite party no.1 along with compensation of Rs.2,000/- (Rupees Two Thousand Only) to the complainant. OR, alternatively to refund the price of Rs.9000/- (Rupees Nine Thousand Only) with simple interest @ 9 % p.a. from the date of filing of this case. Opposite parties are also directed to pay cost of litigation of Rs.2000/- (Rupees Two Thousand Only) to the complainant. Opposite parties are directed to comply with this order within 30 days from the date of this order failing which, complainant shall be at liberty to realize the same in accordance with law. Dictated and corrected by me | 
