DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.133/11
Shri Anil Arora
H.No.5N-7A
Faridabad NIT-121001. .…Complainant
VERSUS
M/s Lodhi Sports
Through its proprietor
07, Main Market Lodhi Colony
New Delhi. ….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Date of Institution: 11.04.2011
Date of Order :17.10.2022
Member: Shri U.K.Tyagi
Complainant has made a request for passing an award directing M/s Lodhi Sports (hereinafter referred to as OP) (i) to refund the cost of treadmill i.e. Rs.41,000/-; (ii) to give a brand new treadmill worth Rs.41,000/- as per his choice; (iii) to pay Rs.40,000/- towards damages, harassment and mental agony; (iv) to pay a sum of Rs.15,000/- as litigation cost etc.
Brief facts of the case are as under:-
The complainant purchased a treadmill Machine in the name of his minor son Master Ishan Arora for Rs.41,000/- on 17.04.2009 (Model No. Zilli-02718). The copy of the invoice was attached herewith as annexure CW/1. It was averred that the complainant was assured by the OP to provide prompt post-purchase services. The warranty period of the said machine was for one year from the date of purchase. It is alleged by the complainant that the packing of the said machine was badly damaged and nowhere it looked the new machine. However, the complainant objected to the OP on the said condition. He was assured that the machine was perfectly in order and the packing got damaged in godown. On this specific assurance, the said machine was accepted.
After 10 days of the purchase, the machine stopped functioning. The complainant visited the show-room of the OP and complained about it. The Staff of the OP visited and inspected the machine many a time. After several visits, the said machine was declared defective one. It was also noticed that at the time of replacement, the OP took all the packing material. It seemed that the said machine could be re-sold. It was further noticed that the replaced machine also got stopped functioning after 40 days. The complainant was of the considered opinion that OP had been selling the used/defective pieces. That is why, he got the packing material of the earlier machine back. The complainant stated that he was provided 05 warrantee coupons. The OP miserably failed in providing the service. The said machine could not be repaired properly even once. The representative of the OP came frequently but no solution could be found. The complainant stated that he was convinced that the replaced machine was again defective one which was provided to him. The copy of warranty coupon is attached herewith as Annexure CW/2 (colly).
After great persuasion, the OP agreed to send technician on chargeable basis on 23.01.2011. On checking, the complainant was told that the sensor of the machine had got defective and Rs.1500/- was given for the replacement of said sensor. No receipt for the said replacement was provided. No relief on this replacement was felt. He again represented through Mobile of Mr. Naresh Sood.
The complainant annexed the Mobile bill as Annexure-CW/3 to show that he made many abortive attempt to reach the OP but of no avail. It was contended by the complainant that said machine got non-functional in the warranty period itself. There was deficiency in service on the part of OP. Hence the complaint.
OP, on the other hand, filed written statement interalia raising some preliminary objections that (i) The complaint should have been filed in the name of Master Ishan Arora, as said treadmill was purchased by Ishan himself. Therefore, the complaint is liable to be rejected and the said complaint is bad for mis-joinder of the necessary party.
(ii) Shri Anil Arora has no locus standi in this complaint.
(iii) No Cause of action arose against OP and hence need to be rejected under order 7 Rule 11 CPC.
(iv) The instant complaint is hopelessly barred by limitation.
The complainant’s allegations with respect to used-machine was baseless as one can identify easily by the bare look that whether the treadmill is used one or fresh one. He could easily rejected the purchase but since it was a new piece, hence no force in his argument for the used one is established. If at all, the said treadmill was defective piece then the complainant should have impleaded the manufacturer as necessary party. The Lodi Sports is only a selling agent and provides after sale – service. Nothing more should be construed from the sale of particular machine. The present complaint is not liable because it is filed against wrong person.
Both the parties have filed written submissions and evidence in affidavit. Written statement is on record so is rejoinder. Oral arguments were heard and concluded.
This Commission has gone into the material placed on record. Due consideration was given to oral argument. As has been spell out that the treadmill was purchased on 17.04.2009 for Rs.41,000/- in the name of minor son, Master Ishan Arora. The OP has assailed vide its reply that Shri Anil Arora has no locus standi but he had not laid any evidence to show that Mr. Ishan Arora is a Major. Bald averment has no force as maintained by OP. Hence, the objection of the complainant does not sustain. It is also noted with care that said treadmill was got replaced in the first instance when it was reported first time that the machine did not give satisfactory result. The complainant again raised the issue of replacement in Jan, 2011 but, it may be noted that the machine had already surpassed its warranty period. Therefore, it was maintained by the OP that replacement of any part, at this stage, could not be considered. So he rightly charged for the replacement of sensor part. It was exhorted by the complainant that the machine again turned defective. So he kept contacting the representative of the Lodhi Sports. He made several calls from mobile which remained unanswered. He enclosed the copy of mobile bill to buttress his point that the complainant kept reminding about the non-functioning of the machine.
It was only when the treadmill was not kept properly. It is also further apt to mention here that the complainant should understand that the machine which have out-run its warranty period, the same cannot be replaced. If any part of treadmill gets defective during the warranty period the same can be replaced. Warranty does not mean the replacement of machine. The complainant has to understand the difference between warranty and guarantee. At the stage of Jan, 2011, enough period i.e. more than one year had passed, the warranty period had also elapsed. Therefore, the machine cannot be replaced. Any replacement of any part beyond warranty period shall be reckoned against charge. The complainant cannot be kept harping on replacement after the warranty period of one year. In view of the above, the OP contested that he cannot be held for deficiency in service.
It is further contended by the OP that when the complainant brought to his notice about the same defect, the said machine was got replaced within the period of 10 days of the purchase. Again after the considerable time, the complaint was received against the replaced piece of machine. Since the complaint was within the warranty period, the same defects were got repaired within time. It was only in June 2011 when, it was found that the sensor of the treadmill was got out of order, the same was replaced against the charge. No resolution was provided by the OP in time. Overall, complainant got an impression that the machine in question was a used one, therefore, it needs to be replaced by the OP at his own cost. It is also seen that no substantive proof was adduced by the complainant that the treadmill under reference was a used one. In the absence of the substantive evidence, the bald averments cannot be relied upon. From the very beginning, the complainant had been complaining about the non-functioning but no such proof was filed. Although, OP might have been attending his call many a time but most of time, as maintained by complainant, the representatives of OP did not respond, so, he enclosed the copy of mobile bill to show his frequent call made to representative of OP.
In the nutshell, after considering the facts and circumstances in the case, this Commission is of the considered view that the complainant had experienced some problem in the treadmill under reference but the same was attended to as well during the warranty period. The earlier treadmill also got replaced when it was realized by OP that there may be inherent defect. But complainant had not filed any expert opinion with respect to 2nd treadmill being defective and it was beyond the warranty period as well so that it could not have been replaced. Considering the facts and circumstances of the case, the complainant could not prove his case. Hence the complaint fails and request made therein is rejected.
No orders as to costs.
File be consigned to the record room after giving copy of the order to the parties as per rules.
