PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 28th day of November 2011
Filed on 12/09/2011:
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No. 486/2011
Between
Baby V.K., : Complainant
Valayakattu house, (Adv. Tom Joseph, Court road,
Karimpana P.O., Muvattupuzha)
Koothattukulam-686 662.
And
M/s. R.P. Telebuy Skyshop Pvt. Ltd., : Opposite party
No. 44/1136, C18, C19, (absent)
1st floor, Chammany Towers,
No. 89/1, Kaloor Junction,
Ernakulam-682 017.
O R D E R
Paul Gomez, Member.
The factual matrix
On 27-01-2011 complainant purchased a machine for body building at a price of Rs. 10,495/-. The machine went out of order within a few days of purchase. When reported to the opposite party, it was repaired. But after some time the same complaint resurfaced. Now the machine is completely out of order. The advertisements inserted in the television channels are misleading in as much as the machine cannot be used to reduce waist line or control fat deposit as promised in the above advertisements. Hence the relief sought in the complaint is refund of price, compensation and costs of the proceedings.
2. The opposite party preferred to be in absentia despite service of notice.
3. No oral evidence for complainant. Exts. A1 and A2 marked on her side. No appearance on behalf of the opposite party. Complainant was heard.
4. The following points are to be settled
i. Whether the machine suffers from manufacturing defect?
ii. Whether there was unfair trade practice on the part of the opposite party?
iii. What are the reliefs in case points i & ii are decided in favour of complainant?
5. Point Nos. i&ii. At the focal point of the controversy lies a body building machinery. The same was purchased by the complainant from opposite party’s shop. Ext. A1 Retail invoice stands testimony to the fact of purchase and the price of the commodity. When the machine went out of order, initially it was repaired by the technicians of the company. When the machine again went out of order, the complainant lost his faith in the equipment and he sent a notice to opposite party for which no reply was forth coming. That is how he filed the present complaint. In the complaint there is allegation regarding unfair trade practice because according to the complainant the advertisements published in the T.V channels do not correspond with the actual working of the machine. The machine failed to reduce the measurements of the waist as well as to reduce cholesterol. There is no material evidence to prove the allegations. But the abstention of the opposite party in spite of notice being duly served shows the lukewarm approach to the correct issued raised in the complaint. Since the allegations remain uncontroverted by the opposite party, we are constrained to accept the arguments raised by the complaint. The lawyer notice caused by the complainant prima facie corroborate the allegation to a very great extent. In that view of the matter, the contentions of complainant stands sustained in the absence of valid rebuttal.
6. Point No. iii. The only question that remains to be answered is the reliefs that can be granted. The allegation raised in the complaint is that the machine became out of use immediately after the purchase. The repairment proved to be of no avail because it once again become defunct and she had lost her confidence in the product. In that view replacement is not a sound suggestion. Therefore the only relief that can be granted is the refund of the price of the machine. Since the machine was under use at least for some time we are not allowing any interest at this stage. But, the disappointment of the complainant is quite imaginable in such circumstance. As a recompense we allow Rs. 2,000/- towards mental agony and physical suffering undergone by the complainant. The opposite party has not cared to tender a reply to the lawyer notice even. That has ultimately brought the complainant to this Forum. Hence complainant is entitled for costs of the proceedings.
7. In a nutshell, we allow the complaint as follows:
i. Opposite party shall refund Rs. 10,495/- to the complainant.
ii. Opposite party shall pay Rs. 2,000/- towards compensation
for mental agony undergone by the complainant.
iii. Opposite party shall also pay Rs. 1,000/- towards costs of
the proceedings.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order failing which the aforesaid sums shall carry interest @ 9% p.a. from the date of receipt of this order till realization.
Pronounced in the open Forum on this the 28th day of November 2011
Sd/- Paul Gomez, Member.
Sd/- A Rajesh, President.
Sd/-C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
