DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BATHINDA

CC No. 188 of 26-7-2019

Decided on : 12-4-2023

Anil Kumar S/o Shri Gugan Ram, aged about 46 years, R/o H. No.17, Wadhwar Colony, Gidderbaha, District Muktsar (Punjab), being natural guardian of Master Raghav Garg (Minor).

​........Complainant

Versus

1. M/s Sri Sai Audio Vision, through its Sole Prop./Partner, Mr. Gagandeep Galhotra, Opposite Street No.10-B, Main Ajit Road, Bathinda (Punjab).

2. M/s Starkey Laboratories (India) Private Limited, (Starkey Hearing Technologies), through its Managing Director, Plot No.C-2, Sector 7, Noida, Uttar Pardesh -201301.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM:-

Sh.Lalit Mohan Dogra, President

Sh. Shivdev Singh, Member

Present:-

For the complainant : Sh. M.K. Garg, Advocate.

For opposite parties : Sh. K.K. Gargi, for OP No.1

Sh. Vinod Garg, for OP No.2

ORDER

Lalit Mohan Dogra, President:-

1. The complainant Anil Kumar (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against M/s Sri Sai Audio Vision and another (here-in-after referred to as opposite parties).

2. Briefly stated the case of the complainant is that he purchased one pair of Digital Hearing Aids (Brand: STARKEY Model: MUSE 1Q i2400) bearing Serial No.R-180759256 and L-180759251 for his minor son, namely, Raghav Garg on 27.05.2018 for a sum of Rs.97,998/- from opposite party No.1, who claims to be authorised dealer of opposite party No.2, manufacturer of Digital Hearing Aids in question. The complainant paid the entire amount in cash against Hearing Aid Instrument Purchase Agreement No.913 dated 27.05.2018 and the said Purchase Agreement was signed by the complainant. At the time of purchase of the said Hearing Aids, it was assured by opposite party No.1 that the said Hearing Aids are one of the best quality and branded Hearing Aids and the same were provided to the complainant for his minor son, Master Raghav Garg, after having Audiometric Test. It was also assured that the said Hearing Aids are having warranty and guarantee of 24 months with extended warranty of additional six months. It was also assured that in case the said Hearing Aid would not work properly, then the same shall be taken back and will be replaced with new hearing aids in lieu thereof.

3. It is alleged that at the time of purchase of the said Hearing Aids, opposite party No.1 had not issued invoice to the complainant but issued Warranty Card. After purchase of the Hearing Aids, Raghav Garg had started using the same with due care and as per the instructions given in the manual supplied with the hearing aids, as he is having 100% disability for both the ears i.e. Sensory Neuval Deafness and it is impossible for him to hear without use of Hearing Aids. From the day one, the minor son of the complainant was not able to hear properly by using the said Hearing Aids and was making complaint regularly regarding disturbance and noise. The complainant used to approach opposite party No.1 regularly from June, 2018 onwards with the complaint that his son is not able to hear properly by using the said Hearing Aids and there is disturbance and noise. opposite party No.1 had always assured the complainant that it will take time to have proper frequency level with the passage of time and its use and once or twice, the settings were also adjusted by opposite party No.1. It is now learnt that opposite party No.1 is not competent to conduct Audiometry Test and is not having requisite qualifications for the same and is not a qualified Audiologist and opposite party No.1 is not having proper lab equipped with necessary gadgets for conducting Audiometry Test as per Guidelines issued by the Rehabilitation Council of India.

4. It is alleged that the minor son of the complainant, inspite of using the said Hearing Aids continuously for about five months, was not able to hear properly in his day-to-day routine work. Ultimately, in the last week of October 2018, opposite party No.1 had assured the complainant that the said Hearing Aids will be got replaced from. opposite party No.2 and trusting upon assurances given by opposite party No.1, the complainant handed over both Hearing Aids to opposite party No.1 for replacement. Thereafter, the complainant kept on regularly visitting opposite party No.1 for getting the new Hearing Aids, but on 25.11.2018, opposite party No.1 returned the said Hearing Aids to the complainant with the assurance that the said Hearing Aids has been got adjusted with its new frequency level by opposite party No.2 and now, the said Hearing Aids would not create any problem and the hearing would be normal, after its use without any disturbance and noise. The complainant alleged that trusting the assurances given by opposite party No.1, the complainant took the delivery of said Hearing Aids for the use of his son and after great persuasions, opposite party No.1 issued Cash Memo/Bill No.102 dated 25.11.2018 for Rs.97,998/- to the complainant.

5. It is further alleged that again, the said Hearing Aids were not working properly and there was continuous disturbance and noise. The complainant again approached opposite party No.1 on 2-3 occasions with the said complaint. Ultimately, on 13.12.2018, opposite party No.1 again took back the said Hearing Aids with the assurance that the Hearing Aids would be got replaced with new Hearing Aids from opposite party No.2, as the same are within warranty. opposite party No.1 had issued Receipt No.497 dated 13.12.2018 to the complainant at the time of taking back the said Hearing Aids. The complainant visited opposite party No.1 on numerous occasions for replacement of the Hearing Aids from 22.12.2018 onwards till 1st week of April 2019, but opposite party No.1 had failed to get the Hearing Aids replaced and was making one or the other excuses without any jurisdiction and valid reasons.

6. It is further alleged that since, the minor son of the complainant cannot hear without use of hearing aids, as such, he again started using his old Hearing Aids and was facing hardships in hearing in his day-to-day activities. The old Hearing Aids were not working properly, as such, the complainant after waiting for sufficient time had purchased new Hearing Aids from Ws. Amplifon (India) Private Limited.

7. It has been alleged that complainant got served legal notice upon the opposite parties and opposite party No.2 sent reply of notice and has taken stand in its reply that the Hearing Aids were replaced though the serial number was remained same, when it was given for repair/service on 30.10.2018. The stand taken by opposite party No.2 is totally false, as the Hearing Aids were never replaced, but the same were only returned after repair and adjustment.

8. It is also alleged that opposite party No.2 in its reply dated 16.05.2019 has also stated that for the second time, the Hearing Aids were received for repair/service on 17.12.2018 through opposite party No.1 and the same were replaced with new Hearing Aids bearing new serial numbers i.e. 180759251 becoming 180869475 and 180759256 becoming 180889229 respectively. The said stand taken by opposite party No.2 is totally false and purely afterthought concocted after the receipt of the legal notice dated 22.04.2019. opposite party No.1 had never apprised the complainant about replacement of the Hearing Aids by opposite party No.2 and on the contrary, the complainant had visited opposite party No.1 on numerous occasions for replacement of the Hearing Aids from 22.12.2018 onwards till 1st week of April 2019, but opposite party No.1 had failed to get the Hearing Aids replaced and delivered the complainant and was making one or the other excuse without any justification and valid reasons.

9. It is also alleged that opposite party No.2, on one side, is claiming that the Hearing Aids were replaced with new Hearing Aids and on the other side, opposite party No.2 has offered for refund of the cost of Hearing Aids after deduction of 25% of the cost price, which, itself, proves that the stand taken by opposite party No.2 in reply dated 16.05.2019 is totally false and pure outcome of malafide intentions. The new Hearing Aids, which were purchased from M/s. Amplifon (India) Private Limited, vide Receipt No.838344 dated 16.04.2019, were also not compatible with the frequency level, which was required for the minor son of the complainant and as such, the same were taken back by the said Company after 4-5 days trial and refunded the entire amount paid by the complainant. The complainant, thereafter, had purchased new Hearing Aids from M/s. Clear Sound Hearing & Speech Clinic, New Delhi, vide Invoice No.MN/057/19-20 dated 26.04.2019. The said Hearing Aid is properly working and is compatible with the frequency level, which is required by the son of the complainant for hearing aid.

10. It is further alleged that the complainant and his son were subjected to mental agony and harassment due to act and conduct of opposite parties for which he claims compensation to the tune of Rs. 50,000/-. The opposite parties have also violated the Guidelines issued by the Rehabilitation Council of India and OP No.1 without having requisite qualifications of the Audiologist and without having Testing Lab for Audiometry Test, has illegally sold Hearing Aids to the complainant. Thus, opposite parties are also liable to pay compensation for misguiding the complainant.

11. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to refund Rs.97,998/- with interest @ 18% p.a. w.e.f. 27.5.2018 till realization and pay compensation to the tune of Rs.1,00,000/- on account of unfair trade practices, malpractices, damages, mental agony/torture and physical harassment besides Rs.33,000/- as litigation expenses.

12. Upon notice, the opposite parties put an appearance through counsel and contested the complaint by filing separate written reply. The opposite party No. 1 in its written reply raised legal objections that complainant is not a consumer; he has no cause of action and no locus standi to file the present complaint; complaint is not maintainable; complaint involves intricate and complicate question of law and facts, which cannot be decided in summary proceedings in this Commission and that the complainant has not come to this Commission with clean hands and concealed the material and true facts.

13. It has been pleaded that hearing aid earlier purchased by the complainant was replaced with new hearing aids free of cost twice and the complainant even used the second time replaced hearing aids for about one month and did not make any complaint during this period of one month and all of a sudden, he returned the said replaced and used hearing aids claiming the cost of the hearing aids. The complainant has filed this false, frivolous and vexatious complaint.

14. On merits, opposite party No.1 has pleaded that no audiometric test was performed, before selling the hearing aids by it. The complainant was fully conversant with the hearing aids and the manufacturing companies of the hearing aids, as his son was using the hearing aid for the last sufficient long time and complainant demanding hearing aids manufactured by the Starkey Company. The opposite party No. 1 admitted that hearing aids were purchased by the complainant and there was extended warranty of four years.

15. It has been pleaded that Purchase Agreement No.913 dated 27 05 2018 was entered into and supplied to the complainant at the time of purchase of the hearing aids. It was also specifically clarified to the complainant that the money paid could be refunded only within a period of two weeks from the date of supply and not thereafter and a specific note in this regard has also been mentioned in the said agreement. Warranty card was also issued. No copy of any disability certificate allegedly issued on 15 -04-2015 was ever produced before opposite party before purchasing the hearing aids. The complainant was made well aware of the fact that the purchased hearing aids is meant for those who have severe hearing loss.

16. The opposite party No. 1 has pleaded that he is namely Gagandeep is qualified diploma Holder in hearing Language and Speech (DHLS) from Ali Zabar Jung National Institute for the Hearing Handicapped Bandra Raclamation, Bandra (in) Mumbai (RCI Regd.). The complainant for the first time complained about the hearing aids on 30-10-2018 and the hearing aids were replaced vide Tax Invoice dated 05-11-2018 of opposite party No.2, free of cost after getting from the opposite party No.2. Afterwards complainant got issued bill dated 25-11-2018 of the replaced new hearing aids from opposite party No. 1.

17. The opposite party No. 1 admitted that Cash Memo/Bill No.102 dated 25-11-2018 for Rs.97,998/- was issued and that the replaced hearing aids were brought back by the complainant only on 13-12-2018 for the first time vide receipt No.497 dated 13-12-2018 and the same were again got replaced with new hearing aids vide Tax Invoice dated 18-12-2018 of opposite party No.2, free of cost after getting from the opposite party No.2 by the opposite party No.1 In the end, the opposite party No. 1 prayed for dismissal of complaint.

18. The opposite party No. 2 in its separate written reply raised preliminary objections that complaint is wholly misconceived, false, fabricated, groundless, frivolous and vexatious and that no specific, scientific and justified allegations with regard to deficiency in providing services or unfair trade practice has been made by the complainant against opposite party No.2.

19. It has been pleaded that opposite party No. 2 is a global leader in manufacturing and delivering advanced hearing solutions, audiological equipment and hearing aids on accounts of millions of satisfied customers across the globe. The complainant did purchase one pair of Digital Hearing Aid of Brand: Starkey, Model: MUSE iQ 12400 BTE, bearing Serial No. R-1843759256 and L-180759251 from opposite party No.1. Warranty of four years extending from 27.05.2018 to 22.05.2022 was also provided to the complainant.

20. It has also been pleaded that the Hearing Aids were first received by opposite party No. 2 on 30.10.2018, from opposite party No. 1. Upon a thorough examination of the Hearing Aids, complete replacement of both the Hearing Aids were done by opposite party No. 2, free of cost. Hearing Aids were again received by opposite party No.2 on 17.12.2018 and thereafter again a complete replacement of the Hearing Aids, free of cost, was done the very next day, bearing new serial numbers namely 180759251 becoming 180869475 and 180759256 becoming 180889229 respectively.

21. The opposite party No. 2 further pleaded that complainant availed the replaced Hearing Aids bearing new serial numbers from the opposite party No. 1 and after using the Hearing Aids satisfactorily for a period of almost 30 days, the complainant returned the Hearing Aids to opposite party No.1, seeking a complete refund for the Hearing Aids. The said request was denied as it was not in consonance with the Company policies of opposite party No. 2. Despite having changed the Hearing Aids by opposite party No. 2, the complainant, sent a Legal Notice dated 22/04/2019 to it wrongly and mischievously demanding refund for the amount paid against the Hearing Aids. Upon receiving the Legal Notice dated 22/04/2019, the opposite party No. 2 requested the complainant to send the Hearing Aids to the company for inspection. Making customer satisfaction a priority, the complainant also offered to conduct an audiogram of the complainant's son and repair/replace the Hearing Aids accordingly. The opposite party No. 2 also offered to refund the total cost of the Hearing Aids after deduction of 25% of the total cost towards restocking charges.

22. The opposite party No. 2 has also pleaded that opposite party No. 2 not only replaced the said Hearing Aids with new ones in two separate occasions, but also offered to look into any complaints that the complainant's son may have been experiencing along with audiogram of the patient, notwithstanding the fact that no manufacturing defects or deficiencies were found in the Hearing Aids. Due to non-acceptance of the request made by opposite party No. 2 to send the Hearing Aids back for any further inspection, the opposite party No. 2 could not service the said Hearing Aids in alliance with the audiometry results of the patient and hence, no liability whatsoever can be attributed upon opposite party No 2. The opposite party No. 2 was liable to repair and replace the hearing Aids under the warranty period of four years and the opposite party No.2 has never failed to do the same, infact it is the complainant who is responsible as he is the one who close not to send the Hearing Aids to opposite party No.2 or get an audiogram done to his son for a through examination, inspite of being offered the same.

23. On merits, the opposite party No. 2 has pleaded that hearing disability may have a lot of causes and there are instances where the inability to hear with the help of hearing aid is not because of the hearing aid per se, but because of some other cause which can be detected and diagnosed by an audiologist. In this case, in both the instances. the Hearing Aids have been sent to opposite party No.2, despite having found no manufacturing defect in the Hearing Aids, after a thorough examination, opposite party No 2 has issued new Hearing Aids. This was done out of their good intent to provide customer satisfaction during the warranty. Even after receiving the Legal Notice, the opposite party No.2 had offered a refund of 75% of the invoice amount, as per the company policy, and a test by the audiologist on the expense of opposite party No. 2 Thorough check-up and an audiogram would have helped the opposite party No. 2 in figuring out the issue being faced by the patient and would have helped them suggest the appropriate Hearing Aid to the Complainant. Since the device provided by opposite party No. 2 had no defect whatsoever, it was the complainant who deferred the above mentioned offers to resolve the issue. After controverting all other averments of the complainant, the opposite party No. 2 also prayed for dismissal of complaint.

24. In support of his complaint, the complainant has tendered into evidence his affidavit dated 26.7.2019 (Ex. C-1) and documents (Ex.C-2 to Ex.C-14).

25. In order to rebut the evidence of complainant, opposite parties No. 1 tendered into evidence affidavit dated 1-10-2019 of Gagandeep Galhora (Ex. OP-1/1) and photocopy of detailed marks (Ex. OP-1/2)

26. The opposite party No. 2 tendered into evidence affidavit of Anauradha Hazra dated 26-9-2019 (Ex. OP-2/6) and the documents Ex. OP-2/1 to Ex. OP-2/6).

27. We have heard learned counsel for the parties and gone through the record.

28. The learned counsel for the parties have reiterated their stand as taken in their respective pleadings and detailed above.

29. To prove his case, counsel for the complainant has placed on record Hearing Instrument Purchase Agreement (Ex. C-2), Warranty Card (Ex. C-3), Disability Certificate (Ex. C-4), as per which son of complainant is 100% disabled having Sensory Neural Deafness. The main grouse of the complainant is that his son is a minor and the hearing aids purchased by the complainant failed to provide satisfactory services and when the complaint was lodged with the opposite parties, the opposite parties replaced the same within warranty. However, on perusal of said replaced hearing aids, it was found that the same were not replaced rather it was the same set of hearing aids bearing same serial number. It is further case of the complainant that inspite of having spent huge amount of Rs. 97,998/-, son of the complainant was unable to have any benefit of said hearing aids and under compelled circumstances, complainant purchased another hearing aids from another company vide Ex. C-7 to Ex. C-10 of 'amplifon Company' and the said hearing aids purchased by the complainant is giving satisfactory service and there was manufacturing defect in the hearing aids provided by the opposite parties.

30. A perusal of record shows that the opposite parties nowhere denied that Serial Number of allegedly replaced hearing aids was different meaning thereby that they admitted that both the hearing aids were having same serial number which shows that it was never replaced by the opposite parties. The only contention of the opposite parties is that the hearing aids sold by the opposite parties was of best quality but in the opinion of this Commission , submission of such argument is not sufficient as the services assured in respect of product has to be seen while giving relief and since the son of the complainant suffered some disturbance while using hearing aids sold by the opposite parties and failure and refusal to replace the same and refund the amount, itself amounts to deficiency in service and business malpractice. This Commission is of the view that since hearing aids was to be used by completely deaf and dumb child who is 100% disabled as per disability certificate, the opposite parties should had voluntarily offered the refund of 100% of amount received from the complainant instead of 75% of amount as offered by them. Since the complainant was compelled to purchase new hearing aids vide Ex. C-7 to Ex. C-10 and hearing aids sold by the opposite parties was of no use to the complainant and opposite parties failed to refund the amount, accordingly, complainant has fully established the deficiency in service on the part of the opposite parties.

31. In view of what has been discussed above, this complaint is partly allowed and the opposite parties are directed to refund the amount of Rs. 97,998/- to the complainant alongwith interest @9% p.a. from the date of filing of complaint till realization. The opposite parties are also directed to pay Rs. 5,000/- as consolidated compensation on account of mental tension, agony, harassment and cost of litigation.

32. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

33. The complaint could not be decided within the statutory period due to heavy pendency of cases.

34. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room.

    Announced :

    12-04-2023 ( Lalit Mohan Dogra)

    President

(Shivdev Singh)

Member