This is an application u/s.12 of the C.P. Act, 1986.

          The case of the complainant is that he purchased a water filter vide invoice cum receipt no.1285 dated 02-07-2007 on payment of Rs.7,995/- from M/s. Akash Enterprises and had an Annual Maintenance Contract (AMC) No.1281 dated 02-11-2010 to 01-11-2012 on payment of Rs.1,988/- for his Usha Brita Make Digital Water Filter with the OP, M/s. Techno of 7, West Row, Kolkata – 700 017, service franchise of M/s. Usha Shriram Enterprises.

          The specific case of the complainant is that on 27-11-2012 he made a complaint No.BAG 153 with the OP for repair of his defective Water Filter.  Fact remains a Service Engineer was deputed by the OP2 on September, 2012 who visited and inspected the defective water filter and took the defective circuit board of the water filter for repair.  But till 30-10-2012 no repair work was done from the side of the OP in spite of daily phone calls and thus he had to suffer and also spent Rs.2,560/- @Rs.40/- per day for purchasing mineral water from the open market.  Finding it difficult to get back the water filter after repairs the complainant gave up all hope of receiving service from the OP and ultimately bought a new digital water filter from M/s. Sangeeta Sale Emporium (P) Ltd. for Rs.7,850/- vide Invoice No.565 dated the complainant stated that he was forced to replace his old water filter due to lack of proper service from the OP though he had a valid annual maintenance contract during that period.  In spite of several persuasions and phone calls before the OPs who did not deliver the water filter after repairs, but ultimately at all they neither delivered the water filter after repairs work nor attended the phone calls.  So, the complainant suffered from mental agony and finding no other alternative he filed on line complaint before the office of the Assistant Director, Consumer Affairs & Fair Business Practices, Kolkata (South), wherein a date was fixed on 30-11-2012 for hearing the matter, but the OP did not appear, so the complainant approached before the Ld. Forum for redressal of his case.

          Fact remains that summon was sent by Regal Post with A/D/Speed Post upon the OP1 which was served but refused by the OP 1 what is evident as good service and as such the present complaint is heard ex parte against the OP1.

          In its written version the OP2 has stated that the AMC was executed by the complainant and with the OP/M/s. Techno the OP1 as the water purifier was defective and was not in working condition and the said AMC was taken to avoid the payment by the complainant for the items/products i.e. cartridges and the PCB of the said water purifier which is a consumable items.  In its submission the OP2 stated that the Annual Maintenance Contract covers only those areas which are stipulated under the warranty policy of the company and there is no manufacturing defects in the said machine in question and also might be out of the purview of the AMC thus the complainant with the mala fide intention wants to get wrongful gain from them.  Further it is also stated that the OP2 is neither a necessary party nor a proper party in this case as there is no allegation in the complaint against them and no cause of action ever arose against them.

          It is further vehemently denied also that on 27-08-2012 the complainant made a compliant to them for repair of the said water filter in question and any service engineer was deputed by them to filter in question and had taken the defective circuit board of the said water filter for repair and the complainant also spent Rs.2,560/- @Rs.40/- per day till 30-10-2012 for purchasing of mineral water from the market.  As there was no receipt /cash memo which is filed in the record by the complainant in its support.

          In this case the OP2 is not proper party in this complaint as there is no allegation in this regard against them and no cause of action ever arose and also stated that the Ld. Forum does not have the territorial and pecuniary jurisdiction to entertain the above case.

Decision with Reasons

In fact, in this case relying upon the fact as disclosed in the complaint and unchallenged testimony of the complainant and also considering the argument as advanced by the complainant and also in support of the receipt/document, it is evident that the complainant purchased one Usha Brita Water Filter from M/s. Akash Enterprises vide its receipt Order No.1288 dated 02-07-2007 on payment of Rs.7,995/-.  It is also evident that the complainant made an AMC vide receipt No.12010-2011 1281 from the OP2 on payment of Rs.1,988/- for the period from 02-11-2010 to 01-11-2012 for his Usha Brita make digital Water Filter with the OP1/M/s. Techno, a service franchise of M/s. Usha Shriram Enterprises i.e. OP2.

          Fact remains that complainant made a complaint on 27-08-2012 vide complain No.BAG/153 with the OP for repair of his defective water filter which was covered under AMC.  Accordingly, a Service Engineer was deputed by the OP and he visited/inspected the defective Water Filter in the month of September, 2012 and took the defective circuit board of the water filter for repair.  Till 30-10-2012 despite daily phone calls to the OP, the water filter was not repaired by them.  Finding it difficult to get back the repaired water filter from them, the complainant made alternative arrangement and had to purchase mineral water from the open market and ultimately he also brought another water filter from M/s. Sangeeta Sales Emporium (P) Ltd. vide Invoice No.565 dated 31-10-2012 on payment of Rs.7,850/-.  Invariably, it is a fact that the complainant was compelled to purchase another water filter finding it difficult to get back the repaired one from the OP though he tried his level best after persuasions/phone calls with the OP who even stopped answering the calls ultimately of the complainant, in spite of having AMC with the OPs bought the another water filter.  Though the OP2 denied of such AMC with them but fact remains that OP1 took the money vide its receipt No.12010 – 2011 dated 02-11-2010 amounting to Rs.1988/- for AMC for the period from 02-11-2010 to 01-11-2012 and so OP1 now cannot escape his responsibility but a blaming against OP1 who did not appear and the case is heard ex parte against him.  So, it is an established fact that in spite of having AMC for 2(two) years, while the complainant made the compliant on 27-08-2012 vide complain no.BAG 153 for repair of his defective water filter both the OP No.1 rendered no services and even OP2 denied of getting any complaint from the complainant and any Service Engineer was deputed by them who took the defective circuit board of the said water filter for repair.

          In the above state of affairs, we feel that the OP No.1 cannot flee by showing neglected attitude on the part of the company for which the complainant had suffered from mental agony in spite of having AM C with the OP No.1 who took money for that purpose and assured best services to be given by them.

          But in this regard about the defence of the OP i.e. Usha Shriram Enterprises Pvt. Ltd. but AMC in between the complainant and M/s. Techno, 7, West Row, Kolkata – 700 017 which is evident from the fact that OP has specifically mentioned that on behalf of the Usha Shriram Enterprises Pvt. Ltd. none signed in their said contract but it was signed by service franchise that is by OP1 and for that AMC Service franchise received a sum of Rs.1888 but as per terms and condition of the contract it is evident that as per AMC service contract are as follows : 1) Two periodical service visits per year during the period of contract mentioned above, when the waterguard(D/E)/Reverse Osmosis will be thoproughly checked, cleaned serviced and adjusted. 2) Any additional visits during the contract period, as and when required, in the event of any breakdown/malfunctioning of the equipment on the intimation in the regard by the customer. 3) Free Replacement of filter cartridge will be made once, every year(maximum) depending on the condition of the existing cartridge during the service contract period. 4) Free Replacement of worn-out/exhausted parts, including Ultra Violet Lamp with new/rectified spares during the periodical servicing or breakdown visits during the service contract period. 

          About repair it is specifically mentioned for repairs necessitating the removal of the Purifier or any parts thereof, to USEPL Service Centre or factory, there shall be no additional charge for the lab our.  However, in such cases incidental expenses incurred like freight, packing, insurance, octroi etc. will have to borne by the customer.

          Further it is specifically mentioned contract charges are payable by cash or DD in favour of Usha Shriram Enterprises Pvt. Ltd. in advance and payment shall accompany the signed copy of the contract and renewal of the service contract after expiry will be at the sole discretion of USEPL.

          Considering all the above clause it is clear no contract was made in between the complainant and Usha Shriram Enterprises Pvt. Ltd. and no contract form was signed by Usha Shriram Enterprises Pvt. Ltd.   So, it is clear that there was no relationship of consumer and service provider in between the complainant and OP2 Usha Shriram Enterprises Pvt. Ltd. and for that reason the complainant cannot claim himself as a consumer under OP2 Usha Shriram Enterprises Pvt. Ltd.  So, said OP has no liability to explain anything and there is no deficiency and negligence on the part of the OP Usha Shriram Enterprises Pvt. Ltd.

          Further it is found from other materials that complainant practically came into contract with the OP1 i.e. M/s. Techno of 7, West Row of Kolkata – 700 017, P.S. Beniapukur and for which only against that OP complainant is entitled to get relief.

          So, we are inclined to hold that there was deficiency and unfair trade practices on the part of both the OP No.1 as enshrined u/s.2(1)(g) and (r) of the C.P. Act, 1986 for causing hardship, mental agony, mental anxiety and discomfort of the complainant and, as such, the OP No.1 is liable to pay back the money which was given for AMC to them, plus to pay compensation at least Rs.2,000/- along with litigation cost of Rs.2,000/-.

          In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is dismissed without cost on contest against OP2 but is allowed ex parte against OP1 with a litigation cost of Rs.2,000/- (Rupees Two thousand only).

          The OP No.1 is directed to pay back the AMC money of Rs.1,988/-(Rupees One thousand nine hundred eighty eight only) being paid to the complainant and to pay compensation of Rs.2,000/- (Rupees Two thousand only) to the complainant for such negligent act on their part.

          The OP No.1 shall have to comply the above order very strictly within 30(thirty) days failing which for each days delay and disobedience of Forum’s order OP No.1 shall have to pay punitive damages @Rs.100/- per day till full satisfaction of the decree and if any reluctant attitude of the OP No.1 is found for complying the Forum’s order in that case penal proceedings u/s.27 of the C.P. Act, 1986 shall be initiated against the OPs.  But the punitive damages shall be paid to this Forum.