The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is M/s. Sai Enterprises (Franchisee KUTCHINA Chimney), At- Telengasahi, Police Line Square, P.S- Sahadevkhunta, Dist- Balasore and O.P No.2 is the Executive Officer (Head Office), BAJORIA APPLIANCES PVT. LTD., Rajarhat, Gopalpur, Kolkata.
1. Factual matrix of the dispute is that the Complainant had purchased one Kutchina Chimney from O.P No.1 for Rs.31,500/- on 06.10.2014 bearing Machine Cord No.C-140700803389, thus availing Money receipt, warranty card and three nos. of mandatory free service Coupon. But during the warranty period, the Complainant found defect of the said machine and was not properly provided service for repair by the O.P No.1. Rather the O.P No.1 avoided without giving any satisfactory answer to the Complainant. But, the Complainant time and again requested to the O.P No.1 for repair of the defective Chimney, but the O.P No.1 adopted avoidance activities, for which the Complainant served legal notice to both the O.Ps on 13.03.2015 intimating their negligent activities in the matter. But neither of the O.Ps responded to the legal notice served upon them till date. Prayer for payment of machine cost along with cost of litigation.
2. The O.P No.1 refused to receive the notice sent to him by this Forum, but the Complainant has not taken any steps for serving notice to O.P No.1. The O.P No.2 on receipt of the notice, neither appeared in the case nor filed their written version, though sufficient opportunities were given to both the O.Ps. Hence, both the O.Ps are set ex-parte.
3. On perusal of the documents available in the case record filed by the Complainant, it is noticed that:-
(i) The Complainant has not disclosed the date of detection of defect of Kutchina Chimney sold by the O.P No.1 to the Complainant.
(ii) The Complainant has not availed first free service of electric chimney though it was due on or before 06.02.2015. Since the Complainant has filed blank copy of the said Coupon in the case though this case is filed before the Forum on 06.04.2015 by the Complainant.
(iii) The Complainant has also not taken much care for availing first free service within the stipulated period, although he could have availed the same before filing this case (the stipulated period for such free service is within 06.02.2015).
(iv) Terms and Conditions for warranty of Kutchina products the copy filed by the Complainant, where it is revealed that “The goods are warranted against defects arising from faulty design, workmanship and materials for a period of 12 months from the date of installation, subject to the conditions”. Further, it is revealed under Sl. No.1 is that “The Customer will notify the Company in writing promptly of any defects noticed and give the Company or its authorized agent adequate opportunity to inspect, test and remedy them, for which the Customer will deposit the goods, if so required by the Company, with the Company’s Office/Service Centre along with original invoice in the city, where they are sold”. But here the Complainant has not filed any copy of document in support of the above said conditions.
(v) Further, the Complainant has not filed any copy of documents that he had requested the O.P No.1 for repair of the defective Kutchina Chimney within 09.01.2015 to 10.03.2015 (Para-5 of complaint petition filed by the Complainant).
4. Basing on the materials available in the case record, it has been argued on behalf of the Complainant that due to deficiency of service on the part of the O.Ps, the Complainant is entitled for the relief as prayed like refund of the cost of the machine and litigation expenses. Though no specific document has been filed by the Complainant regarding defect of machine in different dates as mentioned in the complaint petition, it seems that the O.P No.1 is aware of the fact as because he himself refused to receive the Advocate notice and the O.P No.2 also after receiving the Advocate notice remained silent for repair of the machine. According to the warranty, the O.Ps should have repaired the defects pointed out by the Complainant in time. So, it shows that it is the tendency of the O.Ps only to sell the machine and not to repair in case of necessity. The first service period includes when the Complainant for the first time complained to the O.P No.1 about the defect i.e. on 09.01.2015, as machine was purchased and installed on 06.10.2014. So, when it is complained that there is defect on the machine, it is the duty of the O.Ps to remove the defects from the goods or replacement of the goods or refund of the price paid. So, when there is deficiency of service on the part of the O.Ps in respect of the alleged machine, the O.Ps are jointly or severally liable to comply the same. Moreover, the entire allegation of the Complainant supported by documents remains un-challenged, being ex-parte of the O.Ps for the reason best known to them.
5. So on careful consideration of entire case record, this Forum is of the opinion that it is a fit case to allow the case and O.Ps be directed to remove the defects of the machine, in case of failing to do so, refund the total amount of Rs.31,500/- by taking back the old machine and pay a cost of Rs.1,000/- to the Complainant, failing which it will carry interest @ 9% per annum, which meet the ends of justice in this case. Hence, Ordered:-
O R D E R
The Consumer case is allowed on ex-parte against the O.Ps with cost. The O.Ps are directed to remove the defects of the machine, in case of failing to do so, refund the total amount of Rs.31,500/- by taking back the old machine and pay a cost of Rs.1,000/- to the Complainant. The O.Ps are also directed to comply this order within 30 days from the date of receiving of this Order, failing which it will carry interest @ 9% per annum till realization. The Complainant is at liberty to realize the same from the O.Ps under due process of Law.
Pronounced in the open Forum on this day i.e. the 27th day of April, 2017 given under my Signature & Seal of the Forum.
