Author: SHRI RABIDEB MUKHOPADHYAY, MEMBER

This is an application under section 12 of the Consumer Protection Act, 1986.

The Complainant stated that she purchased one Leg Massager CL-11 from M/s Bodyline Sports at 14-D, Ballygunge circular Road, Kolkata-700019, paying an amount of Rs. 17,000/- (Rs. Seventeen Thousand only) vide Challan No. 138 dated 28.12.2014 by cash, which was delivered to the residence of the Complainant after 3 to 4 days in the month of January, 2015.

The Complainant stated that the said Leg Massager CL-11 started giving trouble within warranty period which was informed to the Manager of M/s Bodyline Sports and according to his advice, the aforesaid Leg Massager CL-11 was given to the company (M/s Bodyline Sports) for replacement or repairing. The aforesaid company received the Leg Massager CL-11 vide memo/Challan no. 607 dated 27.01.2016 with remarks: “Received the Leg Massager for repairing. Date of purchase Dec, 2017, Air bags are not working, cost to be charged later” etc.

The Complainant stated that since 27.01.2016the Leg Massager CL-11 is lying with the company (M/s Bodyline sports) and kept by them without any reason. They did not bother to replace or repair the same inspite of personal visit and or phone to them. This is great shock and tragedy for a widow who is senior citizen and having aged about 67 years. She has been harassed severally by the Management of the company without any fault of the petitioner.

The Complainant wrote a letter dated 23.05.2016 to the chairman of M/s Bodyline Sports stating therein, inter alia, that the Leg Massager CL-11 purchased paying Rs. 17,000/- by cash from M/s Bodyline Sports on 28.02.2014 and due to nonfunctioning of the said machine, it was given to Sails and Service center on 27.01.2016 for necessary repair or replacement against due receipt but the company has not taken any action in this regard.

Not getting any reply of the previous letter, the complainant sent another letter dated 17.05.2018 to the chairman of Bodyline Sports demanding refund of the money with 18  percent interest. It is stated at para 8 of the complaint that the O.P. sent a letter dated 21.05.2018 in reply to the complainant’s letter dated 17.05.2018 deniedand disputed the contention of the letter dated 17.05.2018. The Complainant stated the content of O.Ps.’ letter dated 21.05.2018 as fabricated, concocted and motivated. The complainant also stated at para 9 that no warranty card was given at the time of delivery of the product. It is also averred at para 9 that no name on the outer box is given on the product of the country of manufacture and so the contents of O.Ps.’ letter dated 21.05.2018 are false and fabricated.

The Complainant prayed for replacement of the machine or refund of the price of the product (Rs. 17,000/-) + 18  percent interest from the date of purchase, Rs. 70,000/- as compensation for harassment and mal practices and Rs. 8,000/- as litigation cost.

Points for Discussion

1) Whether the complainant isa consumer under the O.Ps.;

2) Whether the O.Ps.are deficient in rendering service to the complainant;

3) Whether the complainant deserves relief.

Decision with Reasons

1) At the outset we need to mention that the O.Ps. received this Forum’s Summons on 13.07.2018, still they did not attend the proceedings nor did they file any written version, in spite of the fact that the Director of Bodyline Sports wrote letter which was received at this Forum on 16.07.2018 and the fact has been entered in order no. 03 dated 19.07.2018 but the O.Ps. did not subsequently appear. In this way they have been truant from assisting this Forum to find out the truth of dispute. It is because they know the truth themselves that they are deficient from their duties by way of not supplying the repaired Leg Massager to the Complainant.

            2) It is the settled principle of law that when a party even after getting the opportunity to defend their case, does not do so, they are on the default side and the leverage of such default goes to the other party. Here the default party is the O.Ps. and the beneficiary of such default is the Complainant.

3) It remains the fact that the Complainant purchased one piece of Leg Massager CL-11 from the O.P.-1 at a cost of Rs. 17,000/- vide challan no. 138 dated 28.12.2014 and was delivered to the Complainant in the month of January 2015. The equipment started giving trouble within the warranty period and the said equipment was given back to the O.P.-1 for replacement or repairing. The O.P.-1 received the same under challan no. 607 dated 27.01.2016 with the remarks “Received the Leg massager for repairing date of purchase Dec2014, Air Bags are not working, cost to be charged later”.

4) There is no documents in the record on the warranty but in the letter dated 21.05.2018 of the O.P.-1 addressed to the Complainant, it appears, inter alia, that the warranty of the product is six months. The Complainant demanded that the equipment started nonfunctioning within the warranty period. She also denied under Affidavit all  other points like “Warranty card given along with your product “, “The outer box of product has the country of manufacture mentioned very clearly on sticker “, etc.

We are now not concerned with the warranty period. We are concerned on the fact that the equipment, Leg Massager was given to the O.P. for repair, may be against cost of repair irrespective of the validity of warranty period but the said equipment was never repaired and handed over  to the Complainant in spite of her issue of two letters dated 23.05.2016 and 17.05.2018 written to the O.P.-1. The reply of second letter was given by one Praveen Bhagat, Service Manager, OP-2 stating, inter alia,” It is pertinent to be mentioned that there is no product pending to be delivered to you.”

It is quite clear that we see the said receipt no. 607 dated 27.01.2016 of the O.P.-1 under signature. The O.Ps. neither filed any written version as already stated earlier none have given any proof that they have returned the repaired Leg Massager. Even in their letter there is no mention of giving back of the repaired Leg Massager to the Complainant.

5) If we count the cause of action for the Complaint on the basis of 21.05.2018 in which the O.Ps. denied the complainant’s request and the equipment is still pending to be delivered to the Complainant after repair, it is well within the limitation in terms of section 24 A of the C.P. Act 1986.

6) As the Complainant paid the consideration money of Rs.17,000/- in anticipation of some service of the equipment from the O.P., she is a consumer under section 2 (1) (d) (i)/((ii) of  the Act.

As the Opposite Parties failed to repair and deliver the equipment to the Complainant, they are deficient in rendering promised service to the complainant in terms of section 2(1) (f)/(g) read with section 2(1 )(o) of the Act.

So the Complainant deserves some relief.

In the circumstances of above discussions, we are constrained to pass

ORDER

That the Complaint be and the same is allowed ex-parte against the Opposite Parties in terms of section 13 (2) (b) (ii) of the Consumer Protection Act, 1986;

That the Opposite Patties are directed to jointly and severally repair the machine with full satisfaction of the Complainant and hand over to the complainant with fresh warranty as applicable, OR to replace the equipment with a new one of the same price and category OR to refund the price of the equipment, Rs. 17,000/- with 7  percent interest from 27.01.2016 till date of actual payment, within 30 days from the date of this Order;

That the Opposite Parties are further directed to jointly and severally pay to the Complainant Rs. 5,000/- as Compensation under section 14 (1) (d) of the C.P. Act for physical harassment and mental agony of the senior citizen, Woman Complainant and Rs. 3,000/- as litigation cost to the Complainant, within 30 days from the date of this Order;

That non-compliance of any of the above Orders by the O.Ps. Within the stipulated time of 30 days shall entitle the Complainant to put the Order into execution in terms of section 27 of the Act ibid.

Let copy of the judgement be handed over to the complainant when applied for