Tamil Nadu

South Chennai

CC/24/2017

K.M.Ponnusamy - Complainant(s)

Versus

M/s.Eureka Forbes Limited - Opp.Party(s)

S.Angamuthu, S,Usharani

20 Feb 2020

ORDER

Date of filing      : 18.01.2017

Date of disposal : 20.02.2020

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.24/2017

DATED THIS THURSDAY THE 20^TH DAY OF FEBRUARY 2020

                                 

K. M. Ponnusamy,

S/o. Mr. K. Murugappa,

No.154/1, Pasumpon Street,

Jaihind Nagar,

Murugappa Nagar,

Chennai – 600 019.                                                      .. Complainant.                                                         ..Versus..

 

1. Eureka Forbes Limited,

Registered Office,

No.7, Chakraberia Road (South),

Kolkata – 700 025.

 

2. Eureka Forbes Limited,

Area Sales Office,

Anmol Palani, Block No.C & D5,

Level IV, No.88, G.N. Chetty Road,

Thiyagaraya Nagar,

Chennai – 600 017.                                                 ..  Opposite parties.

 

Counsel for the complainant         : M/s. S. Angamuthu & another

Counsel for the opposite parties  : M/s. K. Subbu Ranga Bharathi & 

                                                         others

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 & 2 under section 12 of the Consumer Protection Act, 1986 prays the 2^nd opposite party to refund a sum of Rs.7,066/- being 70% of the sum from Rs.10,095/- and to pay a sum of Rs.70,000/- towards compensation for mental agony, damages for unfair trade practice and deficiency in service with cost of Rs.5,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that he purchased Eureka Forbes vacuum cleaner from the 2^nd opposite party after placing the order on 12/02/2015 and due delivery was effected on 13/02/2015.  The complainant opted to purchase the product in EMI facility.   The complainant submits that no sufficient demonstration was given to the complainant about the use of product.   The complainant paid a sum of Rs. 1,000/- by cash for three times and Rs.1,419/- for five months through ECS under cheque bearing No.000105 dated:10.03.2015 drawn on Karur Vysya Bank, Triplicane Branch.   Altogether, the complainant paid a sum of Rs.10,095/-.   The house of the complainant is situated in a narrow dead end street with 8 feet access.   Hence, the car has no access to the house so as to use the vacuum cleaner to clean the car.   Hence, the complainant attempted to use the product at public street tap.  But his attempts ended in vain since the general public opposed for the same.   So, the complainant was unable to use the product and kept idle for about 3 months and continued repayment.  So the complainant decided to return back the product and claimed refund of the same.   The complainant submits on 02.04.2016 executive namely; Mr. Madhan attached with the 2^nd opposite party taken back the product and assured refund of 70% from the amount paid by the complainant and also endorsed.  The complainant states that the 2^nd opposite party taken back the product with assurance to refund the 70% of amount paid by the complainant within a week from date of taken back the product.  But failed to do so.   The complainant several times approached the 2^nd opposite party but no fruitful result. Hence, the complainant issued legal notice dated:03/11/2016 for which, the opposite parties has not sent any reply.   The act of the opposite parties 1 & 2 amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by opposite parties 1 & 2 is as follows:

The opposite parties 1 & 2 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.    The opposite parties 1 & 2 states that the complainant purchased the Eureka Forbes vacuum cleaner out of his free will and consent.  No false assurances were given by the opposite parties as avowed by the complainant.   It was told by the service person that “service would be provided for the product timely within the warranty period; the product can be surrendered by the customer if he wishes so and that if the product is surrendered within a month from the date of purchase the whole amount i.e. the amount paid towards the cost of the product will be refunded and that if the product is surrendered after three month, the amount of refund would be calculated by deducting the cost of the spares parts from the amount paid towards the cost of the product”.   The complainant after hearing all this purchased the said vacuum cleaner voluntarily.   The opposite parties 1 & 2 state that they provided a demo CD in the carton box which contains the full details about the product and demonstration how to use the product.   The complainant himself in his complaint has stated that he purchased the product only to use it for his car, which reveals that at the time of purchase itself he was very well known that the car does not have access to the house and that he would not be able to use the product.  The complainant has effectively used the product from the time of purchase.   

3.     The opposite parties submit that when the complainant approached them for surrendering the product, it was immediately accepted and was told to him that the same can be surrendered and that the refund amount after deducting the cost of spares and tax charges would be 70% of amount paid towards the purchase of the product by the complainant.   Thus its Executive named Mr. Madhan took back the product and instructed the complainant to adhere to some procedure to refund.   But the complainant did not adhere to the procedure told by Mr. Madhan and arbitrarily asked for refund of the amount.   The opposite parties 1 & 2 state that, the allegation of the payment of Rs. 10,095/- is absolutely false and there shall be no payment without any receipt.  As per the bank statement, the complainant paid only Rs.8,095/- by way of seven EMIs against the total cost of Rs.13,990/-.  Till date, the complainant has not submitted the bank account for proper refund. Therefore, there is no deficiency on the part of the opposite parties.  

4.     To prove the averments in the complaint, the complainants have filed proof affidavit as his evidence and documents Ex.A1 to Ex.A7 are marked.  Proof affidavit of the opposite parties 1 & 2 is filed and no document is marked and filed as his evidence on the side of the opposite parties 1 & 2. 

5.      The points for consideration is:-

1. Whether the complainant entitled to get the refund of a sum of Rs. 7,066/- being 70% off Rs. 10,095/- as prayed for?
2. Whether the complainant entitled to a sum of Rs. 70,000/- towards unfair trade practice, deficiency in service and mental agony with cost of Rs. 5,000/- as prayed for?

6.      On point:-

        Both parties failed their respective written arguments. Heard their Counsels also.  Perused the records namely; the complaint, written version, proof affidavits and documents.  Admittedly, the complainant purchased Eureka Forbes vacuum cleaner from the opposite parties after placing the order on 12/02/2015 and due delivery was effected on 13/02/2015.  Ex.A1 is the copy of delivery challan.  The complainant was claimed EMI facility also.  The complainant paid a sum of Rs. 1,000/- by way of cash for three times.   There is no iota of evidence to prove such cash payment in this case. Hence, the allegation of cash payment is not acceptable against the EMI facility.  Further the contention of the complainant is that the complainant paid five EMI’s at the rate of Rs.1,419/- amounting to Rs.7,095/- is not denied. The said payment was reflected in Ex.A3, bank statement of the complainant. Further the contention of the complainant is that the complainant’s  house is situated in 8 ft road; where in, the car shall not go.   Hence, the Eureka Forbes vacuum cleaner is not useful in cleaning the car which is kept on the road.   Since, the complainant is not able to use the vacuum cleaner; the complainant requested the opposite parties to take back the vacuum cleaner and asked to refund the entire amount.  Further the contention of the complainant is that the opposite parties’ Executive, Mr. Madhan came to the complainant’s house and has taken back the Eureka Forbes vacuum cleaner after due acknowledgement as per Ex.A4. Even after repeated requests and demand, the opposite parties has neither returned the amount nor returned the vacuum cleaner.  Hence, the complainant was constrained to issue the legal notice dated:03/11/2016 for which, the opposite parties has not send any reply proves the unfair trade practice and deficiency in service committed by the opposite parties.

7.     The contention of the opposite parties is that the complainant purchased the Eureka Forbes vacuum cleaner out of his free will and consent. There is no compulsion on the part of the opposite parties.  Equally, the allegation of false assurances that if the vacuum cleaner is surrendered, 70% of the amount paid will be refunded within the warranty period is also false. The complainant is also has not produced the warranty card or any other document for such surrender of vacuum cleaner and refund of the amount.   Further the contention of the opposite parties is that after due demo CD with full details given to the complainant is not denied at the time of purchase itself, the complainant is well aware of that the car does not have access to his house and the vacuum cleaner which can be used not only for cleaning cars, but also cleaning the house and other articles in the house.  In this case, there is no need of returning the vacuum cleaner. Even then in order to maintain the good will, the complainant was requested to produce the bank account details for which, the complainant turned deaf ears and filed this case; establishes that there is no deficiency on the part of the opposite parties.  

8.     Further the contention of the opposite parties is that, the allegation of the payment of Rs. 10,095/- is absolutely false and there shall be no payment without any receipt.  As per the bank statement, the complainant paid only Rs.8,095/- by way of seven EMIs against the total cost of Rs.13,990/-.  Thereby, it is very clear that the complainant is a defaulter not entitled to maintain the consumer case.  Further the contention of the opposite parties is that the manufacturer of the Eureka Forbes vacuum cleaner is not added in this case in order to surrender the vacuum cleaner machine and get refund of the amount since the opposite parties is the marketer and service provider alone.  Further the contention of the opposite parties is that the complainant has not followed the procedure for surrendering and claiming the refund filed this case unnecessarily. Till date, the complainant has not submitted the bank account for proper refund. There is no deficiency on the part of the opposite parties.  Considering the facts and circumstances of the case, this Forum is of the considered view that the complainant shall submit the bank account to the opposite parties and get refund 70% of Rs.7,095/- and to pay a sum of Rs.5,000/- towards compensation for mental agony with the cost of Rs.5,000/- to the complainant.

In the result, this complaint is allowed in part.  The opposite parties 1 & 2 are jointly and severally liable to refund 70% of Rs.8,095/- (Rupees Eight thousand and ninety five only) and to pay a sum of Rs.5,000/- (Rupees Five thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 20^th day of February 2020. 

 

MEMBER                                                                                PRESIDENT

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	13.02.2015	Copy of Delivery Challan
Ex.A2	05.10.2015	Copy of receipt for payment of Rs.1,000/-
Ex.A3		Copy of bank passbook for ECS payment
Ex.A4	02.04.2016	Copy of acknowledgement issued by the 2nd opposite party while taking return of product along with endorsement made by his staff
Ex.A5	03.11.2016	Copy of legal notice affixed with postal receipts
Ex.A6	08.11.2016	Copy of acknowledgment card for the receipt of notice by the 2nd opposite party
Ex.A7	09.11.2016	Copy of acknowledgment card for the receipt of notice by the 1st opposite party

 

OPPOSITE PARTIES’ 1 & 2 SIDE DOCUMENTS:-  NIL

 

 

MEMBER                                                                                                                                                                                           PRESIDENT