Chandigarh

DF-I

CC/111/2016

Harnoor Sidhu - Complainant(s)

Versus

Nike India Pvt. Ltd. - Opp.Party(s)

Harpriya Khaneka

16 Aug 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

 

 

                               

Consumer Complaint No.	:	CC/111/2016
Date of Institution	:	16/02/2016
Date of Decision	:	16/08/2016

 

 

Harnoor Sidhu w/o Shri T.S. Sidhu r/o House No.111, Sector 10-A, Chandigarh 160011.

…..Complainant

V E R S U S

1.     Nike India Private Limited, 701, Tower-B, Millinea Towers, Murphy Road, Ulsroor, Bangalore – 560008, through its Managing Director.

2.     Nike, M R Enterprises, SCO No.42, Sector 17-E, Chandigarh, through its Manager.

……Opposite Parties

 

 

QUORUM:	DR. MANJIT SINGH	PRESIDENT
	SURESH KUMAR SARDANA	MEMBER

                                       

                                                                       

ARGUED BY	:	Ms. Harpriya Khaneka, Counsel for complainant.
	:	Sh. Satyaveer Singh, Counsel for OP-1
	:	None for OP-2

                       

                 

PER DR. MANJIT SINGH, PRESIDENT

1.         Smt. Harnoor Sidhu, complainant has brought this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Nike India Private Limited and another, Opposite Parties (hereinafter called the OPs) praying that the OPs may be directed to replace the shoes with a brand new one or to refund the price thereof i.e. Rs.11,995/- plus additional cost of Rs.1,000/- incurred at the time of second replacement; Rs.15,000/- as compensation for mental harassment and agony and Rs.11,000/- as legal expenses. 

The facts, in brief, are that in October, 2013, the complainant, in the first instance, purchased a pair of shoes from the AIR MAX range of shoes of OPs worth Rs.11,995/-.  Unfortunately, the air capsule of the said shoe got deflated. Following exchange of correspondence, the OPs replaced the defective pair of shoes with a fresh pair vide claim slip No.812.  However, within two days of replacement, the air capsule of the replaced pair also got deflated and the same was replaced with a brand new one vide claim slip No.24800 dated 14.8.2014.  The complainant was also constrained to pay Rs.1,000/- extra on account of changes in pricing of the product.  However, the second time replaced pair of shoes also suffered the same fate i.e. deflation of air capsule.   The complainant contacted OP-1 through its consumer care portal vide email dated 18.1.2015 and requested for replacement with shoes/products from different range, but, to no avail. Hence this complaint claiming the reliefs mentioned above. 

2.         OP-1 resisted the claim of the complainant, inter alia, taking the preliminary objection that the complaint is vexatious and has been filed only to harass the OP and extort compensation.  OP-1 admitted that the complainant purchased the first pair of Air Max shoes in October and the same was replaced twice, the last replacement being on 14.8.2014.  It is alleged that the consumer care policy of OP-1 clearly states that a product can be replaced for any manufacturing defect only within 6 months of warranty period from the date of purchase of the original product and not the date of settlement of claim. It is also mentioned in the said policy that there would be no cash refund, but, the consumer would be entitled to choose any other Nike product from the available stocks that is equal or lower than the actual price paid. It is stated that if the conditions mentioned in the replacement policy of OP-1 are met with, the retailers/stores are obliged to allow the replacement of the product. In the present case, since the requirements of the replacement were not met, no replacement could have been granted to the complainant for the third time and the said fact was duly communicated to the complainant.  Other allegations of the complainant were denied and OP-1 prayed for dismissal of the complaint. 
3.         OP-2 adopted the reply filed by OP-1.
4.         The parties led evidence in support of their contentions. 
5.         We have gone through the record, including the written arguments of OP-1, and heard the arguments addressed by the learned Counsel for the complainant and OP-1.
6.         The learned counsel for the complainant argued that there was manufacturing defect in the shoes and twice the same were replaced and on the third occasion, though there was same defect, but, the OPs have refused to replace the pair of shoes or refund the price thereof. So, this amounts to deficiency in service on the part of the OPs as well as unfair trade practice.  She argued that the OPs be directed to refund the price of the shoe besides compensation.
7.         The learned counsel for OP-1, on the other hand, argued that there was no manufacturing defect in the shoe, as such, there is no question of any replacement. He argued that as a goodwill gesture, twice the shoes were replaced and third time, since the shoe was out of warranty, so the OPs have rightly refused to replace the same.  He argued that the period of six months warranty would start from the date of first purchase and not from the date of replacement.  As such, the complaint is to be dismissed which has only been filed to grab compensation illegally. Reliance has been placed on the judgment in the case of V. Balachandran Vs. Reachus, III (2008) CPJ 117 in which there was no commitment on the part of the OP to replace the shirt. No manufacturing defect was found on scrutiny and check up and no expert evidence was brought to prove manufacturing defect and no relief was granted.  Reliance has also been placed on the judgment in case Classic Automobiles Vs. Lila Nand Mishra & Anr., I (2010) CPJ 235 (NC) wherein no expert evidence was produced to prove manufacturing defect in the vehicle. It was alleged that the defects cannot be termed as manufacturing defect.
8.         It is an admitted fact that in the month of October 2013, the complainant purchased a pair of shoes known as “AIR MAX” range of shoes worth Rs.11,995/- from OP-2.  It is also an admitted fact that the air capsule in the shoe got deflated twice.  It is also admitted fact that on 14.8.2014 the defective shoe was replaced second time with a brand new one vide claim slip No.24800 (Annexure C-4).  Since the price of the new pair of shoe had gone up, so a sum of Rs.1,000/- additional was charged from the complainant   Third time also, the air capsule of the shoe got deflated and ultimately the OPs have refused to replace the defective pair of shoe on the pretext that the warranty period had already expired.
9.         The first question which requires determination is as to whether there is a manufacturing defect in the shoe?  On two occasions there was the same defect in the pair of shoes as air capsule got deflated.  Thus, it is proved that the present pair of shoes has the same defect which was there in the earlier shoes which were got replaced. Annexure C-2 is the reply given by OP-1 to the email (Annexure C-1) of the complainant.  Annexure C-2 proves that the complainant was informed that as per their replacement policy, a product can be replaced for any manufacturing defect only, within its warranty period of 6 months from the date of purchase alongwith the original Nike retail receipt. As per the Nike India Consumer Care Policy, filed by OP-1, manufacturing defects means “Any and all defects in production pertaining to materials and/or workmanship. Such defects include issues related to bonding, stitching, material/components failure, cosmetics and workmanship.  This guarantee applies when the product is used under normal conditions and for the purpose in which the product was designed.  This does not apply to normal wear and tear or damage related to alteration, accident, misuse, improper care or negligence).”  Thus, as per the said policy, in case there is manufacturing defect in any pair of shoes that can only be replaced by the company. Once the pair of shoes of the complainant was replaced, so impliedly there was a manufacturing defect in the same. Since the present pair of defective shoes in possession of the complainant has the same defect, so we have no hesitation to hold that there was a manufacturing defect in the same.  The judgments relied upon by the OPs are not applicable to the facts of the case in hand as manufacturing defect is proved in this case. 
10.         The second question for determination is as to whether the OPs are liable for the replacement or refund of the price of the shoes because third time also there was a manufacturing defect in the pair of shoes replaced to the complainant?
11.         There is no dispute that as per the Nike India Consumer care Policy warranty period shall be counted from the date of purchase.  However, in the present case, it is not only a case of replacement, but, Rs.1,000/- more was charged from the complainant when the shoe was replaced. Annexure C-4 clearly proves that the price of the of the shoe now replaced to the complainant was Rs.14,995/- and the price of the old shoe of Rs.13,995/- was adjusted and the complainant was asked to pay a sum of Rs.1,000/- more. Had the OPs replaced the defective shoes with a new pair of shoes, having the same price or lower price, in that situation it could be said that the warranty period would start from the date of first purchase, but, in the present case additional sum of Rs.1,000/- has been charged.  Charging of additional sum of Rs.1,000/- amounts to fresh sale in favour of the complainant. It can be said that a sum of Rs.13,995/- was adjusted as the price of the old pair and a sum of Rs.1,000/- more was charged and then a new pair of shoes was sold to the complainant. The price of the goods can be paid in cash or in kind or some in kind or some in cash. 
12.         In the present case, the complainant returned the old pair of shoes, which was defective, and paid additional amount of Rs.1,000/- meaning thereby he paid the price of Rs.13,995/- in kind and additional amount of Rs.1,000/- in cash.  Thus, it was not replacement of an old defective pair of shoes, but, was in fact purchase of a new pair of shoes giving the price in cash and kind.  So, in such a situation, the period of limitation for warranty would start from the date of lastly purchased pair of shoes vide Annexure C-4 i.e. 14.8.2014 and, therefore, the complaint filed on 16.2.2016 is well within the period of limitation.  Since it shall be presumed to be a new purchase, so the warranty period would extend upto six month from 14.8.2014. The complainant brought this to the notice of the OPs vide email dated 18.1.2015 i.e. within the warranty period.  So, the OPs were bound to replace the defective pair of shoes.  Refusal on their part amounts to deficiency in service and unfair trade practice. 
13.         The fact that twice earlier there was same manufacturing defect in the pair of shoes, which occurred third time also, proves that the OPs have manufactured a defective pair of shoes and sold the same without proper testing to the complainant and other customers and this also amounts to unfair trade practice on the part of the OPs.  In such a situation, where defective shoes are sold in the market having manufacturing defect, the OPs cannot take the shelter of warranty period because the OPs were not supposed to sell the shoes which were having manufacturing defect. One pair of shoes may have the manufacturing defect, but, in the present case three pair of shoes, which were given to the complainant, had the same manufacturing defect i.e. deflation of air capsule. Hence, using substandard material in the shoe also amounts to unfair trade practice by the OPs and the OPs are liable to pay compensation to the complainant as the complainant has to suffer physical and mental agony because of the refusal of the OPs to replace the defective pair of shoes.
14.         In the present case, there is no justification in directing the OPs to replace the defective pair of shoes because there is again possibility of deflation of air capsule as has happened time and again and that would put the life and limb of the complainant in danger.  So, the appropriate order in the present case would be directing the OPs to refund the amount of the pair of shoes received alongwith compensation. 
15.         In view of the above discussion, the present complaint deserves to succeed. The same is accordingly partly allowed. The OPs are directed as under:-

(i)     To refund the amount of Rs.14,995/- being the price of the defective pair of shoes;

(ii)    To pay Rs.5,000/- as compensation for mental agony and harassment caused to the complainant;

(iii)   To pay Rs.3,000/- as costs of litigation to the complainant. 

16.         This order be complied with by the OPs within one month from the date of receipt of its certified copy, failing which they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order till realization, apart from compliance of direction at Sr.No.(iii) above.
17.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
16/08/2016	[Suresh Kumar Sardana]	[Dr. Manjit Singh]
hg	Member	President