Sri. P. Satheesh Chandran Nair (President):
The complainant filed this complaint u/s.12 of the C.P. Act 1986.
2. The case of the complainant is as follows. The complainant herein is an agriculturist by profession. He purchased this product by seeing an advertisement in Malayala Manorama ‘Karshakasree’ Magazine which offers 3 year warranty, less energy consumption 100% hatching Germen technology, automatic operation, LCD/LED display and training programme. The complainant believed the above advertisement and paid the price of the incubator Rs. 17,000/- and transporting charge Rs. 3,000/- (total Rs. 20,000/-) to the opposite party. The complainant ordered the incubator on 03/10/2016. On 05/10/2016 the opposite party arrived the complainant’s house with the incubator and taught the complainant with regard to its operation. According to him when he used this apparatus out of 88 eggs only 10 eggs are hatched. The complainant complaint this fact to the opposite party, so the opposite party sent their technician and he operated the machine in complainant’s presence. On that time only 12 eggs are hatched. It is contended that so many times he operated the apparatus the same events again repeated. It is contended that the complainant asked several times to the opposite party to redress this complaint, the opposite party failed to resolved the issue. At last on 24/05/2017 the complainant issued a legal notice to the opposite party demanding, compensation etc. etc. Though the opposite party accepted the legal notice on 03/06/2017 he did not take any steps to redress the grievances of the complainant. Hence the complaint to refund the price of the incubator along with transport charges compensation etc. etc.
3. This Forum entertained the complaint and issued notice to the opposite party for their appearance. Though the opposite party received notice he did not appear before this Forum in time. Though this Forum granted further time for the appearance of the opposite party he did not turn up so that we declared exparte against the 1st opposite party on 13/09/2017.
4. On the basis of the complaint and records, produced before us we framed the following issues in this case.
- Whether the complainant proved deficiency in service against the opposite party?
- Regarding the relief and costs?
5. In order to prove the case of the complainant, the complainant he who filed a proof affidavit in lieu of his chief examination and examined him as PW1. Through PW1, Ext. A1 to Ext. A6 are also marked. Ext. A1 is the Karshakasree Magazine published in July 2016. Ext. A1(a) is the contents of the advertisement. Ext. A2 is the user’s manual and warranty card of the Powersol EGG Incubator. Ext. A3 is the Retail invoice dated:05/10/2016. Ext. A4 is the legal notice dated: 27/05/2017 sent to opposite party. Ext. A5 is the Postal receipt No. ARL 037932725IN dated: 24/05/2017. Ext. A6 is the Acknowledgement card dated: 03/06/2017. When we go through the proof affidavit of PW1 we can see that the contents of the proof affidavit of PW1 is more or less as per the tune of the complaint. Since the opposite party herein is exparte the evidence adduced by the complainant is unchallengeable as far as this case is concerned.
6. Point No.1 to 2: For the sake or convenience we would like to consider point 1 and 2 together. When we appreciate the evidence adduced by the complainant as PW1 in this case, it is clear that when seeing an advertisement in ‘Karshakasri’ Magazine published in July 2016 he happened to order an incubator. In page 45 ‘Powersoul Poultry incubators’ advertisement can be seen. When we go through the advertisement we can see that the opposite party offers a fully automatic, highly insulated, aluminum structure, high density hylam sheet body, German technology, User friendly and Easy maintenance along with Maintain heat up to 70 degree centigrade apparatus to consumers. In advertisement it is also noted ‘അടവയ്ക്കുന്ന സ്പീഷീസുകളുടെ സ്ഥിരതയ്ക്കനുസരിച്ച് 100 ശതമാനം മുട്ട വിരിയിപ്പിക്കാൻ സാധിക്കും.’ Ext. A2 is a users manual and warranty card. The said warranty card shows that there is a warranty of 12 month which commenced on 05/10/2016 in favour of the complainant Gebrial V. Joseph. Ext. A3 dated: 05/10/2016 retails invoice in favour of the complainant shows that the price of the incubator is Rs. 17,000/-. He paid a total amount of Rs.20,000/- for the said purchase including travel expenses Rs.3,000/-. Ext. A4 is a copy of the legal notice dated: 24/05/2017 issued by the complainant’s counsel against the opposite party. Ext. A5 and Ext. A6 are the postal receipt and acknowledgment card to prove that the complainant issued legal notice to the opposite party and the said notice had served to the opposite party. When we appreciate the evidence adduced by the complainant we can see that as a result of the advertisement published by the opposite party through ‘Karshakasree’ Magazine PW1 happened to order the apparatus and subsequently purchased it by paying an amount of Rs. 20,000/-. As stated earlier the advertisement of the opposite parties influenced the complainant there by he ordered the incubator by believing the genuinity of the advertisement. The complainant as PW1 deposed that though the opposite party offered a laying facility of 100 eggs in the tray of the incubator only 88 eggs can lay in the incubator. It is further deposed that though he used the full area of the tray a maximum of 88 eggs facilities were there and also deposed that a maximum of 10 or 12 eggs are hatched. Hence it is to be attributed that there is no basis for the contents of the advertisement seen in Ext. A1(a) of Ext.A1. The attitude or approach of the opposite party is only to deceit the consumers and to take illegal gain from them. As a bonafide purchaser PW1 he who believed in Ext. A1(a) and ordered the incubator for his use. As stated earlier in this case though the opposite party received notice from this Forum he did not turn up before us or filed any reply to the contention of the complainant. Considering the evidence before us at this stage nothing is to disbelieve evidence adduced by the complainant as PW1 along with Ext. A1 to Ext. A6. On the basis of the evidence before us we find that the opposite party has committed deficiency in service as well as unfair trade practice against the complainant as such he is liable to the complainant. Point No. 1 &2 are also found infavour of the complainant.
7. In the result we pass the following orders.
(1). The opposite party is here by directed to refund the price along with
transportation charge Rs. 20,000/- (Rupees Twenty Thousand only) to the
complainant with 10% interest from the date of filing this case i.e.,
24/07/2017.
(2). The opposite parties are also directed to pay a compensation of Rs.
10,000/- (Rupees Ten Thousand only) and a cost of Rs. 2,500/- (Rupees
Two Thousand and Five Hundred only) to the complainant with 10%
interest from the date of this case onwards i.e, 24/07/2017.
Declared in the Open Forum on this the 28th day of September, 2017.
(Sd/-)
P. Satheesh Chandran Nair,
(President)
Smt. Sheela Jacob (Member): (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Gabriel V Joseph
Exhibits marked on the side of the complainant:
A1 : Karshakasree Magazine published in July 2016.
A2 : User’s manual and warranty card of the Powersol EGG Incubator.
A3 : Retail invoice dated:05/10/2016.
A4 : legal notice dated: 27/05/2017 sent to opposite party.
A5 : Postal receipt No. ARL 037932725IN dated: 24/05/2017.
A6 : Acknowledgement card dated: 03/06/2017
Witness examined on the side of the opposite parties: Nil
Exhibits marked on the side of the opposite parties: Nil (By Order)
(By Order)
Copy to:- (1) Gabriel V. Joseph,
Vadasseriyathu Veedu,
Uthimoodu P.O – 689672, Ranny Taluk.
- Proprietor,
Powersol Marketing, Door No. IV/566A,
Mampalli Parambu Road,
Trikkakkara, Edappally, Kochi.
- The Stock File.
