BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 23/03/2011

Date of Order :17/02/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

C.C. No. 166/2011

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :

On 11-12-2010, the complainant purchased a toy-cycle from the opposite party at a price of Rs. 9,265/-. Within one week from the date of purchase, the cycle became defunct. The complainant approached the opposite party either to rectify the defects or to refund the price of the same. But the opposite party did not care to do so. The complainant had approached the opposite party on several occasions to get his grievances redressed. The complainant is entitled to get refund of the price of the cycle together with compensation of Rs. 10,000/- and costs of the proceedings. This complaint hence.

2. The version of the opposite party : -

The complainant is not a consumer as per the provisions of the Consumer Protection Act. The opposite party admits that the complainant purchased a toy cycle from them on 11-12-2010. At the time of sale, the cycle was in good condition. There was no manufacturing defect or any other defect in the cycle. The cycle was recommended to the age group of 3 to 8 and the maximum capacity is 30 Kg. for one child. The cycle was damaged due to overload and misuse of the cycle. The complainant has approached the opposite party only once and on that day itself, he was convinced that the opposite party is not liable for the alleged damage. There is no deficiency in service on the part of the opposite party. The opposite party requests to dismiss the complaint.

3. The complainant was examined as PW1 and Ext. A1 was marked on his side. The opposite party was examined as DW1. Argument notes were filed by the counsel for the parties. Heard the counsel on both sides.

4. The points that came up for consideration are as follows :

1. Whether the complainant is a consumer?

2. Whether the complainant is entitled to get refund of the price of the cycle?

3. Whether the opposite party is liable to pay compensation and costs of the proceedings?

5. Point No. i. :- Admittedly, the complainant purchased a toy cycle from the opposite party for consideration, not controverted. So a plea that the complainant is not a consumer is totally to say the least unsustainable. How, such a contention can be raised by the opposite party is questionable.

6. Point No. ii. :- Admittedly, the complainant purchased a toy-cycle from the opposite party on 11-12-2010 at a price of Rs. 9,265/-, evident from Ext. A1 retail invoice. According to the complainant, the cycle became defunct on the very next day. It is stated that in spite of repeated requests to the opposite party's shop, the opposite party has not taken any steps to redress the grievance of the complainant. So according to him, he is entitled to get the price of the same. However, on the contrary, the opposite party maintains that the complainant has approached the opposite party only once and the opposite party has not provided guarantee or warranty to the product. It is contended that the opposite party has no liability to repair the cycle.

7. During examination, the opposite party who was examined as DW1 replying to the question of this Forum deposed that the product has been imported from China. Since, he has not disclosed the name and address of the manufacturer. So, the opposite party dealer is responsible for the defects, if any of the toy cycle purchased by the complainant. Since the purchaser bought the cycle bonafide. Admittedly, the complainant approached the opposite party with the cycle to get it repaired. The opposite party contended that the damage has been caused to the cycle due to the mis use of the same. But nothing is on record to substantiate or prove the same. Moreover, nothing is forthcoming on the part of the opposite party as to the reason for the mal-functioning of the cycle, other than the aforesaid averments not substantiated. The refusal to rectify the defect of the cycle itself amounts to deficiency in their service. During cross-examination of the complainant, the counsel for the opposite party said that one should spend an amount of Rs. 9,265/- which is not a paltry amount without a bonafide belief that the seller in this case, the opposite party would back out from responsibility is unimaginable by any stretch of imagination. If one would escape with a plea that there is no guarantee or warranty for a product sold no consumer is guarded and if such a plea is accepted he has no further relief except at the hands of law wherein even law is not powerful enough for well lettered infraces. So, we are of the firm view that the opposite party is liable to refund the price of the cycle to the complainant, failure of which would unsubstantiate the observations above.

8. Since the primary grievance of the complainant having been met squarely, the order for compensation and costs are not called for.

9. Accordingly, we partly allow the complaint and we only direct that in the interests of justice the opposite party shall refund the price of the toy cycle as per Ext. A1 to the complainant with 9% interest p.a. from the date of complaint till payment. In that event, the complainant shall return the disputed toy cycle to the opposite party simultaneously.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 17^th day of February 2012.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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