Complaint filed on: 20-07-2010
Disposed on: 23-12-2010
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.1650/2010
DATED THIS THE 23rd DECEMBER 2010
PRESENT
SRI.D.KRISHNAPPA., PRESIDENT
SRIGANGANARASAIH, MEMBER
SMT. ANITA SHIVAKUMAR. K, MEMBER
Complainant: -
Anesh Kadudose
S/o. late Mr.John Kadudose,
Aged about 32 years,
Residing at No.204,
Satko palm trees,
Munnekolalu, Marathhalli,
Bangalore
V/s
Opposite parties: -
1. RELIGARE WELLNESS LTD,
2nd floor, B wing, Saket, New Delhi – 110 017
Rept. by its Managing Director
2. The Manager, Pill & Powder
Pvt. Ltd, Religare Wellness,
S-2A, 127/9, Gem Willin
Airport Road, Murugeshpalya,
Bangalore-560 017
O R D E R
SRI. D.KRISHNAPPA., PRESIDENT.,
Brief facts of the complaint filed by the complainant against the opposite parties are, that he had purchased an anti-bed sore water mattress for use of his father, who was suffering from brain tumour and bed ridden, on 27-2-2010 by paying Rs.2,815/-, OP No.1 had given six months warranty for that bed. On 28th afternoon he had filled water by following instruction given by the 1st OP for an initial check and that bed was kept beneath his father’s back. On the next day morning at about 3 AM his mother woke up and when she proceeded towards his father to attend to him, she slipped and fell down near the cot, and she fell down due to water on the floor and he found that the water bag had leaked. Then he called on OP No.2 on the same day morning and informed about defect in the water bag and requested to replace it. The person who received the phone got irritated and shouted at him by telling not to disturb him in the morning hours for replacement of mattress and kept the phone without answering. Then he visited the 2nd OP on the same day night with the mattress and warranty card with payment slip, OP No.2 again shouted at him and he told him that within two days the mattress has become useless for which the OP No.2 did not give attention and was attending the other customers. Therefore he was forced to purchase another mattress to his father on 2-3-2010. It is further stated that his father died on 8-5-2010 and stated that the Ops have failed to replace the defective bed and even to refund the money and thereby has prayed for a direction to Ops to refund Rs.2,815/- with interest and also to award damages of Rs.5,00,000/- with cost.
2. OP No.1 has appeared through his advocate and contended that OP No.2 has merged with the OP No.1. The OP No.1 has filed his version and admitted to have sold a water bed to the complainant on 27-2-2010 for consideration but denied his knowledge about to whom the bed was purchased. This OP further contended that warranty card referred by the complainant does not speak about the refund, that it is also not signed and sealed. Thus it is stated that, the warranty card has no relevance to the sale of the water bed and demand of the complainant. This OP has further admitted regarding the complainant contacting OP No.2 over phone on 1-3-2010 and demand for refund of invoice amount by taking back water mattress for which, their staff replied that they are ready to exchange or replace the water bed with a new one and they cannot refund the cost of the water bed and this OP further contended that the complaint is not bonafide and denying his liability to pay relief has prayed for dismissal of the complaint.
3. In the course of enquiry into the complaint, the complainant and OP have filed their affidavit evidence reiterating what they have stated in their respective complaint and version. The complainant alongwith the complaint has produced a copy of the invoice for having paid the cost of the water bed, copy of boucher, copy of warranty card and death certificate of his father. OP has not produced any documents. The counsel for the OP has filed synopsis and relied upon certain decisions. We have heard the counsel for the complainant and perused the records.
4. On the above contentions following points for determination arise.
1) Whether the complainant proves that the OP No.1 has caused deficiency in his service in not replacing the defective water bed no repaying its costs?
2) To what reliefs, the complainant is entitled to?
5. Our findings are as under:
Point no.1: In the affirmative
Point no.2: See the final Order
REASONS
6. Answer on Point No.1: As we do not find any dispute about the complainant purchasing a water bed on 27-2-2010 for Rs.2,815/- from OP No.2, it is not necessary to go in detail about that aspects. The complainant has contended that on the next day that is 28-2-2010 when the water bed was put to use by filling water all the water filled had come out and the bed became of no use. The OP No.1 in his version and also in the affidavit evidence admitted in this complainant having had contacted the staff of OP No.2 with the complaint of defect in the water bed. Further the allegation of the complainant that the second OP did not respond positively has not been contraverted. OP has not denied about this complainant complaining them about defect in the water bed and for the luck of the complainant OP has not denied the defect. The staff of the 2nd OP it is found without disputing the defect in the water bed agreed to exchange or replace the water bed which clearly proves the allegation of the complainant that the water bed purchased by him was defective as water filled to it was flowing out of it. Further allegation of the complainant that on the next day itself through phone he contacted OP No.2 complained about defect has not been denied. It is further stated by the complainant that the 2nd OP who lifted the phone shouted at him not to disturb him for replacement in the morning hours has not been controverted. The complainant after being not successful in getting replacement of the bed, considering the critical condition of his father stated had been compelled to buy another water bed from one Reddappa Artificial limbs Centre on 2-3-2010. The complainant has also produced a copy of invoice for having purchased another bed. This un-contraverted fact proves that the complainant was in urgent need of a water bed for use of his father. Then when he approached the 2nd OP, he did not responded, therefore without waiting for the OP No.2 he brought a 2nd water bed having had failed to get the defective water bed from 2nd OP. These un- disputed facts establish that the complainant was not particular about refund of money, but was in need of replacement of defective bed. The complainant by producing death certificate of his father and cash bill of the second bed he had purchased has proved that he was in need of a good water bed and when he tried to get the defective water bed OP No.2 did not oblige and he had to go for a second bed. The above facts and circumstances do prove that complainant was not for refund of money but for better service from Op’s. Other important point to be noted here is that the OP has not denied that there was manufacturing defect in the bed. As such OP No.1 is therefore deficient in his service in not refunding the money of the complainant. Advocate for the OP has relied upon three decisions reported in III (1998) CPJ page 653, I (2008) CPJ page 307 (NS) and (1996) 4 supreme court cases page 704. Facts of none of these decisions are similar to the facts of this case. On going through the decisions, we hold that they are not applicable to the facts of this case, as such the complaint needs to be allowed. Accordingly, we answer point No.1 in the affirmative and pass the following order:
ORDER
Complaint is allowed. OP No.1 is directed to refund Rs.2,815/- (Rs.Two thousand eight hundred fifteen only) to the complainant within 30 days from the date of this order.
OP No.1 shall also pay damages of Rs.5,000/- to the complainant for hardship, inconvenience and mental agony caused to him.
OP No.1 failing to pay the amount within the date stipulated above, he shall pay interest at 12% per annum on the above amount from the date of this order till the date of payment.
OP No.1 shall also pay cost of Rs.2,500/- to the complainant.
Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 23rd December 2010.
Member Member President
