BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  :  MEMBER

C.C. No. 179/2012 Filed on 08.06.2012

ORDER DATED: 05.07.2018

Complainant:

Anantha Lekshmi N.V, T.C 18/882(1), Bethel Kunnappuzha, Aramada P.O, Thirumala, Thiruvananthapuram-32.

(By Adv. R. Rajeev)

Opposite parties:

1. M/s Sports House, represented by its Managing Director, T.C 2/2415(S), Near Axis Bank, Pattom, Thiruvananthapuram-4.

2. G.N. Unni Priyadarsan, Proprietor, M/s Sports House, T.C 2/2415(S), Near Axis Bank, Pattom, Thiruvananthapuram-4.

(By Adv. Arun P. Nair)

This case having been heard on 29.06.2018, the Forum on 05.07.2018 delivered the following:

ORDER 

SRI. P. SUDHIR:  PRESIDENT

Complainant’s case is that complainant at her young age itself is suffering from obesity and was unable to reduce her body weight through simple exercise or jogging.  By consulting a doctor she was advised to have exercise to reduce her body weight with the help of an exercising machine for getting a quick and best result to reduce the weight.  Hence complainant approached the opposite parties for getting a suggestion with regard to the fitness equipments used for reducing the weight in an effective manner.  Accordingly the opposite parties had given a representation with regard to AB circle and the opposite parties made believe the complainant that AB Circle is the best effective fitness equipment to reduce the body weight of the complainant according to her body weight and body nature.  As per the suggestion and advice given by the opposite parties that AB Circle is the best and effective fitness equipment for reducing the weight and the said product is the fast selling and moving product because of its effectiveness and durability and the product is having one year warranty also.  So the complainant had purchased a product of AB Circle from the shop of the opposite parties on 20.06.2011 as per Invoice No. 176 dated 20.06.2011.  The said product is having a warranty which is issued by the opposite parties for a period of 12 months from the date of its purchase.  As per the warranty, ‘the sports house products are warranted against defects arising from faulty design, workmanship and materials for a period of twelve months from the date of invoice’.  On the very first day itself the display monitor of the machine was not working.  Then it was informed to the opposite parties and the opposite parties had replaced the monitor with a new one.  After a few days while the complainant was using the product again the same is not working in the proper condition and it was informed to the 2^nd opposite party then it was again repaired by the opposite parties.  Again during the subsistence of the warranty period itself the product is not working in a proper condition and as such the complainant was not in a position to use the same.  Accordingly complainant had informed the opposite party that the product is not working in a proper condition.  On 11.10.2011 the supervisor of the opposite party Mr. Shalbeem had taken the product for service and made the complainant to believe that it will be returned after rectifying the defects within 5 days.  Complainant contacted the opposite party on several times but there was neither any proper reply with regard to the product from the opposite party nor the product was returned in time after servicing the product by opposite party.  At last the opposite party responded after four months from the date on which the product was taken by the opposite party for servicing and informed through phone that the opposite party is unable to repair and return the said product due to the non-availability of spare parts since the distribution of the spare parts of AB Circle has stopped by the manufacturer and the production of AB Circle based model got stopped by the manufacturer due to the complaints of the users and manufacturing defects and it is also informed by the opposite party that the new advance product of the AB Circle with double reel is launched after curing all the manufacturing defects and the complainant is advised to take the new advanced product by paying additional Rs. 7,000/- to the opposite party.  It is admitted by the opposite parties also while making a suggestion to the complainant to purchase the advanced version of the said product.  All these defects of the above said AB Circle are covered under the warranty issued by the opposite parties.  Hence the opposite parties are liable for unfair trade practice and for deficiency in service. 

Notice sent to opposite parties.  Opposite parties appeared and filed version.

As per the version, the contention taken is that the complainant purchased one AB Circle from opposite party’s shop on 20.06.2011.  There are 3 types of Ab-Circles.  One is supporting 60 kgs user weight, second is 75 kgs user weight and the third is 100 kg user weight.  Complainant purchased first type of having user weight of 60 kg since it is the cheapest.  Opposite parties informed the complainant that this machine supports only 60 kg body weight and if any one more than 60 kg body weight uses it, it will be damaged and complainant said that she is below 60 kg and only she is going to use it.  On 11.10.2011 complainant over phone informed the opposite parties that her AB Circle is not properly working.  When opposite party’s staff went there, the platform of the machine was found broken.  At once he informed the opposite parties that the platform of the machine was broken since someone having overweight has used it.  Opposite parties informed the staff to ask the complainant whether someone more than 60 kg has used it.  Complainant denied it.  Anyway opposite party instructed their staff to inform the complainant that it will take some time to replace the platform since opposite parties have to send the machine back to the company for service.  The machine was repaired within 20 days and on 01.11.2011 opposite parties informed the complainant to come to their showroom and check whether the machine is satisfactorily repaired or not.  After some days she came to opposite parties’ shop as per their information and said that she is more than 60 kg and she didn’t want the old machine and she demanded for a new machine having user weight of 100 kg free of cost.  Opposite parties did not have any buy back, upgrading or replacing schemes.  Opposite parties have given warranty for one year free service only.  But complainant hesitated to receive the machine back which the broken platform has been replaced with a new one.  Complainant’s repaired machine is still kept in opposite parties’ showroom and at any working time she can come and receive it.  In the above said reasons there was no negligence or irresponsibility on the part of opposite parties.        

Issues:

1. Whether there is deficiency of service or unfair trade practice on the part of opposite parties?
2. Whether the complainant is entitled for the reliefs sought for?

Issues (i) & (ii):- Complainant filed chief examination affidavit and Exts. P1 to P6 marked.  Complainant was examined as PW1 and PW1 cross examined by opposite parties.  Opposite parties filed chief examination affidavit and Ext. D1 marked.  DW1 cross examined by complainant.  In the deposition of DW1 “സാധാരണ branded സാധനങ്ങള്‍ക്ക് manufacturing company അല്ലേ warranty നല്‍കുന്നത് (Q) Company-യും dealer-മായിട്ടുള്ള agreement അനുസരിച്ച് ആണ് warranty നല്‍കുന്നത് (A) ആ agreement ഇവിടെ ഹാജരാക്കിയിട്ടുണ്ടോ (Q) വാക്കാല്‍ ഉള്ള കരാര്‍ ആണ് (A) പരാതിക്കാരന്‍റെ fitness equipment-ന് താങ്കളല്ലേ 1 year warranty നല്‍കിയിട്ടുള്ളത് (Q) എന്‍റെ distributor-ക്ക് വേണ്ട ഞാന്‍ company-യുമായുള്ള കരാര്‍ അനുസരിച്ച് warranty എന്‍റെ സ്ഥാപനം കൊടുത്തിട്ടുണ്ട്(A) താങ്കള്‍ ഈ product-ന് നല്‍കിയിട്ടുള്ള warranty card manufacturing company issue ചെയ്തിട്ടുള്ളതാണോ, ആ company seal warranty card-ല്‍ ഉണ്ടോ (Q) അല്ല, company seal warranty card-ല്‍ ഇല്ല (A) താങ്കള്‍ affidavit-ല്‍ ഈ product user weight അനുസരിച്ച് മാത്രമേ ഉപയോഗിക്കാവൂ എന്ന് പറഞ്ഞിട്ടുണ്ടല്ലോ അത് അടിസ്ഥാന രഹിതമാണെന്ന് പറയുന്നു (Q) അടിസ്ഥാനപരമാണ് (A).  Product-നോടൊപ്പം കൊടുക്കുന്ന manual-ല്‍ എല്ലാ details കാണുമല്ലേ (Q) ഉണ്ടാകണമെന്നില്ല, കുറച്ച് details കാണും (A) User weight-നെ കുറിച്ച് താങ്കള്‍ പറയുന്ന പോലെ instruction manual-ല്‍ പറഞ്ഞിട്ടുണ്ടോ (Q) അത് instruction manual അല്ല. Owner’s manual ആണ്, അതില്‍ use ചെയ്യാനുള്ള രീതിയും fit ചെയ്യാനുള്ള രീതിയും മാത്രമേ പറയുന്നുള്ളൂ (A) user weight-നെ കുറിച്ച് താങ്കള്‍ എന്ത് അടിസ്ഥാനത്തിലാണ് പറഞ്ഞത് (Q) Distributor-ടെ വാക്കാല്‍ നിര്‍ദ്ദേശ പ്രകാരമാണ് ഞാ൯ പറഞ്ഞത് (A).  So Ext. P2 warranty card is not issued by the manufacturer and there is no user weight prescribed anywhere.  It is pertinent to note that in the version and in the affidavit the opposite party admitted the complaint regarding the monitor display and improper working mentioned in the complaint, which are occurred at the first day itself and the opposite party stated in the 5^th paragraph of affidavit that “the same was replaced at once with a new one”, but nothing has been mentioned regarding the said replacement in the version filed by the 2^nd opposite party.  All the complaints mentioned in the complaint are occurred during the subsistence of the warranty period itself.  In the warranty card issued by the opposite party it is clearly stated that “the sports house products are warranted against defects arising from faulty design, workmanship and material for a period twelve months from the date invoice”.  All the complaints are occurred due to the manufacturing defects of the said products, the same is disclosed to the complainant by the 2^nd opposite party when the complainant made an enquiry regarding inordinate delay occurred in repairing and servicing and the opposite party informed the complainant that the manufacturer stopped the production of spare parts since the said products were defective and for the same reason the 2^nd opposite party advised the complainant to purchase the advanced product from his shop after giving Rs. 7000/-.  It is pertinent to note that the 2^nd opposite party is responsible to resolve the said complaints of said product which are occurred during the subsistence of the warranty period itself since the product is defective and no information regarding the return of said product after service was given to the complainant till this complaint in spite of repeated request and enquiry from the side of complainant.  The 2^nd opposite party admitted during the cross examination by the counsel for the complainant that the said product is not returned to the complainant, that the said product is not returned to the complainant so far.  The complainant purchased the said product for daily exercise in order to control her body weight and her aim can be achieved only through the daily and regular usage of the said machine.  Unfortunately the purpose of the machine is not served to her due to the negligence of the 2^nd opposite party in servicing the product and returning the same in time.  In addition to that such negligence and the deficiency in service from the opposite parties are occurred during the warranty period.  The act of the opposite parties amount to deficiency in service and unfair trade practice.  It is admitted by the opposite parties that spare parts is not available.  Hence we are of the opinion that there is deficiency of service and unfair trade practice on the part of opposite parties and opposite parties are jointly and severally liable to refund Rs. 9,990/- the price of the AB-Circle and to pay Rs. 3,000/- towards compensation for the mental agony suffered by the complainant and Rs. 2,000/- as cost of this proceedings.      

In the result, complaint is allowed and opposite parties are jointly and severally liable to refund the complainant Rs. 9,990/- (Rupees Nine Thousand Nine Hundred and Ninety only) the price of the AB-Circle and to pay Rs. 3,000/- (Rupees Three Thousand only) towards compensation for the mental agony suffered by the complainant and Rs. 2,000/- (Rupees Two Thousand only) as cost of this proceedings within one month from the date of receipt of this order failing which Rs. 9,990/-carries interest at the rate of 6% per annum from the date of default till realization.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 5^th day of July 2018.

        Sd/-

P.SUDHIR                             : PRESIDENT

         Sd/-

R. SATHI                               : MEMBER

          Sd/-

LIJU B. NAIR                        : MEMBER

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C.C. No. 179/2012 

APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - Anantha Lekshmi. N.V

 II      COMPLAINANT’S DOCUMENTS:

P1     - Delivery challan

P2     - Warranty card

P3     - Acknowledgement letter

P4     - Copy of legal notice dated 24.02.2012

P5     - Owner’s manual

P6     - DVD

III      OPPOSITE PARTY’S WITNESS:

          DW1 - G.N. Unni Priyadarsan

 IV     OPPOSITE PARTY’S DOCUMENTS:

          D1     - Reply notice dated 06.03.2012

                                                                                                                   Sd/-

PRESIDENT

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