JAGANNATH BAG, MEMBER 

          The present appeal is directed against the Order, dated 30.07.15 , passed by the Ld. District Consumer Disputes Redressal Forum, in CC Case No. 89/2015 , whereby the complaint was allowed with cost .

          The Complainant’s case, in brief, was as follows:

          The Complainant purchased from the OP No.1 CARBO 3S  SOFA IN SYNLTB for Rs. 23.748.81 vide invoice dated 21.02.2013 and also CARBO IS SOFA  in SYNLT (2 Nos.)  for Rs. 23993.66  vide invoice dated 19.02.13 .  The total purchase price was Rs. 47,774.47 . The Sofas have been covered with black soft leather as it looked. After some days of purchase the leather cover started distorting and became  separated from its  base.  The cover used for making of the Sofas appeared to be defective, i.e., made of low quality material . The Customer Service was informed over telephone on 04.12.2014. A technician visited the residence of the Complainant on payment basis (Rs. 250/-) . He took photographs of the Sofas and a written statement of the Complainant for changing the covers of all 3 Sofas . No action was taken by the OP even after sending of another complaint on 17.12.2014. A letter was sent to the OP on 09.01.2015 . The OP took no positive action . In the said circumstances a consumer complaint was filed before the Ld. Forum below with prayer for direction upon the OP to refund  the purchase price of the Sofas i.e., Rs. 47,742.47 with interest , litigation cost of Rs. 15,000/- and compensation of Rs. 25,000/- .

          The compliant was contested by the OP who in their W.V. denied all material allegations and submitted that there was no negligence or deficiency in service on their part. It was stated that the Complainant was offered a 15 % discount on the servicing price of repairing of  the Sofas which was subsequently raised to 20 % but the Complainant insisted on replacement of the Sofas which was not entertainable as the defects in the Sofas did not take  place within warranty period. As such, the demand of the Complainant was fictitious and not maintainable.

          Ld. Forum below considered the submissions made by the Ld. Advocates of the Complainant and also of the OP and observed that though the OP raised the objection that the Complainant registered the complaint after expiry of the warranty period ,  they never challenged or disputed the defect or poor condition of the leather cover of the Sofa set as alleged by the Complainant. Ld. Forum below relied on a  decision of the Hon’ble  Chenni State Consumer Disputes Redressal Commission in FA No. 290 / 2014 wherein it has been decided that though no guarantee / warranty was provided to the customer and / or consumer , the seller is liable to respond for the defective goods sold to the Consumer .  The OP , it has been observed , did not deny the defect / damage as evident from the  photographs of the Sofa set. As such, the OP was found to be liable to replace the Sofa set  or to reimburse the total price of the Sofa set. The OP was directed to replace the said Sofa set by a new one of the same model to the Complainant and the Complainant was directed to  return the old one to the OP . In default, the OP shall refund a sum of Rs. 47,775/- only to the Complainant within one month from the date of order , apart from payment of Rs. 1,000/- as litigation cost. In case of non compliance of the order , Ld. Forum directed the OP to pay Rs. 100/- per day from the date of order till its realization , as punitive damages, which shall be deposited to the State Consumer Welfare Fund.

          Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the OP-turned- Appellant has come up before this appeal with prayer for direction to set aside the impugned order .

          The memorandum of appeal has been filed together with copies of the impugned order, the petition of complaint , the letter dated 09.01.2015 written to the OP and asking for refund of the money upon withdrawal of the Sofa set and the invoices dated 19.02.13 and 21.02.13 among other documents including the copy of the order of the Hon’ble State Consumer Disputes Redressal Commission , Chennai , in FA No 290/14 .

          Ld. Advocate appearing for the Appellant submitted that the Complainant on 04.12.14, for the first time , informed about his grievance regarding the alleged defect in the Sofa set. A technician was sent and he took photographs of the Sofa . Thereafter, the Complainant was offered that since warranty period of one year was over , the necessary rectification work would be done on payment basis which the Complainant refused to accept. Subsequently, the OP offered a 20% discount on the servicing price which again was not agreed to by the Complainant who repeatedly asked for replacement of the Sofa . Ld. Forum below failed to appreciate the fact that the warranty period being over the free servicing or replacement of Sofa would be beyond the terms of warranty and hence  not agreed to . The award of the Ld. Forum  is erroneous in nature and the impugned order deserves to be set aside.

          Ld. Advocate appearing for the Respondent / Complainant submitted that the warranty period of one year was over, but the defect in the Sofa was of such nature as started much earlier because of inferior quality of material used for making  the Sofa. Such defect has not been denied by the OP and they were ready to change the cover of the Sofa set on payment basis only which was deficiency in service . This fact itself proves that the material used for making of the Sofa was of inferior quality as alleged by the Complainant. Further, even after warranty period , the seller of the goods has a responsibility to provide after sale service which, in the present case , the Appellant failed to provide. This has been taken note of by the Ld. Forum below  and order has been passed accordingly , also keeping in view the citation of the order of the Hon’ble State Consumer Disputes Redressal Commission, Chennai. The impugned order , is just and fair which deserves to be upheld.

Decision with Reasons :

          The point for consideration is whether the impugned order suffers from material irregularity or illegality?

          We have perused the memorandum of appeal along with all enclosures thereto . We have also heard the Ld. Advocates appearing for both parties .

          There is no dispute that the Complainant purchased the Sofas  from the OP for a total price of Rs. 47,774.47 .

          The fact goes that the  Respondent/Complainant alleged about inferior quality of the materials used in making the Sofas and the technician of the Appellant/OP having visited the residence of the Respondent / Complainant and after having inspected the Sofas was of the view that the Sofa cover should be changed, but on payment basis .

          The point of dispute raised by the Respondent/Complainant is that the material used in making the Sofas was such that all the Sofas were not usable  as those were defective . He asked for refund of the entire purchase price with interest as evident from the letter dated 09.01.2015 written by the Respondent / Complainant.

          Ld. Forum below rightly observed that the Appellant /OP did not dispute the defective nature of the goods sold by the Appellant / OP. Though it was brought to the knowledge of the Appellant / OP after expiry of the warranty period , such delayed  reporting of the defects does not absolve the Appellant OP of their unfair trade practice in selling defective goods for a price of their choice.

          It is true that the Sofas have been used by the Respondent / Complaint for about 22 months before filing any complaint about the inferior warranty of the goods supplied by the Appellant / OP, but still there is force in the averment of the Respondent / Complainant that he did not get his money’s worth . The citation of the order of the Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No. 2591 of 2015 does not help the Appellant as the facts of the case are different from those in the present appeal. There was merit in the Complainant’s case and as such, Ld. Forum below allowed the complaint. However, considering the fact that the Sofas have been used by the Respondent/Complainant for more than 22 months and that the prayer for replacement of the Sofas has not been made in the petition of complaint , we find it prudent to modify the impugned order , taking into consideration , the prayer part of the petition of complaint about refund of the purchase price of the Sofas. In this regard , it would be fair if a part refund of the purchase price of the Sofas is allowed with modification of the impugned order. In that view of the matter, the appeal may be allowed in part. Hence,

                                         Ordered

That the appeal be and the same is allowed in part on contest with modification  of the impugned order to the effect that the Appellant / OP shall make  a part refund of Rs. 25,000/- instead of Rs. 47,775/- together with litigation cost of Rs. 1,000/- as ordered by the Ld. Forum below . The direction to pay punitive damages in the present case  is expunged . The entire amount of Rs. 26,000/- shall be paid by the Appellant to the Respondent / Complainant within a period of 40 days from the date of this order , failing which , the entire amount shall attract penal interest @ Rs. 7% p.a. till full realization.