JAGANNATH BAG, MEMBER
The present appeal is directed against the Order , dated 26.11.2014, passed by the Ld. District Consumer Disputes Redressal Forum , Howrah, in Complaint Case No. HDF 83 of 2014, whereby the complaint was allowed on contest with cost and compensation against the OP.
The complaint case, in brief, was as follows:
The Complainant purchased a bedstead together with one table from the store of the OP in March, 2013 , at a total consideration of Rs. 47,000/-. The Opposite Party assured about after-sale service of the product. It was stated by the Sales Executive of the Opposite Party as well as the signatory of the Tax Invoice that the bedstead was made of good quality Malayasian wood and white colour made over it will last long. But, within a very short period the foot of the bedstead became cloven and split out over the body. The matter was informed to the OP on 1st October,2013. The Complainant having repeatedly asked the OP to inspect the article, a representative of the OP inspected the bedstead in the house of the Complainant on 19.10.13. The OP offered to make some pudding and colour to recover the defect of the exploded area of the couch and there ended the responsibility of the OP. The sales authority refused to replace the product or to pay back the money . A letter demanding compensation or replacement of the said product was issued on 26.11.2013 to the OP. No reply was received. Alleging deficiency in service on the part of the OP, the Complainant filed the complaint with prayer for direction upon the OP to replace the defective bedstead or to pay back purchase value of the product, amounting to Rs.47,000/- and also to pay Rs. 10,000/- as compensation for harassment and Rs. 5,000/- as cost of litigation.
The complaint has been contested by the OP who, in their W.V., denied all material allegations, contending therein, inter alia, that the Complainant after being satisfied placed order for a bedstead along with a table at their just and fair price knowing fully well that the bedstead which the Complainant ordered for purchase is a Chinese product supplied to the OP Firm by M/s Dinesh Enterprise, an importer of Chinese products and the same has no warranty /guarantee in any manner. Further, it was submitted that the Complainant placed order for purchase of the Chinese made bedstead according to his own choice. At the time of delivery of the product those were in good condition and if any damage occurred that might be for negligent use by the Complainant or pouring of water in the same. Still, upon the Complainant’s request the OP’s representative visited Complainant’s place and offered to make some pudding work and colouring of the damaged portion but the Complainant did not agree and demanded replacement of the product, though no warranty, guarantee or condition of replacement was available. It was also added that at the time of sale the OP’s men informed the Complainant that the said Chinese product was not durable , but the Complainant intended to purchase the said product for its glamorous appearance. There was no question of deficiency of service on the part of the OP and hence the complaint was liable to be dismissed.
Ld. Forum below upon consideration of the pleadings of both parties observed that the Complainant could not enjoy the product even for one year and that there was no mention in the money receipt that the article was a Chinese product and does not have any warranty or guarantee . It was also held by the Ld. Forum below that a normal two year guarantee or warranty is provided by the seller for any purchase. A high value product worth Rs. 47,000/- got damaged for its defective material and the Complainant was made to suffer. Ld. Forum further observed that the Complainant paid a big amount of Rs. 47,000/- not for ‘use and throw’ of the product. It was concluded by the Ld. Forum below that the OP’s negligent attitude has caused tremendous mental pain to the Complainant. The OP was held deficient in providing service and the complaint was allowed with direction upon the OP to refund Rs. 47,000/- to the Complainant, apart from compensation of Rs. 3,000/- and litigation cost of Rs. 2,000/-. The OP was directed to pay the entire decretal amount of Rs. 52,000/- to the Complainant within one month from the date of order, in default, the amount would carry an interest @ 10 % p.a till full realization.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the OP-turned-Appellant has come up before this Commission with a prayer for direction to set aside the impugned order .
Ld. Advocate appearing for the Appellant submitted that the purchase of the bedstead was not backed by any guarantee or warranty. The Complainant / Respondent agreed to purchase the product as he chose the item and offered the price fixed for it. Ld. Forum below made some presumptions only about guarantee or warranty of the product . There was no evidence in support of the allegation that the product was a defective one and, more so, in view of the fact that no expert opinion was submitted by the Complainant as to the nature of defect of the product. Further, the product being manufactured by other party which the Complainant was aware of , there was no responsibility on the part of the OP to replace the product or to refund the sale value on the ground of any manufacturing defect. Ld. Forum’s order is arbitrary and devoid of reasoning. Ld. Advocate argued that the impugned order deserves to be set aside.
Ld. Advocate appearing for the Respondent / Complainant submitted that there was no mention in the money receipt that the product was manufactured by some other party or that the product was Chinese made . The bedstead was purchased at a high price of Rs. 47,000/- with the assurance that the material was Malayasian wood and would be durable but the bedstead has been damaged within six months of purchase only . Such damage has been admitted by the OP as their representative offered to apply pudding and colouring as a measure of fixing up the defective product. There was serious deficiency in service on the part of the OP and from an ordinary point of view a high valued product is supposed to give trouble free service for a considerable period, at least for two years or more as rightly observed by the Ld. Forum below. There was indeed an unfair trade practice and deficiency in service on the part of the OP and the impugned order should be upheld.
Decision with Reasons:-
We have gone through the memorandum of appeal together with copies of the impugned order, the petition of complaint , the Tax Invoice, dated 06.03.13 and the W.V. filed by the OP before the Ld. Forum below and other documents including the letter dated 26.11.13.
The point for consideration is whether the impugned order suffers from material irregularity or legal infirmity.
There is no dispute that the Respondent /Complainant purchased a bedstead along with a table at a total cost of Rs. 47,000/- . It is quite believable that the OP convinced the Complainant / Respondent that the bedstead was made of good quality wood and would be durable as the price of the article was no doubt considerable in nature. The Appellant’s version that the Respondent /Complainant was aware of the fact that the bedstead was a Chinese product and imported by M/s Dinesh Enterprise was not at all reflected in the money receipt which the Ld. Forum below has rightly observed. It is striking to note that the OP vide Paragraph 11 of their W.V. has noted that the product, being Chinese made, was not durable , but the Complainant intended to purchase the product for its glamorous appearance. Such statement by the Appellant/OP is indicative of the fact that they were fully aware that the product would not be durable . In fact, there has occurred an unfair trade practice and deficiency in service on the part of the OP , in pushing for sale a product of inferior quality to the Respondent /Complainant. It is also evident that they never advised the Respondent / Complainant to approach the importer of the product or manufacturer of the product for rectification of the defect. The damage of the product has not been denied . On the contrary , they offered to rectify the damage by applying pudding and colour which would be of no help , given the nature of damage . Accordingly, the demand for replacement of the product or return of the purchase money of the product by the Respondent/ Complainant appears to be justified .
We are inclined to hold that the Ld. Forum below applied judicious mind and decided the complaint in a reasoned manner except for the fact that since the product was used by the Respondent/ Complainant for about 6 months a certain percentage of the sale value of the product should have been deducted from the total price of Rs. 47,000/-. Accordingly, the impugned order may be modified to a certain extent. Hence,
Ordered
That the appeal be and the same is allowed in part with modification of the impugned order to the effect that the Appellant shall refund (Rs. 47,000/- minus 4,700/- being 10 % of the total price =) Rs. 42,300/- to the Respondent / Complainant . Other parts of the impugned order shall remain unchanged, which means that the Appellant /OP shall, on return of the bedstead and the table , pay a total sum of Rs. 47,300/-( Rs. 42,300 being the refund of cost of the bed stead + Rs. 3000/- as compensation + Rs. 2,000 /- as litigation cost ) in place of 52,000/- to the Respondent/ Complainant within a period of 40 days from the date of this order, failing which, the said amount shall carry an interest @8% p.a. till full realization. There shall be no separate order as to cost.
