DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the  16^th   day of August 2017

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                 Date of filing:  19/05/2016

               : Sri.V.P.Anantha Narayanan, Member

                                                      (C.C.No.67/2016)         

Swaminathan,

S/o Gopalan,

Kannerithodi House,

Vettekara PO, 678 633,

Ottappalam, Palakkad.                                           -        Complainant

(Adv. M.Krishnadas & Sajitha Krishnadas)

 V/s

1.  S & T Welcare Equipments (P) Ltd,                    

      N 20, S & T Arcade, Vasanth Nagar,

      Singanallur, Coimbatore. 641 005

      Tamil Nadu.

2.  M/s Euro Sports & Fitness,

      Main Road, cherpulassery,

      Palakkad.                                                         -        Opposite parties

   (Adv.P.R.Hariharan)

O R D E R

By V.P.Anantha Narayanan. Member

          Brief Facts of the complaint.

          On 09.09.2015 the complainant purchased a Motorized Treadmill WC 2222 from the 2^nd opposite party and within a few days, the product suddenly stopped working.  This was informed to the 2^nd opposite party and the authorised technician of the 1^st opposite party came and repaired the product.  But the product showed the same complainant again and again and for three times the technician repaired the product.  At present since the product again went wrong, it was kept idle.  According to the complainant, at the time of purchase 2^nd opposite party assured the complainant that the product has international quality and there will be no complaint regarding its working condition and if the product shows same complaint two times, the product would be replaced at the cost of 1^st opposite party.  Hence the complainant requested a complete replacement of the equipment to the 2^nd opposite party.  But the complainant was replied that no replacement would be given and the only possible remedy was to repair the complaint at the expense of the complainant.  Complainant pleads that since the opposite party supplied a defective product to the complainant and were not ready to replace the same even after showing the same complaint four times, opposite party committed unfair trade practice and deficiency in service.  There for the complainant caused to send lawyer notices to the opposite parties demanding them to repay Rs.27,500/- being the price collected from the complainant for the defective product at the time of purchase and to pay an amount of Rs.50,000/- as compensation for the mental agony and hardship caused to the complainant within seven days from the receipt of the notice.  On receipt of notices by the opposite parties 2^nd opposite party send a reply notice stating false and untenable contention.  The complainant never washed the equipment with water as alleged in the reply notice.  The complainant used the product only as per the treadmill maintenance chart and owner’s manual supplied by the opposite party.  1^st opposite party did not send a reply notice. 

          Hence it is humbly prayed to this Hon’ble to pass an award directing the opposite parties to repay an amount of Rs.27,500/- being the price of defective product - Treadmill WC 2222 - collected by the 2^nd opposite party from the complainant, to pay Rs.50,000/- for the mental agony and hardships caused to the complainant due to the deficiency of service and unfair trade practice of the opposite party, to pay Rs.5,000/- to the complainant towards the costs of this complaint and to grant other relief. 

          The complaint was admitted and notices were sent to 1^st and 2^nd opposite parties. 

          Opposite party 2^nd filed version but, although notice was served on 1^st opposite party they did not file their version.  Their name called absent and were set ex-parte.  In their version 2^nd opposite party contend the following. 

          2^nd opposite party admit that they had sold to the complainant a Treadmill manufactured by 1^st opposite party.  It is also admitted that immediately on receiving complaint regarding malfunctioning of the Treadmill, 2^nd opposite party informed 1^st opposite party and a technician came and repaired the product.  2^nd opposite party also contend that the equipment 

malfunctioned because of the misuse by the complainant.  They have acted promptly by informing 1^st opposite party of the complaint lodged by the complainant.  It is the 1^st opposite party who is to rectify any defect and the duty of 2^nd opposite party is only to inform the manufacturer (1^st opposite party) about any complaints regarding the product.  2^nd opposite party has rendered prompt service to the complainant.  They contend that they cannot take responsibility to repair the Treadmill manufactured by 1^st opposite party when the product was covered by warranty.  2^nd opposite party, the actual state of affairs is that when the technician on the first opposite party went to repair the product he found that the operating console of the Treadmill was drenched in water.  This could have happened by the complainant washing the equipment with water.  Because of this, the equipment malfunctioned.  The complainant has not stated this true fact in his complaint.  Under no circumstances 2^nd opposite party can be held responsible for the acts of the complainant.  According to 2^nd opposite party they have no committed any acts alleged by the complainant. 

          Hence, the 2^nd opposite party respectfully pray to the Hon’ble Forum to accept their contentions and exonerate them from having to compensate the complainant.  

          Although notice was served on 1^st opposite party, 1^st opposite party did not file their version.  Hence they were called absent and set ex-parte. Documents produced by the complainant consisted of chief affidavit and Exts. A1 to A5.  From the side of the 2^nd opposite party 2^nd  Ext.B1 marked and chief affidavit was filed.  Commissioner’s report was marked as Ext.C1.  2^nd Opposite party also filed objection to commission report. 

          In this case the following issues are considered.     

1.  Whether there is any  deficiency in service and unfair trade practice on the part of opposite parties 1 &2 ?

2.If so, what is the relief and cost?
Issues No.1 & 2

On 09.09.2015 the complainant purchased a Motorized Treadmill from the

2^nd opposite party as per invoice no.1871 dated. 09.09.2015 marked as Ext.A1.  When the product showed complaints in its working, the authorised technician of the 1^st opposite party repaired the product and now the product was kept idle, not working, by the complainant.  According to the complainant, since the equipment showed the same complaint four times even after repairing it three times within a short period of seven months from the date of purchase, he pleads for a complete replacement of the equipment.  Since the opposite parties were not ready to replace the product the complainant caused to send lawyer notices to the opposite parties as per Ext.A4 demanding to repay Rs.27,500/- being the price collected from the complainant for the disputed product and to pay Rs.50,000/- as compensation for mental agony suffered by him.  Lawyer notices were received by the opposite parties which is indicated by Ext.A5.  The complainant did not agree with the contentions of the 2^nd opposite party who alone sent a reply notice.  The complainant pleads that he has used the disputed product only as per the instructions given in the Treadmill maintenance chart marked as Ext.A2 and owner’s manual marked as Ext.A3.  Hence he prays to the Hon’ble Forum for an award of Rs.82,500/- (Rupees eighty two thousand five hundred only) towards the price of the disputed product plus compensation for mental agony plus litigation costs.  In the version filed by 2^nd opposite party, they contend that the equipment malfunctioned because of its misuse by the complainant and they cannot take responsibility to repair and replace the disputed product which is covered by warranty and they are only dealers of 1^st opposite party.  The warranty terms and conditions issued by S&T welfare equipment are indicated vide Ext.B1.

          According to Expert commissioner’s report marked as Ext.C1, the Treadmill equipment is not in working condition; the parts of the equipment are not reinstalled properly and are in a loose condition; the DC motor is not in working condition and the DC motor control circuit board of the equipment is short circuited. 

          From the documentary evidences filed before the Forum we observe that the Treadmill equipment purchased by the complainant showed malfunctioning during the warranty period, the expert commissioner has also pointed out in his report damages and complaints found in the disputed product during his inspection.  We also find that the opposite parties were not ready to replace the equipment inspite of its non working condition.  Hence we view that unfair trade practice and deficiency of service have been found to have been committed by the opposite parties.

          Under the above circumstances the complaint is allowed. 

          We order the 1^st and 2^nd opposite parties to be jointly and severally liable to supply to the complainant the same model Motorized Treadmill equipment immediately failing which 1^st and 2^nd opposite parties are jointly and severally directed to pay to the complainant the invoice price of Rs.27,500/- (Rupees twenty seven thousand five hundred only) collected for the equipment; opposite party 1 & 2 are also ordered to be jointly and severally liable to pay to the complainant Rs.5,000/- (Rupees five thousand only) by way of compensation for mental agony suffered by him and Rs.5,000/- (Rupees five thousand only) towards litigation expenses incurred by the complainant. Complainant is also here by directed to return to the opposite parties the disputed Treadmill equipment once he gets replacement for the same or he gets the invoice price of the disputed equipment of Rs.27,500/- (Rupees twenty seven thousand five hundred only) from the opposite parties. 

The afore said amount shall be paid within one month from the date of receipt of this order or else complainant will be entitled to get interest at the rate of 9% p.a from the date of the order till realization. 

Pronounced in the open court on this the 16^th   day of August 2017.

                                                                                                                                 Sd/-

                      Shiny.P.R.

                      President 

                           Sd/-

                      Suma.K.P.

                      Member

                          Sd/-

    V.P.Anantha Narayanan

                    Member

Appendix

Exhibits marked on the side of complainant

Ext.A1  -  Cash/Credit invoice dated. 09.09.2015 received from the Euro Sports &

               Fitness, Main Road Cherpulassery

Ext.A2   –  Treadmill Maintenance Chart issued by S& T Welfare equipments (P) Ltd,

               Coimbatore

Ext.A3   –  Owners Manual of the Motorized Treadmill equipment issued by

               S& T Welfare equipments (P) Ltd, Coimbatore

Ext.A4   -  True Copies of lawyer notices sent to 1^st & 2^nd opposite parties dated.

                12.04.2016

 Ext.A5   - Acknowledgement cards showing date of delivery received from 1^st and 2^nd

                opposite parties. 

Exhibits marked on the side of Opposite parties

Ext.B1 -  Warranty Terms and conditions issued by S& T Welfare equipments (P) Ltd,

              Coimbatore

Ext.C1 - Details of damage and complaint found in the Treadmill equipment as

             reported by the expert commissioner  

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite party

Nil

Cost   

          Rs. 5,000/-