This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that OP is the manufacturer and seller of the Air Sofa etc., and complainant purchased one Air Sofa from the OP vide memo No.1902 dated 30-10-2013 for Rs.3,200/- and after purchase complainant found that there is some hidden leakage in the aid sofa which became deformed and does not serve the purpose for which it was purchased and complainant immediately drew the attention of the OP under notice of the OP over phone and subsequently followed by letter dated 26-03-2014.  OP intimated the complainant that the said product was sold under non-warranty scheme and OP proposed that they can repair the said Sofa against payment of charges.

          Complainant further states that the word non-warranty scheme is neither mentioned in the OP’s invoice nor even disclose to him verbally by the sales lady at the time of purchase and in this regard complainant wrote a letter dated 25-04-2014 to the OP for inspection of the said air sofa and necessary repair and further requested to refund the cost price if they fail to repair air sofa and satisfy him but complainant did not get any response from the end of the OP within reasonable time from OP and finding no other alternative complainant lodged a complaint to the Assistant Director, Kolkata, CA&FBP on 24-09-2014 and on receipt of the aforesaid complaint on 24-09-2014 Assistant Director, ESRO, Kolkata arranged a tripartite meeting vide letter dated 16-10-2014 for amicable settlement and date of meeting fixed on 14-11-2014 but OP attended the meeting but prayed for a further date and date was fixed on 03-12-2014 but fact remains OP did not solve the problem for which complainant was compelled to file this case before this Forum for redressal.

          On the other hand, OP, M/s. G.G. Udyog by filing written objection submitted that Air Sofa set in question was purchased on 30-12-2013 manufactured by the concerned manufacturer from the OP and since then the sofa set has been used by the complainant and after use of the said sofa set till 26-03-2014 with his full satisfaction and thereafter, complainant lodged the complaint to the OP after lapse of long period of time and the OP for good gesture sent a technician who duly verified the said sofa set and after verification found that there was no leakage at all in the said sofa set and again after few months complainant lodged the complaint and again the technician visited for good gesture and found that there was a leakage and at that time the technician proposed to pay the necessary charges for repair of the sofa set what the complainant refused to pay but exactly there was no warranty against the said sofa set and further there was no clause in the sale for rendering any service in respect of the purchased goods the present sofa set and in fact, there was no relationship for providing service to the complainant by the OP since there was no warranty provided at all by the OP or the manufacturer for which there was no liability of the OP and any negligence or deficiency after sale of the same and OP has nothing to do and complainant cannot claim any facility from the OP as same are beyond the sale receipts but fact remains the sofa set has been manufactured outside India and complainant purchased it at a cheaper price without any warranty or guarantee whatsoever and said sofa set is completely a use and throw item and that have duly been communicated to the complainant before selling and complainant knowing everything purchased the same and it is one type of disposable article for which OP has no liability and the present complaint should be dismissed.

Decision with Reasons

On proper consideration of the argument as advanced by the complainant and the Ld. Lawyer for the OP and also the complainant and the written version and particularly the sale receipt it is found that the item in question which was purchased by the complainant is nothing but a foreign made article and particularly it is manufactured in foreign country and after purchasing it by the different organization it is being sold but it is specifically found from the purchase receipt that there was no warranty or guarantee and fact remains no VAT also charged against that item and another factor is that complainant has alleged that it has its manufacturing defect but fact remains manufacturer is not made party so it is impossible for the complainant to make any complaint against the manufacturer in view of the fact in the item it is noted by which manufacturer it is manufactured but no doubt it is a use and throw item but from the literature of the said item it is clear that only there are some guidelines for using the same as indoor use only and considering that fact it is clear that complainant used this article after purchase on and from 30-10-2013 till 26-03-2014.  Thereafter, some problem was detected which was removed after that at last part a leakage was detected and complainant was asked to pay charge for repairing but complainant refused to pay but that leakage was also repaired by the OP at their own cost and thereafter, complainant filed this complaint to the CA&FBP but fact remains OP is not liable because there is no warranty, no guarantee as the item is use and throw item and complainant knowing fully well purchased it and practically it is one type of balloon material and in respect of any balloon material there is no guarantee or warranty and in respect of such article life expectancy of the item cannot be assured and practically it is a sophisticated item and that was purchased by the complainant considering some sophistication in respect of that article but complainant was well-aware of the entire fact because this literature was supplied to him and from the said copy of literature it is found that it is an article to inflate one’s fun.  Further considering the item as it is a rubber based article its leakage can be made any time due to change of weather and climate and nature of use and for that reason such an article should not be purchased by any person knowing fully well that its future is just like a balloon as purchased by the children in the market and in respect of such sort of article there is no warranty or guarantee and fact remains OP sold it in the market to provide the customers to get it but in fact by selling the same OP did not give any assurance that he shall have to give proper service in respect of article moreover this article is use and throw material so, under any circumstances, OP is not liable for any damage or leakage etc and practically complainant has failed to prove any manufacturing defect in respect of that because leakage of a bladder item is rampant and in respect of that no warranty can be given and in the present case same instance happened and no doubt OP’s Ld. Lawyer submitted that if there is any leakage it shall be cured by technician on payment of cost but complainant is unwilling and considering the present facts and circumstance, we are convinced to hold that there was no contract at the time of purchase of the article in between the complainant and the OP that OP shall provide service moreover manufacturer is not made a party and further there is no scope to make a manufacturer as a party because it is a foreign made article and in respect of this if there is no warranty then invariably customer shall have to purchase it at his own risk and no doubt it is a sophisticated item not a domestic item.   So, under any circumstances, complainant cannot bring any acquisance against the OP for leakage of the said article which is nothing but a use and throw item.  In the result, we find that if complainant so desires invariably OP shall have to repair the leakage at the cost of the complainant except this no other order can be passed as because negligence, deficiency on the part of the OP is not proved and at the same time complainant has failed to prove that OP sold any defective item because such sort of item is known as use and throw item and it is found that complainant used the said article for more than 5-6 months without any trouble and thereafter, one complaint was lodged, technician of the OP inspected and found no defect, subsequently, a leakage was detected by OP’s technician and he agreed to repair it but complainant refused to pay cost but even then OP repaired it but further leakage is found so, at this stage OP may repair it, if complainant so desires by paying such payment.

          In the result, final order is passed deciding their dispute accordingly.

Hence,

Ordered

That the case be and the same is dismissed on contest without any cost against the OP, but OP is directed to repair this leakage if any detected by the complainant only on the basis of the prayer of the complainant at the cost of the complainant.