Date of Filing: 22.11.2019

Date of Judgment: 31.01.2023

Mrs. Ashoka Guha Roy (Bera), Hon’ble Member

The instant case has been filed by the complaint U/S 12 of the Consumer Protection Act, 1986 (U/S 35 of the C. P. Act, 2019), herein after called the said Act, against the Opposite Parties for replacement of a defective chimney and relief. 

            Brief fact of the case is that the complainant purchased one chimney of Kutchina Brand (Vogue Model) under exchange policy of old chimney for a discounted offer price of Rs.18000/- against the original price of Rs. 21,000/-. The Complainant by availing loan from Bajaj Finance purchased the said chimney from opposite party no. 3 being the authorised Distributor namely Kutchina Chimney Lifeline Appliances, having it’s office at 40A, James Long Sarani, Sakherbazar, Kolkata 700008. After the payments were made the said Vogue Model of Kutchina Brand Chimney was installed at the residence of the complainant Petitioner on 11.02.2019 at 10.40 a.m. by the opp.no.3 upon payment of Rs. 700 as installation charge, but just after the installation the said chimney started giving problems like vibrating and also not operating and functioning properly. The complainant called over phone to the said opp. no.3 and reported the said problem thereafter on 12.02.19 made several phone calls but the opp.no.3 did not respond initially but finally at about 12.24 pm the opp.no.3 attended the call but denied to come at complainant’s residence.  On 13.2.2019 when the complainant’s wife was cooking by switching on the said chimney the oil spilled on the gas burner where the cooking was being conducted immediately contacted the opp.no.3 and narrated the incident but the opp.no.3 demanded additional charges for replacement of the defective parts. Since then the said chimney is lying in an unused condition at the complainant’s residence though EMI’s are regularly being paid on regular basis to the Bajaj Finance against the said defective product. However the complainant finally contacted the Sales Executive as well as the higher officer of the Service Centre being the Opp.No.4 on several occasion who assured that the problem will be sorted but till date no one came forward on behalf of the opp.party with any solution and rather kept on lingering the matter on one pretext or the other the complainant also made several visits in the shop of the O.P.3. Ultimately finding no other alternative the complainant sent Advocates notice on 16.9.2019 to the respective address of the O.P.s TheO.P.s failed to reply. Being aggrieved for such deficiency in service the Complainant approached this Commission (the then Forum) for reliefs as claimed in the complaint petition.

On perusal of records it appears that inspite of service of notice and repeated opportunities being given the O.P.s did not come forward to contest the case. Accordingly the case was proceeded exparte against all the O.P.s Thus the complaint petition remains unchallenged.                                

Having gone through the statements of the complaint, Evidence on Affidavit and other supporting documents such as Final Payment receipt issued by Kutchina Life Line Appliances, the colour photograph of old chimney and new chimney, EMI transaction details, Advocate’s Notice dtd. 16.9.2019, online written complaint upon opposite parties dtd.14.6.2019, online reply by Kutchina, warranty card and the evidence adduced on affidavit by the complainant, and the Brief Notes Of Argument filed by the complainant and the submission made by the complainant the following points  are required for determination.

i)  Whether the complainant is a consumer to the Opposite Parties under the Consumer Protection Act?

ii) Whether there has been any deficiency in service on the part of the opposite parties?

Iii) Is the complainant entitled to the reliefs as claimed for?

Decision with reasons

                It is not disputed that the Complainant purchased the Kutchina Chimney and had paid the full and final consideration amount of Rs.18000/- to the OP No. 3 and to the said effect the OP NO. 3 issued the  Final Payment Receipt and the Warranty Card accompanied by installation of a new chimney set on 11.02.19 which ipso facto proves that the complainant is a consumer under Ops as per definition given U/S 2(1) (d) of the C.P. Act 1986 and the OPs are service providers of the complainant as per definition of Section 2 (o) of the C.P. Act, 1986.

So the point No.1 is accordingly decided in favour of the complainant

Now the only points required to be determined are whether there is any deficiency on the part of the O.P.s and whether the complainant is entitled to any relief.

Now question remains, who is responsible for the deficiency and unfair trade practice, for that purpose let us now consider the Warranty Card of Kutchina which warrants for the purchased Chimney to the original purchaser to be free from defects in materials and workmanship within one year from the date of purchase and furthermore the company also gives lifetime warranty coverage only for the chimney motor and other terms as per one year warranty card. From the payment receipt issued by the company it reveals that  and the said chimney has been purchased by the complainant upon payment of Rs, 18000/-. It is also submitted by the complainant that at the time of purchase the O.P.s assured the complainant that the chimney is of best standard and it has also been assured that proper service and follow up will be provided to the complainant. Just after the installation the chimney started giving problems on regular basis and was not able to operate properly. The said fact was duly been informed to the O.P.s but no one came forward with any feedback. The complainant contacted the O.P.s several times but till date they did not bother to redress the grievances of the complainant which is definitely latches on the part of the O.P.s since the OP.s are the service provider so it is the bounden duty of the O.P.s to provide the needful in respect of after sale service. It is the claim of the complainant that since the chimney was not functioning properly from the first day of installation and inspite of contacting the O.P.s, nobody attended on behalf of the O.P.s to inspect the chimney only kept on lingering the matter on one pretext or the other thus it proves that the O.P.s had intentionally installed a chimney having inherent manufacturing defect. Since the O.P.s did not contest the case so the claim of the complainant remains unchallenged. It is a fact that the complainant tried to connect the concerned officials of O.P.s but the O.P.s did not respond which is evident from the communication made from the complainant’s end. Thus the O.P.s have caused mental tension, pain and agony to the complainant by selling the defective sub standard chimney which is not in accordance with the specification. Accordingly, we are of the opinion that the complainant is entitled for the relief claimed.

In the light of the above discussion, this Commission thinks the complaint is maintainable on its merit and the Complainant has every right to get his grievance be redressed for such deficiency in service occurred from O Ps part.

Hence,

            ORDERED

CC/615/2019 is allowed exparte. OP No.2 is directed to replace the defective chimney set by a new one of the same model and in normal working condition.

Further all the O.P.s are directed to pay jointly and severely Rs. 10,000/- as compensation  for harassment and mental agony and Rs. 5,000/- as litigation cost to the complainant. The entire payments and replacement of the chimney set will be made within 45 days from the receipt of this order failing which 9% per annum simple interest will be imposed till realisation and replacement.