Complaint filed on: 14-10-2011
Disposed on: 30-06-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.1883/2011
DATED THIS THE 30th JUNE 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Smt.Sumathi.B,
W/o. T.Venkataramana,
Aged about 58 years,
R/at no.269, 1st Floor,
4th Cross, M.S.Ramaiah Main Road,
Subhedarpalya, Yeshawanthpura
Bangalore-22
V/s
Opposite party: -
The Director,
M/s. Stay Fit Health and Fitness
World Pvt. Ltd, No.580, 36th Cross,
11th Mai, 5th Block, Jayanagar,
Bangalore-77
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP under section 11 and 12 of the Consumer Protection Act’ 1986, praying to pass an order, directing the OP to pay Rs.30,000=00 towards value of the Tread Mill, Rs.10,000=00 towards mental agony, Rs.10,000=00 towards health problems by using lower capacity treadmill and Rs.10,000=00 towards medical expenses and also to pay cost of litigation.
2. The brief facts of the complaint can be stated as under.
The complainant purchased a treadmill (motorized) SFXL-2 with motor power of 3HP DC tread mill with 1-16 KM/PH with instant keys which displays time, speed, distance calories and hand pulse by paying Rs.30,000=00 under the Tax Invoice no.3443 dated 11-10-2010. The complainant started using Tread mill as per the manual instructions and as per the demo given by the company and the complainant used the Treadmill about 10 months period and thereafter the treadmill started vibrating and making ratting noise while using, this technical defect started before expiry of the warranty period given by the company, immediately the complainant called upon the customer care service people. The service technician of the service centre visited the complainant’s place and attended the complaint on 8-8-2011 and according to the service technician by name Raju the complaint in the Treadmill was running bed problem and running belt problem and in technician remarks, he offered for exchange and he did not attend the defects. The complainant also learnt from the technician that the company had delivered 1.5 H.P. Motor Tread mill wherein the actual purchase made by the complainant was 3 H.P. Motor Treadmill. The OP Company promised to refund the amount after submission of the technician’s report and take back the defective treadmill, but they did not choose to do so, The complainant after making hectic efforts, she could not get the refund of amount as promised by the OP, she caused a legal notice dated 22-8-2011, the same was received by the OP. After lapse of several days the Ops caused an untenable reply to the complainant’s notice. In view of the lower power motor treadmill being given to the complainant and the said treadmill not only damaged its bed and belt but it was stopped working before the warranty period. Due to defective and lower HP motor tread mill, the complainant developed health hazard such as Arthritis, Knee joint problem etc. The complainant consulted her doctors, and doctors diagnosed that due to defective and lower power treadmill being used she developed the problems and this shows the deficiency of service by the OP. The complainant is a bank employee, she is not able to work day to day officer work normally by sitting in one position, and the complainant is forced to issue legal notice. So the complainant has come before this forum for the Redressal of the grievance for deficiency of service, damages and other relief. The complainant is a consumer, having availed the services of the OP for consideration, and the OP has committed a serious act of deficiency in the services provided, and has acted in a most callous and negligent manner in redressing the grievance. Hence the present complaint is filed claming Rs.60,000=00 in all, i.e. Rs.30,000=00 towards value of the Tread mill and Rs.10,000=00 towards mental agony, Rs.10,000=00 towards health problems by using lower capacity tread mill and Rs.10,000=00 towards medical expenses and the complainant prays to pay cost of litigation also.
3. After service of notice, the OP has appeared through his counsel and filed objections contending inter-alia as under.
The complaint of the complainant is not maintainable. It is true that the complainant had purchased a motorized tread mill SFXL-2 from OP on 11-10-2010 for Rs.30,000=00. It is false that the complainant used as per the manual instruction and as per the demo. The complainant used for 10 months and thereafter she alleged that the said tread mill gradually started vibrating and making rattling noise which is totally incorrect. After receiving the complaint, the OP sent a technician immediately to the complainant’s place to attend the complaint and it was found that due to rough handling and not followed the instructions to use the treadmill caused some problem and not because of the defect in the tread mill, and because of regular wear and tear and accumulation of dust. During the time of service the complainant not allowed the technician to rectify the problem and she informed the technician that she will go for exchange offer for another higher model and as per the instructions of the complainant, the technician keep pending the equipment and even today the OP is ready to rectify the equipment within one hour, and it is caused due to improper and mishandling of the equipment and not used procedurally as per the instructions. The averments made in para no.5 that the OP delivered 1.5 HP motor power treadmill and collected the amount for 3 HP motor power cost is totally false. The OP delivered the treadmill as per the model and specifications opted and ordered by complainant and charged for the same. The averments made in para no.6 of the complaint that the OP promised to refund the amount of Rs.30,000=00 and take back the defective treadmill is utterly false. The OP never promised to refund the amount and take back the treadmill and the OP has given suitable reply to the legal notice. The averments made in the para no.8 of the complaint that in view of lower motor and due to defective treadmill, complainant developed health hazards and doctors diagnosed that due to defective and lower power treadmill she developed the problem is utterly false. The complainant used and utilized the tread mill and service for all these period and after completing the warranty period changed the version for immoral gain, the OP is not liable for any damages, since the OP delivered the tread mill in a standard condition as per the company norms, and the complainant purchased the said thread mill as per the terms and conditions mentioned in the invoice, as per clause-1 goods once sold cannot be taken back or exchanged as per the clause-7, warranty: one year against any manufacturing defects under normal conditions, if found faulty or repairable or replaceable and not the whole equipment. The other allegations mad in the complaint that the treadmill supplied by the OP is a defective one and not tested the product before supplying to the customers is a deficiency in service is denied as false and put to strict proof of the same. The complainant filed this complaint within an intention to degrade the reputation of OP. Hence it is prayed to dismiss the complaint with heavy cost in the interest of justice and equity.
4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, the OP has committed a serious act of deficiency in the services provided to her, and has acted in a most callous and negligent manner in redressing her grievance?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
5. Our findings on the above points are;
Point no.1: In the affirmative
Point no.2: The complainant is entitled for
replacement of new treadmill within 15 days of the order and if OP fails to supply the new machine, he is entitled for refund of Rs.30,000=00 with 10% interest and cost of Rs.2,000=00.
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant has filed her affidavit by way of evidence, and produced six documents with list dated 14-10-2011 and eight documents with list dated 20-12-2011. On the other hand, one B.Raghuraman, who being the representative of OP has filed his affidavit and produced one authority letter issued by OP. We have heard the arguments of both sides. We have gone through the oral and documentary evidence of both parties scrupulously.
7. One Smt.Sumathi.B., who being the complainant has stated in her affidavit stating that, she had purchased a treadmill (motorized) SFXL-2 with motor power of 3HP DC tread mill with 1-16 KM/PH with instant keys which displays time, speed, distance calories and hand pulse by paying a sum of Rs.30,000=00 under the Tax Invoice no.3443 dated 11-10-2010, and she had used the said Tread mill for a period of 10 months and thereafter gradually the Treadmill started making vibration and rattling noise while using the Treadmill, subsequently it stopped working, immediately she called upon the customer care service and reported a complaint and the technicians from the service centre visited her place and attended the complaint on 8-8-2011, thereafter one technician by name Raju found that, the said treadmill having running bed and belt problems and he has also in his remarks that the customer can take exchange and the said Treadmill was found defective and not in a working condition with in a period of 10 months. The technician who attended the complaint did not repair and on the contrary he stated that the OP delivered a 1.6. HP motor treadmill instead of 3 HP motor tread mill, so he advised in his remarks report to exchange 3 HP motor trade mill, which was given to them is not having upto maximum 16 kmph, but it is having speed of only 12 kmph the actual SFXL-2 model is having maximum upto 16 kmph which is having 3 HPs DC tread mill motor power. The OP Company had cheated her by giving 1.6 HP motor and with only maximum speed of 12 kmph. Actually the original SFXL-2 can resist and hold maximum of 120 kgs weight of a person, whereas her weight is 53 kgs only, but the OP had given her lessor capacity of the motor power tread mill. Due to the lower capacity treadmill, she had developed knee joint and muscle pain which lead to arthritis problems, after she came to know through the technician Mr.Raju and his remarks report, he called upon the Ops to refund the amount of Rs.30,000=00 but her efforts to get money back became futile, she issued a legal notice, the OP given a untenable reply, she is a bank employee and she is unable to work by sitting in one place, she suffered knee problems after using low capacity motor power tread mill with lower speed capacity and defective one which was stopped working before elapsing of warranty period on 7-8-2011 and this shows the negligence on the part of the OP and deficiency of service and in view of the said health problems she had taken leave from her bank. So, the present complaint is filed claming Rs.30,000=00 towards value of the machine, and Rs.10,000=00 towards mental agony, Rs.10,000=00 towards health problems by using lower capacity tread mill and Rs.10,000=00 towards medical expenses and Rs.7,000=00 towards litigation expenses and cost.
8. On a careful reading of the averments of complaint and evidence of the complainant as mentioned above, it is made explicitly clear that, the complainant has tendered her evidence in accordance with the averments of the complaint. Let us have a look at the relevant documents of the complainant one by one. The document no.1 of the complainant’s list dated 20-12-2011 is the original copy of brochure of the OP. The Document no.2 is the copy of original tax invoice issued by the OP in the name of the complainant dated 10-11-2010 for having purchased XL-2 Motorized treadmill for Rs.30,000=00 under invoice no.3443. The document no.3 is the copy of service report of technician of OP dated 11-10-2010, wherein it is stated in nature of complaint column, as sound and not working, and nature of service done, it is stated, pending running bed problem and belt problem, and in the remarks column, it is written as customer came to exchange offer. The said service report dated 8-8-2011 produced by the complainant makes it abundantly clear that, the technician of the OP has attended the complaint of the complainant, but he did not correct the mistake in the remarks column, he mentioned as customer came to exchange offer. The next document is the user’s manual XL-2 MTM motorized treadmill issued by the OP. The document no.5 is the copy of a legal notice dated 22-8-2011 issued by the complainant to OP. The document no.6 consists of RPAD receipt and postal acknowledgement. The document no.7 is the copy of reply notice given by the OP denying the contents of the notice of complainant. The document no.8 is the copy of RPAD cover, and another list of the complainant consists of Xerox copies of original documents as mentioned above. At this stage, we would like to have a glance at the oral evidence of the OP. One B.Raghuraman has stated in his affidavit that, the complainant purchased a Tread mill SFXL-2 on 11-10-2010 for Rs.30,000=00 but she has not used the equipment as per the manual instructions and, she and her family members improperly used for 10 months and thereafter she alleged that the said Tread mill started vibrating and making rattling noise which is totally incorrect, and he sent a technician and it is noticed by the technician that due to rough handling and not followed the instructions to use the treadmill caused some problem and not because of the defect in the treadmill. During the time of service the complainant not allowed our technician to rectify the problem and, she informed the technician that she will go for exchange offer for another higher model and as per the instruction of the complainant, the technician has not rectified the equipment and even today, he is ready to rectify the equipment within one hour, there is no defect in the equipment nor deficiency of service, they have supplied the model and specifications opted or selected by the complainant and treadmill delivered to complainant is 3 HP DC motor with duel power motor capacity, it is falsely stated that the supplied treadmill of 1.6 HP motor instead of 3 HP motor, their company never promised to return of Rs.30,000=00 and take back the defective treadmill, their company is not liable to pay any damages as the complainant has filed a complaint with an intention to degrade the reputation of OP.
9. But it is worthy to be noted that, except producing an authority letter in the name of B.Raghuraman, no other documents are produced to fortify the oral evidence of representative of the OP. It is no doubt true that, in the evidence of representative of OP, it is stated that, the complainant did not allow their technician to rectify the mistake and as per instruction of the complainant the technician did not rectify the equipment. But, it is pertinent to note that, no iota of documentary evidence produced by the OP to satisfy the forum, that the complainant did not allow the technician to rectify the defect in the tread mill. In the absence of producing any convincing documentary evidence, it cannot be held on the solitary testimony of representative of OP that the complainant did not allow the technician to attend the defect in the machine. Since, the oral evidence of representative of the OP is not corroborated by clear and tangible documentary evidence, so his evidence is unworthy of acceptance. The complainant has produced the service report dated 8-8-2011, wherein it is not stated anywhere that, the complainant did not allow the technician to rectify the mistake and at the instance of the complainant, the technician has stated in the report, customer can ask for exchange etc. The said report of the technician is silent on this vital aspect. On the other hand, the oral testimony of the complainant that, the treadmill supplied by the OP, is not working properly and technician could not attend the complaint and treadmill supplied to her is stopped well within the warranty period stands corroborated by report of technician and copy of legal notice. When the treadmill purchased by the complainant was having a problem of sound and not working etc. it is duty of the OP to attend the problem immediately by sending the technician and give proper service to the satisfaction of the complainant. Instead of doing so, the technician who attended the complaint on 8-8-2011 did not rectify the mistake in the machine. But he suggested for exchange offer and taking oral and documentary evidence of the complainant and compare the same with the material evidence of the OP, it is made unambiguously clear that, the material evidence of the complainant is more trust worthy and acted upon than the material evidence of OP. The material evidence placed by the complainant before the forum is enough to hold that the OP has not attended the complaint of the complainant sincerely and OP acted in callous and negligent manner in redressing the service of the complainant, and there is deficiency in the service on the part of the OP and accordingly, we answer this point in a affirmative.
10. In view of the affirmative findings on point no.1, the complainant is entitled for replacement of a new Tread Mill (Motorized) SFXL- model with 3HP DC tread mill as treadmill supplied by OP to the complainant is defective and not working properly. The OP is directed to make replacement of a new Tread Mill and hand over the same to the complainant within 15 days from the date of the order, failing which, the OP shall refund a sum of Rs.30,000=00 to the complainant with 10% interest per annum on the said amount from the date of the order to till the date of realization. The OP is further directed to pay Rs.2,000=00 towards cost of litigation, and accordingly, we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is partly allowed. The complainant is entitled for replacement of a new Tread Mill (Motorized) SFXL- model with 3HP DC tread mill.
The OP is directed to make replacement of the said Tread Mill and hand over the same to the complainant within 15 days from the date of the order, failing which, the OP shall refund of Rs.30,000=00 to the complainant with 10% interest per annum on the said amount from the date of the order to till the date of realization.
The OP is further directed to pay Rs.2,000=00 towards cost of litigation.
The complainant is directed to hand over the old Tread Mill to the OP, after replacement of a new Tread Mill or payment of the value of machine as ordered.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 30th day of June 2012.
MEMBER MEMBER PRESIDENT
