Date of Filling      :  17.07.2015.

                                                                                            Date of Disposal  :  24.10.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                     TMT.  S.  SUJATHA, B.Sc.,                          …    MEMBER - I

Consumer Complaint No.34/2015

(Dated this Monday the 24^th day of October 2016)

Mr. Jackson Finny Samuel,

S/o. Mr.J. Kirubaharan Wilfred,

No.44, IInd Floor,

Sri Ambal Gajalakshmi Nagar,

Phase II, North Ragunathapuram,

Mangadu,

Chennai - 600 122.                                                              … Complainant.

/ Versus /

1.  The Manager,

     ELEC Power Systems,

     Plot No.4A, Subbaiah Nagar,

     Ayyappanthangal,

     Chennai - 600 056.

2.  The Manager,                                    

     Eureka Forbes,

     No.88, Anmal Palani Building Level,

     4 Block No.B 5, G.N. Chetty Road,

     T. Nagar,

     Chennai - 600 017.

3.  The Managing Director,

     Eureka Forbes,

     B1/B2, 702, 7^th Floor, Marathon Nextgen,

     Marathon Innova,

     Off. Ganpatrao Kadam Marg,

     Lower Parel,

     Mumbai - 400 013.

4.  M/s. Asha Idnani,

     Ombudsman,

     B1/B2. 701, 7^th Floor, Marathon-NextGen,

     Marathon Innova,

     Off. Ganpatrao Kadam Marg,

     Lower Parel,

     Mumbai - 400 013.                                                          … Opposite parties.

This complaint is coming upon before us finally on 07.10.2016 in the presence of Tmt. G. Malathi, Counsel for the complainant, M/s. A.R. Poovannan, Counsel for the 2 & 3^rd opposite parties and the 1 & 4^th opposite parties are set Exparte for non appearance and having perused the documents, evidences, oral and written arguments on the side the complainant, 2 and 3^rd opposite parties this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

          This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the 1 to 4 opposite parties for seeking to replace the defective Eureka Forbes Aquaguard with a new one and to pay a sum of Rs.1,50,000/- towards compensation for causing mental agony and deficiency in service to the complainant with cost.

2.       The brief averments of the amended complaint is as follows:-

On 21.02.2014, the 1^st opposite party’s sales person Mr. Suresh came and  introduced himself and stated that they are the authorized franchise for Eureka Forbes Aquaguard products and also explained about their products.  On the next day, again the 1^st opposite party’s salesman came to the complainant’s house and asked to pay Rs.500/- as advance for Eureka Forbes Aquaguard and the remaining amount after one week by post dated cheque.  Hence, the complainant went to the 1^st opposite party’s office and checked the models of water purifier and paid Rs.500/- as advance for Aquaguard model Reviva.  Further, on the same day on night time, another person Mr. Sathiyaraj came to the complainant’s home and fixed Aquaguard unit and checked water quality and the complainant issued cheque Rs.13,490/- infavour of ELEC Power System.

3.       After fixed the Aquaguard, the complainant noticed that one of the main screw in the machine was not fixed properly, which is a manufacturing fault.  Hence the complainant asked the sales person Mr. Suresh to replace the unit.  Further after two days, Mr. Suresh came to the complainant’s home and convinced to adjust with the problem as is a simple screw and the machine is installed.  But the complainant didn’t accept and refused to sign in the goods received challan and stopped payment of the cheque on 28.02.2014.  After that, the 1^st opposite party’s salesman Mr. Suresh humbly said to the complainant “ If you stop the payment, I will have to pay for your machine as I am a sales person I get Rs.250/- as incentive for selling a machine, so please make payment”.  Further that the person promised the complainant that he will correct the problem after full payment that the complainant can claim for a new unit from the company since it is installed.

4.       Eventhough, the salesman tried to remove the screw to fix properly but it is vain.  So, the salesman has taken the machine with him.  At that time, the complainant said to the salesman that he could not spend money to buy water after making a huge amount for purifier.  Hence the sales person brought a demo machine and fixed it for the meantime usage and returned the stoppage cheque by the person and collected another cheque for an amount of Rs.13,490/- (Axis Bank Cheque Number 244028 dated:04.03.2014) as full payment and waited for a week, but recently the complainant called him many times to replace the machine and the complainant has been waiting for the replacement upto date but the opposite party’s sales man always said, to take back that the old machine and adjust with that fault or wait for one week.

5.       Finally, the salesman started threatening the complainant telling that he already fixed the machine that is the new one and don’t make calls to him.  The complainant then called Eureka Forbes Customer Care and asked about the machine details.  But they said no Aquaguard machine is registered in the complainant’s name and there is no authorized dealers in the name of ELEC power systems.  Hence the complainant gave Police complaint against the 1^st opposite party’s salesman.   After receiving the complainant, police enquired the 1^st opposite party’s officer but supported the cheaters and closed it.  After making the complaint, the seller registered the complainant’s name in Eureka Forbes and sent sms.

6.       Till now, no action taken by the opposite parties and didn’t attend it a single time directly.  However, the problem remains the same till date neither the complainant had received any replacement nor received any kind of response from the opposite parties.  The complainant could not trust the water purifier and forced to buy packed drinking water from shop evenafter spending a huge amount for purchasing a water purifier.  Further, the complainant filed a complaint to the opposite parties officials but they did not respond and the complaint was overlooked.  The most frustrating and agonizing part is that after repeatedly requesting and discussing the problem with the company’s advisor, and then given just false assurances but no one is ready to solve the complainant’s problem.  Eventhough the complainant has given the complaint several times through E-mail and phone calls, nobody came to check about the problem.  The complainant was extremely disappointed with the opposite parties pathetic services.  The complainant has been facing lot of mental stress, agony and immense loss of time and money due to this incident.  The opposite parties are jointly and severally liable to pay the compensation and damages to the complainant for his monetary loss as well as his mental agony.  Hence on 15.04.2015, the complainant issued notice to the opposite parties for deficiency of service and the notice was served.  But no response.  Hence this complaint.

7.       The contention of written version of the 2 & 3^rd opposite parties is  briefly as follows:-

The 2 & 3^rd opposite parties deny all the allegations and averments made in the complaint, except those that are specifically admitted by them herein.   They are engaged in the business of selling of Aquaguard water purifier and Eureka Vacuum cleaner and other connected business activities as the leading company in manufacturing and marketing the extensive products which are very much essential in daily life like water purifiers, vacuum cleaners, air purifiers, RO water purifiers, UV water purifiers and wet and dry cleaners for both domestic and industrial purpose.  The 2 & 3^rd opposite parties is not manufacturer of these products.  They are only marketer and service provider of the finished products to the customers.  Since the manufacturer of this product is not included as a party in this complaint.  This complaint is liable to be dismissed on the ground of non-joinder of parties.  The claim of compensation for mental agony and deficiency in service are repugnant and makes no sense.

8.       At the time of installation of the classic water pump, the complainant was fully explained in detail the way of using the machine and an instruction manual laws provided wherein instructions have been spelt out and he was advised to strictly follow the instruction given in the user manual for best usage and even a small mistake / flaw would result in variation.  Further, if there is any lapse in the procedure followed by the complainant, then the opposite parties cannot be held liable for the same.  The next day, the complainant has complained that the machine screw was not fixed properly.  The service technician Mr. Suresh attended the grievance and fixed the screw properly.  But the complainant was not satisfied, he started insisting for replacement of the water purifier.  Evenafter the screw was fixed properly, the complainant impudently demanded for a new machine.  To make happy the complainant, the 1^st opposite party claimed for the another new machine from the 2 & 3^rd opposite parties.  With a great difficulty and after getting approval from the 2 & 3^rd opposite parties, he taken back the water purifier (already installed) and agreed to give another a brand new water purifier.  In the meanwhile, he issued the stop payment for the cheque.  After installation of a brand New water machine, the complainant issued the new cheque.  Thereafter, the 1^st opposite party encashed the cheque.

9.       The 2 & 3^rd opposite parties vehemently denies the allegation of the complainant that the new machine provided to him was a “Demo” machine.  It is false to state the 1^st opposite party provided ‘Demo’ machine.  They further state that there is no ‘Demo’ machine in the company.  Every machine is sealed, unpacked and opened before the customers.  Similarly, this New machine was also sealed, it was unpacked before the complainant.  After having seen the new machine, he issued the fresh cheque.  The allegations are highly imaginary and highly invented by the complainant with the ulterior motive.  After 4 months, on 06.06.2014, the complainant had lodged a complaint with the Inspector of Police, T-14, Mangadu Police Station against the 1^st opposite party stating that he was not provided with a New water purifier was not functioning properly and cheated the complainant and also the complainant’s name was not registered as a customer in the records of the 2 & 3^rd opposite parties.  The said Mr. Suresh and officials from these opposite parties explained that they have already replaced the one water purifier after much efforts and provided with a brand New water purifier.  The Inspector of Police enquired the matter and immediately called the Customer Care and they explained the complainant’s name and address.  The Inspector of Police warned the complainant and not to make any false complaints against the opposite parties.  The said complaint was closed.  Further,  all his phone calls regularly attended the calls in the Customer Care of the opposite parties, but the complainant was keep on insisting for the yet another new water purifier.

10.     After installing the machine, the machine was functioning properly.  Knowing the facts, the complainant is making such wild allegations for the reasons best known to him.  The complainant did not approach the Forum with clean hands since he demanded money for illegal enrichment by harassing and threatening the opposite parties sales person and various service centre by registering complaints.  All his complaints were duly attended and the opposite parties are ready to produce the same.   Further the complainant’s evil intention does not stopped at any level.  He went to the extent of complaining the said issue to the opposite parties through E-mail and the same was immediately responded by the Senior Divisions Manager – Sales Mr. Raghavendra.  Though the opposite parties replaced the water purifier with the new machine but the complainant is greedy and preferred the instant case with baseless allegations and cooked up stories.   At the time of installation and after the installation of the water purifier, it was working in a good condition.  Thereafter, the complainant made a false complaint to the opposite parties.

11.     The 2 & 3^rd opposite parties state that some vital materials have been suppressed by the complainant.  It is submitted that the complainant has not suffered loss and expenses nor there is any negligence or deficiency of service on the part of the opposite parties.  The complainant with malafide intention has filed the case against the opposite parties to extract money for his illegal fortification and to defame.  The complaint is devoid of merits and the same deserves to be dismissed with costs.

12.     In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A13 were marked.   While so, on the side of the 2 & 3^rd opposite parties, the proof affidavit is filed  and Ex.B1 is marked for their evidence.

13.    At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the 1 to 4 opposite parties as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

14.      Written arguments filed and oral arguments adduced on the sides of the complainant, 2 & 3^rd opposite parties.

15.     Point no.1:-

First of all, on perusal of the proof affidavit submitted by the complainant, it is learnt that the complainant was having belief over the sales person namely Mr. Suresh, who is attached with the 1^st opposite party and the complainant went to the office of the 1^st opposite party and checked the Eureka Forbes Aquaguard water purifier model Reviva and paid an advance of Rs.500/- after one week from 21.02.2014.   The receipt for payment of advance is marked as Ex.A1 and the Order Form cum Receipt is marked as Ex.A2 dated 22.02.2014. On the same day night, (i.e.) 22.02.2014 one person Mr. Sathiyaraj came to the complainant’s house and fixed the Aquaguard unit and immediately, the complainant issued a cheque for the balance amount of Rs.13,490/- in favour of the 1^st opposite party.  In this connection, the Tax Invoice is marked as Ex.A4.  The warranty for the said product is marked as Ex.A3.

16.     It is further learnt that after fixing the Aquaguard water purifier, it was noticed by the complainant that one of the main screw of the machine was not fixed properly, which is a manufacturing defect and the complainant asked the sales person Mr. Suresh to replace the unit.  But it was informed to the sales person Mr. Suresh and after two days he came to the complainant’s home and convinced him to adjust with the problem as it is a simple screw and the machine was installed.  But the complainant did not accept and refused to sign in the goods received challan and stopped payment of the cheque on 28.02.2014.  It is further stated that eventhough the sales man tried to remove the screw to fix properly but it is ended in vain and so, the sales man has taken the machine with him.  Thereafter, the sales person brought a demo machine and fixed it for the meantime usage and returned the stoppage cheque by the person and collected another cheque for an amount of Rs.13,490/- (Axis Bank Cheque Number 244028 dated:04.03.2014 as full payment and the said cheque is marked as Ex.A5 along with the stoppage order.  Though the complainant waited for one week and remained to replace the machine, the opposite party’s salesman has not come forward to replace the old machine to a new machine.  Therefore, the complainant preferred Ex.A6 complaint to the Inspector of Police, Mangadu Police Station to that effect and Ex.A7, CSR was issued by the Sub Inspector of Police, Mangadu Police Station.  ExA5, cheque was encashed by the 1^st opposite party, for which, the statement of accounts is marked as Ex.A8.  The complainant thereafter, sent Ex.A9 to Ex.A11, E-mails and also Ex.A12, notice to the 1 to 4 opposite parties for replacing the old machine with a new machine and the same have been received by the opposite parties which are marked as Ex.A13 Series which are the proof of delivery for sending it through speed post.  But there is no response from the side of the opposite parties and thereby the complainant is compelled to file this complaint for the unfair trade practice which leads for deficiency in service.

17.     While so, on going through the written version as well as the proof affidavit filed on the side of the 2 & 3^rd opposite parties, it is vehemently contended that the allegations are highly imaginary and invented with ulterior motive to extract for his illegal fortification and also the vital material have been suppressed by the complainant.  Further, it is stated that evenafter the screw was fixed properly, the complainant impudently demanded for a new machine and with great difficulty and after getting approval from the 2 & 3^rd opposite parties,  the water purifier already installed so taken back and provided a brand new water machine and on satisfaction only, the complainant had issued a fresh cheque and then only the 1^st  opposite party encashed the cheque and therefore, the allegation made in the complaint that a new water purifier was not installed after taking back the demo machine and knowing the said facts fully well, the complainant is making such wild allegations for the reasons best known to him and in order to prove the same, the Customer Service History is marked as Ex.B1 for the subsequent period.

18.     At the outset, the duty cast upon the Forum to consider whether the complainant has proved the allegations made in the complaint by means of relevant and consistent evidence.  The purchase of the Eureka Forbes Aquaguard Reviva Model from the 1^st opposite party in the first occasion and the problem arises because of the non fixing of the one of the main screw properly in the said machine and the issue of the first cheque for a sum of Rs.13,490/- in favour of the 1^st opposite party and the same was stopped for payment by the complainant are all admitted facts.   Similarly, the issue of the subsequent cheque dated 04.03.2014 and the encashment of the same by the 1^st opposite party is also not disputed.   At this point of time, the only contention before this Forum is, whether it is true that on taking back the alleged water purifier already fixed in the first occasion was taken back and only the Demo machine was installed and thereafter, as per the promise of the 1^st opposite party’s salesman the new machine has not been fixed. 

19.     Regarding this fact, on going through the proof affidavit of the complainant, it is learnt that inspite of repeated request made by the complainant, the salesperson of the 1^st opposite party, though the salesman has taken back the old machine but failed to install the new machine.  So, the complainant sent Ex.A9 to Ex.A11, E-mails to the 2^nd opposite party where it is clearly mentioned about that the old machine water purifier was taken back by him.   In such circumstances, on carefully going through the Ex.A10, the reply sent by the 2^nd opposite party, there is no materials found regarding the allegation of the initially purchased machine mentioned in Ex.A9.   But simply the service Request number assigned by way of reply.  Similarly, on perusal of the Ex.A11 also, it is clearly mentioned about the defects noted in the fixing of the first machine and request placed for replacement of new machine with the opposite party’s sales person and he has come forward for replacing of the Demo machine with a new machine and so Ex.A12, notice sent to the 1 to 4 opposite parties for attending the same as alleged in Ex.A11.  But it is crystal clear that there is no response from the opposite parties. 

20.     Not only that, they have neither denied the allegations nor sent any reply to the complainant’s notice and the proof of delivery of the notice though speed post is marked as Ex.A13 Series.  Such being so, the 2 & 3^rd opposite parties narrated in their proof affidavit that subsequent to the complaint by the complainant regarding the Ex.A1 to Ex.A9, a brand new water machine has been installed and the complainant was fully satisfied and then only, the complainant has issued fresh cheque.  But in this aspect, there is no concrete proof produced on the side of the 2 & 3^rd opposite parties but Ex.B1, Customer Service History has been filed.  On perusal of the proof affidavit, it is crystal clear that Ex.B1 is the Customer Service History which is prepared by the 2 & 3^rd opposite parties themselves and thereby it is a created document.   Eventhen on careful perusal of the Ex.B1, there is no signature of the complainant in Ex.B1 for attending the request made by the complainant in the said relevant dates.  Not even mentioning the Service Request number assigned in Ex.A10 in Ex.B1, which was issued by the opposite party.   Therefore, the Ex.B1 has lost it s merits and it is liable to be rejected.  It is further wish to enlighten that if it is true as narrated that the new machine was installed by the opposite parties, certainly there is some proof to that effect.  But no such proof has been filed.    Not only that, on seeing the Ex.A4, Tax Invoice through naked eyes in the space given for “Customer’s Signature” the signature is kept blank.  Therefore, the version submitted by the 2 & 3^rd opposite parties that, only on satisfaction by the complainant that a brand new water machine was fixed and a fresh cheque has been issued cannot be taken into consideration.  But at the same time, the averments made by the complainant holds good.  Furthermore, the competent person to say about the allegations made in the complainant is the 1^st opposite party who has not chosen to appear before this Forum and was set Exparte.

21.     In the light of the above facts and observations made, this Forum can easily come to conclusion that the deficiency of service on the part of the 1 to 3 opposite parties has been clearly proved by the complainant.  Regarding the 4^th opposite party, the complainant himself not seeking any relief and hence it cannot be proceeded against him further.  Thus, point no.1 is answered accordingly.

22.     Point no.2:-

 In view of the findings arrived in point no.1, the complainant is entitled to get relief as prayed in the complaint with reasonable compensation and cost.  Thus point no.2 is answered accordingly.

In the result, this complaint is allowed in part.  Accordingly, the 1 to 3 opposite parties are jointly or severally directed to take back the old machine and replace the defective machine by providing a new ‘EUREKA FORBES  Aquaguard’ to the complainant within 10 days from the date of receipt of the order copy, failing which, the 1 to 3 opposite parties are directed to return the cost price of Rs.13,990/- (Rupees thirteen thousand nine hundred and ninety only) and to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for causing mental agony due to deficiency in service on the part of the 1 to 3 opposite parties along with the cost of Rs.5,000/- (Rupees five thousand only) totally of Rs.28,990/- (Rupees twenty eight thousand nine hundred and ninety only) to the complainant.  In respect of the 4^th opposite party, this complaint is dismissed.

The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which the said amount shall carry interest at the rate of 9.5% p.a.  till the date of payment.

Dictated by the President to the Steno-Typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 24^th   October  2016.

Sd/-****                                                                                      Sd/-****

MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the  opposite party:-

Sd/-****                                                                                      Sd/-****

MEMBER - I                                                                             PRESIDENT