In the District Consumer Disputes Redressal Forum, Murshidabad
Berhampore, Murshidabad
Case No. C.C./66/2015
Date of filing:25/02/2015 Date of Final Order: 23/11/2015
Biswajit Roy
S/O- Pramanath Roy.
20,K.K. Banerjee Rd., Gorabazar.
Berhampore,Dist- Murshidabad ………………………………………………...Complainant
-Vs-
Prop. M/S- New Shyama Cycle Works,
Stall No.-1 to 6, K.N. Road, A Block ( Extension Bldg)
P.O.& P.S.- Berhampore.
Dist.- Murshidabad (WB) PIN-742101.…………….…………………. Opposite Party
Present: Hon’ble President, Anupam Bhattacharyya.
Hon’ble Member, Samaresh Kumar Mitra.
FINAL ORDER
Samaresh Kumar Mitra, Member:
Brief facts of the case are that Complainant / Petitioner being an intended purchaser of a Treadmill machine for the purpose of physical through mechanical / machine system for fitness and good health went to the shop of OP in the abovenoted address. At the time of discussion with the Op who being the dealer of BSA Treadmill suggested to purchase BSA Treadmill with assurance of best performance of the machine and immediate action regarding service and replacement of spares if found or detected in due course of time. That the complainant being satisfied with the suggestion and assurance of the OP for trouble free service and purchased a Treadmill machine of Model No. ADLER T2500 of BSA Company on 12.05.2011 from the OP. But within one month of delivery of said article the complainant found that the machine is not functioning properly and he immediately informed the matter to the OP but he did not respond at the request of the complainant. So the complainant send an e-mail to the customer care, TI- Cycle of India. After that the service Engineer attended the machine on 21.10.2011 and with some adjustments and repairing made the machine functional but detected inherent defect in the machine and D.C.Motor. That in the month of July,2012 the D.C. Motor of the machine started malfunctioning and again after several calls the service Engineer of the OP visited the complainant and on physical verification declared that the D.C. Motor got faulty and required to be replaced. On questioning about the shortest life of the costly Motor and replacement of the same the dealer refused to replace the machine or the DC Motor. Rather the dealer suggested this complainant to find a local engineer for repairing of the same. That after a lapse of 1 year 1st time the fact revealed out from the Service Engineer of the OP was that the BSA product which the complainant purchased from “New Shyama Cycle Works” was not made up genuine Indian Product. The BSA product had low quality spares like DC Motor, MCB (circuit board) installed inside were made in Korea. The complainant made telephonic calls to the OP & Customer Care TI- cycles India, Kolkata throughout the years 2012,2013 &2014 to make his machine functional by any means but the OP did not response. Then the complainant sent 2nd & 3rd emails to the OP Company regarding malfunctioning of the machine on 18.8.2014 & 14.10.2014 respectively. He received a reply of the e-mail on 14.10.2014 with suggestion to purchase a new DC Motor and MCB. That the complainant compelled to purchase both DC Motor and MCB and those were installed on 04.12.2014 and he had to pay Rs.13050.00 for that. The newly installed MCB got faulty within a month and the complainant intimated the matter to the dealer. But the dealer took no measure in that regard. After many telephonic conversations the dealer sent one person to take the MCB for onward action at the end of the BSA Company. Then the complainant sent 4th & 5th e-mails to the OP Company on24.02.2015 & 07.04.2015 respectively for quick return of the MCB. Lastly the complainant received one e-mail on 07.04.2015 with assurance for quick remedy. But no positive response has yet been received till date as a result the machine is kept idle.
The complainant send one representation on 21.04.2015 to the Secretary, Murshidabad District Consumers Association who in his turn forwarded the representation to the OP for solving the matter but no steps taken till date as such the complainant getting no alternative filed the instant complaint before this Forum for getting remedy as prayed for in the prayer portion of the complaint.
The OP received the notice on 10.7.2015 but did not put his appearance and no written version filed as such the proceeding run ex-parte against the OP.
The complainant filed evidence on affidavit on 04.11.2015 and advanced ex-parte argument. Argument as advanced by the agent of the complainant heard in full.
The complainant in his evidence on affidavit assailed that the OP miserably failed to discharge his obligatory service in terms of assurance given at the time of purchase of the machine.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Biswajit Roy is a ‘Consumer’ of the opposite party?
2). Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3). Whether the O.P. carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
5). Whether the complainant is entitled to relief(s)as prayed for?
DECISIONS WITH REASONS
In the light of discussions herein above we find that the following issues/points should be decided based on the above perspectives.
1).Whether the Complainant Biswajit Roy is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(i) of the Consumer Protection Act,1986. As the complainant herein being the customer of OP is entitled to get service from the OPs.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite party are residents/carrying on business within the district of Murshidabad and cause of action took place at Berhampore, Murshidabad. The complaint valued at Rs.60000.00/- and Rs.50,000/as compensation for harassment, mental agony ad valorem which is within Rs.20,00,000/-limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
After perusing the Complaint Petition, Evidence on Affidavit and also the documents as filed by the complainant and hearing the argument as advanced by the agent of the complainant it appears that the complainant purchased one treadmill of BSA Adler T-2500 from the OP on 12.05.2011 which costs amounting to Rs.41,500.00 including the tax. Tax Invoice shows that the cost price of the said Article is Rs.41,500/- including tax. According to the complaint petition the said Tread mill was not function properly within a moth of purchase and the purchaser informed the matter to the OP dealer. He also informed the customer care, TI cycle of India on 18.10.2011. The service Engineer of the company attended the machine and made the machine functional after repairing and adjustment and it is evident from the service report of TI cycle of India dated 21.10.2011 in which the mechanic/ Service Engineer made a remark that E-1 & E-9 , adjust amp and also suggested to run the machine at a stretch 20-25 minutes then 5-10 minutes rest and the machine is receiving O.K. The complainant being the customer remarked that; the work of the Service Engineer is satisfactory. Another service report of TI cycle of India dt. 5.12.14 speaks that spare parts replaced; Running Motor, MCB. Spare are billing through New Shyama Engineers remarked as running O.K. Customer remarked running O.K. on date. The e-mail dt. 18.8.2014 which speaks that the treadmill of the complainant is inoperative for want of DC Motor. The dealer & customer care of TI cycle India failed to supply DC Motor as a result the machine remained idle for a prolonged period. Another e-mail dt. 14.10.2014 speaks that as per advice of the OP Company the Complainant replaced the damaged DC Motor by new one but the machine remained non-functional. There after the Company personnel talked about the damaged circuit board but expressed their inability to repair but suggested to purchase new one. The complainant declined to purchase new one by investing Rs.20,000/- as he purchased the said treadmill with a consideration money amounting o Rs.41,500/- of reputed Company. The reply of the customer care TICI , Kolkata dt. 14.10.2014 speaks that they are very sorry to hear the issue of the complainant and expressed deepest apologies for facing such issues and the service Engineer have taken of the complaints machine for repairing purpose if it is repairable they repair that and informed the price of new MCB Rs.4770/- if the complainant choose to buy and they will solve the issue as early as possible.
The e-mail dt. 24.2.2015 sent to the TI Customer Care, TI Cycle India depicts that the said treadmill got non-functional even after purchasing and replacing new motor and new MCB. These spares were replaced on 6th Dec, 2014 at the same time with no warranty as per customer Service located at Kolkata. The complainant compelled to expend Rs.13050.00 for the replacement of the spare parts which was not expected by him. He being a purchaser of treadmill of reputed company expected good service from the company as well as the spare parts of the said machine should not be nonfunctional within the warranty period. It is clearly stated in the Warranty Card of the said machine that TI Cycles of India guarantees that every fitness product is free from manufacturing defects and workmanship under normal conditions of usage for a period of 1 year from the date of original purchase. If the product is found to have any defect within this period, the company would repair defective parts free of cost, subject to the following terms and conditions. In the terms & conditions as envisaged in the warranty card it is stated that if a defect is identified in the equipment during warranty period, the company shall retain any part of component replacement. But in the case of the complainant the company received a lot of mails from the end of the complainant but what measures they have taken so far to make the machine functioning. In the complaint petition the complainant averred that the personnel of the Company tried to make the said machine functioning but could not and suggested to purchase new parts at the expense of the complainant. Following the suggestion of the mechanic he purchased the parts and fitted the parts with the help of the mechanic of the Company by paying a service charge amounting to Rs.750/- on 5/12/2014 after warranty period. The case record speaks that the complainant purchased the said machine on 12.5.2011 from the OP dealer and immediately after the purchase i.e. within two months the machine started malfunctioning then the complainant informed the matter to the OP dealer who sent one unskilled mechanic who could not repair the same then he informed the matter to the OP Company by e-mail dated 18.10.2011. But the Producer Company did not took no measure to make the machine functioning. The OP dealer always tried to save his skin by avoiding the complainant.
So from the above the discussion we can see that the complainant suffered a lot at the deficiency of service of the OP dealer and the producer Company. The dealer who sold the said machine was under obligation to provide service either by his/her men or by the expert/skilled personnel of producer Company. The OP dealer should take necessary measure to make the machine functioning as he is the service provider but he did not do so. His inaction regarding the service of the complainant tantamount to deficiency of service for which he is liable to make the machine in functioning condition by replacing and changing appropriate parts if required and to compensate the complainant for harassment and mental agony.
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant is able to prove his case. So, the Opposite Party is liable to compensate the Complainant as we deem fit and proper.
5. Whether the complainant is entitled to relief(s) prayed for?
As it is already proved in the discussion at point No. 3, the deficiency in service and unfair trade practice adopted by the Opposite Party cannot be ousted and as such the Complainant is entitled to get relief(s).
ORDER
Hence it is ordered that the complaint be and the same is allowed ex-parte against the Opposite Party with a litigation cost of Rs.4000/-.
The Opposite Party is hereby directed to repair the machine by fitting with the appropriate parts so that the machine be function properly and also directed to pay compensation amounting to Rs.10,000.00 to this complainant within 45 days from the receipt of this final order. No other relief (s) is awarded to the complainant.
At the event of failure to comply with the order the Opposite Party shall pay the invoice money amounting to Rs.41500.00 to the complainant alonwith litigation cost of RS.4000.00 and compensation of Rs.10,000.00.
In default a fine @Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days be deposited in the Consumer Legal Aid Account.
Let plain copy of this order be made available and be supplied, free of cost, to the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgement/ be sent forthwith under registered post to the concerned parties as per rules, for information and necessary action.
Dictated and Corrected by me.
