D.O.F. 19.02.2010

                                          D.O.O. 13.09.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri.K.Gopalan                :         President

                                      Smt. K.P.Preethakumari:         Member

Smt.M.D.Jessy               :        Member

Dated this the 13^th day of September, 2011.

C.C.No.67/2010

Dineshan @ Dinesh Kumar K.V.,

S/o. Achuthan,

‘Abhilash’, P.O. Thiruvangadu,                                      :       Complainant

Thalassery  (Via), Kannur District.

(Rep. by Adv. K.K. Balaram)

1.  Proprietor,

     M/s. Health World,

     Green Park Residency,

     Opp. Railway Sree Muthappan Temple,         

     Thavakkara, Kannur                                        :         Opposite Parties

(Rep. by Adv. K.L. Abdul Salam)

2.  Musthanseer Musthafa,

     Proprietor, M/s. Health Star,

     Misiriya Complex, Opp. LIC Office,

     NCC Road, Thalassery, Kannur District .

O R D E R

Sri. K. Gopalan, President.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to refund an amount of              ` 8,500 as the price of Elliptical Bike with 10% interest and ` 50,000 as compensation together with the cost of this proceedings.

          The case of the complainant in brief as follows :  Complainant purchased ELLIPTICAL BIKE IS 110 Kg Orbic Track Cycle on 23.05.09 from the opposite party, through 2^nd opposite party for an amount of        ` 8,500.  He approached at first 2^nd opposite party, Musthanseer Musthafa, the Propeietor of Health Star who told him that their brother concern M/s. Health World, Thavakkara, Kannur is having a big collection of Exercise apparatuses.  Complainant selected the said apparatus cycle from there and paid the amount through 2^nd opposite party.  Thereafter the apparatus and its manual was delivered through 2^nd opposite party to the complainant along with its bill dated 23.05.2009.  The apparatus soon started trouble and became useless within one month.  The matter was reported to the opposite party and the representative of the 1^st opposite party along with 2^nd opposite party came to complainant’s house and the elliptical bike was taken back.  They also provided another cycle as replacement though it was totally different from the first, in its shape and size but very similar in use for one month, despite the handling with the utmost care and caution.   Eventhough complainant repeatedly requested opposite parties they did not rectify the defects or replace the apparatus.

          The above said apparatus was purchased solely for health purpose as per the advice of his doctor. It was purchased on the guarantee that it would work properly and serve the purpose.  But it learned that the equipment is having serious manufacturing defect.  The opposite parties sold the defective apparatus to cheat the complainant.  Legal notice sent to both parties. The notice of 2^nd opposite party returned unclaimed and 1^st opposite party send reply denying the sale.  The 1^st opposite party stated that 2^nd opposite party purchased the said vehicle as a consumer.  2^nd opposite party is not a dealer or an authorized agent.  They are not liable to replace or to pay the bill.  Opposite parties colluded with dishonest intention to defraud the complaint. It is unfair trade practice which caused much mental stress and strain.  Hence this complaint.

          Pursuant to the notice 1^st opposite party entered appearance and filed version.    Notice of 2^nd opposite party returned unserved with endorsement “closed window”.  So publication was ordered and thereby publication produced serving notice.  Subsequently 2^nd opposite party called absent and set exparte.  The contentions taken by 1^st opposite party in brief are as follows.  Complainant is not a consumer and the above complaint is not maintainable.  The complainant purchased the Elliptical Bike from the 2^nd opposite party not for his personal use but for using it as equipment in his health club, which is conducted by him for business purpose and for commercial use.  The 2^nd opposite party is not brother concern of this opposite party.  Such allegations are only to link this opposite party with the transaction.  The purchase of equipment by the complainant from this opposite party has been denied by him.  1^st opposite party has also denied that complainant approached him first and told him that they have big collections of exercise apparatus, and went to opposite parties show room and selected and paid the price through 2^nd opposite party and the same delivered to complainant through 2^nd opposite party etc.  The Health Star, Tellicherry purchased the said vehicle from 1^st opposite party directly as an independent customer and the bill issued to 2^nd opposite party and not to the complainant.  The 2^nd opposite party is not a dealer or an authorized agent of 1^st opposite party.  The complainant is a subsequent purchaser after a long span of time.  This opposite party has no liability to replace or to repay the bill amount.  The actual sale had been done between the complainant and the 2^nd opposite party.  The complainant wrongly chosen this opposite party purposefully.  This opposite party not at all involved in any of the dealing with the complainant either directly or indirectly.  If the complainant alleging any manufacturing defects he should make the manufacturer as party to this case, as a necessary party.  This opposite party is totally a stranger to the said transaction.  Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1.          Whether the complainant is a consumer and complaint is maintainable?

2.          Whether there is any deficiency in service on the part of the complainant?

3.          Relief and cost?

The evidence consists of oral testimony of PW1, DW1 and Ext.A1 to A8.  No documents marked on the side of the 1^st opposite party.  2^nd opposite party remained absent even after publication.

Issue No.1 to 3

          The subject matter of the complaint is that of the purchase of a health apparatus for the purpose of exercise.  Case of the complainant is that he has purchased this apparatus from 1^st opposite party through 2^nd opposite party by paying an amount of 8,500.  The 2^nd opposite party Mr.Musthanseer Musthafa is the son of 1^st opposite party, the proprietor of “Health Star”.  According to complainant the apparatus was delivered through the 2^nd opposite party to the complainant along with bill No.20 dated 23.05.2009 and owner’s manual of the apparatus.  Further case of the complainant is that the apparatus became useless within one month and on request another one was replaced but that also soon became useless.  The opposite parties are neither ready to replace it nor to refund the amount.

          Opposite party on the otherhand took the contention that he has not in any way related to the transaction.  The purchase transaction has been taken place between complainant and 2^nd opposite party.  Hence he has no liability to attend any of the grievances of complainant.

          Form No.8B retail invoice cash/credit sale bill, Ext.A1 issued for an amount of ` 8,510 by Health World on 23.05.2009 goes to show that the complainant Mr. Dinesh Kumar purchased Orbic Track Cycle from Health World, 1^st opposite party.  1^st opposite party taken the contention that the complainant purchased the apparatus cycle for the commercial purpose and the complaint is not maintainable.  Complainant pleaded that he purchased the apparatus solely for the health purpose as per the advice of the doctor.  He has adduced evidence by way of affidavit evidence thus “BtcmKy]-c-amb {]iv\-§Ä Df-fXp sIm­v Hcp tUmIvS-dpsS D]-tZ-i-{]-Im-c-amWv FXr-I-£n-I-fn \n¶pw Rm³ taÂ]-dª health apparatus hm§n-b-Xv.”  PW1, the complainant was cross examined in length but no question touching this aspect has not been put to the witness.  Moreover, opposite party did not adduce any evidence to substantiate this contention.  The chief affidavit filed by opposite party is totally silent with respect to the question of commercial purpose.  The evidence on the side of 1^st opposite party makes it clear that 1^st opposite party took the contention of maintainability  without any seriousness.  He has not made any attempt to establish his contentions and totally failed to convince the Forum.  Hence issue No.1 is found in favour of complainant and thus the complaint stands maintainable before the Forum.

          The second main issue is to discuss whether there is any deficiency in service on the part of opposite parties.  The complainant pleaded that opposite parties replaced once the health apparatus since it was reported not functioning properly.  Though 1^st opposite party strongly contended that he has not been in any way related to the transaction of the subject matter he claims in his examination that, the apparatus was once replaced when the complaint was reported.  If the apparatus had not been purchased from 1^st opposite party the question of replacement doesn’t arise at all. If the apparatus is claimed to be replaced that does undoubtedly mean that it is sold by him.  What he has pleaded is a question to be noted: “The allegation that – this opposite party has replaced old vehicle with new one to him on his demand are false and untrue”.  In the reexamination what he has deposed is “ap³]v complaint D­v F¶v ]dªt¸mÄ ]pXn-bXv replace sNbvXp sImSp-¯n-cp-¶p.” The essence of the pleading and the deposition proves that complainant purchased the apparatus from 1^st opposite party.  Here arose another question what is the reason for not replacing the second apparatus when it was reported.  Second apparatus is the replaced apparatus.  It became defective within few days.  It can very well assumed that the complaint had been reported.  If not, the notice sent by the complainant can not be denied.  1^st opposite party sent reply, Ext.A7.  Ext.A7 first of all, makes it clear that the complaint of he subject matter, apparatus had been made known to 1^st opposite party.  Ext.A7 counted thus “ your allegation that, my client has replaced old vehicle with new one to him on your clients demand are false and untrue”.  The answer to this contention is revealed from what DW1/OP1 deposed in reexamination thus “ap³]v complaint D­v F¶v ]dªt¸mÄ ]pXn-bXv replace sNbvXp sImSp-¯n-cp-¶p.”

          In the light of the above facts it can be seen that complainant purchased the apparatus from 1^st opposite party.  That apparatus had been replaced due to complaint by the 1^st opposite party.  Ext.A7 itself proves that it is reported before 1^st opposite party that the replaced apparatus also became useless within few days.  1^st opposite party has no case that the apparatus is good and free from defect.  The contention which he has taken that he is totally a stranger to the alleged transaction has not been sustainable at all. It is not so because 2^nd opposite party is the son of 1^st opposite party but because the available facts proves that he has sold the apparatus to complainant and once it was replaced due to complaint.  But when the replaced apparatus became defective and the same reported, abruptly turned up and contended apace that he has no relation with the transaction.  This can very well be considered as a good example of unfair trade practice. Hence we are of opinion that 1^st opposite party is liable to refund the amount of the apparatus ` 8,500.  Considering other inconvenience and mental stress and all complainant is also entitled for an amount of ` 1000 as compensation and ` 1000 as cost of this litigation.  On receiving the amount the complainant has to return the defective apparatus.  Hence the issues 2 to 4 also found in favour of complainant and order passed accordingly.

          In the result, the complaint is allowed directing the 1^st opposite party to refund the amount of ` 8,500 (Rupees Eight Thousand Five Hundred only) and to pay an amount of ` 1000 (Rupees One thousand only) as compensation together with ` 1000 (Rupees One thousand only) as cost of this proceedings within one month from the date of receipt of this order failing which complainant will be entitled for 12% interest per annum from the date of filing of the complaint ie from14.02.2010.  the complainant is at liberty to execute the order on the expiry of 30 days as per the provisions of Consumer Protection Act.

                         Sd/-                            Sd/-                    Sd/-

           President                     Member                 Member

APPENDIX

Exhibits for the Complainant

A1.  Bill dated 23.05.09.

A2.  Owner’s Manual.

A3.  Copy of lawyer notice dated 08.11.09.

A4.  Postal receipt.

A5.  Postal receipt.

A6.  Acknowledgement card.

A7.  Reply notice dated 13.11.09.

A8.  Returned lawyer notice dated 23.11.09.

Exhibits for the opposite party

Nil

Witness examined for the complainant

PW1.  Complainant.

Witness examined for the opposite party

DW1.  Musthafa

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT