DATE OF FILING: 17.1.2014.
DATE OF DISPOSAL: 22.11.2016.
Dr. Alaka Mishra, Member (W):
The complainant has filed this consumer complaint under section 12 of Consumer Protection Act, 1986 alleging defective in goods and deficiency in service against the Opposite Parties (for short, the O.Ps ) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that the complainant purchased one wrist watch from the O.P.No.3 vide cash memo No. 7107 dated 22.12.2011 vide Model No. N 1391SL01 (Fastrack), the watch bearing No.MSI474SS01/01 S14742501 (SM01)-BLU for amount of Rs.2895/-. After using the said watch for couple of months the case dial and the chain became rust and fogs, the show & style of the watch was completely damaged. After some days the complainant personally contacted with O.P.No.1 & 2 for claiming another new watch with chain as per the Guarantee & Warrantee available in the card (as per the condition). But the above parties instructed the complainant to contact with nearest service centre i.e. Bhubaneswar of Titan. Accordingly the complainant contacted through E-mail 21.7.2012. In reply the Odisha Head Mr. Debobrate Dubey instructed that, to contact with Bombay Watch Co. (O.P.No.4) as he is the authorized agent of the company. But they replied negatively and expressed their inability to accept the damaged watch and instructed the complainant to take necessary steps for replacement from where purchased the watch. After few days Mr. Debobrate Dubey over phone contacted and invited the complainant to come to Bombay Watch Co., Berhampur on 8.3.2013. The complainant meet with the Odisha Head, and he agrees to exchange the watch in lieu of the damaged watch but not agreed for replacement of the chain and showing a plea that the said watch is not accompanying with steel chain rather with a leather belt. The complainant shown the original bill and the Guarantee & warrantee card of the company. It is also alleged that observing the situation, Odisha Head Mr. Debobrata Dubey changed his voice and completely denied to replace the watch and the chain (defective) and misbehaved the complainant saying “YOU DO WHATEVER YOU LIKE, I WILL NOT REPLACE YOUR WATCH”. In the meantime the complainant have regular contacted with the main office at Bangalore by E-Mail (O.P.No.1). One Grace Rajani C (Officer of O.P.No.1) on dated 13.1.2013 and in reply to the said E-mail they passed telephonic message as your message/complaint has been forwarded to Regional Office, Kolkata for needful action. After waiting some days for their reply from among the O.P.No.1 to 3 no one gives any reply or response till the date of the pleader notice. The complainant sent notice through his advocate to the parties as annexure in this petition. Among them the O.P.No.4 gives reply to the notice which is annexure herewith on 21.12.2013 and other are receiving the registered notices and acknowledgement cards are returned back so the complainant advocate, and no reply being received still now. Alleging deficiency in service on the parts of the O.Ps the complainant prayed to direct the O.Ps to provide the legal expenses and replace the watch and chain or alternative to pay Rs.3000/- towards the cost of the watch and cost as the court deems fit.
3. Upon notice the O.P.No.1, 2 and 4 filed version through his advocate. It is stated all the allegations and averments mentioned in the petition filed are not true and correct. The complainant is put to strict proof of the same, which are specifically not admitted by the O.Ps. Regarding Para-1 of the petition, it is not disputed that the complainant purchased a wrist watch from the O.P.No.3 on 22.12.2011. The other averments regarding the damages of the watch and chain of the complainant after two to three months of the purchase is not within the knowledge of the O.Ps as the complainant did not deposit the watch before any O.Ps to which the complainant is put to strict proof of the same. It is not disputed regarding contact made by the complainant through E-Mail dated 21.7.2012 and the reply made by Mr. Debobrate Dubey being the authorized agent of the company. It is also not dispute that as per the terms and conditions of the company’s policy the O.Ps agreed to exchange the watch if any damages caused to him. But they could not replace the chain of the watch as generally the watch includes with leather belt from the company. Therefore the claim of the petition is baseless. The allegation regarding the misbehaving of the Mr. Debobrate Dubey to the complainant is totally false and created by the complainant for the purpose of filing the petition and also in order to take sympathy from this Hon’ble court. It is not disputed regarding the notice and reply made by the complainant and O.Ps through E-Mail etc. But the O.Ps cannot go beyond the company’s norms. They will be able to replace the watch as it includes with leather belt in case the complainant deposits the older watch with leather belt. But it will not be admissible if deposited with chain. The complainant purchased the watch from Mysore times, Bangalore on 22.12.2011. After six months of purchase the complainant complained the Head office at Bangalore for exchange of due to some appearance defects but not manufacturing defect. Thereafter the O.Ps informed the complainant to contact with Mr. Debobrate Dubey, Service Officer, Bhubaneswar, as he is the permanent resident of Odisha state. Accordingly the complainant contacted with the Service Officer, who in turn requested the complainant to deposits the said watch before the O.P.No.4 but the complainant instead of depositing the said watch before the O.P.No.4 again used to contact Mr. Dubey and all were presented in the office of O.P.No.4 at 8.3.2013. At that time Mr. Dubey again requested the complainant to deposit the original watch No. 1391/ Model No. SL01; but till date the complainant did not choose to deposit the same and later on mischievously filed the above case before this Hon’ble Forum against the O.Ps with all false allegations in order to harass them and without any just and reasonable cause. Unless the complainant submits the product in defect on which the claim is being made, the O.Ps cannot compensate either in terms of cash or in terms of goods until the product is verified. Therefore the vexatious claim made by the complainant against the O.Ps without production of the defective product is totally baseless and can’t be sustainable as the O.Ps are not individuals but being controlled by the company and they are answerable to their higher authority. Hence the O.P. Nos 1, 2 & 4 prayed to dismiss the complaint being devoid of any merit and in the interest of justice.
4. On the date of final hearing the learned counsels for respective parties were present before the Forum and presented their oral submission respectively. We heard arguments at a length from the learned counsel for the complainant as well as for the O.Ps and have gone through the complaint, written version and arguments of the parties and verified the documents placed on the case record.
As per the contention of the complainant, he purchased one wrist watch from the O.P.No.3 vide Model No.N1391SL01(Fastrack) MSI474SS01/01 S14742501 (SM01)-BLU for amount of Rs.2895/- and cash bill No.7107 dated 22nd December 2011. The discussion that the point of jurisdiction although the damaged watch was purchased in Bangaloare from M/s Mysore Times the authorized dealer of Titan Industries Ltd on dated 22.12.2011. The complainant redressed his grievance about the defective of the watch before the O.P. No.3 and on regular contact over phone and email, their representative advised the complainant to contact Bombay Watch Co, Annapurna Market, Berhampur, Ganjam. As per the instruction of the company representative, Grace Rajini C on 29.112012 on email specifically mentioned to deposit the watch at Bombay Watch Co., who is also a dealer of Titan Industries Ltd. The complainant also contacted company head through E-mail on 21.7.2012. In reply the Odisha Head Mr. Debobrate Dubey instructed to contact the nearest service center which address was provided by him. As per the instruction, the complainant contact with Bombay Watch Co. (O.P.No.4) who was the authorized agent of the company and submitted the grievances. Complainant was in regular contact with head office, service center to settle the matter. After due approach to O.P. No.4 by the compliant matter could not settled between parties. Hence, the complainant filed this case before this Forum with a prayer to replace the watch and to pay cost and compensation in the interest of justice.
6. Per contra, the learned counsel for the O.Ps contended by O.Ps (no 1,2 &4) that Mr. Dubey through his e-mail to the petitioner on 04.12.2012 and 09.03.2013 requested the petitioner to deposit the watch before O.P No.4 but the petitioner did not prefer to do so. The O.Ps further contended that this model wrist watch always comes with leather belt and if the complainant produces the original leather belt he could have change the wrist watch. The O.Ps admitted that the watch was purchased from O.P. No.3 on 22.12.2011. It is also not disputed that as per the terms and conditions of the company policy, the O.Ps are agreed to exchange the watch if any damages caused to him but they could not exchange the watch because the complainant could not produce the original leather belt from the company. It is also contended that Mr.Debobrate Dubey, being the authorized agent of the company given suitably reply to the petition on 04.12.2012 and 9.3.2013 respectively and requested the petitioner to deposit the watch at M/s Bombay Watch & Co, Berhampur. Again the O.Ps requested the petitioner through email to deposit the watch for immediate replacement but the petitioner did not choose to deposit the same. The petitioner got the knowledge that the petitioner purchased the watch along with leather strap and later he converted the leather strap to steel strap. It is norm of company that the watch can only be replaced if it is given in original condition. Despite several correspondences made by the O.Ps through their authorized representatives, the complainant did not choose to deposit the watch with the O.P. till date but intentionally in order to harass the O.P. issued a legal notice through his advocate to O.P.No.1 & 4 on 05.12.2013. It is also contended that the petitioner has not purchased the watch from the shop of the O.P.No.4 as the O.P.No.4 is a dealer and is not responsible or liable for the claim of the complainant. The petitioner without depositing the watch in question claiming for its replacement by filing the above complainant which is not tenable according to law, hence, prayed to dismiss the complaint of the complainant in the interest of justice.
7. We perused the pleadings of both parties and verified the documents placed on case record. It is not dispute that the present complainant purchased one wrist watch from the O.P.No.3 vide cash memo No. 7107 dated 22.12.2011 and Model No. N 1391SL01 (Fastrack) No.MSI474SS01/01 S14742501 (SM01)-BLU for an amount of Rs.2895/-. Similarly, the O.Ps are not disputed that complaint approached the authorized agent on dated 21.07.2012 and also acted as directed by the Company head but in this case the complainant is not satisfied with the instruction given by the O.P No.4 that he should produce the aforesaid model wrist watch with leather belt. If the complainant produces the original leather belt along with the wrist watch, the O.Ps could have changed the wrist watch. However, we are not convenience with the argument of the O.Ps since as per documents on record; the complainant has purchased the steel chain extra on payment of Rs.500/- as mentioned in the cash bill placed in the case record for reference. When the complainant has purchased an extra chain on payment of Rs.500/- and the company has provided a leather strap along with the original wrist watch as contended, the complainant is not bound to produce original leather strap along with the defective wrist watch since it is not expected that the company has provided the same when one extra chain was purchased by the complainant on payment of extra consideration. Even though it is supplied with the original wrist watch, it is not expected to be preserved by the complainant after elapse of more than five years. Therefore, in our considered view, we hold that the O.P. is not fair to insist for the original leather strap for exchange of the defective wrist watch of the complainant. The leather strap is only a holding equipment of the wrist watch and on the date of purchase the complaint has paid Rs 500/- extra towards chain of the wrist watch and in the fact and circumstance in a wrist watch two holding equipments can’t be attached. In a sequel to the aforesaid discussion, we allow the case of the complainant against the O.Ps for replacement of the defective wrist watch or to refund the amount to the complainant.
8. In the result, we allow the case of the complainant against all Opposite Parties who are jointly and severally liable to replace the wrist watch vide Model No. N1391SL01 (FASTTRACK) of Rs 2495/- and MSI474SS01/01 S14742501 (SM01)-BLU of Rs 500/- or else to refund a sum of Rs.2895/- (price of the wrist watch after discount) to the complainant within two months from receipt of this order. The O.Ps are also burdened with Rs.500/- towards litigation cost to be paid to the complainant within the same period failing which the complainant is at liberty to recover the same U/s 25/27 of the Consumer Protection Act, 1986. The case is disposed of accordingly.
10. The order is pronounced on this day of 22nd November 2016 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and be sent to the server of
