By Smt. Beena. M, Member:-
This is a complaint filed under section 35 of the Consumer Protection Act 2019
2. Facts of the case in brief:-
The Complainants had placed an order for the purchase of rechargeable brush cutter with its battery and charger on 18.01.2023 with the First Opposite Party, who is the online retailer of the Second Opposite Party and paid Rs.41,917/- on the same day. The Complainant received the product on 27.01.2023, but the date of delivery noted in the invoice was 21.01.2023. When the Complainant used the product just for 15 minutes, he observed that motor stopped working and there was a burning smell and smoke came out from it. The First Complainant immediately phoned the First Opposite Party, but nobody picked up the phone. So, he sent a message through whatsapp to the First Opposite Party intimating the incident requesting them to take back the defective machine and to refund the amount paid towards the cost of the machine. They replied that they would speak to the team. As there was no response from the First Opposite Party, the First Complainant again called them several times, but no one was answering. Therefore, a message was sent through Whatsapp requesting to take early action. In reply, the First Opposite Party simply forwarded a toll-free number of the manufacturer, i.e., Second Opposite Party, asking the Complainant to register his Complaint on that number. Accordingly, the First Complainant called the Second Opposite Party and was directed to speak to the Sales Manager. The facts were conveyed and refund was sought. But the Second Opposite Party took the stand that the Complainants have to get the refund from the First opposite Party, who is the seller. Subsequently the Complainants tried to speak to the First Opposite Party on several occasions, but they simply avoided picking up the Phone. On 06.02.2023, the First Complainant messaged the First Opposite Party again, requesting refund, but they flatly refused to do so, stating that they had procured the product for the requirement of the Complainants. Actually the First Opposite Party had published in their website that the product is in stock and that was why the Complainants ordered it from them. But they supplied a defective product and did not even show the minimum courtesy of answering the phone calls of the Complainants. The Second Complainant had also emailed them in detail on 30.01.2023 after which also, the First Opposite Party did not care to resolve the issue. As the orchard was overgrowing with weeds, on 7.02.2023, the First Complainant again messaged the First Opposite Party, appraising them of the facts and requesting an immediate refund. But, there was no reply. Meanwhile, the Second Opposite Party emailed the Second Complainant on 21.02.2023, asking him to contact their team in charge, which was done forthwith, but the complaint was not resolved. The said email was framed to look like a reply to an incomplete email from the Second Complainant which was never sent to the Second Opposite Party by the Second Complainant. In fact, the incomplete email appears to be a part of the email dated 30.01.2023 sent by the Second Complainant to the First Opposite Party. In this case, it was never stated by the First Opposite Party that defective product supplied was a non-refundable item, nor the Complainants were informed of any refund restrictions prior to delivery of the order. They also never offered any option to cancel the order. Till date, despite the best efforts of the Complainants, the Opposite Parties have not taken back the product, or refunded the amount. This has caused immense physical hardship, mental agony and financial loss to the Complainant. Hence, this Complaint.
3. Notice was issued to the Opposite Parties. Though the Opposite Party No.1 filed version they did not file the affidavit by way of evidence. The Opposite Party No.2 did not appear before the Commission. Hence, they were called absent and were set ex-parte. So, Commission decided to dispose this Complaint on merit.
4. The contention of the Opposite Party No.1 is that the complaint filed by the Complainant is false, baseless and fabricated that which dispatch on 21.01.2023 had no change in date since they are system generated. According to the Opposite Party, Complainant did not know the usages of machine. After taking delivery of product it may be put to wrong plug in wrong socket and therefore it requires expert opinion to prove the defect of the product. But the Complainant did not allow the service engineer to verify the product. The Opposite Party stated that the Complainant avoided and neglected to follow due process of terms and condition of agreement made between manufacturer and dealer, which is mentioned on website. The Opposite Party denied the statement of the Complainant that sales manager of Opposite Party No. 2 took stand that the Complainants have to get the refund from the Opposite Party No. 1, because as per the terms and conditions mentioned on website, it is clearly mentioned that if any query arise on product (1) the case has to be registered with Opposite Party No.2 (2) The Opposite Party No. 2 has to send a person at the place of the customer for checking the issues (3) The product will be repaired/ exchanged as per the policy of Opposite Party No.2 (4) The Opposite Party No.2 will send service engineer at the place of customer and verify the issues with product, but the Complainant did not allow to verify the product. The Opposite Party No. 1 further stated that they were always replied on whatsapp chat, but Complainant did not accept their own mistake. The Complainant’s only request for refund, which was possible if Complainant had allowed the service engineer to verify the issues but eventually, the Complainant did not get the service report which states that product is defective & true fact is that due to negligence of Complainant the product was damaged and therefore, Complainant did not allow to verify present condition from service engineer. According to the Opposite Party No.1, the service manager of Second Opposite Party offered replacement without verifying the product, but the Complainant insist for refund to hide negligence of his complaint. It is the bounden duty of the Customer to read all description of product mentioned on website, but the Complainant neglected to read description of product and place order for product, which is not useful to them, therefore Complainants are demanding refund of bill amount. They further stated that The Opposite Party No. 1 does not manufacture the product and if any product is defective, the manufacturer is responsible for the same and here Opposite Party No.2, the manufacturer does not deny to replace or repair product which can be proved by email communication. There is no deficiency in service provided by Opposite Parties. So the Opposite Party No.1 prays to dismiss the Complaint.
5. Here the points for consideration are as follows;-
(1) Whether there is any deficiency in service on the part of the Opposite Parties…?
(2) Whether the Complainant is entitled to get any relief ?
6. The Complainant No.1 had filed proof affidavit and was examined as PW1, the documents produced from were marked as Ext.A1 to A18. The Opposite Party failed to cross examine the Complainant and to rebut his case by adducing any evidences. Opposite Party No.1 raised their objections in his version but they failed to substantiate his case by adducing evidence. Hence, the case of the Complainant is remained unchallenged. So, we cannot find any reason to disallow the Complaint. A perusal of the documents produced by both the parties make it clear that the order was duly placed by making an advance payment of Rs.41,917/-towards the purchase of the product, which is also evident from the payment confirmation receipt i.e., Ext.A7. It is clear from Ext.A8 that the product was delivered on 27.01.2023. So, the contention of the Opposite Party that the product was delivered to the Complainant on 21.01.2023 is not reliable. Therefore, we are of the view that the Opposite Parties are liable for the unfair trade practice/deficiency in service. Here, the Opposite Party No.1 is the retailer and Opposite Party No.2 is the manufacturer, as a matter of fact all the parties earn profit and hence, they are jointly and severally liable for deficiency in service and unfair trade practice on their part. Therefore, the Complainant is entitled to get the price of the products, compensation and cost of the proceedings. The Complainant has claimed an amount of Rs.5,00,000/- towards compensation but, while deciding the quantum, the gravity of mental agony sustained to the Complainant is to be considered. It cannot be calculated on the basis of mere presumption. The amount of compensation should be reasonable and adequate.
In the result, the Complaint is partly allowed, and
- The Opposite Parties are is directed to return Rs.41,917/-(Rupees Forty One Thousand Nine Hundred and Seventeen Only) to the Complainant.
- The Opposite Parties are further directed to pay Rs.10,000/-(Rupees Ten Thousand only) as compensation
- The Opposite Parties are also directed to pay Rs.3,000/- (Rupees Three Thousand only) towards cost of the proceedings.
The Opposite Parties No.1 and 2 are jointly and severally liable to pay the amount. The Complainant is directed to return the defective product received by him to the Opposite Parties from whom the product was purchased. The order shall comply within one month from the date of receipt of a copy of this order. Failing which the same shall carry interest @ 8% p.a.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 31st day of January 2024.
Date of Filing:-29.07.2023.
PRESIDENT : Sd/-
MEMBER : Sd/-
APPENDIX.
Witness for the Complainants:-
PW1. Giridhar Raj Kini. Farming.
Witness for the Opposite Parties:-
Nil.
Exhibits for the Complainants:-
A1. Dewalt web page details printout.
A2. Dewalt web page details printout.
A3. Toobuy Web page details printout.
A4. Toobuy Web page details printout.
A5. Toobuy Web page details printout.
A6. Copy of Tax Invoice. Dt:18.01.2023.
A7. Printout of Gmail Communication. Dt:18.01.2023.
A8. Printout of Gmail Communication. Dt:27.01.2023.
A9. Copy of Tax Invoice. Dt:18.01.2023.
A10. Copy of Product Details.
A11. Printout of Gmail Communication. Dt:30.01.2023.
A12. Printout of Gmail Communication. Dt:21.02.2023.
A13. Printout of Gmail Communication. Dt:27.02.2023.
A14. Copy of picture of machine.
A15. Printout of Gmail Communication. Dt:03.03.2023.
A16. Printout of Gmail Communication. Dt:06.03.2023.
A17. Copy of Details about product cancellation and returns.
A18. Copy of Details about product cancellation and returns.
Exhibits for the Opposite Parties:-
Nil.
PRESIDENT :Sd/-
MEMBER :Sd/-
/True Copy/
sd/-
ASSISTANT REGISTRAR
CDRC, WAYANAD.
Kv/-
