Consumer claims new tumble dryer was delivered damaged
Dispute referred to Consumer Claims Tribunal after trader refuses consumer’s request for a refund.
The facts of the case
A consumer bought a tumble dryer for €639. On the day of the delivery the consumer claims that while she was still going downstairs to open the front door for the delivery personnel, they had already removed the appliance’s packaging. She was then asked to sign the delivery form and pay the outstanding balance, which she proceeded to do.
After the delivery personnel left, while inspecting the appliance, the consumer noticed several scratches near its door. She also noticed that the tumble dryer’s packaging had been opened before and it was closed again with tape. She also noted that there was no plastic covering the glass, which is usually the case with brand new products.
Due to all this, the consumer suspected that she had been provided with a used product. She immediately called the company to report the damages but received no response. Three hours after delivery, she followed this up with an e-mail complaint.
The consumer asked that the seller replace the damaged tumble dryer with a new one or issue her a refund. However, the seller rejected the consumer’s request.
The consumer claimed the delivery took place within only five minutes
As no amicable agreement was reached, the consumer proceeded to file a report with the Office for Consumer Affairs at the MCCAA, seeking to resolve the matter through a conciliation process. However, despite the office’s efforts to facilitate an amicable agreement, the trader refused to offer a replacement or any form of remedy. As a result, the consumer opted to escalate the issue before the Consumer Claims Tribunal.
The tribunal’s considerations
The tribunal noted that the consumer was seeking a refund of €639, representing the full purchase price of the tumble dryer. The consumer claimed that although the appliance was sold to her as new, it had several scratches on the door. Furthermore, the consumer argued that it was evident the tumble dryer was not brand new, as the packaging had already been opened and was held together with tape at the time of delivery.
The tribunal further noted that, in their written reply, the trader argued that the consumer had signed a delivery note which stated that the tumble dryer had been “received in good condition”. The trader explained that the packaging had been opened to facilitate easier handling by the delivery personnel. The trader also confirmed that the consumer’s first complaint regarding the condition of the appliance was made on the same day the delivery took place.
The consumer submitted an affidavit stating that when she went down to open the door to the delivery personnel, the dryer had already been unboxed. She added that she signed the delivery note and paid the remaining balance immediately after the delivery personnel changed the plug of the appliance.
The consumer was also supported by a witness residing at the same address who was present at the time of delivery. The witness testified that she noticed the scratches near the tumble dryer’s door approximately 10 minutes after the delivery personnel left. Under oath, she affirmed that neither she nor the complainant had caused the scratches.
The tribunal observed that the remedy that the consumer was claiming was that the sales contract is terminated and that she is refunded the full amount paid. This was as per Article 74 (1) of the Consumer Affairs Act which states: “In the event of a lack of conformity, the consumer shall be entitled to have the goods brought into conformity or to receive a proportionate reduction in the price, or to terminate the contract.”. Thus, the tribunal stated that what the consumer was requesting as a remedy was within her legal rights as a consumer.
The tribunal noted that the company’s representative pressured the consumer to sign the delivery note that stated that the tumble dryer was received in good condition without allowing her sufficient time to inspect it. The consumer claimed that the delivery took place within only five minutes.
The tribunal also found it unlikely that the consumer could have damaged the tumble dryer in such a short time between the delivery and her complaint. As a result, the tribunal concluded that the consumer had successfully proven her case according to legal requirements.
The tribunal’s decision
After reviewing the evidence, the tribunal declared the sales contract void on the grounds that the tumble dryer did not conform to the terms of the sales agreement. Consequently, the tribunal ordered the defendant company to refund the consumer €639, representing the full amount paid for the appliance.
Additionally, the tribunal ruled that the trader may take possession of the tumble dryer after the refund is issued to the consumer.
Finally, the tribunal ordered the defendant company to cover the costs associated with the tribunal’s proceedings.
Odette Vella is director, Information and Research Directorate, MCCAA.