BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 12^TH DAY OF AUGUST 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP to pay balance amount of Rs.1,76,356/-.
2. Direct the OP to pay interest at 18% on Rs.1,76,356/- till the date of realization of the said amount.
3. Direct the OP to pay Rs.50,000/- towards mental agony and hardship caused by the OP due to deficiency in service.
4. Direct the OP to pay Rs.25,000/- towards litigation/legal cost.
5. Pass such other order that this Commission deems fit.

2. The case set up by the complainant in brief is as under:-

The complainant is an individual who was constructing a residential project at No.30 Housing board Basaveshwaranagar, Bangalore.  The complainant had approached the OP to purchase bath fittings sanitary ware and accessories for his residential project which was under construction.  Pursuant to which the complainant visited the retail store of the OP and placed an order based on the requirements of all the bathroom fittings and accessories. The same was to be supplied by the OP in a timely manner to ensure the completion of the project.

3. The OP had requested the complainant to make an advance payment towards the items requested. Hence the complainant has paid an advance amount of Rs.7,83,850/- via RTGS on 15.02.2022.  From the advance amount paid to the OP Rs.2,00,000/- was adjusted towards the wood and moldings on 19.10.2022. Thereupon leaving balance amount of Rs.5,83,850/- the complainant has received the product worth Rs.4,23,801/- from the OP as per the table furnished by him.  Thereafter the complainant has been waiting for the delivery of the few products such as 1 bath tub, 1 heat pump and 1 commode for nearly two months.  While at the precipice of the completion of the project.  

4. Despite several request by the complainant the OP executives failed to deliver the remaining products. Due to extreme delay and unresponsive executives the complainant was left with no other option than to approach another vendor to purchase required products by incurring additional costs on the products as well as logistics to have it transported and installed as the complainant was nearing completion of construction and had fixed a date to move in.
5. After having waited for almost two months the OP responded to one of the emails of the complainant stating that the items were ready for delivery on 19.07.2023 i.e., the date of moving into the newly constructed house which was of no use to the complainant at that particular time.  Furthermore, the OP had included a final settlement of dues note in the same mail communication which mentioned a sauna worth approximately Rs.1,50,000/-.  The said sauna expressly cancelled as there was no provision/space in the residence to install it. The OP claims that it was a custom made order and was not eligible for cancellation.  However the OP never visited the construction site to seek the measurement or to confirm the space to install the said sauna as well.

6. It is further case of the complainant that item such as commode, bath tub and heat pump are generic in nature and require no customization.  The alleged sauna was also not customized to the complainants requirements as it was cancelled much prior due to space constrained in the complainant’s residents. Hence the OP was attempting to include the expenses of product that were expressly cancelled as he was nearly Rs.1,76,356/- pending with him.
7. It is further case of the complainant that this complainant in the first week of July 2023 informed the OP about certain leakages in the products that were already delivered and installed in the residents.  Even though the complainant had made several communications and requests but the service executive was sent only after much delay, he was highly ill equipped to resolve the issues and ultimately was not able to resolve the issues.  However he did not even identify the issue to provide any resolution. Till date the complainant is awaiting resolution over leakages and the payment of balance amount pending with the OP.  At last the complainant sent a legal notice on 25.07.2023.  The OP has sent a reply on 12.08.2023. Hence the complainant has filed this complaint.

8. In response to the notice, OP appeared but not filed any version.

9. The complainant has filed his affidavit evidence and relies on 05 documents.  OP has not filed their affidavit evidence.

10. Heard the arguments of the complainant.  No oral argument is advanced on behalf of OP.  perused the written arguments filed by the complainant.

11. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

12. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

13. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, affidavit evidence, written arguments of the complainant and documents. Even though the OP has appeared has failed to file version and lead evidence and submit arguments. Hence the evidence and documents filed by the complainant remained unchallenged.

14. The complainant in order to prove his contention has filed his affidavit evidence and relied on five documents.  The complainant was constructed a residential house at No.30 housing board, Basaveshwaranagar, Bangalore. He has approached OP to purchase bath fittings sanitary ware and accessories.  The complainant after browsed their catalogue placed an order based on the requirements of all bath room fittings and accessories. As per the request of the OP he has paid an advance amount of Rs.7,83,850/- as per Ex.P1.

15. From the advance amount paid to the OP Rs.2,00,000/- was adjusted towards wood and moldings on 19.12.2022 by leaving a balance amount of Rs.5,83,850/-.  The complainant has received a product worth Rs.4,23,801/-.  The complainant has also furnished the particulars of date invoice number and amount due and totally the complainant has purchased the product worth Rs.4,23,801/-.

16. The complainant was waiting for delivery of another few products i.e., one bath tub, 1 heat pump and one commode.  Inspite of lapse of two months the OP has failed to supply the same.  When the complainant has not received the timely response as the project was near in completion and he has to occupy the house on a particular date. Hence he was forced to incur additional cost to purchase the required products from another vendor as per Ex.P3.
17. It is further grievance of the complainant that after waited for over two months the OP has sent one email on 19.07.2023 i.e., on the date of moving to the newly constructed house stating that the products were ready for delivery.   OP has included a final settlement of due note which mentioned a sauna worth approximately Rs.1,50,000/-.  Even though the complainant has been expressly cancelled the sauna as there was no space in the residence to install it. The OP claims that it was a custom made order and not eligible for cancellation.

18. It is further grievance of the complainant that the OP never visited the construction site to take the measurement or to confirm the space to install the said sauna as well. The OP attempted to include expenses of the products that were expressly cancelled as he had nearly Rs.1,76,356/- pending with him.  Insptie of cancellation of order for the sauna the OP claim the amount and refuse to return the balance amount. At last the complainant has got issued legal notice to return the amount. He has sent a reply on 12.08.2023.

19. It is clear from the above evidence and documents that even though the complainant has cancelled the order for sauna the OP demanded the complainant to pay an amount of rs.1,50,000/- towards sauna on the ground that it is a customized product and it was not eligible for cancellation.  The OP has never visited the construction site to take the measurement or to confirm the space to install the said sauna as well.  The only intention of the OP is to include the expenses of the product that were expressly cancelled as he has nearly Rs.1,76,356/-.
20. It is the duty of the OP to visit the construction site before taking the order for any customized product. When the complainant has no space in his house to install the sauna he has expressly cancelled the same.  Instead of refund the amount the OP has tried to deduct the amount towards sauna which was not at all delivered or not at all prepared/manufactured as per the space available in the complainant’s house.  Under these circumstances the complainant has clearly established the deficiency of service and unfair trade practice on the part of the OP. hence complainant is entitled for the relief claimed in the complaint.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

21. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is hereby directed to refund the balance amount of Rs.1,76,356/- with interest at 9% p.a., from the date of payment till realization.
3. OP is further directed to pay Rs.25,000/- as compensation with litigation cost of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.1,76,356/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 12^TH day of AUGUST 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL