ORDER

21.05.2024

Sh. Sanjay Kumar, President

1. Brief facts of the present case are that complainant on 18.06.2017 went to the shop of OP for  purchasing bathroom tiles as renovation work was going on at the bathroom in the house of complainant. It is stated that OP showed various kinds of tiles out of which complainant selected three kinds of wall and floor tiles and one piece of washbasin which is known as “Theme Based” tiles and the combination of those tiles required matching design with each other. It is further stated  that OP took payment for all the tiles and washbasin in cash amounting to Rs.16,100/- including cartage charges for delivering the said tiles at the house of complainant.
2. It is stated that OP also committed that they will provide copy of the invoice at the time of delivery of tiles as bills are generated through computer and that time computer was not working. It is stated that OP provided a temporary bill alongwith visiting card. It is further stated that in the evening on the same day complainant received tiles but surprisingly item no.1 i.e (10002 HL X 30) valued at Rs. 2700 was not delivered alongwith other goods than complainant immediately called OP. It is stated that OP replied that due to some stock shortage the item is not delivered which would be delivered on next day. It is stated that complainant also reminded the OP on next day which happened to be Monday and weekly off day of the market but OP replied that the supply would be from its godown and promised to deliver next day.
3. It is stated that complainant carried out the work of fixing of tiles as he hired the labour and on 19.6.2017 complainant did not receive the tiles as committed by OP. It is stated that on 20.06.2017 the complainant waited for the delivery of tiles and repeated called OP but no positive response given than ultimately on 21.06.2017 complainant had to visit the shop for collecting the tiles. It is stated that OP told that there is some problem therefore, unable to provide the selected tiles whish is shocking and surprising as fixing of tile work completed and as the tiles purchased are “theme based” therefore, combination at that stage impossible to change. It is stated that OP dragged the complainant in a situation where complainant is between Deep Devil and the Sea because already payment of the tiles made and labour charges also paid to the labour.
4. It is stated that complainant  requested to OP to refund Rs.2700 and proper invoice but OP refused. It is stated that OP caused deficiency of service which caused mental harassment and agony to complainant. The complainant is seeking refund of Rs.2700 alongwith 24% per annum interest, Rs.20,000/- as bathroom of the complainant was defaced, Rs.20,000/- for causing deficiency of service, Rs.10,000/- for mental pain and agony and Rs.20,000/- cost of litigation.
5. OP filed WS and taken preliminary objections that OP is a proprietorship firm and an authorized stockiest and wholesale dealer of hardware, sanitaryware, johnsons wall, floor tiles, modular kitchen accessories, gaberit concealded cistons and wooden flooring etc. It is stated that OP has been in the business for about 50 years and earned a solid repudiation and invaluable goodwill and providing par excellence services. It is stated that the history is witnessed that the customers  who have entered into agreements to buy the goods from OP firm have always returned impressed and satisfied. It is further stated that OP has valid GSTIN No. which is always mentioned in the bills and always generate a bill whenever sale is made and one copy is kept for filing returns and other accounting purposes.
6. It is stated  that present complaint has been filed in order to malign the reputation of OP  and to extort money paid by complainant for the services availed by making a hill from a self concocted mole-hole. It is stated that complainant visited the shop of OP and threatened of dire consequences more specifically the threat to file the instant frivolous complaint and is fervently pursuant the instant litigation to harass the OP. It is stated that complainant has not brought on record any valid documents which brings forth even the slightest of whispers of deficiency of service on the part of OP and has obtained a rough estimate of goods purchased.
7. It is stated that OP provides a rough estimate to all of the visitors who are interested in buying goods from the OP and if rough estimate is allowed to be used as an deficiency of service than it would encourage frivolous litigation and would consequently led to sabotag the interest of all the firms. It is stated that goods once sold becomes the responsibility of the customer, therefore, OP cannot be held responsible for any  of the losses due to negligence of the complainant or the cartage hired on behalf  of the complainant. It is stated that OP also approached the complainant by offering the refund but complainant did not accept. It is stated that present complaint is liable to be dismissed.
8. On merit all  the allegations are denied  and contents of preliminary objections are reiterated. It is stated that present complaint is only triable by a civil court and complainant has claimed unjustified and exorbitant sum of Rs.85,000/- for alleged mental tension, agony and harassment. The OP  has  denied  the fact that complainant selected tiles were only “theme based”. It is stated that choice of the customer to purchase the tiles as per their own desire and wishes and create a theme or used the tiles in an abstract manner. It is stated that carrier hired by the OP is not the employee or  agent therefore, OP is not answerable to customer as carrier is not answerable to OP. It is further stated that in case  of goods are lost or damaged or destroyed in transit, the entire loss has to be borne by buyer unless agreed otherwise by the OP which is not the case in the instant complaint.
9. It is stated that the bill was  provided to the complainant when the goods were delivered as it is a business practice to provide a bill to the carrier from them to readily produce the same before any police official in case of any checking. It is  stated that complainant has filed on record not a temporary bill but a total estimate price. It is stated that as an old business practice of the OP to accept payments only after the goods have been shown and except as purchased/bought by the customer. It is further stated that all the goods were delivered  to complainant and no breach of sale conditions or deficiency of services committed by the OP. It is stated that OP never received any communication or request from complainant.
10. It is stated that complainant was satisfied with the combination of tiles that were selected and wanted to return the goods to which OP did not agree as the return cannot be processed once the retail invoice has been printed  and text has been imposed on the sale. It is stated that complainant visited the shop  of OP and from the very outset started to misbehave with the manager who had attended him in a gracious manner. It is stated that as the policy of the shop to not to accept the returns once the invoice has been raised and handed over to customer. It is stated that the manager of OP was constrained to not to oblige the demand of complainant which make him even more furious and ultimately the complainant succeeded in disturbing the work of the shop and also in discouraging a few prospective customers were present at the shop. It is stated that OP told the complainant that there is some problem and therefore, would be unable to provide him required tiles.
11. It is stated that there is no provision for return unless the goods are found in a defected condition at the time of delivery. It is stated that in case of defective goods being delivered the buyer is required to return the defective goods to OP and raise a demand for refund which is always agreed and obliged by the OP. It is stated that complainant was the one who had caused mental harassment and agony to OP and his staff by disreputing the working of the shop and by terrorizing the prospective customers. It is stated that present complaint is liable to be dismissed.
12. As per record no rejoinder filed by complainant to the WS of OP.
13. Complainant filed evidence by way of his affidavit and reiterated contents of complaint. Complainant relied on copy of his passport Ex.CW1/1, copy of temporary bill Ex.CW1/2 and visiting card Ex.CW1/3.
14. OP filed evidence by affidavit of Sh. Rakesh Sharma and reiterated contents of WS. OP relied on copy of election card Ex.OPW1/1 and copy of bill Ex.OPW1/2.
15. As per record written arguments filed on behalf  of complainant.
16. We have heard Sh. Shivam Panday proxy for Sh. Kunal Rawal counsel for complainant. Despite ample opportunities neither counsel for OP appeared nor filed written arguments. We have gone through the record.
17. It is admitted fact on record that complainant had purchased tiles and other goods from OP on 18.06.2017. The complainant proved his fact on the basis of EX.CW1/2 which is a temporary estimate bill and visiting card of OP Ex.CW1/3. The OP proved the bill for sale of goods Ex.OPW1/2. The goods mentioned in both the documents are identical especially the cartage charges of Rs.300/-. Both the documents mentioned the address  of complainant and the telephone number. The complainant has established that he had purchased all the goods mentioned in the bill dated 18.06.2017. It is admitted by OP that as per business practice the bill would be delivered at the time  of delivery of goods. It is also admitted by OP that cartage would be arranged by the OP for delivery of goods as he had charges Rs.300. It is pertinent to mention here that the complainant is aggrieved with the non delivery of only one item i.e item no.1  (10002 HL 10 X 30) costing Rs.2700. The complainant is not disputing the delivery of all  other goods mentioned in the bills. In our considered opinion there is no malafide intention or motive behind the raising the present dispute only with regard to one item which is not delivered. It is also not disputed by OP that a theme has been selected by complainant of tiles which has specific design and this item is part of essential part of the said  theme. The OP has not produced the delivery challan by which   all the goods were delivered to complainant as the cartage was arranged by OP as he charged separately. In our considered opinion the dispute and grievance of the complainant is genuine as it was the legal obligation of the OP to deliver all the goods purchased by complainant through the cartage through delivery man arranged by OP as he charges specifically Rs.300. The OP also failed to establish that at any point  of time the said tiles were supplied rather OP attempted to alleged misbehavior and misconduct on the part of complainant. In our considered opinion complainant has established the deficiency of service on the part of OP as he failed to supply (10002 HL 10 X 30) costing Rs.2700.
18. On the basis of above observation and discussion we hold OP guilty of deficiency of service and direct OP to pay Rs.2700 alongwith 6% interest per annum from the date of filing of present complaint till realization, to pay Rs.10,000/- as compensation for mental agony and harassment and to pay Rs.5000/- as cost of litigation. The OP  is directed to pay the abovesaid amount within 30 days from the receipt of order and in case of default to pay interest @ 9% per annum on the above said all amount till realization. File be consigned to record room.
19. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  21.05.2024.

     SANJAY KUMAR                                                                       RAJESH

       PRESIDENT                                                                            MEMBER