FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is an application U/s 35 read with section 38 and 39 of CP Act, 2019 filed by the complainant against the OP.
The fact of the case in brief is that the complainant is a law abiding and peace loving citizen of India. Having permanent address at CF-90, Sector-1, Saltlake, Kolkata-700064, PS-North Bidhannagar and the OPs Biharilal Greenwood Pvt. Ltd. having its office at 124-B, 1st floor, Margone, Homeland, 18B, Ashutosh Mukherjee Road, Kolkata-700020, PS-Bhowanipur represented by its director. Mr. Vedant Keshri.
It is case of the complainant that the OP is the manufacturer of Marbone Doors, decorative Flash Door, Veneer door, Panel Door of Wood, Door Frames.
It is further stated by the complainant that he made contact with the OP for purchasing 21 Nos. of wooden doors of specified size to be fixed in the house of the complainant and the OP was promised to deliver /supply the same to the complainant.
It is further stated by the complainant that it was agreed by the OP that 50 % of valuation of wooden doors would have to be paid by the complainant as advance and the remaining 50 % would be paid by the complainant after delivery of the 21 Nos. of wooden doors to the complainant. Accordingly, the OP duly issued a proforma invoice of Rs. 1,52,418.24 for 21 wooden doors on 13.05.2022. The complainant paid Rs. 80,000/- by an account payee cheque of Axis Bank bearing No. 32760 dated 16.05.2022 to the OP which was duly acknowledged by the OP as 50 % payment in advance
It is further stated by the complainant that in terms of proforma invoice dated 13.05.2022 the wooden doors in question was to have been delivered by the OP within 15 days to the complainant but even on expiry of 15 days the OP failed to deliver the wooden doors in question to the complainant. It is further stated by the complainant that it was agreed by and between the parties that after receiving of 50 % amount out of the entire amount of consideration of the wooden door in question. The inspection of wooden door in question will be offered by the OPs to the complainant and if the complainant satisfied thereafter rest 50 % amount would be paid by the complainant.
It is alleged by the complainant that even on repeated request made by the complainant in writing, the OP failed to supply the wooden doors within the specified period of 15 days as mentioned in the proforma invoice and ultimately, he supplied only 10 nos. of wooden doors in question out of 21 doors. It is further alleged by the complainant that he entrusted one third party contract to execute the construction work like carpentry, plumbing, electrician etc but as the OPs failed to deliver the 21 Nos. of wooden doors to the complainant within specified period of 15 days as per proforma invoice. The third party contractor would charge the complainant for keeping workers ideally by which the complainant suffered a lot due to laches of the OPs. Thereafter, the OPs without supplying the rest 11 Nos. wooden doors in time to the complainant and demanded the rest of amount on allow 20.06.2022 from the complainant before the delivery of rest of wooden doors in question and did not doors for inspection to the complainant which is absolutely contrary to the condition mentioned in the proforma invoice dated 13.05.2022. Thereafter, the complainant made several request and communication in writing with the OPs for delivery of rest 11 wooden doors in question but the OP did not pay any heed to the request of the complainant. Ultimately, on 22.06.2022 the complainant issued a letter addressed to the OP with a request either to deliver the remaining 11 Nos. wooden door to the complainant or to refund the entire amount paid by him to the OP and to take back 10 Nos wooden doors but even on receipt of letter the OP was silent over the issue .
Under such circumstances, The complainant lodged the complaint with Assistant Director, Consumer Affairs Department for Redressal of his grievance through the process of mediation but the OPs except by writing and email dated 25.07.2022 did not take any step for redressal of the grievances of the complainant. As a result the mediation process has dropped and the instant petition of complaint has been filed before the commission.
It is further alleged by the complainant that the supplied of 10 Nos wooden doors were found defective within span of 03 months. Some of the doors developed cracks and in some others the inner wooden blocks seem to have developed gaps and doors have frayed at the edges. The complainant duly intimated the entire fact to the OP by letter dated 20.10.2022 but the OP did not take any action to that effect. Such conduct of the OP should be considered as negligence which caused both physical and mental harassment and suffering of the complainant and also sustained the monetary loss. As such, the complainant prayed for compensation of Rs. 1,00,000/-. Hence, the instant application has filed by the complainant with a prayer for direction to the OPs to refund the amount of Rs. 80,000/- along with interest @ 12 % pa. on and from 16.05.2022 till realisation.
The complainant also prayed for giving direction to the OPs to pay an amount of Rs. 1,00,000/- as compensation for causing physical and mental harassment along with litigation cost of Rs. 30,000/-
In view of above fact and circumstances, it has to be decided by this commission:-
1. Whether the instant petition of complaint is maintainable in eye of law?
2. Is there any cause of action to file the case?
3. Is the complainant a consumer?
4. Is there any deficiency in service on the part of the OPs as alleged by the complainant?
5. Is the complainant entitled to get relief as prayed for?
6. To what other relief or reliefs is the complainant entitled to get?
Decision with Reasons.
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
On a close scrutiny of materials on record it appears that even after receiving the notice of this case the OP did not feel any urge to appear before this commission and to file the WV. Under such circumstances, the commission vide its order dated 02.03.2023 declared that the case do run ex parte against the OP.
That on the basis on materials on record, it appears that this commission got the pecuniary as well as territorial jurisdiction to try this case.
It is also revealed from the fact and circumstances as well as evidence on record that the complainant has sufficient cause to file the case and the case has been filed within the limitation of period.
It is the case of the complainant that he intends to purchase 21 wooden doors of specified size for his house from the OPs company and accordingly, it was agreed by and between the parties to this case that the complainant will pay 50 % of the value of the wooden doors in question and the rest 50 % of the value will be paid by the complaint on delivery of 21 Nos. wooden doors in question. The complainant paid a sum of Rs 80,000/- for 21 doors as 50 % advance of total value on 16.05.2022 by issuing an account payee cheque in favour of the OP on Axis Bank bearing cheque No. 23760 dated 16.05.2022 as per proforma invoice of Rs. 1,52,418.24 for 21 doors dated 13.05.2022. It was agreed by the OP as per proforma invoice dated 13.05.2022 that 21 wooden doors will have to be delivered within 15 days to the complainant.
From the unchallenged evidence of the complainant and also from the documents as supplied by the complainant along with the petition of complaint it is revealed that the OP failed to supply 21 wooden doors in question within specified period of 15 days even on receipt of the 50 % of the total valuation of those doors amounting to Rs. 80,000/- out of Rs. 1,52,418.24/- in total.
From the evidence of the complainant, it is also found that even on repeated request in writing by the complainant, the OP did not deliver the wooden doors in question and ultimately , the OP delivered 10 Nos. wooden doors to the complainant even after laps of statutory period and surprisingly on 20.06.2022 the OP demanded the rest of proforma amount from the complainant before the delivery of wooden doors and also did not offer the doors for inspection of the complainant.
From the evidence of the complainant, it is found that the remaining 11 Nos of wooden door could not affixed due to non delivery by the OP in time which caused gross deficiency in service on the part of the OP and caused harassment and suffering to the complainant. Ultimately, the complainant wrote a letter dated 22.06.2022 addressed to the OP either to refund the amount paid by him or to deliver the remaining 11 Nos of wooden door but the OP did not respond to the request of the complainant. From the unchallenged evidence of the complainant it is proved that supply of 10 Nos wooden door were also defective which caused negligence, harassment, mental agony to the complainant .
considering entire evidence in ex parte of the complainant and also materials on record, this commission is of view that the OP violated the terms of the proforma invoice issued by the Ops dated 13.05.2022 and even on receipt of the 50 % of payment amounting to Rs. 80,000/- from the complainant. The OP did not deliver all the 21 Nos wooden doors in question and did not allow him to inspect the wooden door. Subsequently, which are found defective. So, such conduct of the OP should be considered as deficiency in service and which caused negligence harassment and mental agony for which the OP is liable to refund the amount received by him and compensate the complainant and thus, it can be safely be held by this commission that the complainant could be able to prove this case beyond all reasonable doubts and is entitled to get the relief as prayed for.
All the points of consideration are considered and decided favourably to the complainant.
The case is properly stamped.
Hence,
Ordered
That the case be and the same is allowed ex parte against the OPs with cost.
The complainant do get the decree in part as prayed for.
The OP is directed to refund of amount of Rs. 80,000/- only along with interest @ 9 % p.a. on and from the date of payment i.e. 16.05.2022 till realisation within 45 days from the date of this order.
The OP is further directed to pay compensation of Rs 1,00,000/- for harassment, mental pain and agony along with litigation cost of Rs. 15,000/- to the complainant within 45 days from the this date of order.
If the OPs failed to comply the decree within 45 days from the date of this order the complainant will be at liberty to execute the same as per law.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act. The Judgement be uploaded forthwith on the website of the commission for perusal of the party.
