OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.6/13
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Sri U.N.Deka - Member
Smti Tapati Sengupta -Complainant
W/O G.S.Sengupta,
Soroj Villa, K.C.Patowary Path, Ulubari,
Guwahati-7
District Kamrup,Assam
-vs-
1) Creations Enhancing Space, - Opp.parties
Represented by its Proprietor,
Mr.Manish Jain
Kaiser Commercial Complex,Bhangagorh
G.S.Road,Ghty-5,Assam
2) Mr.Manish Jain)
Proprietor,Creations Enhancing Space
G.S.Road,Ghty-5,Assam.
Appearance-
Learned advocate Ms.Debasmita Ghosh for the complainant
Date of argument- 8.1.2016
Date of judgment- 27.1.2016
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1)The Complainant, Smti Tapati Sengupta, by filing a complaint u/s 12 of Consumer Protection Act,1986, prays to this forum to direct the opp.parties to pay her Rs.15,500/- as principal amount along with interest, Rs.1,00,000/- for causing mental agony,Rs.1,00,000/- for physical harassment to her and Rs.25,000/-as cost of proceeding . The complaint was admitted on 24.1.13 and notices were served upon the opp.parties and they also filed their written statement. The complainant filed her affidavit on 18.12.13, but she was not cross examined by the opp.parties even after taking several adjournment and being compelled; this forum, vide order dtd.16.6.15 closed the chance of cross examination of complainant side’s witness, but directed that the opp.parties to file their evidence, but opp.party side neither appeared nor filed affidavit thereafter. However, this forum vide order dtd. 8.9.15 directed both the parties to file their respective written argument before two days of 16.10.15 and finally the complainant side filed their written argument, but opp.party defaulted to appear and file written argument. Finally, on 8.1.16, we have heard oral argument of learned advocate Ms.D.Ghosh for the complainant and today we are delivering the judgement which is as below-
2) The complainant’s case in brief is that she purchased one Sofa- Cum- Bed from Opp.Party No.1 paying Rs.15,500/-vide debit card of her daughter Satabdi Sengupta on 8.12.12, and they delivered the sofa in her house on 13.12.2013. After inspection of it they found that the said Sofa-Cum - Bed had multiple defective and she immediately informed the proprietor of the said firm through a call and requested him to replace the same and the proprietor/owner of the said furnisher house also agreed to replace it and on 15.12.2012 another set of Sofa- Cum- Bed was delivered in her residence and that was also a defective one. However an amount of Rs.2500/- was also charged from her as the additional price of replaced Sofa- Cum- Bed is of higher price. She refused to accept that sofa also and requested the proprietor of the said firm to take back the said defective sofa, but the proprietor did not turn up till date for replacement of the said Sofa- Cum- Bed or to return the money. She has paid the value of the sofa i.e. Rs.15,500/- without taking any receipt, but the opp.parties issued a katcha receipt to her. The opp.party also demand the transportation cost of the second set. She also served a legal notice on the opp.parties on 19.12.2012 requesting them to release the principal amount, but they did not heed on that matter.
3) The pleading of the opp.parties is that the complaint is not maintainable; it is baseless and is an abuse the process of law with good motive . Opp.Party No.2 is not the proprietor of Opp.Party No.1, but Opp.Party No.1 is a partnership firm and Opp.Party No.2 is one of the partners of the said firm. The sofa supplied to the complainant was not defective goods, at the time of purchase the complainant checked the same and then only purchased it, but there may be some breakage or scratch of the said sofa set during transit, but that was not due to fault of their part, yet Opp.Party No.2 agreed to replace the same on the request of the complainant and accordingly Opp.Party No.2 replaced the first set and charged Rs.2,500/- as additional value of the replaced set and the complainant paid the charge of the autovan which is carried said sofa set had not paid home. They have no home delivery system, but customers are to take the sold furnisher from their shop on their own risk. The replaced set did not have any defect and it was delivered to the complainant when with full payment will be made them final bill and receipt will be issued to her. The complainant also requested to Opp.Party No.2 to replace the second one also and then Opp.Party No,2 placed an order to the concerned firm and brought a new Sofa- Cum- Bed for the complainant and informed her to visit their shop to take delivery of the new Sofa- Cum- Bed after giving back the second piece of Sofa- Cum- Bed which is still in her residence, but she neither returned the said sofa nor took the newly brought sofa, but surprisingly sent a legal notice to them and so they are not in any way un fault or deficiency in service towards her, but as a good gesture and maintain to good relation to the customer, they are yet ready to return back the money paid by the complainant as Rs.15,500/- less the transportation charge or to replace the said Sofa- Cum- Bed with the newly brought one provided she returns the said sofa to him.
4) We have perused argument of learned advocate Ms.D.Ghosh for the complainant who forwards her argument for the complainant. We have also perused the pleading of the parties and the affidavit filed by the complainant. After perusing the pleading of the parties it is found that the opp.party side admits that the complainant had purchased one Sofa- Cum- Bed from Opp.Party No.1 on 13.12.2012 at a price of Rs.16,500/- after paying only Rs.15,500/- through credit card of her daughter keeping the remaining amount in balance. The opp.parties admits that the first set of Sofa- Cum- Bed which was purchased on 13.12.2012 was replaced by the opp.parties and an amount of Rs.2,500/- as additional value of new set and the another amount as transportation cost was charged from the complainant.
It is also admitted fact that the complainant again requested the opp.parties to replace the second set also on the ground that it was defective one. The opposite party side is found to take plea that on receipt of the request for replacing the second set, they asked the complainant to return the second set and take a new sofa set from their show room, but the complainant side never returned the second set and second set was still lying in the house of the complainant. It is admitted fact that the second set is yet in the house of the complainant. Now question is that whether the opp.parties asked the complainant to return the second set and take the new set. To prove the said plea the opp.party side adduces no evidence. Hence the statement of the complainant as to that she requested the opp.parties to take back second set also and return her money, but they refused to do so shall be to be a true fact. In evidence, the complainant stated that the second piece of sofa was also defective . To rebut the fact the opp.party adduces no evidence. Hence it shall be that the plea of complainant that second set was also defective one is a true fact. Therefore, it must be held to have been established that the second set of Sofa Cum Bed which was supplied by the opp.parties to the complainant was also defective one. So selling a defective Sofa Cum Bed to the complainant by the opp.parties is a matter covered under definition of Consumer Protection Act, Section 2(1)(f) for which the complainant can get relief under the provisions of section 12 of the said Act. Therefore, we hold that this complaint has merit. Secondly, for supplying defective goods (sofa set) it is burden of the opp.parties to replace the said defective sofa set. It is already found that in the instant transaction, the opp.parties themselves delivered the item in the house of the complainant and hence they themselves was liable to take back the said defective sofa set, but they,inspite of receiving the request from the complainant to replace the defective Sofa Cum Bed (replaced set), did not replace the said set nor took any step to return the money she had paid to them. Therefore, we hold that it was the duty of the opp.parties to replace the second set. It is found that the opposite party wilfully refused to replace the second set and return the money to the complainant which she had paid to them. The second set now is with the complainant. Therefore, the opp.parties are liable to return Rs.15,500/- to the complainant which she had paid to them as price of the sofa set and take back the said sofa set from her house. Thirdly, they are also liable to pay compensation to her for causing harassment to her by way of refusing to replace the defective set. which we have found that Rs.5,000/- would be a justified amount for causing such harassment. Moreover, the opp.parties are liable to pay another amount of Rs.5,000/- as cost of the proceeding.
6) Because of what has been discussed as above, the complaint is allowed on contest and opp.parties are directed to return the principal amount i.e. Rs.15,500/- with interest @ 12% per annum to the complainant and take back the sofa set from her house at their own cost. They are also directed to pay the complainant Rs.5,000/- as compensation the complainant for causing harassment to her and Rs.5,000/- as cost of proceeding to which they are jointly and severally liable . They are asked to make payment of the said amount within two months, and in default it shall also carry interest @ 12% per annum.
Given under our hands and seal of this forum on this day 27st Jan,2016.
Free copies of judgment be delivered to the parties.
( Mr U.N.Deka ) (Md.S.Hussain)
Member President
