The complainant again on 21.10.2019 at 12.15 a.m. sent a email to the op no.3 alongwith a copy to the op no.1 stating that the complainant for the last three months had informed the ops about his problem via mail, phone, store but did not get any solution from the ops. The complainant further enquired why a broken bed was installed when the complainant had paid the whole money. The complainant also stated if the bed was not replaced within 7 days he will be forced to go to consumer Forum for a second step and on 22.10.2019 at 4.14 p.m the op no.1 replied to the above mentioned mail stating the damage occurred in the bed particularly in mattress panel found lamination pill off and as it is a minor defect it does not hamper the functioning of bed and does not require replacement of bed. It was further stated as informed earlier through previous emails the spares have already reached the op no.1 and the op no.1 further requested for a date so that the op no.1 could replace the mattresses panel and as a special case warranty of the bed will be from the date of replacement of panels and not from the date of purchase and the op no.1 on 13.12.2019 at 11.07 a.m. sent an email to the representative of the op no.2 & 3 that the spare parts had reached the opno.1 by September, 2019 and it was informed to the complainant and requested the complainant to provide a date for replacement but the complainant refused to replace the damage panels and wanted to replace the bed which is not possible and the same was also intimated to the complainant through email and over telephone and the op no.1 through emails dated 13.12.2019 at 12.29 p.m and 14.12.2019 at 7.26 p.m gave reminders to the complainant for replacement of the damaged mattresses panel of the bed and requested for a date from the complainant to replace the damaged one with a fresh one and the op no.1 humbly submits that the complainant at the first instance and also subsequently placed demand to issue warranty for the date for the alleged default panel is replaced or to replace the product entirely. The opno.1 in accordance with the wish and demand of the complainant agreed that warranty of the bed will be issued from the date of replacement of panels and not from the purchase date. Thus, the complainant cannot have any complain with regard to not being provided with good service and further the complainant also cannot complain of the fact that the op no.1 resolved to unfair trade practice and the op no.1 at all material points of time sought a date from the complainant so that the op no.1 can replace the alleged defective panel of the bed but the complainant chose to remain silent and never provided a date of having the said panel to be replaced and suddenly when the op no. 1 was willing and ready to meet up the warranty issue of the complainant, the complainant killed time and made an illegal demand to replace the whole product with an intention to make an illegal gain. So, this case is liable to be dismissed with cost.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite party-1 filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss. Op no 2 & 3 have filed a petition on 27.02.2022 to treat their w/v as their evidence on affidavit.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration are clubbed together and taken up for discussion jointly at first.
Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Uttarpara, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, 1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986.
All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.
The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.
For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.
On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:
- It is admitted fact that ops engaged in the business of manufacturing furniture such as beds/ cots, side table, bed side table, cupboards, dressing table etc.
- It is also admitted fact that the complainant agreed to purchase a Godrej Chocolate Queen Bed from op no. 1.
- There is no controversy over the issue that the complainant paid advance amount of Rs. 10,000/- out of total price of Rs. 37,000/- and the said amount was paid on 7.7.2019.
- There is no dispute over the issue that the complainant had paid the balance consideration amount of Rs. 27,000/- on 28.7.2019 as full and final payment.
- It is admitted fact that the complainant had paid the entire consideration amount of Rs. 37,000/- to the op no. 1 for purchasing the product of op nos. 2 and 3.
- It is also admitted fact that op no. 1 on the next day had sent its installer to install the aforesaid bed in complainant’s resident which has been mentioned in the cause title of the complaint petition.
- There is no controversy over the issue that the installer handed over a challan to the complainant regarding the aforesaid bed wherein it is clearly written that before taking delivery of the article check the materials and as per advice written in the challan the complainant checked the aforesaid bed wherein he found that the mattress panels were broken.
- There is no dispute over the issue that the complainant reported the said defect to the installer and asked him to take back the aforesaid bed.
- It is admitted fact that the ops agreed to replace the mattress panels and also agreed to give effect of the warranty from the date of replacement but not from the date of purchase.
- It is also admitted fact that the ops failed to replace the mattress panels within time assured by them.
- There is no controversy over the issue that thereafter both parties had sent email messages/ notices to each other.
- There is no dispute over the issue that the ops finally had taken arrangement for replacement of the mattress panels but the complainant refused to take replacement of the mattress panel and demanded the entire replacement of the bed.
- It is admitted fact that on 12.10.2019 the ops informed the complainant that they are unable to replace the aforesaid bed but they are ready to replace the broken panels.
- It is also admitted fact that the complainant thereafter lodged a complaint through website of the Consumer Forum and registered a complaint being no. 1555814.
- There is no controversy over the issue that subsequently the complainant has instituted this complaint petition praying direction upon the ops to replace the bed and to supply a new bed and for payment of Rs. 2,00,000/- for mental pain and harassment.
- There is no dispute over the issue that the ops have not prayed any expert commission or local inspection commission in this case to inspect as to whether only mattress panels of the said bed has been broken or not and whether the said defect can be cured by replacement of the broken panels or not?
Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.
On the background of the above noted admitted facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant has adopted the plea that he has paid the entire consideration money of Rs. 37,000/- to the ops but they have supplied a broken bed and inspite of several request they have not intentionally replaced the said bed with a new one and this matter is clearly reflecting that the ops are carrying on unfair trade practice and there is deficiency of service on the part of the ops but on the other hand the ops adopted the defence alibi that they are ready to replace the broken panels but the complainant was not interested of such replacement of such broken panels and it clearly indicates that there is no deficiency of service on the part of the ops.
For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the ops have not prayed any expert commission or local inspection commission in this case to inspect as to whether only mattress panels of the said bed has been broken or not and whether the said defect can be cured by replacement of the broken panels or not? In view of this position this District Commission is of the view that the prayer of the complainant for replacement of the bed is required to be allowed at the cost of the ops.
Thus, the above noted points of consideration adopted in this case are decided on favour of the complainant.
In the result it is accordingly
ordered
that the complaint case being no. 177 of 2019 be and the same is allowed on contest but in part against ops.
The ops are directed to replace the bed at their own cost and to pay compensation of Rs. 20,000/- for causing mental pain to the complainant and deficiency in service, within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.
In the event of nonpayment/ non compliance of the above noted direction the opposite parties are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
