Present         (1)      Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                     Present                       

                    (2)      Smt. Karishma Mandal,

                              Member

Date of Order : 21.02.2018

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite parties either to replace all the seven furnitures or to refund the price with interest @ 10% to be calculated on the date of realization i.e. Rs. 1,15,000/- ( Rs. One Lac Fifteen Thousand only ).
2. To direct the opposite parties to pay the cost of transportation i.e. Rs. 7,630/- ( Rs. Seven Thousand Six Hundred Thirty only ).

2. The facts of this case lies in a narrow compass which is as follows:-

The complainant has asserted that he is a retired supertending engineer who has purchased seven furnitures mentioned in annexure – 1 in the name of her daughter and opposite party no. 1 had granted receipt dated 23.12.2006 vide annexure – 1. It is stated that after purchase of seven furnitures three furnitures i.e. Palag “bed” ( worth Rs. 32,500/-), Sofa ( worth Rs. 25,000/-) and dinning table (worth Rs. 34,000/-) have collapsed after three months of purchase as these were not quality product as assured by opposite party no. 1. Thus the complainant has paid total amount of Rs. 1,15,000/- on several dates through cheques and cash, the detail of which has been mentioned in annexure – 2. When the complainant requested the opposite party no. 1 to change the aforesaid furnitures then he refused and thereafter the complainant gave him a legal notice vide annexure – 2. It is worth mention that the opposite party no. 1 had refused to accept the aforesaid legal notice as will appears from annexure – 3 and 4.

It has been also stated that the complainant bore the cost of transportation expenses which were sent to NOIDA vide annexure – 5 and 6 and there was no damage of aforesaid furnitures during delivery.

It further transpires that after filing the aforesaid complaint a petition was filed that he had no grievance against opposite party no. 2 and as he did not seek any relief against him. However on behalf of complainant one Madhir Mistri has filed an affidavit stating therein that he inspected the seven furnitures purchased by the complainant at A – 49, 1^st floor, sec – 39 NOIDA, UP on 15.09.2007 at 10:00 PM and found that out of the seven furnitures only central table and side table is not defective and as such the five other furnitures were defective because these were not quality furnitures.

It has been further asserted in the aforesaid affidavit that the quality of the aforesaid furnitures is exceptionally bad and its repair will require Rs. 50,000/- and as such it is better to buy new furnitures. The aforesaid affidavit appears to have been sworn on 19.09.2007.

On behalf of opposite party no. 1 a written statement has been filed denying the allegation of the complainant. In Para – 3 of written statement the following facts have been asserted, “that the fact is that the complainant never came to purchase the furnitures before the opposite party no. 1 someone came on 13.12.2006 to the shop of opposite party no. 1 and asked the one of the staff namely “ Shailendra Prasad” and asked him to issue a Rough Estimate for 7 furnitures. The staff “ Shailendra Prasad” had issued a “Rough Estimate only to him. He also insisted the staff not write the purchasers name and leave the same blank. Hence the staff written the items, price and date and put his signature on the rough estimate. The someone/unknown person wrote his name and address over the rough estimate and he claiming to be the consumer of the opposite party no. 1 under consumer protection act.

The fact is that the opposite party no. 1 does not know the complainant who never purchased the goods from the opposite party no. 1.”

It has been further stated in counter affidavit that opposite party no. 1 neither sold the goods to the complainant nor received any payment.

It has been further stated in Para – 10 that as per annexure – 2 of the complaint petition all the cheques were issued in favour of Gopal Prasad where as the name of opposite party no. 1 is Gopal Prasad Singh.

The complainant has asserted that he has purchased seven furnitures from the shop of opposite party no. 1 after paying the total price and cash, the details of which is mentioned in annexure – 2.

From bare perusal of annexure – 2 and written statement it is crystal clear that the cheques were issued in the name of self Gopal Prasad. The contention of opposite party no. 1 is that his name is Gopal Prasad Singh and not Gopal Prasad. He has failed to furnish the detail of Gopal Prasad in whose name cheque was issued because this is possible now a days.

It is also surprising that the complainant in Para – 3 of his written statement has admitted that the annexure – 1 was issued by the staff Shailendra Prasad. Thus the existence of annexure 0 1 is established. From close scrutiny of annexure – 1 it appears that although on annexure – 1 “ Rough Estimate and approval slip” has been mentioned but it is crystal clear that the details of amount were given. If annexure – 1 and 2 is closely perused it is crystal that the opposite party no. 1 had received the aforesaid amount through cheques and cash as asserted by the complainant in annexure - II

In our opinion, the aforesaid conduct of opposite party is glaring example of unfair trade because simple purchaser to whom the document like annexure – 1 is given may not be able to know that it is a simple estimate or receipt. This is most unfortunate state of affairs. From the affidavit of Madhir Mastri it appears that center table or side table were in use while other furnitures were found defective. From annexure – 1 it appears that the price of center table is Rs. 7,000/- if the aforesaid Rs. 7,000/- is deductable from the total price of furnitures i.e. Rs. 1,15,000/- then it comes to Rs. 1,08,000/- thus the complainant is entitled to received Rs. 1,08,000/- from the opposite party no. 1 because the aforesaid conduct of opposite party no. 1 shows deficiency as well as unfair trade on his part.

For the discussion made above we direct the opposite party no. 1 to pay Rs. 1,08,000/- ( Rs. One Lac Eight Thousand only ) to the complainant within the period of two months from the date of receipt of this order or certified copy of this order failing which opposite party no. 1 will pay 10% interest on the above said amount of Rs. 1,08,000/- ( Rs. One Lac Eight Thousand only ) till its final payment.

Complainant is also directed to hand over the aforesaid damaged furnitures to the opposite party no. 1 at the time of receiving of the aforesaid amount of Rs. 1,08,000/- ( Rs. One Lac Eight Thousand only ) if the same are in the custody of the complainant or his daughter.

Opposite party no. 1 is further directed to pay Rs. 25,000/- ( Rs. Twenty Five Thousand only ) to the complainant within the aforesaid of period of two months.

Accordingly, this complaint stands allowed to the extent referred above.

                              Member                                                                              President