IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 22nd day of October, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 73/2016 (filed on 25-02-2016)
Petitioners : 1) Usha Muraleedharan,
W/o. Muraleedharan Pillai,
Poovappallil House,
Kallissery P.O. Chengannoor,
Alleppey. Rep. by Power of
Attorney Holder Sreejith Panicker,
S/o. Pushpangadan,
Naduvilapurackal House,
Peringara, Chathenkery.
Pathanamthitta.
2) Sreejith Panicker,
S/o. Pushpangadan,
Naduvilapurackal House,
Peringara, Chathenkery.
Pathanamthitta.
(Adv. K. Karjet)
Vs.
Opposite Parties : 1) Indroyal Furniture Company
Co. Pvt. Ltd. Royal Plaza.
Opposite to LIC, Pattam,
Trivandrum-695004.
Rep. by its Director.
2) Indroyal Furniture Co. Pvt. Ltd.
Focus tower, Parolickal Junction,
Athirampuzha P.O. – 686562.
Ettumanoor, Kottayam dist.
Rep. by its Branch Manger/
Officer in charge.
(Adv. M.A. Vahab, adv. Mohan Das
K. Vilangara and Adv. Liyah A.V.)
O R D E R
Sri. Manulal V.S. President
Nutshell of the complaint is as follows:
The first complainant purchased medium density furniture through the second complainant from the second opposite party which is manufactured by the first opposite party for installing the same in the house of the first complainant . The first complainant authorized the second complainant, who is the family friend of the first complainant to purchase the goods from the second opposite party and the second complainant purchased Bed (box bed with storage , door wardrobe, dressing table and stool, side table , din table cartier 1=6, bed room set Gm 3005DBR6 Dr, crockery unit carteier , din chair cartier, sofa chest nut 2 seat, sofa chest nut 1 seat , sofa chest nut corner, Bg pillow top (w), BG pillow (m) and pillow soft for a total amount of 3,73,500/. At the time of purchase the second opposite party made the complainants to believe that the furniture were made of treated medium density fiberboard material and it is of high quality and keeping international standards, they also promised one year free of cost maintenance and service. It is averred in the complaint that believing the assurance given by the opposite parties about the quality of furniture the complainants purchased the furniture.
On 9-4-2015, the representative of the second opposite party fitted the furniture in the house of the first complainant. Within the three months the inside as well as the outside portion of the wardrobe and the furniture became infested with fungus and foul smell was emanated from them . Due to the fungus infection caused in wood used for making the furniture, the locks and hinges of the furniture were broken from the medium density fiber board. The panels of the wardrobes were bending and layers were pealed off. The box bed with the storage got affected by fungus and thereby it got destroyed. The screws of the bed loosened and the bed portion sank into cot.Wardrobe with mirror door is with low quality, and hinges. The storage portion of the shelf got bent on weight carriage and are fungus affected. Dressing tables and stool, dining table, chairs are also fungus infected.
Immediately after noticing the defects the second complainant through the telephone complained to the second opposite party about the defects. Though the second opposite party promised to cure the defects , but they did not care to rectify or cure the defects. Thereafter when the second complainant personally visited the second opposite party then on 5-10-2015 a technician from the second opposite party came to the house of the first opposite party but he did not fully cure the defects. Thereafter on 30-10- 2015 another technician under the second opposite party visited the house of the first complainant, but he also did not cure the defects. The second opposite party did not gave any heed to the repeated request of the second complainant to cure the defect in furniture or to replace the furniture or to return the cost of the furniture. On 18-12-2015 the second complainant approached the first opposite party and complained about the defects in furniture. Thereafter on 19-12-2015 a technician of the first opposite party named Antony inspected the furniture and he also did not able to cure the defects .Though he promised that the defect will be cured immediately there was no response from the first opposite party. When the second complainant contacted the first opposite party he was advised to contact the second opposite party for relief. Even though the complainants several times tried to contact the opposite parties they purposefully evaded from attending the complainants. On 6-1-2016 the second complainant made a complaint through e-mail to the first opposite party but they did not give any response. It is averred in the complaint that the opposite parties are purposefully evading from attending the complaints and did not take any action to cure complainant’s grievances.
It is alleged in the complaint that the opposite parties have shown imperfection, inadequacy in quality , nature and manner of performance which is required to be maintained in service and that amounts deficiency in service. It is further alleged in the complaint that opposite parties adopted unfair trade practice for the supply of furniture and falsely represents the goods are of particular quality, standard, grade , style and model. Hence this complaint is filed praying an order directing the opposite parties to refund the cost of the furniture with interest along with compensation of Rs. One lakh.
Upon notice opposite parties appeared before the commission and filed joint version defending the complaint as follows:
The complaint is not maintainable either in law or on facts. The first complainant is not the buyer from the opposite parties but she purchased from the second complainant by way of resale. The first complaint is not a consumer as per section 2(1(d) of the consumer protection act. This forum have no jurisdiction to entertain this complaint. The material facts that dampness on the wall and condition suitable for attack of fungus where the installation done, is suppressed and filed this complaint. The matters stated in the notice dated 14-1-2016 and in the complaint do not match and are contrary to each other. The user is brought in as the first complainant to cover up resale done by the second complainant.
The complainant has not brought out any specific manufacturing defect in the furniture supplied by the opposite parties. The alleged defects arose due to mishandling and wrong transporting techniques employed by the second complainant or the first complainant in her premises. The second complainant who is an interior designer purchased the items and sold to the first complainant. Clearly the transaction between the first and second complainants is a commercial transaction for resale and not a bonafide purchase. Medium density Fiber Boards are not manufactured by the first opposite party and the same is imported and no liability could be fastened on the opposite parties for the alleged defects in any . Claim amount stated is for the purchase of five items, out of which it is admitted that only two items were affected by fungus attack and so also certain locks and hinges are broken . Hence the total claim for all the items irrespective of the alleged problems cannot be justified.
The second complainant who is the actual purchaser for resale in whose name the invoices were issued. The second complainant being an interior designer he is well aware of quality of materials and purchased the goods. Pagargaph 4 of the legal notice issued by the second complainant states that the furniture times were erected by the second complainant in different stations . The averment regarding installation of the furniture by the instrumentality of the opposite parties is false. The furniture was purchased and taken away by the second complainant in the usual manner he does and the opposite parties did not give any support to fit the furniture as averred.
Fungus grows on damp wood due to various reasons. Conducive to growth of fungus is moisture, high humidity, seepage of water etc and the reason for fungus infection cannot be attributed to manufacturing defect. It is due to improper use in damp conditions for which the supplier cannot be held liable. The opposite parties invariably issue warranty card to its customers for specified period and undertake repair of furniture if there is any specific defect, but no replacement. The opposite party did receive any communication from the complainant regarding any defect in the item alleged to have been supplied nor any defect had ever been brought to the notice of the opposite party even over telephone except through the legal notice which was also vague. The complainant is only an instrument in the hands of the business rivals of the opposite parties, who with the intention to defame and derogate the business of the opposite parties fabricated the unfounded allegations that the opposite parties are guilty of deficiency in service. There is no unfair trade practice or deficiency in service as alleged in the complaint.
Second complainant is examined as Pw1 and exhibits A1 to A4 and exhibit C1 were marked from the side of the complainant. One Jobin George who is the manager sales of the first opposite party examined as Dw1 and Exhibits B1 marked from the side of the opposite parties.
On evaluation of complaint, version and evidence on record we would like to consider the following points.
(1)Whether the complaint is maintainable or not?
(2) Whether there is any deficiency in service or unfair trade practice from the side
of the opposite parties?
(3) If so what are the reliefs?
Point number 1
The challenge of the maintainability was raised before our predecessors by the opposite parties vide IA no 245 of 2016 and our predecessors disposed the said petition stating that the question of maintainability can be considered after taking the evidence. Aggrieved by the order passed in IA 24of 2016 opposite parties took the matter before the apex commission. While disposing the RP 33 of 2017hon’ble State Commission ordered that the first opposite party can challenge the maintainability by leading evidence .
Opposite party resisted the complaint on the ground that the first complainant is not a consumer of the opposite parties and purchased the furniture from the second complainant by way of resale. The opposite parties further contended that the transaction between the first and second complainant was a commercial transaction and the goods collected from the second opposite party by the second complainant were sold to the first complainant after alteration. The case of the complainants is that the first complainant authorized the second complainant, who is the family friend of the first complainant to purchase the goods from the second opposite party and the second complainant purchased the furniture as per the direction of the first complainant for her use. Opposite party relied on exhibit B1 legal notice which was issued by an advocate under the instruction of the second complainant. The learned counsel for the opposite parties vehemently argued that in paragraph 4 of exhibit b1 it was stated as “ that my client erected the product in various stations .” According to the opposite parties from that it is evident that the original purchaser of the product was the second complainant. Exhibit A2 is the retail invoice which was issued by the second opposite party in the name of the second complainant proves that the second complainant had purchased furniture for an amount on Rs. 3,73,500/- from the second opposite party which was manufactured by the first opposite party. Pw1 who is the second complainant deposed before this commission that the A2 invoice was happened to be issued in his name when the second opposite party insisted to give the name of any person . Though the Pw1 was elaborately cross examined by the opposite parties nothing was elucidated to prove that he had sold the furniture to the first complainant. Dw1 who is the sale manager of the first opposite party would depose that they themselves transported the goods to residence at Chenganoor and partially installed by their technical persons. This will curtail the root of the case of the opposite parties that the second complainant had installed the furniture at the residence of the first complaint by way of resale. As per section2(1)(d) of the consumer protection act 1986 the person who buys the good for the consideration paid or partly paid or promised to pay or use the goods with the approval of buyer is consumer. Whenever any person purchases goods for carrying out business for resale or for commercial purpose then only question regarding purchase of goods or availing any service from trader or professional arises. Any person who is making actual use of the goods may come across the defects in goods. Thus, the law construes users of the goods as consumers although they may not be buyers at the same time. Moreover , the opposite parties did not produce any evidence to prove that the second complainant is engaged in any commercial activities other than his self employment. Therefore we are of the opinion that the complainants are the consumer s of the opposite parties as envisaged in consumer protection act.
Another contention raised by the opposite parties is that this Commission has no jurisdiction to entertain the complaint. It is admitted by both the parties that the furnitures were bought from the second opposite party who carries business at Ettumanoor which is within the jurisdiction of this commission. The total value of relief claimed by the complainants is only for Rs. 4,73,500 along with interest is also within the pecuniary jurisdiction of this commission. On the basis of above discussions we find that the complaint is maintainable before this commission.
Point number 2 and 3
We already found that the second complainant who is the family friend of the first complainant purchased the goods from the second opposite party as per the instruction of first complainant for her use. Exhibit A2 proves that on 7-4-2015 Bed (box bed with storage), door wardrobe, dressing table and stool, side table , din table cartier 1=6, bed room set Gm 3005DBR6 Dr, crockery unit carteier , din chair cartier, sofa chest nut 2 seat, sofa chest nut 1 seat , sofa chest nut corner, BG pillow top (w), BG pillow (m) and pillow soft were purchased by the complainants for a total amount of 3,73,500/. According to the complainants at the time of purchase the second opposite party made them to believe that the furniture were made of treated medium density fiberboard material and it is of high quality and keeping international standards, and promised one year free of cost maintenance and service. Within the three months the goods became infested with fungus and foul smell was emanated from them . Due to the fungus infection caused in wood used for making the furniture, the locks and hinges of the furniture were broken from the medium density fiber board .In order to ascertain the defects and its reason Dr. Maria Florence E.J. who is a retired scientist F & programme coordinator of Kerala Forest Reaserch Institute is appointed an expert commissioner and she filed C1 report. The expert commissioner reported that all furniture was infested by fungus in varying degrees. The surface as well as interal portion of the furniture was covered with fungal spores. She further reports that the separation panels inside the wardrobe is bent and detached in some places, the support underneath the seat of the bed is broken, the doors of the wardrobe are not intact and joints are loosened. The expert commissioner observes that the fittings and accessories of the furniture are not of superior quality.
It is contented by the opposite parties that, fungus grows on damp wood due to various reasons. Conducive to growth of fungus is moisture, high humidity, seepage of water etc and the reason for fungus infection cannot be attributed to manufacturing defect. Though the expert commissioner in her C1 report states that the reason for high infestation of fungus is high humidity inside the rooms and around the residence, however she further reported that if properly treated wood was used for the furniture, the fungal growth would not have been occurred. She further reported that the density of MDF used for the furniture is 696kg/m3 is ideal for the manufacturing of furniture. But in C1 it is categorically reported by her that if properly treated MDF was used for making the furniture , the fungal infestation would have been minimal. She further reported that the use of the furniture is not safe because the heavy mass of fungal infection can cause allergy and bronchial problems. Therefore we are of opinion that the opposite parties have committed unfair trade practice by selling furniture which have no particular quality, standard, grade , as represented by them.
Exhibit A3 proves that the second complainant informed the defects of the furniture to the first opposite party on 6-1-2016. Despite the receipt of Exhibit A3 email communication and B1 notice the opposite parties did not care to rectify the defects of the furniture which were sold by them to the complainants. It is stated in the version of the opposite parties that instead of replacement they assured the curing of the defects of the furniture which were sold by them. However they have no case that they rectified the defects of the furniture which was installed by their technical persons at the house of the first complainant. Therefore we are of the opinion that the opposite parties are deficient in service by not rectifying the defects of the furniture which were sold by them to the complainants.
No doubt the first complainant who purchased the furniture from the opposite parties with a belief that the said furniture were in a good quality and standard suffered much mental agony and hardship due to the inferior quality of the furniture. As per C1 report the use of the said furniture would cause much health problems to the inmates of the residence. Due to act of unfair trade practice and deficiency in service done by the opposite parties the complainant has suffered much sufferings and loss for which the opposite parties are jointly and severally liable to compensate the same.
On the basis of the above discussed evidence and considering the nature of the case we allow the complaint and pass the following order.
- We hereby direct the opposite parties to replace all the furniture which were sold by them to the complainants vide exhibit A2 retail invoice with a defect free good quality and similar description or in alternative to refund Rs. 3,73,500/- to the complainants.
- We herby direct the opposite parties to pay Rs. 25,000/- to the complainants for the mental agony caused to them due to the act of unfair trade practice and deficiency in service by the opposite parties.
The order shall be complied within 30 days of receipt of this order failing in which the awarded amounts will carry 9% interest from the date of this order.
Pronounced in the Open Commission on this the 22nd day of October, 2021.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of complainant.
Pw1 – Sreejith Panicker
Witness from the side of opposite party
Dw1 – Jobin George
Exhibits marked from the side of complainant
A1 – Power of attorney executed by the 1st complainant infvaour of 2nd
complainant.
A2 – Cash receipt dtd.07-04-2015 issued by 2nd opposite party
A3 – True copy of e-mail communication
A4 (subject to proof)– Photo showing the defects and fungs caused to the
wardrobe (3nos.)
A4 (a) (subject to proof) – Photos of defective part of Wardrobe (3 nos)
A4 (b) (subject to proof) – Photos of defective part of Wardrobe (3 nos)
A4 (b) (subject to proof) – Photos of defective part of Wardrobe (2 nos)
Exhibits marked from the side of opposite party
B1 – Lawyers notice dtd.14-01-16 issued by Adv. Sunil G. Nedumpurath to
opposite parties
Commission Report
C1 – Commission report by Dr. Florence E.J.
By Order
Senior Superintendent
