Date of Filing : 12.12.2013
Date of Order : 25.04.2016.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU. B. RAMALINGAM M.A.M.L., : PRESIDENT
TMT. K.AMALA, M.A. L.L.B., : MEMBER I
DR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II
C.C.NO.397/2013
MONDAY THIS 25TH DAY OF APRIL 2016
Mr. Velu Muthu,
B-5, Apsaras,
No.7, Sriram Nagar South Street,
Alwarpet,
Chennai 600 018. ..Complainant
..Vs..
Mr. Kamlesh Kothari,
Sakaar,
No.128, Greams Road,
Chennai 600 006. ..Opposite party
For the Complainant : M/s.S. Vijayakumar & another
For the opposite party : M/s. Praveen Alexander & another
Complaint under section 12 of the Consumer Protection Act 1986. The complaint is filed seeking direction against the opposite parties to refund a sum of Rs.60,000/- with interest and also to pay a sum of Rs.5,00,000/- as compensation and cost of the complaint to the complainant.
ORDER
THIRU. B. RAMALINGAM PRESIDENT
1.The case of the complainant is briefly as follows:-
The complainant through his Architect Mr. Mani Iyer has placed order on 01.10.2012 and a sum of Rs.60,000/- was paid an advance on 15.10.2012 to the opposite party for making 3 sofas viz an L-Corner sofa, a four seated sofa and a home Theatre sofa costing around Rs.65,000/- Rs.46,000/- and Rs.58,000/- totaling in all a sum of Rs.1,93,505/-, inclusive of taxes for the personal usage in his apartment. The complainant further submit that in the month of January 2013 his architect Mr.Mani Iyer visited the opposite party premises and inspected the making of the said sofa set which are in process and found that the wood used to make sofa are not as desired quality and it was a substantial material and the workman ship was also not satisfactory and the same was intimated to the opposite party through e.mails. Even after two months the said sofa set was not made ready to the requirement of the complainant and the above said defect found out in the quality of wood used for making sofa and the workman ship were not rectified as it was shoddily made, with no proper planning of the timber sections. The wood used was already fraying at the edges as it is clearly visible. Since the complainant being dissatisfied with the deficiency of service of the opposite party has decided to withdraw the order and accordingly the opposite party was called upon to refund the advance amount of Rs.60,000/-. Despite of several demand made by the complainant even through the Citizen Consumer and Civil action group by letter dated 12.07.2013 and legal notice dated 03.09.2013 the opposite party has not refund the amount. As such the opposite party had committed deficiency of service which caused mental agony and hardship to the complainant. As such the complainant has sought for claiming refund amount of Rs.60,000/- with interest and also to pay a sum of Rs.5,00,000/- as compensation and cost of the complaint to the complainant. Hence the complaint.
Written Version of opposite party is in briefly as follows:
2. The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein. The opposite party submit that based upon the said order the opposite party had sent their staff to take measurement in the residence of the complainant and also procured the pin coir foam materials with the advance amount received and commenced the job. On the demand of the complainant that to see the frame of the sofa set and then proceed with the finishing work the opposite party has spent 30 days to take the pattern of the sofa and get approval from the complainant and then commence the work, the same was completed with fullest satisfaction besides the complainant also wanted to make unprecedented changes in the frame of the sofa set. Therefore the opposite once again did another frame in accordance to the complainant’s requirement and showed it to the complainant. The complainant again started complaining on the finishing of the sofa frame and find the pin pricks on the job done. Despite of tremendous effort taken by the opposite party to satisfy the complainant, the complainant has made unreasonable demand while the said sofa was in process to be finished. Further the opposite party has invested a huge amount to the tune of Rs.1,12,500/- towards purchase of the pin coir foam and frame material to make the sample piece the same is evident in perusal of the trail mails dated 23.01.2013 and 24.01.2013 exchanged between the parties. The opposite party submit that the advance paid by the complainant cannot be refunded on the above said circumstances. Whereas on the other hand the complainant has to pay the material cost, for which already the opposite party was invested, the opposite party has further submit that even today they are ready to satisfy the complainant’s requirements provided the complainant pay the balance amount and come up with a concise and precise desire with specification to enable the opposite party to proceed with the job. Hence this complaint filed by the complainant is not maintainable the claims made thereon are not sustainable and the complaint is liable to be dismissed.
3. Complainant has filed his Proof affidavit and Ex.A1 to Ex.A7 were marked on the side of the complainant. Proof affidavit of Opposite party filed and the documents Ex.B1 and Ex.B2 were marked on the side of the opposite party.
4. The points that arise for consideration are as follows:-
1. Whether the opposite party has committed deficiency of service
alleged in the complaint?
2. Whether the complainant is entitled for the refund of the
advance amount and compensation sought for in the complaint
against the opposite party?
5. POINTS 1 & 2 :
Perused the complaint filed by the complainant, the written version filed by the opposite party, proof affidavits filed by both the parties and the documents Ex.A1 to Ex.A7 filed on the side of complainant Ex.B1 and Ex.B2 on the side of the opposite party and considered the arguments of the both sides.
6. There is no disputes between the parties, that the complainant through his Architect Mr. Mani Iyer has placed order on 01.10.2012 and a sum of Rs.60,000/- was paid an advance on 15.10.2012 to the opposite party for making 3 sofas viz an L-Corner sofa, a four seated sofa and a Home Theatre sofa costing around Rs.65,000/- Rs.46,000/- and Rs.58,000/- totaling in all a sum of Rs.1,93,505/-, inclusive of taxes for the personal usage in his apartment. The quotation Ex.A1 the receipt given by the opposite party Ex.A2, are proved the same.
7. Whereas the complainant has raised grievance in the complaint that in the month of January 2013 his architect Mr.Mani Iyer visited the opposite party premises and inspected the making of the said sofa set which are in process and found that the wood used to make sofa are not as desired quality and it was a substantial material and the workman ship was also not satisfactory and the same was intimated to the opposite party through the e.mails. Even after the two months the said sofa set was not made ready to the requirement of the complainant and the above said defect found out in the quality of wood used for making sofa and the workman ship were not rectified as it was shoddily made, with no proper planning of the timber sections. The wood used was already fraying at the edges as it is clearly visible. Since the complainant being dissatisfied with the deficiency of service of the opposite party, has decided to withdraw the order and accordingly the opposite party was called upon to refund the advance amount of Rs.60,000/-. Despite of several demand made by the complainant even through the Citizen Consumer and Civil action group by letter dated 12.07.2013 and legal notice dated 03.09.2013 the opposite party has not refund the amount as such the complainant has filed this complaint claiming the refund of the advance amount with interest and also compensation.
8. Whereas the opposite party has resisted the said complaint by saying that based upon the said order the opposite party had sent their staff to take measurement in the residence of the complainant and also procured the pin coir foam materials with the advance amount received and commenced the job. On the demand of the complainant that to see the frame of the sofa set and then proceed with the finishing work the opposite party has spent 30 days to take the pattern of the sofa and get approval from the complainant and then commence the work, the same was completed with fullest satisfaction besides the complainant also wanted to make unprecedented changes in the frame of the sofa set, Therefore the opposite once again did another frame in accordance to the complainant’s requirement and showed it to the complainant. The complainant again started complaining on the finishing of the sofa frame and find the pin pricks on the job done. Despite of tremendous effort taken by the opposite party to satisfy the complainant, the complainant has made unreasonable demand while the said sofa was in process to be finished. Further the opposite party has invested a huge amount to the tune of Rs.1,12,500/- towards purchase of the pin coir foam and frame material to make the sample piece the same is evident in perusal of the trail mails dated 23.01.2013 and 24.01.2013 exchanged between the parties and further contended that the advance paid by the complainant cannot be refunded on the above said circumstances. Whereas on the other hand the complainant has to pay the material cost, for which already the opposite party was invested, the opposite party has further contended even today they are ready to satisfy the complainant’s requirements provided the complainant pay the balance amount and come up with a concise and precise desire with specification to enable the opposite party to proceed with the job. Contrary to this the complaint filed by the complainant is not maintainable the claims made thereon are not sustainable and the complaint is liable to be dismissed.
9. Considering the above contentions of the both sides in respect of the disputes raised in the complaint as relied by both side the content exchange of the e.mails by the parties filed as Ex.B1 and the content of e.mail sent by Mani Iyer to the opposite party dated 21.09.2013 are proves that as contented by the complainant on the inspection made by the said Mani Iyer the architect of the complainant the sofa sets which were under process of making in the premises of the opposite party was found not according to the requirements of the complainant particularly the wood used for frames and the workmanship are substandard. Though the opposite party has contended that since the said sofa set are in under process and completed one the defect stated by the complainant are not proper the said comment made on the making of the sofa set by the complainant at that stage unwarranted it can be valued only after completion of finishing touch up etc., cannot be acceptable. Further this way of contention made by the opposite party is impliedly proves that the wooden frames are substandard and the workmanship are also in poor quality. Particularly the content of the Ex.A7 the e.mail sent by the Mani Iyer the architect of the complainant to the opposite party it is clearly mentioned that despite of their follow up on daily basis without adequate response at the end of opposite party, the inordinate delay in work on the part of the opposite party and also it was found the sofa framework was to be shoddily made with no proper planning of the timber sections. The plywood used was already fraying at the edges. It is also mentioned in the said email that despite of two months period the same condition of the making of sofa processing was continued without progress. Therefore as contended by the complainant the opposite party has not used the quality material of wood i.e frames and the workmanship also not to the standard as such the said sofa set is not made by the opposite party to the requirements of the complainant is acceptable and the opposite party also made delay in completing the making of said sofa set and delivering the same in time. Therefore as contended by the complainant, the opposite party have committed deficiency of service in complying the order placed by the complainant without any valid reason.
10. Though the opposite party have contended that he has purchased materials such as FM Foam and wooden frames by investing a sum of Rs.1,12,500/- the opposite party has filed Ex.B2 alone for the purchase of FM Foam for Rs.61,984/- Though it may be admitted that as per the Ex.B2 opposite party has purchased a F.M. Foam, there is no proof on the side of opposite party that the said F.M. Foam was utilized or used in the alleged unfinished sofa sets, because of the prevailing dispute between the parties with regard to the fixation of wooden frames and its quality and the workmanship thereon. Therefore even it is admitted that the complainant has purchased Foam as per Ex.B1, since it was not used in the process of making the alleged unfinished sofa set, there is a chance to utilize the same by the opposite party in making sofa set for the future orders in the course of his business. Further considering the both side case on the basis of the available records before this forum, we are of the considered view that on the basis of the order placed by the complainant, the opposite party also acted upon and commenced his part of performance in making of the said sofa set. Accordingly the opposite party have sent his staff to the complainant’s residence and taken measurements and also by spending the wooden frame work available with him he has made a sample for the inspection of the architect of the complainant as such the opposite party has also spent his valuable time, staff and some materials towards the making of the sample of the said sofa set, however it is not in accordance to the requirements of the complainant and his satisfaction.
11. Therefore we are of the considered view that the claim made by the complainant for entire refund of the advance amount of Rs.60,000/- against the opposite party is not justifiable, but the opposite party should refund the said advance amount after deducting a sum of Rs.6000/- i.e. the 10% of the advance amount, which will be just and reasonable on the facts and circumstances of the case. Therefore the opposite party is liable to refund a sum of Rs.54000/- out of the advance amount received with interest at the rate of 9% p.a. from the date of demand by his legal notice dated 03.09.2013. Therefore the denial of the opposite party for the refund of reasonable amount out of the amount received as advance to the complainant is amounts to deficiency of service is acceptable. However considering the facts and circumstances of the case we are not inclined to grant compensation to the complainant against opposite party as claimed in the complaint. Further the opposite party is also liable to pay a sum of Rs.4000/- as litigation charges to the complainant. Accordingly the points 1 and 2 are answered.
In the result this complaint is partly allowed. The opposite party is directed to pay a sum of Rs.54,000/- (Rupees Fifty Four thousand only) with interest at the rate of 9% p.a. from 03.09.2013 to till the date of payment and also to pay a sum of Rs.4000/- as cost to the complainant within six weeks from the date of this order.
Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the 25th day of April 2016.
MEMBER-I MEMBER-II PRESIDENT.
Complainant’s side documents:
Ex.A1- 1.10.2012 - Copy of Quotation given by the opposite party to the
Complainant.
Ex.A2- 15.10.2012 - Copy of receipt issued by the opposite party to the
Complainant.
Ex.A3- 12.7.2013 - Copy of letter from Citizen Consumer and Civil Action
Group to the opposite party.
Ex.A4- 14.8.2013 - Copy of reminder from the Citizen consumer and Civil
Action group to the opposite party.
Ex.A5- 3.9.2013 - Copy of lawyer’s notice.
Ex.A6- 10.9.2013 - Copy of reply notice.
Ex.A7- 21.9.2013 - copy of email from Mani Iyer to the opposite party
Opposite parties’ Exhibits:-
Ex.B1- 24.1.2013 - Copy of email from the complainant’s architecture.
Ex.B2- 2.3.2013 - Copy of email from opposite party.
MEMBER-I MEMBER-II PRESIDENT.
