DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. NO. 66/2017

Date of Institution: 10.02.2017

Judgment Reserved on: 10.11.2023

Judgment Passed on: 17.11.2023

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member)

Order By: Sh. S.S. Malhotra (President)

ORDER

By this order the Commission would dispose off the complaint of the complainant alleging deficiency in service by OP in not delivering the mattress of the size which was ordered.

1. Before coming to the facts it is necessary to bring on record that complaint was initially filed by complainant against two OPs and OP2 being the manufacturer/Brand name but vide order dated 14.07.2017, OP2 was removed from the array of parties and complainant was directed to file fresh memo of parties which has been filed and therefore there is only one name in the cause – title.
2. Brief facts stated by the complainant in the complaint are that he visited the OP Mr. Mannu Mahajn at his shop on 22.03.2015 to purchase Curlon Mattress and after brief discussion the OP agreed to sell the said mattress of size 78/60/6 for a final quoted price of Rs.10800/- OP also informed him that the mattress of this size are out of stock and if complainant would pay entire amount in advance then they would deliver two mattresses within 5 to 6 days to which he agreed and on 30.03.2015 the mattresses were delivered which was of size 78/48/6 and not of the size of 78/60/6, however, the price of the same was 10800/- including VAT as agreed. It is further stated that MRP of the mattress which was ordered by complainant was 15855/- with the size 78/60/6 whereas MRP of delivered mattress was much less than the actual price of the delivered mattress and actual MRP of the delivered mattress is not on the cash memo instead different price was quoted on the delivered mattress and also the pillow which was to be given free alongwith the said mattress was not delivered. The complainant raised the concern with OP but OP straight away declined to accept his fault and stated that he has delivered the product which was ordered and thereafter he served legal notice upon the OP dated 06.04.2015 but the same was not complied with and ultimately he filed the present complaint thereby seeking direction to OP to exchange the mattress with the ordered size and to pay Rs.10800/- with interest @18% per annum alongwith damages of 15000/- for mental harassment and litigation charges of Rs.30000/-.
3. The OP was served and even appeared before the Commission on 08.03.2018 and copy of the complaint was given to him but he did not appear thereafter, and ultimately was proceeded ex-parte vide order dated 14.05.2019. Complainant has filed his own evidence Written submissions have also been filed. The Commission has heard the arguments. On 07.03.2023 the Commission enquired from the complainant as to whether there was any specific document which can explain that what exactly was the order and with respect to size of mattress but thereafter no such clarification has been made. The Commission has perused the record.
4. The basic controversy is that the complainant states that he ordered for a mattress of having of size 78/60/6 whereas the delivered mattress was of the size 78/48/6 inches. Although the price is the same. Complainant has not placed any document to show that it has placed an order in writing of this specific size i.e. 78/60/6, although he has filed certain conversation/chat with OP. Even in the entire chat there is nothing in the chat that complainant has told the OP that he had placed the order for the mattress having size of 78/60/6, or which would have been admitted by the OP, rather at one place it comes that the OP keeps the record for the ordered mattress and if the OP would move before the court, he would take necessary steps as these all facts pertain to legal things. This chat is perhaps after the complainant has issued legal notice to the OP. Apart from this chat there is no other documents on record by which complainant can prove that the ordered mattress was for a size of 78/60/6. In absence of this material evidence complainant is not able to prove the fact as alleged in the  complaint.
5. More so this is a case where the mattress has been got prepared on order and it can be presumed that whenever the mattress of specific order is to be prepared, then the size of the mattress has to be given to manufacturer. Therefore the chat or the legal notice is also of no consequence as the complainant is not able to prove that what was the size of the ordered mattress. The complainant has also mentioned in the complaint that MRP on the delivered mattress is not on the cash memo instead different price was mentioned in the delivered mattress. There is no document in support this contention as well as the complainant has only paid that much amount which was agreed. Therefore the Commission is opinion the complainant has not been able to discharge the onus as to what was the size of the ordered mattress and therefore he is unable to prove any deficiency on the part of and the complaint. Case of the complainant is accordingly dismissed. 
6. Copy of the order be supplied/sent to the parties free of cost as per rules.

File be consigned to Record Room.

Announced on 17.11.2023.