This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step either to replace the defective Sofa Set by a new one of good quality or refund the entire consideration money of the said Sofa Set for Rs.75,400/- to him till filing of this complaint.

The brief fact of the case of the Complainant is that he is a consumer as he had availed of service from the OPs by making payment of consideration amount. The OP-1 is furniture showroom and the OP-2 is a retailer/distributor and manufacturer. Both the OPs are engaged with business of selling various types of furniture to the customer at large all over India including West Bengal.  Being desired to purchase Sofa Set for his personal use along with the family members the Complainant went to the OP-1 and he purchased one Sofa Set    amounting to Rs.12,567/- only (1 seater), Rs.25,132/- (2 seater) and Rs.34,701/- (3 seater) totaling Rs.78,400/-. At the time of billing the OP-1 offered discount of Rs.3,000/- from the total amount. The Complainant paid Rs.75,400/- after deduction of Rs.3,000/- from the total amount and the OPs have issued sale order cum money receipt dated 20.03.2015 in favour of the complainant. The Complainant had paid the amount in cash and the Ops have acknowledged the same.  After making payment of the consideration amount and completion with all the formalities the OPs have delivered the said Sofa Set at the house of the Complainant and he started to use the same. But within two months the Complainant observed that the upper portion of the leather of the Sofa Set had started to peel off in some portions and day after day it was increasing. Immediately the Complainant informed the matter to the OPs and requested to repair the Sofa Set as early as possible. It is surprising to the Complainant that at the time of purchasing the said goods the Complainant had expressed his desire that he is willing to purchase the best and good quality Sofa and in this respect the OPs have assured him that the questioned Sofa Set falls within the best and good quality. Relying upon the assurance and suggestions of the OPs the Complainant had purchased the said Sofa Set. The Complainant did not hesitate to pay such hefty amount at the time of purchasing as he believed that the item having good and best quality. As the Complainant could not use the said Sofa Set, he requested the OPs over telephone for repairing the same or replace as soon as possible, but the OPs were very much reluctant to this effect and did not bother to take any initiative either to repair or replace the same with a new one. Subsequently the Complainant went to the office of the OP-1 and requested as earlier. After repeated request from the end of the Complainant one representative visited the house of the Complainant and repaired the same and too photographs of the Sofa Set. During repairing the OPs have assured the Complainant that no further defect will be occurred, but within a week from the date of repairing further defect was cropped up in another place of the Sofa Set. The Complainant went to the office of the OP-1 with a request to replace the said Sofa Set with a new good quality one on the ground that in his opinion the OPs have delivered a repaired Sofa Set or a below quality one, against which the Complainant paid a sum of Rs.75,400/-. But till filing of this complaint the OPs remained silent over this issue. The OPs did not repair the further defects nor replace the same, so their action is suffering from deficiency in service. Finding no other alternative the Complainant had approached to the Assistant Director, Consumer Affairs Department & FBP with a view to resolve the dispute amicably. The concerned Department issued notice to the OPs requesting them to appear in the tripartite meeting on 23.08.2016, but the OPs have failed to attend the said meeting. So the Complainant was suggested to initiate proper legal action against the OPs before the appropriate Court of Law. Accordingly being compelled the Complainant has approached before the Ld. Commission, Barasat by filing this complaint praying for direction upon the OPs either jointly or severally either to repair the defective Sofa Set or to replace the defective Sofa Set with a new one of good quality, alternatively to refund the entire paid consideration amount of Rs.75,400/- to him, to pay compensation to the tune of Rs.1,00,000/- due to mental harassment, agony, deficiency in service and the litigation cost to him.

Be it mentioned that this complaint was filed before the Ld. Commission, Barasat and after establishment of this Ld. Commission this record has been transferred from the Ld. Barasat Commission to this Ld. Commission in view of the order passed by the Hon’ble SCDRC.

The record speaks that after admission of this complaint notices were issued upon the OPs, but inspite of receipt of the notices the OPs did not turn up to contest the complaint either orally or by filing written version within the statutory period, hence the Ld. Commission was pleased to pass an order that the complaint will run exparte against the OPs.

We have carefully perused the record; documents as available and heard argument at length advanced by the Ld. Counsel for the Complainant. It is seen by us that admittedly the Complainant purchased the questioned Sofa Set from the OPs by making payment of Rs.75,400/-. The allegation of the Complainant is that within a very short span from the date of delivery the Complainant had noticed that some defect cropped up in the said Sofa Set. Then the Complainant requested the OPs for its necessary repairing. Within a very short period from the date of such repairing the Complainant found that further defect was cropped up in another place of the questioned goods. Then the Complainant requested the OPs for replacement of the defective Sofa Set with a new one having good quality. But as the OPs did not bother to pay any heed to his request, this complaint is initiated by him praying for certain reliefs.

It is noticed by us that the Complainant has alleged regarding defects in the goods. In view of the Section 13 of the Consumer Protection Act, 1986 in case of defective goods the expert opinion is mandatory and required for coming to a conclusive conclusion and until and unless the expert opinion is forthcoming, the allegation regarding defects in the goods cannot be properly adjudicated upon. But in the case in hand no application was forthcoming from the end of the Complainant praying for an expert opinion. So as no expert opinion is not before us, we cannot ascertain as to whether the questioned goods is suffering from defects or not. As the allegation of defects has been raised by the Complainant, liability casts upon the shoulder of the Complainant to prove the same. But the Complainant did not take any step to prove the same by adducing cogent evidence. Hence the complaint fails and he is not in a position to get any relief through this complaint as sought for.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-RBT/CC/285/2021 is hereby dismissed exparte without any cost.

Let plain copy of this judgment be supplied to the parties free of cost as per the CPR.   

Dictated and Corrected by

 [HON'BLE MRS. Silpi Majumder]
MEMBER