The case of the complainant in a nutshell is that the opposite party is the proprietor of ‘Malina Furniture’. In the second week of August, 2017, the complainant placed an order with the opposite party for supply of two box beds of solid Mehagony wood having its size 7 (seven) feet length and 6 (six) feet width.
On 26.04.2018, the opposite party delivered two newly polished wooden box beds in the house of the complainant with a promise that if any defect is detected during the use of those box beds, the opposite party would fix the defect or replace the same at the earliest.
After delivery of the box beds, the complainant husband issued a cheque bearing no. 79855 dated 26.04.2018 drawn on State Bank of India, Rajpur Branch for some of Rs.80,000/- (Rupees eighty thousand) only in favour of Malina Furniture and the opposite party duly issued a money receipt dated 26.04.2018 in favour of the complainant.
It is the specific case of the complainant that after 20/25 days of receipt of both wooden box beds, it was detected that the same are not made of solid wood. Moreover, the wood used in the box beds are termite infected and also having other defects. Sometimes in the month of May, 2018 the complainant contacted with the opposite party to remove the defects of the box beds but the opposite party did not pay any heed to his complaint neither replaced the defective box beds. According to the complainant the opposite party has committed fraud and is liable for deficiency of service and unfair trade practice. Hence, this case.
The opposite party appeared in this case and filed written version. The opposite party denied that he is the proprietor of ‘Malina Furniture’ but admits that the complainant placed an order for supplying two wooden box beds of 7 (seven) feet in length and 6 (six) feet width @ Rs.40,000/- (Rupees forty thousand) only each with the opposite party. The opposite party further states that he had delivered the box beds as per specification and received a cheque amounting to Rs.80,000/- (Rupees eighty thousand) only from the complainant. Thereafter, he issued a blank (unfilled bill) to the complainant only putting his signature on it. The complainant herself written the specification of the two box beds in the said bill without his knowledge. It is further stated by the opposite party that he is a carpenter and manufacturer of wooden furniture and he supply the same to his customers to raise his wages. The opposite party denies that he delivered any defective wooden box beds to the complainant. If any defect have been occurred that could have happened due to mishandling by the complainant while shifting the beds. The opposite party denies that he has adopted any unfair trade practice or supplied any inferior quality of wood and/or with poor quality of skill. According to opposite party the allegation of the complainant is baseless, false, motivated and frivolous and the case is liable to be dismissed with cost.
Points for decision
On the basis of the rival contention of the parties, the following issues are framed:-
i) Is the case maintainable in its present form and law?
ii) Is the complainant is a consumer in terms of Consumer Protection Act, 2019?
iii) Has the complainant placed any order for manufacturing and delivery of two Mehagony wooden box beds with the opposite party?
iv) Is the opposite party is liable for deficiency in service?
v) Is the complainant entitled to get any relief as prayed for?
vi) To what other relief or reliefs the complainant is entitled to?
Decision with reason
In order to proof the case the complainant has submitted his affidavit in chief and reply on affidavit against the questionnaire of the opposite party.
On the other hand, the opposite party also submitted his evidence on affidavit and reply on affidavit against the questionnaire of the complainant.
Issue Nos. 1 & 2
For the sake of brevity and convenience both the issues are taken up together for consideration and discussion.
In course of argument, Ld. Advocate for the opposite party did not raise any objection against the maintainability of the case.
From the evidence and material on records it appears that the complainant is a consumer in terms of section 2(7)(i) of Consumer Protection Act, 2019. Moreovr, the case has been filed well within the period of limitation and this commission has territorial and pecuniary jurisdiction to try the case.
Therefore, issue nos. 1 & 2 are decided in favour of the complainant.
Issue Nos. 3, 4, 5 & 6
For the sake of brevity and convenience, all the above issues are taken up together for consideration and discussion.
The following facts has been admitted by the opposite party :-
- That the complainant placed an order with the opposite party for manufacture and delivery of two wooden box beds having size of 7 feet by 6 feet @ Rs. 40,000/- (Rupees forty thousand) only each.
- That the opposite party paid Rs. 80,000/- (Rupees eighty thousand) only by issuing a cheque bearing no. 729855 dated 26.04.2018 drawn on State Bank of India, Rajpur Branch in favour of the opposite party for the said two wooden box beds.
- The opposite party delivered two newly polished wooden box beds at the residence of the complainant on 26.04.2018.
The complainant in her affidavit in chief stated that after 20/25 days of delivery of two wooden box beds it revealed that the wood used in the box beds are infected with termite and not manufactured in accordance to the specification mentioned in the bill. During cross examination the opposite party denied the same and interalia alleged that he signed an unfilled up bill and handed it over to the complainant and the complainant herself put the specifications of the wooden box beds without his knowledge. The opposite party further denied that he is the proprietor of ‘Malina Furniture’. In his evidence he categorically stated on affidavit that he is an ‘Associate’ of the opposite party/Malina Furniture. As an associate of the opposite party, he delivered the wooden box beds to the complainant free from any defect. If any alleged defect occurred in the wooden box beds, the same would have happened due to mishandling by the complainant while shifting the same. That a part, the opposite party denied that the complainant ever contacted him in the month of May, 2018 or visited the opposite party in December, 2018 for any reason.
The complainant has submitted the bill dated 26.04.2018 issued by ‘Malina Furniture’ signed by the opposite party in favour of the complainant. This document has been admitted by the opposite party except the writing under the head ‘Particulars’. The bill dated 26.04.2018 is marked Ext. 1.
It is needless to mention that the burden of proof lies upon the complainant to show that the two wooden box beds suffers from defect and/or the wood used for manufacturing of the same is affect with termite and/or not supplied as per specification mentioned in the bill dated 26.04.2018.
The complainant in his evidence categorically stated that on the date of delivery, he received newly polished two wooden box-beds which has not been denied by the opposite party during cross examination of the complainant by way of filing questionnaire. Moreover, it was the specific averment of complainant that after 20 to 25 days of usage of the box-beds, when the box beds were dismantled for its shifting to another room, it was detected that the headboards and foot boards are not made of solid woods and it is made up of several pieces of wood fitted with a frame more or less having half inches thickness. That apart, the quality of wood is very poor and infested with termites. Putting and polishing were used to suppress the holes and cracks created by termites. This piece of evidence has not been categorically denied by the opposite party during cross examination of the complainant by filing questionnaire. The opposite party during cross examination only suggested that no inferior quality of box beds were supplied to the complainant. Save and except the above suggestion there is no specific denial by the opposite party that those two box beds are not infested with termite.
The opposite party has taken a plea that the particulars and/or specifications of the box bed appears in the bill dated 26.04.2018 is not written by him. Exhibit-1 the bill dated 26.04.2018 reveals the particulars and/or specification of the box beds is written as follows :-
“BOX BED EACH 40,000.00 SOLID MEHAGNI WOOD”.
On further scrutiny, I find that the said bill is signed by the opposite party. The opposite party has not denied his signature on the bill. Though he alleged that he has not filled up the particulars and/or specifications of the box bed in (Exhibit-1) but has not taken any steps to discharge his onus to prove the same.
The opposite party has further taken a plea that he is not the owner of ‘Malina Furniture’ and he is an associate of Malina Furniture. It is admitted fact that the opposite party has taken the order from the complainant for supplying two box beds of solid Mehagony wood and issued a bill dated 26.04.2018 accordingly (Exhibit-1). Thereafter, he delivered two wooden box beds to the complainant and received payment a sum of Rs.80,000/- (Rupees eighty thousand) only for the same.
Therefore, he is liable to disclose his status in Malina furniture or the name of the owner of Malina Furniture in view of section 105 of the Indian evidence Act, 1872. Such onus has not been discharged by the opposite party in this case. On the other hand he claimed himself as an associate of Malina Furniture.
According to the concise Oxford Dictionary and current English 8th edition 1990 the meaning of ‘Associate’ is a business partner or colleague. According to Oxford Business English Dictionary for learns of English, 2008 edition ‘Associate’ means - a person that you work with or it business with: a business partner.
On scrutiny of the evidence on record it is crystal clear that the opposite party deliberately with an intention to avoid liability used the word ‘Associate’ but its meaning is business partner. Therefore, the opposite party himself admitted that he is a partner in the said business. He never categorically denied that the wooden box beds were not infested with termites. So, it will not be out of place to mention that herein before the product manufacturer, the opposite party on receiving full consideration amount has sold two defective wooden box beds to the complainant/purchaser which clearly tantamount to deficiency in service and unfair trade practice.
Therefore, point nos. 3, 4, 5 and 6 are decided in favour of the complainant.
Therefore, the case succeeds.
Hence, it is
O R D E R E D
that the complainant case be and the same is allowed ex-parte against the opposite party with cost.
The opposite party is directed to replace the 2 (two) wooden box beds with 2 (two) new wooden box beds of solid Mehagony woods having half inch thickness on all sides of the box beds within 30 days from the date hereof i.d. the opposite party is directed to refund the sum of Rs.80,000/- (Rupees eighty thousand) only to the complainant along with 9 % simple interest per annum from the date of payment i.e. 24.04.2018 till the date of actual payment.
The opposite party shall pay a sum of Rs.20,000/- (Rupees twenty thousand) only as compensation to the complainant within 30 days from the date hereof failing which shall be liable to pay 9 % simple interest on the compensation amount till the date of actual payment.
The opposite party shall pay a sum of Rs.10,000/- (Rupees ten thousand) only as litigation cost within 30 days from the date hereof.
