DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.776 of 2016

                                               Date of institution:  21.11.2016                                             Date of decision   :  21.10.2019

Jaswinder Singh son of Shri Attar Singh, resident of House No.HL-422, Phase-IX, SAS Nagar.

…….Complainant

Versus

1.     Mr. Hemant Chopra, Proprietor/Partner of M/s. Furniture & Interio Hub, The Furniture Boutique, Chandigarh Kharar Road, Adj. Andhra & HDFC Bank, Desumajra, Tehsil Kharar, District Mohali (Punjab).

2.     M/s. Manhattan, Plot No.100 Feet Road Sri Swamy Ayyapa Housing Society, Madhapur, Hyderabad- 500081 through its Managing Director.

                                                        ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Complainant in person.

                Shri Rajnish Jindal, counsel for OP No.1.

                OP No.2 ex-parte

Order by :-  Shri G.K. Dhir, President.

Order

               Complainant after going through various advertisements published in newspapers by OP No.1 came to know as if furniture of top brands i.e. Manhattan & Zurich is sold by it. Complainant was to organize a party at his house on the eve of his retirement on 31.07.2016 and as such he was to purchase furniture of high quality. For purchase of sofa set, complainant visited show room of OP No.1 at Kharar on 21.07.2016, where Proprietor Mr. Chopra himself was present and he did show furniture to complainant. Complainant evinced his interest for purchase of Manhattan Marble sofa of 3 + 2 + divider + Center Table (customized). Cost of this material was stated to be Rs.60,000/- after discount as per scheme.  Rs.5,000/- paid by complainant as advance on 21.07.2016 and thereafter said Mr. Chopra visited house of complainant for having measurements of area. Order Form Sr.No.357 was issued in which measurement of the furniture was mentioned with date of delivery as 27.07.2016. Complainant called upon OP No.1 for confirmation about the time of delivery of furniture, but OP No.1 claimed that marble sofa set alongwith divider and center table is not ready. Assurance for delivery of same by next day was given by claiming that same will be ready by next day. However, on next day namely 28.07.2016, complainant kept on waiting for phone call of OP No.1, but did not receive the same. So complainant called upon OP No.1 at 3.07 P.M. for confirmation about delivery, but again OP No.1 sought more time with request to complainant to visit Zirakpur workshop on 29.07.2016, for checking the furniture.  Complainant visited workshop on 29.07.2016, but OP No.1 was not there. Workers of OP No.1 present at the workshop asked for balance payment and complainant paid Rs.55,000/-, but no receipt was issued by the workers. Those workers claimed that receipt will be delivered alongwith furniture. At that time complainant and his son pointed out various defects in the furniture. Those defects were that center table required touching at various places and the product was not of quality as was promised. Though in the evening furniture was delivered, but receipt of full payment was not delivered. However, one warranty card of Manhattan without serial number was also delivered. On 30.07.2016 complainant called upon OP No.1 through phone for informing that the sofa and divider is not as per size and center table required lot of touching.  After great efforts, Dalip worker of OP No.1 came for giving touching to the center table. Said worker called upon complainant not to keep glass on the top of this table for 2 hours. As complainant was busy in arranging for party to be held on 31.07.2016 and as such glass was kept over the center table after 7-8 hours. However, touching again came out. Though complainant tried to contact OP No.1, but he did not pick up the phone. On 03.08.2016 complainant visited show room of OP No.1 for having proper bill for the payment made by him. Demand of proper warranty card with serial number even was made by complainant. OP No.1 first claimed that warranty card is sufficient and further for avoiding issue of bill of full payment, OP No.1 asked for further payment of Rs.8,580/- as VAT charges. Complainant claimed that as price of the product is settled inclusive of VAT charges, and as such complainant not required to make payment of VAT charges. However, OP No.1 did not agree and that is why complainant had to pay Rs.8,580/- for obtaining proper bill No.115 dated 03.08.2016. OP No.1 issued fresh warranty card dated 03.08.2016 mentioning Sr.No.115 of the bill thereon. Complainant disclosed OP No.1 that furniture still required touching and sofa and divider also needs to be mended as per size noted on the order form. As per inscription on the order form, size of the divider should have been 52”, but supplied divider was of 47”. However, as per available space it should have been 54”. Complainant asked OP No.1 to provide a new sofa set, but OP No.1 agreed for mending/repairing the divider only. It was settled that workers of OP No.1 will visit house of complainant for doing work of touching on the spot on center table and will take away divider.  No one turned up till 08.08.2016. On 08.08.2016 workers of OP No.1 came and took away the divider at 12.45 P.M. and returned the same at 6.00 P.M. after repairing the same to size of 54”. After few days, complainant noticed as if in the glass of center table vapor has accumulated and touching done on the table top is fading away, due to which odd look given by table. Complainant informed OP No.1 about all this. OP No.1 agreed to change the center table on 12.08.2016. OP No.1 claimed that table will be replaced within a week uptill 23.08.2016. Complainant kept on calling upon OP No.1 for seeking replacement, but on 23.08.2016, OP No.1 informed as if the table is ready. OP No.1 insisted complainant to come and check the table at Zirakpur workshop. Thereafter complainant had to be hospitalized for treatment during period from 29.08.2016 to 31.08.2016. After discharge, complainant  telephonically contacted OP No.1 for informing that it will be of no use for complainant to visit its workshop because the glass to be kept on the top of table was lying at his residence. Admittedly on 24.09.2016 table was sent, but same was not as per specifications because ducts for keeping gems were not in the center. In the evening complainant noticed as if vapors are still accumulating in the glass kept on top of table. Intimation in that respect was again given to OP No.1. Information regarding table being of under size as compared to the glass, even was given to OP No.1. Legal notice dated 13.10.2016 even was served. It is claimed that the product sold to complainant is not of Manhattan brand, but same in fact is a local product. By claiming that OPs adopted unfair trade practice, this complaint filed for seeking refund of Rs.68,500/- with interest @ 18% per annum till actual payment. Compensation for mental agony and harassment of Rs.50,000/- and litigation expenses of Rs.11,000/- more claimed.

2.             OP No.2 is ex-parte in this case.

3.             In reply filed by OP No.1, it is claimed that complaint has been filed on false and misconceived facts for harassing and humiliating OP No.1 as well as for abusing process of law, more so when complainant has concealed material facts. It is also claimed that complainant wants to take benefit of his own wrong because allegations of deficiency in service on the face of it does not survive. Dispute between parties is purely of civil nature and as such in view of involvement of intricate questions of law and facts, matter should be got decided from civil court of competent jurisdiction. Complainant also alleged to be estopped by principle of estoppel, waiver and acquiescence from filing this complaint. Allegations leveled in the complaint are vague and complaint also bad due to non joinder and misjoinder of parties. No cause of action has accrued in favour of complainant. It is claimed that OP No.1 after believing assertion of complainant delivered sofa set at his residence without payment. It was OP No.1 who called upon complainant to make balance payment and take delivery of sofa set, but complainant kept on delaying the matter on one pretext or the other by alleging that he wants to check sofa set before accepting delivery. Admittedly complainant visited workshop of OP No.1. However, it is claimed that complainant found the product in perfect good shape and thereafter asked for its delivery at his residence. Complainant turned rude when OP No.1 asked for balance payment. Complainant claimed that he is not running from payment, but same will be made at the time of delivery. OP No.1 in good faith delivered sofa set at residence of complainant on 29.07.2016. It is claimed that complainant at the time of acceptance of delivery claimed as if a party will be organized in two days at his residence and as such he himself will visit show room of OP No.1 for making payment of balance amount. That proposal was accepted by OP No.1, due to which OP No.1 waited for complainant. Complainant visited show room of OP No.1 on 03.08.2016 and made payment of balance amount of Rs.63,580/- for which bill Ex.C-3 was issued by specifying the amount of VAT charges of Rs.8,580/-. Warranty card Ex.C-4 even was issued by OP No.1. On the basis of measurements and as per request of complainant, divider was designed for 52”.  For a manufacturer size of 2/3” more or less does not matter. However, after few days complainant raised issue of size of divider as per space.  OP No.1 persuaded complainant by claiming that two inches space is very small space and was ignorable, but complainant was not satisfied and that is why OP No.1 offered to repair the divider. Complainant was not ready to accept that offer of repair and that is why in order to avoid any confusion and resentment, OP No.1 replaced the divider with a new divider of 54” size. Complainant allowed removal of earlier divider only when new divider was made available to him. Complainant raised issue of table polish and thereafter OP No.1 sent skilled worker to set right the same. However, complainant was not still satisfied and as such OP No.1 again sent skilled worker for doing touching work to the satisfaction of complainant. However, after few days for harassing OP No.1, complainant again raised issue of touching of table. OP No.1 for fully satisfying the complainant is prepared to get the table replaced with new table and this replacement took place to the satisfaction of complainant.  It is complainant who himself is giving undue tension to OP No.1 and the averments to the contrary alleged to be wrong and false. OP No.1 has been responding to the complaints of complainant promptly and that is why change of piece took place to the satisfaction of complainant. It is claimed that father of OP No.1 remained admitted in ICU in Max Hospital, Mohali, during which period complainant started calling OP No.1 repeatedly for raising some new issues. OP No.1 requested complainant to wait because of hospitalization of father of OP No.1. However, complainant got furious and showed his arrogance. It is claimed that by multiplying story, legal notice has been got served by complainant to OP No.1. Reply to that notice was sent by OP No.1. Attitude of complainant remained harsh since from beginning because he even threatened to misuse process of litigation. It is claimed that complainant claimed as if one of his close relation is in legal profession. Admittedly OP No.1 has been dealing with brand of Manhattan being in partnership with Mr. Satinder Singh Chatwal, Promoter and Owner of said brand. All other allegations of complaint denied, but by claiming that product has been changed twice with entirely new piece for the satisfaction of complainant. It is also claimed that OP No.1 is still ready to take care of any genuine requirement of complainant.

4.             Counsel for complainant tendered in evidence affidavit Ex.CW-1/1 of complainant alongwith documents Ex.C-1 to Ex.C-5 and Mark-CA to CF and thereafter closed evidence. On the other hand, counsel for OP No.1 tendered in evidence affidavit Ex.OP-1/1 of Shri Hemant Chopra alongwith documents Ex.OP-1/2 to Ex.OP-1/4 and then closed evidence of OP No.1. 

5.             Written arguments submitted by parties. Oral arguments heard and records gone through.

6.             From pleadings of parties and the submitted affidavit and documents and also from contents of retail invoice Ex.C-3 and order form Ex.C-2, it is made out that complainant purchased sofa set of 3+2+ divider + center table of specified from OP No.1 because OP No.1 was dealing with brand of Manhattan. On the retail invoice as well as on the order form it is mentioned that Manhattan Marble sofa will be having size of 50”. Specification of size by way of adjustment to extent of 52” has been mentioned in the order form Ex.C-2. As earlier supplied sofa was not as per prescribed specifications and that is why by replacement of same, fresh divider provided by OP No.1 to complainant by way of mending/repairing the divider. These in fact are contents of Para No.8 of the complaint. So it is obvious that OP No.1 removed the defect of divider being not as per ordered specification.  Whether that defect removed by way of mending or repairing the divider that is immaterial, but the fact remains that OP No.1 tried to satisfy the complainant by providing a new divider as per specifications. Being so, submission advanced by counsel for OP No.1 has force that OP No.1 tried its best to perform its part of contract by providing material as per ordered specifications.

7.             Another grievance of complainant is that center table was having problem of vapor accumulation regarding which also some effort was made by OP No.1, after lot of persuasion through contacts on telephone or otherwise by complainant, is a fact borne from contents of complaint. Though assurance for delivery of replaced centre table was made on 12.08.2016 as per contents of complaint, but same was delivered late on 24.09.2016 as per contents of complaint. So, certainly some harassment to complainant was caused due to retention of center table by OP No.1 for long time for repair.  If OP No.1 insisted complainant to visit its workshop for checking the table, then same shows as if OP No.1 tried to do its best for satisfying the complainant in matter of providing table as per his satisfaction. So contents of complaint itself discloses as if OP No.1 tried to do something for complainant not only by way of mending/repairing the divider, but even by agreeing for replacement of center table and even provided the same. However, provided table is still having problems as revealed by perusal of inspection report submitted by Local Commissioner Shri Mandeep Singh, appointed by this Forum.

8.             After going through this inspection report dated 25.10.2018 of Local Commissioner, it is made out that on inspection of furniture, he found the top glass of centre table to be not of appropriate size because the glass was coming out from edges and was not properly adjustable. Vapors were found accumulating at one spot and that is why Local Commissioner reported that wooden table requires polishing at few spots. OP No.1 is under obligation to remove these defects by way of necessary replacement of glass and also by way of polishing the wooden table, so as to ensure that vapors do not accumulate at one spot.  Grievance of complainant in this respect as such needs to be redressed by OP No.1, free of cost because the material was supplied by OP No.1 to complainant on assurance that the product will be of good quality.

9.             Perusal of Para No.3 of inspection report dated 25.10.2018 of Local Commissioner further reveals that total length of three seater sofa set was found to be of 82”, but that of the two seater sofa set was found 55”. Length of single seat of 3 seater sofa set was found 21” and that of two seater sofa set was found 18” by Local Commissioner and as such it is held that virtually OP No.1 provided ordered measurements as per specifications. Fault in that respect does not remain now.

10.            Local Commissioner through its report further found that 5 cushions of sofa set from outer covers were found not fine, but when they were opened then inner black coloured cloth was found torn into pieces.  Such grievance not projected by complainant at all and moreover condition of these covers took place after lapse of more than two years of purchase and this condition bound to emerge due to ordinary wear and tear and as such no manufacturing defect in this respect virtually is there.

11.            Local Commissioner also through inspection report found fabric of left side arm set of two seater sofa in torn condition from one spot and that bound to occur after lapse of time. No seal of brand was found on the furniture as per this inspection report and as such grievance of complainant seems to be genuine as if the product in question may not be of branded quality of Manhattan. This is bound to cause immense agony and harassment to complainant and as such he is entitled to somewhat reasonable amount of compensation under this head.

12.            It is vehemently contended by counsel for OP No.1 that complainant is insisting for replacement despite the fact that defects have been removed and repairs done on three occasions. Counsel for OP No.1 vehemently contends that OP No.1 still ready to do necessary repairs and as such there is no deficiency in service on the part of OP No.1. Even if such efforts for repair may have been done, but despite that picture Mark-CE of center table shows that glass is under size at one place, but same is of oversize at another place. This picturisation support the report of local commissioner also and as such OP No.1 bound to rectify those defects , more so when readiness and willingness for removal of defects expressed during arguments also.  It is contended by counsel for OP No.1 that sofa set has been provided as per specifications and that submission certainly has force as discussed above. Perusal of Mark-CC and Mark-CD also shows as if the product sold at discounted price and as such even if sign board on shop of OP No.1 may not be showing about the brand name of Manhattan as reflected through Mark-CD, despite that fault  with  OP No.1 cannot be found in that respect, because specifications of sale of sofa of Manhattan brand not made in order form Ex.C-2 or in invoice Ex C-3. Warranty of five years was provided through Ex.C-4 warranty card dated 03.08.2016. Mention of invoice No.115 of Ex.C-3 specifically made in Ex.C-4 and as such terms of warranty to prevail.  In Ex.C-4 it is specifically mentioned that there is no guarantee/warranty for fabric artificial leather and as such it is obvious that guarantee/warranty for fabric was not there. As such even if the local commissioner may have found the fabric torn at some places, despite that order for repairing the same cannot be passed as per terms and conditions of warranty.

13             Controversy in question as to whether delay in payment made by the complainant while making excuses or as to whether delay  in issue of invoice Ex.C-3 made by OP No.1  cannot be gone into in these summary proceedings because for adjudication of this controversy, elaborate  evidence by way of examination and cross examination of witnesses required. Such questions cannot be gone into in these summary proceedings. If due to vapor accumulation in the table, touching has come out, then it is the responsibility of OP No.1 to remove that defect. Present cannot be said to be a case of altogether adoption of unfair trade practice or of deficiency in service, because OP No.1 tried to remove the defects on some occasions and even expressed readiness and willingness at this stage for removal of defects. Submission of counsel for OP No.1 has no force that complaint has been filed for abusing process of law because defects referred above are still persisting and not removed till date. Undisputedly OP No.1 sent his skilled worker once to the house of complainant for doing necessary repairs as per admitted case of parties and as such even if some harassment caused by OP No.1 to complainant due to late providing of center table despite that present is not a case warranting for reimbursement of entire  paid amount by complainant. Rather present is a case in which direction should be issued to OP No.1 for removal of defects, more so when product in question remained in use by the complainant. OP No.2 was not privity to contract of sale of product by OP No.1 to the complainant and as such complaint against OP No.2 merits dismissal because relationship of consumer and service provider do not exist between the complainant and OP No.2.  Being so complaint against OP No.2 dismissed.    

14.            As a sequel of above discussion, complaint allowed in terms that OP No.1 will remove the defects by way of repairing the products in question free of cost within 40 days from date of receipt of certified copy of order.   Compensation for mental agony and harassment of Rs.20,000/- and litigation expenses of Rs.10,000/- more allowed in favour of the complainant and against the OP No.1. Payment of these amounts of compensation and litigation cost be made within 30 days from the date of receipt of certified copy of order. Complaint against OP No.2, however, is dismissed. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.

Announced

October 21, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member