IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 18th day of November 2009 CC.No.125/2005 Dr.M.K.Prabhakaran, Nishagandhi, Talap, Complainant Kannur. (Rep.byAdv.V.K.Rajeev) Mr.Parag, Managing Partner, M/s.Incore, Furniture House, Opposite party Karsandas Building, Pallikunnu, Kannur 4. O R D E R Sri.K.Gopalan, President This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to pay Rs.44, 000/- together with the cost of these proceedings. The facts in brief of the complainant’s case are as follows: the opposite party undertook to make a cot as per the specific design illustrated by the complainant. The opposite party even sent his carpenter to see the existing model and design of the cot to a house of the friend of the complainant. The opposite party was also provided with a photograph of the model cot so as to ascertain that no variation will happen from the mode design. Order was accepted to make the cot for a sum of Rs.17, 000/- and Rs.1000/- paid on 25.9.04 as advance. Opposite party undertook to deliver the finished cot in his on or before 10.11.04. The complainant’s need for the manufacturing the cot was for the use of his son and his family who was supposed to arrive on 12.11.04 from U.K for a stay with him for a couple of weeks. Opposite party failed to supply the cot as agreed. But delivered on 29.11.04. The same day complainant issued cheque for the balance amount Rs.16, 000/-. But to the surprise of the complainant the cot was not inconformity with the design and dimension given by him. The head side board of the cot had a huge gap of around, 1 foot, even after laying the 6 inch bed on it. The defect is very apparent and unseen in any cot. The gap is wide enough even to slip and fall easily a large pillow or an infant. The complainant’s son and his family were not able to use the cot and the purpose for which the cot was brought was not served. Mater was talked to opposite party and agreed to cure the defect at the earliest. After a week a carpenter and manager came to complainant’s house with the intention of filling the gap by nailing plank. Carpenter expressed his inability to rectify the defect and returned back without touching the cot. Complainant again approached opposite party either to replace the head portion of the cot or to return the sum of Rs.17, 000/-. But so far he has not taken any steps to initiate to settle the claim. Believing the words of the opposite party the complainant had purchased a bed worth of Rs.7, 000/- but that could not be used due to the variation in the size of the cot which caused a further loss. The opposite party is liable for the loss. Hence this complaint. Pursuant to the notice opposite party made appearance and filed version. The contentions of the opposite party in brief are as follows: Opposite party denied the main allegations of complainant. Complainant visited the show room and purchased a cot which was readily available for Rs.17, 000/- as per the complainant’s choice and it was given as per bill No.989 dt.29.11.2004. It is also true that the complainant expressed his displeasure over the same after using, misusing the cot for a period of one month. The opposite arty agreed his demand and requested to return the cot but the complainant abused the staff of the opposite party when they approached him for taking back the same. But considering the good relationship with the customers he replaced the cot with a new one as preferred by the complainant. But again for no valid reason the complainant asked to replace the cot with new one. They have chosen to harass this opposite party and his staff and spread defamatory rumours. So to have a solution this opposite party send his manager Pramod along with another staff to take back the cot and handover the cheque for Rs.17,000/- to the complainant. But complainant again refused to accept the cheuqe and demanded cash. He abused the staff and retained the lot with him again. So the staff returned. The complainant did not bother to remember that he had issued a cheque for Rs.16, 000/- towards the cost of the cot. The same incident was repeated again. The opposite parties Manager had an occasion to see the cot at the complainant’s residence and understood that he misused and abused the cot and made it unfit for sale. In fact the complainant intentionally damaged the cot and created nuisance to this opposite party. The complainant purchased the cot after seeing the same in this opposite party’s show room. The head side board of the cot has a huge gap of around one feet etc. are false. If the design of the cot is not suitable for the complainant’s requirement it is the complainant’s look out not to purchase the same. In fact the complainant kept the cot without any complaint till his son returned back to U.K. The opposite party sent a carpenter to repair the cot etc. is false. The complainant is liable to compensate this opposite party. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of the opposite party? 2. Whether the complainant is entitled for the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of Exts.A1 to A5 and Ext.X1 on the side of the complainant. Complainant has no oral evidence. Opposite party was subjected to cross examination and Ext.C1 marked. Issue Nos. 1 to 3 Admittedly complainant purchased a wooden cot from opposite party for an amount of Rs.17, 000/-. Ext.A1 proves that complainant has paid Rs.17, 000/- and Incor Enterprises issued a bill for Rs.17, 000/- dt. 29.11.04. The complainant’s case is that he has placed an order for the wooden cot with the specific dimension and design before the opposite party on 25.9.04 and also issued a cheque for Rs.1000/- as advance. The cot was supplied on 29.11.04 and towards the balance amount of Rs.16, 000/- the complainant issued another cheque on that day i.e. total payment of Rs.17, 000/-. The case of the opposite party on the other hand narrated in the affidavit in lieu of chief examination is that the complainant visited his furniture show room and purchased a wooden cot which was readily available for an amount of Rs.17, 000/- as per the complainant’s choice and it was given to him as per bill No.989 dt.29.11.2004. Ext.A1 is the bill. In the cross examination DW1 deposed that “the complainant placed order for the cot. I supplied the cot on 29.11.04. The cost of the cot was Rs.17, 000/-. The payment was made in two installments by way of cheque. The first cheque given on 25.04 for Rs.1000/- and the other cheque was given on 29.11.04 for the balance amount Rs.16, 000/-. Thus it is a proved fact that complainant purchased the wooden cot from the opposite party for a price Rs.17, 000/- and obtained the Ext.a1 receipt dated 29.11.04. Complainant’s further case is that the opposite party has undertaken to manufacture a cot as per the dimension and design illustrated by the complainant. The opposite party had even sent his carpenter to see the existing model and design of the cot to a house of the friend of the complainant. No evidence adduced by complainant to prove this aspect. Neither the complainant nor the said friend come before the Forum to give evidence to proves the question of illustration with respect to the model and design of the cot. If the complain ant was not satisfied with the model and design he could have then and there raise the objection. If payment is made that only reveals that he has accepted design and model. The payment is made not without seeing the final product. It is made after delivery which means no objection registered at the sight of the final product. This is a product visible in open sight. Secondly if it was not in conformity with the design and dimension he could have prevent the encashment of cheque. If that was not done that can only be considered evidently as a sign of acquiesce. But his allegation that the head side of the cot had huge gap of around 1 feet even after laying the 6 inch bed on it have to be looked into since it is an unusual one which the effect could be realized only by use. Ext.X1 and C1 reveals that the gap is having a width of 7 ¼ inch (19 ½ cm) with a length of 61 inches. Commissioner stated that “After putting the bed on the cot, I found a gap of 3 ¼ inches on the head side. During my inspection the complainant’s counsel put pillow on the head side of the bed and made a simple push on it. At the time the pillow fell down through the gap available after putting the bed on the cot”. If it is so this will certainly make uneasiness at all time. That is a defect which has to be rectified. Commissioner also stated that there is no other damage to the cot. Under these circumstances we, are of opinion that the opposite party is liable to rectify the defect by replacing the head portion of the cot or to return the sum of Rs.17, 000/-. The opposite party is also liable to pay an amount of R.1000/- as cost of these proceedings. The issue No.1 to 3 are answered partly in favour of complainant and order passed accordingly. In the result, the complaint is partly allowed directing the opposite party to rectify the defect by replacing the head portion of the cot or to return the price of the cot Rs.17, 000/-. The opposite party is further directed to pay Rs.1000/- as cost of this proceedings. The opposite party is liable to carryout the order within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of the consumer protection Act. Sd/- Sd/- sd/- President Member Member APPENDIX Exhibits for the complainant A1.Cash bill issued by OP A2 & 3.Photographs A4&5.Copy of the lawyer notice sent to OP and reply notice Exhibits for the opposite party: Nil Exhibits for the court.C1.Commission report. Witness examined for the complainant: Nil Witness examined for the opposite party DW1.Parag Makhecha /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
......................GOPALAN.K
......................JESSY.M.D
......................PREETHAKUMARI.K.P | | 
