DIST. CONSUMER DISPUTES REDRESSAL FORUM

NORTH 24 Pgs., BARASAT.

C. C.  CASE NO.117/2016

    Date of Filing:                    Date of Admission:                   Date of Disposal:

     23.02.2016                             08.03.2016                                   08.01.2018

 Complainant:    Nayan Ranjan Pal, S/o Monoranjan Pal, 33, Central Road,

                              P.O.-Shyamnagar, 24 Parganas (North), Pin-743127.

                                                                  Vs.

Opposite Parties:- 1)  M/s. Antara Enterprise (All kinds Wooden &

                                        Steel Furniture & General order Suppliers), B.C. Roy Road,

                                       (Ogg Road), P.O.- Garulia, District-24 Parganas (North),

                                         Pin-743133.

                                    2) Popular Furniture, 49/3, Central Road, Shyamnagar,

                                         24 Parganas (North), Pin-743127.

                                     3) Munna Mistri, Gangulipara, Shyamnagar,

                                         24 Parganas (North), Pin-743127.

P R E S E N T   :- Sri  Siddhartha Ganguli  ….………………………Member.

                         :-  Smt. Silpi Majumder………………………………Member.

ORDER: 16

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 OP as the OP did not refund the amount as paid by him towards advance till filing of this complaint.

The brief fact of the case of the Complainant is that he was searching for proper Sal wood door and window frames for his house and contacted the OP-1 and placed an order for 6 Sal door frames and 6 window frames in the month of April, 2015. He paid a sum of Rs.25,000/- on 12.04.2015 out of the total cost of Rs.33,600/- as agreed. The said product was delivered during the month of August, 2015. It was found that the OP-1 did not deliver the frames in properly finished condition and the same were made with the dead wood. For this reason the Complainant denied to receive the said product and told the OP-1 to change the same with new and proper Sal wood. The OP-1 denied to accept its fault and started to threaten the Complainant for making payment of the balance due amount of Rs.8,600/-. The Complainant refused to pay the balance amount and the OP-1 was told by him either to change the material or to refund the amount as paid by him towards advance for Rs.25,000/-.The Complainant had to run from pillar to post, but to no effect as the OP-1 did not pay any heed to his request. As the materials being very much required, so he had to purchase the new product from another person. The materials/products supplied by the OP-1 were examined by the OP-2 and 3 and they informed the Complainant that the products supplied by the OP-1 are not made of proper Sal wood, rather made of dead wood. Thereafter the Complainant tried to contact with the OP-1, but the OP-1 did not give him any importance. The OP-1 even did not bother to give any importance to the written complaint made by the Complainant with the Assistant Director, C.A. & F.B.P., Barrackpore on 06.10.2015. The said authority directed the OP-1 to appear on 07.12.2015 and 29.12.2015, but the OP-1 did not turn up. Thereafter having no other alternative this complaint is initiated by the Complainant praying for direction upon the OP-1 to refund the amount of Rs.25,000/- as paid by him, Rs.50,000/- as compensation due to mental pain, agony and harassment and litigation cost to him.

The petition of complaint has been contested by the OP-1 by filing written version contending that the goods delivered by this OP are totally made of Sal wood with quality finish and question of dead wood doe not arise at all. Practically the word ‘dead wood’ is baseless and irrelevant and from the four corners of the present complaint it is revealed that the Complainant has filed the instant complaint has filed this complaint in a very clandestine manner just to deprive this OP from his legitimate claim. Not only that till date the Complainant did not pay the balance amount of Rs.8,600/- as agreed and with  a view to bypass such payment with ulterior motive this complaint has been initiated by the Complainant. Moreover where the allegation has been made by the Complainant regarding defective goods, hence until and unless an expert opinion is forthcoming from an expert, the present dispute cannot be adjudicated upon properly. The Complainant did not make any application for appointment of expert for examining the alleged defective door and window frames supplied by this OP. According to the OP-1 as there is no deficiency in service as well as unfair trade practice on behalf of the OP-1, hence this complaint is liable to be dismissed with cost.

The Complainant and the OP-1 have adduced evidences on affidavit; both parties have cross-examined each other by way of filing questionnaire and both parties have filed replies accordingly. It is evident that the Complainant has filed reply to the questionnaire of the OP-1, which is not supported by any affidavit; rather the reply filed by the OP-1 is supported by affidavit. In view of the observation made by the Hon’ble Supreme Court in the case of Dr. J.J. Merchant vs. Srinath Chaturvedi, the replies should be filed supported by affidavit. So the reply of the Complainant cannot be accepted as it does not bear any evidentiary value.

It is seen by us that admittedly the Complainant placed an order to the OP-1 for 6 door frames and 6 window frames made of Sal wood and the OP-1 placed the cost of those products for Rs.33,600/-. Out of the Complainant paid a sum of Rs.25,000/- towards advance and subsequently the OP-1 delivered those goods at the residence of the Complainant. It was agreed by and between the parties that the goods should be furnished and made of Sal wood. After giving delivery of the products the OP-1 sought for the balance amount, but the Complainant had refused to pay the same as well as declined to accept the said goods because in his opinion the products were not made by using Sal wood, rather the same were made of dead wood. The complaint reveals that the Complainant made several requests to the OP-1 for replace of the products with the new product made of Sal wood, but the OP-1 did not pay any heed to his request. As the grievance of the Complainant had not been redressed by the OP-1, hence this complaint is initiated by the Complainant praying for certain reliefs.

Along with the petition of complaint the Complainant has filed two documents i.e. from the OP-2 and 3 dated 29.09.2015 & 01.10.2015 issued by Mr. Dulal Sharma of Popular Furniture and Munna Mistri. We have perused the content of the said two documents and it is seen by us that the documents are verbatim reproduction with each other. In this respect we are to say in the case of Bassi Hospital (NC), the Hon’ble NCDRC has been pleased to observe that such type of evidence has no evidentiary value as the same are verbatim reproduction. Having regard to the said observation we are not in a position to give any importance to the said two documents as annexed by the Complainant. Moreover the said two documents has not been filed supported by any affidavit, not only that the Complainant did not take any step to adduce any evidence on affidavit from the OP-2 and 3 to corroborate his contention. Above all as the Complainant has made allegation regarding defective goods, there are plethora of judgment wherein it has been held that the defects in the goods cannot be proved without any expert opinion. In the case in hand the Complainant did not filed any petition praying for appointment of expert for examination of the alleged goods. So we are not in a position to come to a conclusive conclusion that the goods supplied by the OP-1 suffer from defects as no expert opinion is before us for proper adjudication of the present dispute. We have noticed that the written version filed by the OP-1, this point was taken, inspite of this the Complainant did not bother to take any step for appointment of an expert and expert opinion for adjudication of this complaint. It is settled law that onus lies to prove the complaint who asserts the same and if the Complainant proves his/her case, then only the onus shifts on the shoulder of the defendant. But in the instant complaint in our view the Complainant has miserably failed to discharge his liability to prove his complaint. Hence the complaint fails.

Going by the foregoing discussion hence it is ordered that the complaint is dismissed on contest. However considering the facts and circumstances there is no order as to cost.         

Let plain copy of this order be given to the parties free of cost as per the provision of the CPR, 2005.              

Member                                                                                             Member                                               

Dictated & Corrected by me