- The complaint is filed U/sec. 12. Of C.P Act to direct the Opposite Parties 1) to complete all the pending installation works after replacing the defective equipments in the swimming pool of the complainant or refund the amount of Rs.3,09,494/- along with interest. 2) to pay a compensation of Rs.5,00,000/- for causing mental agony. 3) to pay an amount of Rs.10,000/- towards transport, telephone, postal and legal expenses and; to pass any other order or orders as the Forum deems fit.
2. The main averments of the complaint are: The complainant approached Opposite Parties who have a business of supplying and installing the swimming pool equipments and placed an order to supply and install necessary swimming pool equipments at the pool located in his residence. He paid a total amount of Rs.3,09,494/, as per the invoices raised in the months of February and March 2011. As per the terms agreed the Opposite Parties had to complete the installation work within 8 weeks, but they have failed to do the same. The equipments installed were of inferior quality. Upon the complainant bringing it to the notice of the Opposite Parties, they promised to replace the same and finish the works up to the satisfaction of the complainant. After repeated requests by the complainant, Opposite Party No.2 visited the complainant’s work site and also gave an undertaking letter, after identifying the defects and under took to complete the entire works and replace the defective equipments on or before 04.09.2012. As there was no action taken by the Opposite Parties a legal notice was issued on 03.07.2013 claiming either refund of the amount paid or completion of all pending works. The Opposite parties deliberately refused to receive the notices and also failed to comply with the demands of the complainant till date. Hence, alleging ‘deficiency of service’, ‘restrictive trade practice’, and ‘unfair trade practice’, on part of the Opposite Parties, the present complaint is filed claiming appropriate reliefs.
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4.The complainant filed his evidence affidavit and got marked documents Ex.A1 to A10. Counsel for the complainant advanced oral arguments and the matter was posted for orders under Sec.13 (2)(b)(ii).
5.The main points for consideration in this case are:
- Whether the Opposite Parties are liable for ‘deficiency of service’, ‘restrictive trade practice’ and ‘unfair trade practice’?
- To what relief the complainant is entitled?
6. Point No.1: The complainant has filed documents Ex.A1 to A5 which are the Tax-Invoice raised for purchase of the swimming pool equipments from the Opposite Parties. They bear the ’terms of delivery’ as “door delivery to pay”. So, it is presumed that, the materials were delivered and the payments were made upon delivery by the complainant.Ex.A6 is the letter issued by Opposite Party No.2 who is a Regional Manager for Opposite Party No.1. Even though, the complainant alleges in his evidence affidavit in para-4 that opposite Party No.2 during his visit to the complainant’s residence identified all defects and promised to rectify them and to complete all pending works after replacing the defective equipment on or before 04.09.2012; Opposite Party No.2 in Ex.A6 refers to the visit as “training for the spa”, So we presume that by then the spa was in a working condition and the pump was only the problem (as Ex.A6 reveals that Opposite Party No.2 has found one pump to be having some problem and under took to supply a new pump on or before 04.09.2012).Ex.A6 also reveals that the Opposite Party No.2 admitted their failure to complete the work within 8 weeks, inspite of several reminders and also under took to complete all works on or before 04.09.2012. The letter also speaks of some balance amount to be due from complainant to Opposite Parties. Ex.A7 is the legal notice, Ex.A8 and Ex.A9 are the postal receipts and the unserved envelopes which show that Opposite Parties did not claim the notices served on their Mumbai address and notice sent to Hyderabad address i.e Opposite Party No.2 address was ‘refused’.Opposite Parties did not appear before the Forum also inspite of receiving the notices.In the absence of any rebuttal evidence, the complainant’s version has to be believed by us.
In view of the material on record especially Ex.A6, we are of the opinion that having under took to complete the installation works and replace the defective pump on or before 04.09.2012, the Opposite Parties failed to complete the same; inspite of giving the undertaking that if they fail to do the above works within the agreed time, complainant can take any action against them. This is nothing but ‘deficiency of service’ and also ‘unfair trade practice’. The acts of Opposite Parties cannot come under the definition of ‘restrictive trade practice’ as defined under Sec. 2(1) (nnn) of the C.P Act,1986 as they have not imposed any unjustified costs or restrictions upon the complainant.
7.Point No.2: The complainant claims refund of the amount already paid by him and in such a situation the equipment already supplied must be returned to the Opposite Parties. But as per Ex.A6 most of the equipment is already installed and it is not feasible to return them to the Opposite Parties. It is also seen that the complainant has still to pay some balance amount to the Opposite Parties. Hence instead of directing the Opposite Parties to return the amount already paid, it is more practical to direct the Opposite Parties to receive the balance consideration after completing the pending works and replacing the defective pump as undertaken by Opposite Party No.2.
However, it is seen that the complainant having paid an amount of Rs.3,09,494/- could not enjoy the facilities of a swimming pool at his residence, due to the deficiency of service of the Opposite Parties and hence is entitled to claim compensation for the same.
8. In the result the complaint is allowed, directing the Opposite Parties 1 and 2 to complete the pending installation works after replacing the defective pump in the complainant’s swimming pool. The complainant is directed to pay the balance consideration as agreed to the Opposite Parties. Opposite Parties 1 and 2 are also directed to pay to the complainant an amount of Rs.10,000/- (Rupees Ten Thousands Only) as compensation for ‘deficiency of service’ along with costs of Rs.5,000/-(Rupees Five Thousands only). Time for compliance is 30 days.
Dictated to the Steno-typist, transcribed by her, corrected by me and pronounced by us in the Open Forum on this the 26th day of February, 2014.
Sd/- Sd/-
PRESIDENT MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainant For Opposite Parties 1 & 2
Affidavit filed Nil
EXHIBITS MARKED
For Complainant
Ex.A1 – Tax Invoice
Ex.A2 – Tax Invoice
Ex.A3 – Tax Invoice
Ex.A4 – Tax Invoice
Ex.A5 – Tax Invoice
Ex.A6 – Letter dt. 25.08.2012
Ex.A7 – Letter dt. 25.08.2012
Ex.A9 – Postal Receipt
Ex.A8 – Return Postal Covers
Ex.A10 – Ledger Account
Exhibits marked for the Opposite Parties 1 & 2
Nil
Sd/- Sd/-
PRESIDENT MEMBER
