Date of Filing: 09.01.2019

Date of Judgment: 18.07.2022 

Mrs.  Sashi Kala Basu, Hon’ble  President

This complaint is filed by the complainants , 1) Sunil Kumar Shaw and 2) Kabita Shaw, under section 12 of the C.P Act, 1986 against the Opposite parties namely 1) M/s Furniture Junction, C/O Malwa Trading Company and 2) Malwa Trading Company  (referred to as O.Ps), alleging deficiency in service on their   part.

            The case of the complainants in short is that they being the husband and wife visited a Furniture Fair held at Ice Skating Rink, Kolkata on 22.01.2018. They purchased a Dewan-cum-bed from the O.P in a stall set up by the O.P in the said fair. Complainants were told that the furniture was made of Teak wood and extremely durable. The total price was stated at Rs. 36,500/- out of which complainants made payment of Rs. 8067/- and remaining amount was payable in 8 equal monthly installments of Rs.3658/- each. The said Dewan-cum-bed was to be delivered on 2^nd February, 2018 but was actually delivered at the residence of the complainants on 11^th February, 2018 after repeated reminders. After the said Dewan-cum-bed was delivered, complainants found there were cracks all over the furniture on its polish and the furniture started to make quacking sound and all the points of the furniture were loose and it started to wobble and became absolutely unstable and unusable. The furniture was also not of teak wood as promised. The O.Ps undertook to cause necessary repair work in the furniture to make it habitable but despite repeated requests by the complainants, the O.Ps did not pay any heed . The complainants also sent written complaint on 3^rd March, 2018 , 12^th march, 2018 through mail and by sending letter in a regular basis and also on 9^th June, 2018 but of no use. Complainants ultimately asked for refund of the same but the same was not paid. So, the present complaint has been filed by the complainants praying for directing the O.ps to refund the sum of Rs. 36,500/- together with interest @24% p.a, to pay compensation of Rs.30,000/- and litigation cost of Rs.25000/-.

The O.P-2 namely Malwa Trading Company who is subsequently been added as the O.P no.2 had already filed written version denying and disputing the allegations. It is specifically contended by the O.P no.2 that they have no nexus with M/s Furniture Junction ( O.P no.1 herein). So, the complaint suffers from joinder of unnecessary party. It is further contended that after the delivery of the said furniture in the residence of the said complainants they have been fully satisfied and put the signature with remarks “Full satisfaction” in the delivery challan. So, there was no such damage in the furniture as claimed by the complainant at the time of delivery. It is also the specific case of the O.P no.2 that they gave a proposal to the complainants to take out the furniture to their factory so that the carpentry and the polish work could be done in a more perfect way but the complainants did not accept the proposal and that will be proved by the e-mail dated 24.4.2018. So, the O.P no.2 has prayed for dismissal of the case with cost.

            During the course of the evidence, parties filed their respective evidences followed by filing questionnaire and replies thereto and ultimately argument has been advanced. Both parties have also filed Brief Notes of Argument.

So, the following points require determination:

1. Whether there has been any deficiency in service on the part of the O.ps?
2. Whether the complainants are entitled to the reliefs as prayed for ?

Decision with reasons

            In order to substantiate their claim that they purchased a Dewan-cum-bed from the O.P no.2,  complainants have filed purchase invoice wherefrom it appears that the settled price of the said Dewan-cum-bed was Rs. 36,500/- . Complainants made down-payment of Rs.8067/- and rest of the amount was to be paid in 8 equal monthly instalment of Rs.3650/-. It is an admitted fact that complainants have made the payment of all the 8 EMIs. So, the entire consideration price has already been paid to the O.P no.2.

            According to the complainants when the said furniture was delivered , they found there were cracks in the polish all over and there were cracking sound and all the joints of the furniture were loose. Even though the O.P has denied that any such damage was there at the time of delivery but on a careful scrutiny of the written version it appears that the O.P has specifically contended that as soon as they received the complaints of the complainant, they sent their men to the residence of the complainant to repair the said defect or to make good the said defect in the furniture and gave a proposal to the complainants to take out the said furniture to their factory for carrying out the carpentry work and the polish. So, the specific averments made in the written version by the O.P supports the claim of the complainants that there were some defects in the polish as well as it needed the carpentry work.  The O.P has stated that they intimated the complainants by way of email dated 24.4.2018 for carrying out the said furniture to their factory but the O.P has not filed the said email either with the written version or during the evidence in order to substantiate that they made any such request. Similarly it is also specifically contended by the O.P that at the time of delivery of the furniture, complainants had received the furniture making a remark and signing therein “Full satisfaction”. But no such challan has been filed by the O.P that any such remark was made by the complainants at the time of delivery of the furniture. So, in absence of those documents as referred to above, contention of the O.P that there was no such defect at the time of delivery or that the O.P requested the complainants to take the furniture to their factory for necessary repair, cannot be accepted. More so, it is the duty of the O.P to take the furniture at their cost from the residence of the complainants, to carry out the necessary repair, if they had delivered a defective furniture.

It may also be pertinent to mention that the complainants made payment of the EMI of 8 months of Rs.3658/- inspite of finding the furniture being damage and that shows the bonafideness of the complainants. They could have stopped making payment of the EMI which they did not do. So, in such a situation, the complainants are entitled to refund of the sum paid by them as the O.P no.2 has been deficient in rendering the services.

Before parting with the judgment, it may also be mentioned here that the O.P no.1 is no way related with the purchase of the said furniture by the complainants. Even the invoice filed by the complainants is of Malwa Trading Company which is O.P no.2. So, O.P no.2 is liable to refund the said sum paid by the complainants and also pay compensation for harassment and mental agony suffered by the complainants. In our view Rs.5000/- will be justified as compensation and litigation cost of Rs. 8,000/-.

Hence,

            ORDERED

CC 8 of 2019 is allowed on contest against O.P no.2 and dismissed against O.P no.1.

O.P no.2 is directed to refund Rs. 36,500/- to the complainants and pay Rs.5000/- as compensation and litigation cost of Rs.8,000/- within 2 months from the date of this order . On payment of the sum by the O.P no.2 to the complainant, complainant shall return the furniture i.e. Dewan cum bed to the O.P no.2.