PER  JAGROOP  SINGH   MAHAL, MEMBER

                   This is complainant’s appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) against the order dated 24.3.2011 passed by the learned District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter referred to as the District Forum) vide which the complaint filed by the appellant/complainant was dismissed.  

2.                           Brief facts of the case are that the complainant/appellant purchased a Wardrobe from the OPs for Rs.23110/-, which was supplied to her on 23.12.2009. The complainant placed her expensive clothes in the wardrobe and after two months noticed that her expensive clothes had been eaten in the wardrobe by insects. She informed the OPs who sent their Senior Executive but even then the defect in the wardrobe was not rectified.  The OPs kept on postponing the matter, though they took photographs of the defects showing wide gaps on the top panel of the wardrobe, through which insects can enter even if doors of the wardrobe were closed.  The OPs ultimately showed their helplessness in removing the defects. The complainant therefore, prayed for refund of Rs.23110/- paid by her as sale price and Rs.40,000/- for harassment and mental torture.

3.                           In their written reply the OPs admitted the sale of the wardrobe and the same containing holes and gaps in it. Their contention is that it is not a defect but the product has been designed as such, and is called knock down product.  It was alleged that their Senior Executive visited the house of the appellant not to remove the defect but to convince her about the design.  As far the insects are concerned their advice was that the complainant/appellant should get insecticide treatment done in her house to avoid the said problem. They denied if they are liable to refund the price of the wardrobe and pay any amount for harassment.

4.                           Both the parties produced evidence in support of their contentions.

5.                           After hearing arguments of the learned counsel for the parties, the learned District Forum dismissed the complaint on the ground that since the OPs were ready to replace the defective side panels in question but the complainant did not allow them to do so and therefore, the complainant was not entitled to any relief.        

6.                           Feeling aggrieved with this order, the instant appeal has been filed by the complainant.

7.                           We have heard the arguments of the complainant in person and Sh. Gangadharan, Assistant Manager Legal and Administration for the OPs. We have also gone through the record.

8.                           The order passed by the learned District Forum, on the face of it is liable to be set aside, in view of the admission made by the OPs/respondents, that there are gaps and holes in the panels constituting the wardrobe.  Their contention that the design of the wardrobe is as such, cannot be sufficient to deny the relief to the complainant who is not satisfied with this type of design.  There is no dispute about it that the insects can enter the wardrobe through the gaps and holes putting the contents of the wardrobe at risk being eaten by insects.  The contention of the OPs that it is a knock down design in which there would be gap and holes in the side panels,  back panels, and top panels, shows that the OPs cannot remove the said gaps and holes from the wardrobe.  To a specific query put by the Bench in respect of letter Anenxure C-6 dated 23.10.2010 in para No.2 of which they mentioned that they were ready to replace the side panes and set her wardrobe right up to her entire satisfaction. Sh. Gangadharan replied that even if the side panels, back panels and top panels are replaced, the new panels would also have the same gaps in view of the design of the wardrobe.  His contention is that these gaps and holes cannot be closed by them nor can they provide Almirah of this type and design which may not have any such holes and gaps. It seems that the letter Annexure C-6 dated 23.10.2010 ensuring to replace the panels was just a ploy to win over the complainant without rectifying the defects. Interestingly, the complaint was dismissed by the learned District Forum only on the basis of this assurance without verifying the fact as to whether the replacement of panels is going to improve the wardrobe or rectify the defects, complained of by the complainant.

9.                 The learned District Forum did not even try to see that if the OPs have  undertaken to remove the defect as assumed by the learned District Forum, even then the complaint was liable to be allowed and the OPs should have been directed to remove the defects as promised by them in para 2 of the letter Annexure C-6. It is very strange that the complaint should be dismissed on such a frivolous ground without affording relief to the consumer who is otherwise entitled to it due to the defects in the product.

10.             At the stage of arguments when the OPs were asked to close the gaps and holes in the wardrobe, Sh. Gangadharan showed his inability to do so.  If the wardrobe has the gaps and holes the clothes placed in the wardrobe cannot be safe and there is every chance of expensive clothes being damaged by insects. The wardrobe is therefore, defective in design and is not useful to the complainant.  The OPs can neither close the gaps and holes nor they have wardrobe of this type and design to replace the existing one.  The only alternative therefore, is to refund the amount and take back the wardrobe.  However before granting the relief we intend to give a chance to the OPs again  to rectify the defect. 

11.                       In view of the above discussion we are of the opinion that the complaint was liable to succeed but has been wrongly dismissed by the learned District Forum.  The appeal is accordingly allowed and the impugned order dated 24.3.2011 passed by the learned District Forum is set aside. The OPs are directed to remove the defects from the wardrobe as pointed out by the complainant and replace the required side plates and set right the wardrobe to the entire satisfaction of the complainant so that it has no gaps and holes in it as undertaken by them vide para No.2 of the letter Annexure C-6 dated 23.10.2010. If the wardrobe is not rectified within 30 days from the date of receipt of copy of the order the OPs shall refund the amount of Rs.23110/- to the complainant.  The complainant would be entitled to litigation costs of Rs.5,000/-.  If the defects in the wardrobe are not rectified or amount is not refunded within 30 days from the date of receipt of copy of the order  the OPs shall be liable to refund the entire amount of Rs.23110+5000/-=28110/- along with penal interest @12% per annum since the filing of the present complaint i.e. 23.12.2010 till the payment is made to the complainant.

                    Copies of this order be sent to the parties free of charge.

Pronounced.                                                                   Sd/-

19^th August, 2011