Per Justice Sham Sunder , President This appeal is directed against the order dated 11.05.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it dismissed the complaint of the complainant (now appellant). 2. The complainant purchased one pair of coir mattresses make Paras, from the OP(now respondent) , vide Bill No. 3840, on 29.06.2010, for Rs.7875/-. After some days of putting them to use, the complainant noticed that the said mattresses started giving pungent smell, which was not bearable. He immediately brought this fact to the notice of the OP, but the latter refused to change the said mattresses, especially when the same were during the warranty period. When all efforts made by the complainant failed to get any fruitful result, he served a legal notice dated 8.8.2010 calling upon the OP, either to refund the price, or to change the mattresses, but it did not take any action. It was stated that the aforesaid acts of the OP, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter to be called as the Act only) was filed by him. 3. The OP, put in appearance, and filed written reply, wherein it was admitted that the mattresses were purchased from it. It was denied that the mattresses started giving pungent smell, immediately after the purchase thereof, which was not bearable. It was stated that the warranty was given by the Company, in respect of the said mattresses. It was further stated that the OP asked the complainant that its assistant would check the mattresses, but he (complainant) refused to allow the same. He also did not bring the mattresses, in question, to the shop of the OP, for checking the same, and instead, filed the frivolous complaint. It was denied that the OP was deficient, in rendering service, or indulged into unfair trade practice. 4. The parties led evidence, in support of their case. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint holding the same to be false and frivolous. 6. Feeling aggrieved, the instant appeal, was filed by the appellant/complainant. 7. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 8. The Counsel for the appellant, submitted that the mattresses, which were purchased by the complainant from the OP, started giving pungent smell, immediately after the purchase thereof. He further submitted that the case of the complainant was admitted on 8.11.2010, and on 22.12.2010, when Mr.Parveen Bansal, on behalf of the OP, appeared. He further submitted that on 9.2.2011 the case was fixed before Lok Adalat, when Sh.Amaninder Preet, Advocate, appeared on behalf of the OP and made statement at the bar, that the OP was ready to replace the mattresses or refund the invoice amount of Rs.7875/-. He further submitted that the complainant was also entitled to compensation for harassment and the litigation costs, as his claim was not settled by the OP, before filing the complaint, and he was unnecessary dragged into litigation. He further submitted that the District Forum was wrong, in coming to the conclusion, that the complaint was false and frivolous, despite the fact that the claim of the complainant was admitted by the OP. 9. On the other hand, the Counsel for the OP, submitted that, right from the very beginning, the OP was ready either to provide new mattresses, or pay the invoice price of the same, but it was the complainant, who did not accept the same. He further submitted that the complainant did not allow the agent of the OP to inspect the mattresses, so as to find out , what was the fault therewith. He further submitted that the District Forum was right, in holding that the complainant, was only interested in compensation, despite the genuine offer, regarding the replacement of the mattresses, or payment of invoice amount, having been made by the OP. He further submitted that the District Forum was right, in coming to the conclusion, that the complaint was false and frivolous. He further submitted that the District Forum was right, in dismissing the complaint. 10. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and, on going through the evidence and record of the case, in our considered opinion, the appeal is liable to be accepted, for the reasons, to be recorded hereinafter. Admittedly, the mattresses were purchased by the complainant, from the OP, on 29.6.2010, for a sum of Rs.7875/-, vide bill No.3840. The warranty was also given at the time of purchase of mattresses. In his affidavit, the complainant stated that he visited the shop of the OP, a number of times and told that the mattresses were giving pungent smell, but the proprietor thereof failed either to replace the same, or pay the price thereof. There is no reason, to disbelieve the statement of the complainant. Not only this, registered A.D. notice annexure C2, was sent by the complainant on 8.8.2010, to the OP, and he was asked to replace the mattresses or pay the price thereof, but the same was not replied to by it (OP). This factum goes to prove, that the OP was not at all, ready either to replace the mattresses, or to refund the price thereof. The case set up by the OP, in the written reply, that it gave the offer to the complainant, to allow its agent to inspect the mattresses, or to bring mattresses to its premises, is nothing, but a tissue of lies. In case, such a story was genuine, the OP would have certainly replied to the notice, sent through registered cover, stating therein, all the facts in detail. Since the OP did not reply to the notice C-2, it means it admitted the contents thereof. The OP, after filing the complaint, as is evident from para-5 of the impugned order, offered either to replace the mattresses, or refund the invoice price of Rs.7875/-. This admission on the part of the OP, in Lok Adalat, itself proves that the mattresses were defective. Under these circumstances, the complainant was entitled to the refund of the amount of Rs.7875/-, the price of the mattresses, but the District Forum was wrong, in declining this relief to him. The findings of the District Forum, in not directing the OP, to refund the amount of Rs.7875/- to the complainant, is contrary to the factual position, prevailing, on the record, and, thus, the same are liable to be set aside The complainant is held entitled to the refund of Rs.7875/-, being the price of the mattresses. 11. The next question, that arises for consideration, is, as to whether, the complainant is entitled to compensation for physical harassment and mental agony, which he had undergone, on account of the conduct of the OP, or not. In our considered opinion, the complainant is entitled to reasonable compensation as he underwent immense physical harassment and mental agony, and was also unnecessarily, dragged into litigation by the OP. Had his claim been settled, before filing the complaint, the complainant would have not undergone immense physical harassment and mental agony. We are of the considered opinion, that if compensation, in the sum of Rs.5000/- is awarded to the complainant, that would be just and reasonable. 12. The District Forum, was entirely wrong, in coming to the conclusion that the complaint filed by the complainant, was false and frivolous. In view of the facts and circumstances, narrated above, as also the evidence produced by the parties, it was proved that despite the fact that the OP was deficient, in rendering service, it did not refund the invoice amount of the mattresses. On account of the act and conduct of the OP, the complainant had to suffer a lot of harassment and mental agony. By no stretch of imagination, it could be said that the complaint was false, frivolous and vexatious. The order of the District Forum, in imposing costs of Rs.5000/-, upon the complainant, on the ground, that the complaint being false and frivolous, is illegal, and liable to be set aside. 13. The order of the District Forum, suffers from illegality and perversity, warranting the interference of this Commission. It is liable to be set aside. 14. For the reasons recorded above, the appeal is accepted with costs, quantified at Rs.5000/-. The impugned order is set aside. The OP is directed as under ; (i) The OP shall refund Rs.7875/-, being the invoice amount of mattresses, to the complainant, subject to the condition that he (complainant) returns the same (mattresses) to it (OP). (iI) The OP shall further pay compensation, in the sum of Rs.5000/- to the complainant. (iii)The aforesaid order, shall be complied with, by the OP, within 30 days, from the receipt of a copy thereof, subject however, to the return of mattresses by the complainant within the aforesaid period, failing which, it (OP) shall be liable to pay the aforesaid payable amount, with interest @ 8% p.a. from the date of order till realization, besides costs. 15. Certified Copies of this order be sent to the parties, free of charge. 16. The file be consigned to Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
