Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that the OP M/s. K.B. N. Aluminum as per agreement failed to fix correct size of the sliding aluminum doors in consistent with the specification as stated in the invoice dated 12-12-2011.  As a result, the jointer had left airspace measuring to 4 inches in width all along in between the upper aluminum frame and the concrete ceiling of the veranda.  So, the height of each doorframe was made short by 4 inches that was carried out deliberately with a view to stealing a good length of the aluminum frame but the plaintiff had paid full amount for the entire work and material and by that way OP Company is benefited by not complying with the specification as per invoice and it is a fraudulent act on the part of the OP.  In fact, the complainant was compelled to pay the entire amount of the value of the doorframe, window frames including service charges for fitting etc.  but even then the OP caused damages by supplying defective goods during construction and fitting of the sliding aluminum doors in the veranda and the company did not take due care in supervising the works that were carried out by their temporary or daily workers.

          Fact remains the OP misled the plaintiff by claiming that the company has been running the business in the construction and fitting of sliding aluminum doors, but ultimately the OP did not complete the work with the full satisfaction of the complainant as per specification of the gap for fixing the doors and windows and in such a way OP committed breach of trust and failed to give proper service and, in fact, everything was done by the OP in a very casual manner and for not adopting expert hand in respect of fixing doors and windows such a loss was caused to the complainant and at the same time the complainant reported the matter to the OP but OP did not turn up to survey the damage and poor quality of finished doors etc. though after repeated requests of the complainant OP agreed to visit the premises of the complainant along with jointers but after collecting the balance amount from the complainant OP did not turn up.  Moreover, complainant has further alleged that OP did not properly measured the gap of the door before fixing the doors though OP claimed that they are well versed about fixing such sort of doors and by that way OP has caused several damages and, in fact, the door which has been fixed by the OP is completely defective for use and total varanda is now not covered though it is the responsibility of the OP to satisfy the customer that the work has been done completely and it was properly fitted and set in the portion which was kept vacant for the purpose of fixing such aluminum doors and windows.

          Complainant stated that on 7^th May, 2012 OP sent a letter against the letter of the complainant stating that the quality will gradually improve in the summer season and he has also admitted the true height of window was 6 ft. 5 inch at one side and 6 ft. 1 inch at the other end and it is also admitted that aluminum frame accordingly was filled by his worker but doors the height is 6ft. 1 inch and regarding rubber insulation it was informed that OP provided their best quality goods available in the market during the winter season but denied all allegations.

          So, it is clear that everything was done by the OP but even then the doors has not been properly fixed and gap on the overhead of the door is still there that means a smaller size of door is fixed and entire amount has been paid by the complainant and the complainant repeatedly asked the OP2 to cover the same but that was not done and no doubt such sort of act of the OP is no doubt an unfair trade practice and so complainant prayed for relief and fact remains complainant paid entire amount of Rs.25,500/- for fixing the door by the OP. 

          On the other hand, OP by filing written version has submitted that the entire claim is baseless, without any foundation and the allegations as made by the complainant is concocted one and no damages was caused by the OP because OP only supplied as per requests but there was no contract between complainant and OP for fixing the doors and at the same time there was no execution of the work so the responsibility of the OP does not arise at and it is the nature and character of the complainant to harass the OP unnecessarily and at any point of time OP did not threaten the complainant for any reason whatsoever.

          OP further submits that complaint is not maintainable at all and complainant has suppressed the actual position of fact and truth and denied all other allegations.  It is further submitted that there was no air gap all around the sliding doors and has prayed for dismissal of this case.

Decision with Reasons

Practically in this case after hearing the argument of the Ld. Lawyer of the OP and also the fact as alleged in the complaint including the letter of the OP addressed to the complainant dated 07-05-2012 it is found that complainant relied upon the OP about his experience in fitting and fixing the aluminum doors of the house of the complainant and OP agreed to fix it as he is also seller of aluminum door fittings and other accessories and fact remains OP has admitted by that letter that the said fittings of aluminum windows of door was made by the OP and his experienced person and OP by that letter tried to convince the complainant that the fitting work was done perfectly and quality of the frames and rubber insolation fittings are of very good quality and undisputed fact is that the entire work was done by the OP after measuring the gap where the aluminum frames shall be fitted and it is also fact that complainant paid 50% of the total work cost i.e. including the cost of the purchasing the window frames beforehand as advanced and balance was paid by the OP after fitting of the windows and by the letter OP has admitted that he received full amount but OPs main assertion is that complainant paid full amount being satisfied about the fittings of the aluminum doors, windows etc. and so relying upon those documents we can say without hesitation that complainant ordered for fixing aluminum window frames with glass in the gap of their varanda windows.  OP accepted such order and thereafter the work was done by the OP with his own men and materials.  So, it is clear that OP in his written statement tried to convince that there was no relationship in between the OP and the complainant as service provider and consumer but the letter of OP dated 07-05-2012 simply proves that complainant paid Rs.25,500/- for fixing the aluminum window in the varanda of the house of the complainant.  OP accepted such amount to complete the said work and work is done but it was found that it was not properly fitted and set and even after fixing the said window frames by the OP still there is a gap.

          From the letter of the OP dated 07-05-2012 it is proved that even after fixing of the aluminum windows by OP b y his workers still there is a gap then it is clear that measurement was not taken by the OP properly or their fitter or jointers failed to properly fix the same for which said gap is there and OP has admitted by that letter that there is some gap  but indirectly he has admitted that both sides of the gap was not of same height.  Fact remain OP has fitted the windows of 6ft. 1 inch but ought to have been fixed windows/doors of 6ft. 5 inch in height and for which 4 inches gap is still found on the head of the present fixed windows.  So, it is clear that proper fitting was not made by the OPs though OP received Rs.25,550/- for that and about such gap there is no denial on behalf of the OP.

Fact remains the windows were fixed by the expert hands of the OP in the house of the complainant but, in fact, the required size of window was not fixed and the present fixed window is to some extent short by 4 inches than that of the required height of 6 ft. 5 inches but OP has fitted and fixed a window in 6ft. 1 inch.  So, apparently it is proved OP even after receiving entire amount of Rs.25,500/- from the complainant did not fix and fit required size of aluminum window frames or doors for which at present on the head of the windows there are gap of 4 inches continuously in between the fixed windows and the concrete level and that facts has not been denied by the OP but only defence of the OP is that as per requirement of the complainant it was supplied and, thereafter, complainant paid entire amount and invariably complainant became satisfied about the fixing and fitting of the aluminum windows in his varanda so he paid entire amount to the OP and at this stage complainant cannot claim for deficiency of service on the part of the OP.

          Anyhow we have studied the entire complaint, written statement, evidence in chief and particularly the OP sent letter to the complainant on 07-05-2012 and if any prudent and reasonable man read that letter of the OP then he shall be satisfied that entire work was done by the OP and his skilled labourers or employees and invariably complainant relied upon the OP and accordingly complainant paid the entire amount to OP who measured the windows and supplied aluminum bars to make its frame for fixing it but anyhow OP and his men who were engaged for the purpose of fitting and fixing the aluminum windows and doors did not apply their skill and finally for which after fixation of the aluminum door prepared by the OP and his skilled men is found shorter than that of the required size of windows the complainant and for that reason no doubt complainant was not at fault.  He is a doctor and he relied upon the skill and competence of the OP and OP assured that he will take all such steps for fixing the same for which the charge was paid by the complainant and so, in the present situation after fixing of the aluminum doors and windows when it is found that same is not in proper size and for which there is a gap on the overhead of the windows, invariably for that fault OP is responsible because OP get entire amount i.e. consideration for purchasing materials for fixing the doors and also for service charges.  But entire materials on record proves that service was not rendered properly for which defect was found after fixing of the said windows and doors made of aluminum bars and channels and the fact that the said windows or door made of aluminum channel and bar is shorter in size for which there is a gap of 4 inches on the head level and for that reason OP cannot anyway accuse the complainant in view of the above fact.  Complainant is not the expert of preparing window and doors made of aluminum bars and channel but OP is the expert who deals in such sort of business not only of selling aluminum bars, channels and accessories but he is also expert in fixing the same and he did it after receiving the entire amount from the complainant then entire liability of the OP is to prove why he did not render proper service and why even after fixing of the said windows in the varanda of the complainant there is a gap and fact remains OPs Ld. Lawyer has tried to convince this Forum that OP only sold the entire materials and complainant purchased it and for which the fact OP cannot be liable for such defect but anyhow such short of argument as advanced by the OP Ld. Lawyer bears no merit in view of the fact law in view of that fact that OP by his letter dated 07-05-2012 swallowed entire fact i.e. after fixation of the window by him and his men it is found a gap of 4 inches that means in very casual manner OP and his men took measurement of the gap where the windows and doors shall be fixed and prepared the aluminum doors and windows after processing the same by using aluminum bar and channel.  Then it is the liability of the OP to discharge that they properly applied their skill and fixed the aluminum window and door in the varanda of the complainant and there is no gap but anyhow the OP has admitted that gap is still there then invariably it is proved OP fixed smaller size of windows than that of the required size which is required to be fitted and practically the size of the window had been of 6.5 inch X 6.1 inch but in reality it was not for which for fixation of smaller size of windows by the OP overhead gap is still there and invariably it is the legal duty to the OP to fix proper size of windows made of aluminum bar and those by removing present fixed windows which was made by the OP and fact remains OP adopted an unfair trade practice in all respects and OP caused the mental pain and agony to complainant doctor and also harassed him in so many manner and practically complainant filed this complaint because OP threatened the complainant that OP shall not have to replace the same and the entire conduct of the OP is found no doubt unmerchantable and at the same time OP caused huge financial loss and sufferings to the complainant when OP fixed defective window in the varanda of the complainant as admitted by OP that there is a gap for fixing a shorter size of windows.

          In the light of the above observation we are convinced to hold that OP did not give proper service and at the same time in deficient and negligent manner he fixed the defective windows even after taking total amount of Rs.25,500/- and for which the complainant is entitled to get relief against the OP and OP is legally bound to pay compensation and also to replace the proper size of windows by removing the present smaller size of window from the particular place of the varanda of the complainant and if OP is unwilling to do that in case complainant shall have to get refund of the entire amount of Rs.25,500/- as prayed by the OP along with cost, compensation etc.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost sof Rs.10,000/- (Rupees Ten thousand only) against the OP.

          OP is hereby directed to fix proper size of aluminum windows and doors in the house of the complainant afresh after removing the present defective windows within 15 days from the date of this order failing which OP shall have to pay a sum of Rs.25,500/- to the complainant. 

          Further OP shall have to pay compensation of Rs.10,000/- to the OP for causing harassment, mental pain and agony and for adopting unfair trade practice and also for OP’s negligent and deficient manner of service as rendered in the particular case and supplying defective windows.

          For adopting unfair trade practice by the OP, OP is hereby directed to pay a sum of Rs.15,000/- to the present Forum for deceiving the customer.  In such a manner and also for deceiving the complainant in such a manner in this particular case OP is directed to comply this order within 15 days from the date of this order positively failing which for disobedience of the Forum’s order and reluctant attitude of the OP for implementation of the order, on expiry of the stipulated period a sum of Rs.200/- shall be assessed as penal damages against the OP per day and if it is collected it shall be deposited to this Forum till full satisfaction of the entire decree.

          Even if it is found OP is reluctant to comply with the order willfully in that case penal proceeding shall be started against them for which he shall be prosecuted and further penalty may be imposed against them.