IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Monday the 24th day of July, 2023.
Filed on : 17.03.2023
Present
1. Smt.P.R Sholy, B.A.L, LLB (President-in-charge )
2. Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No. 76/2023
between
Complainant:- Opposite party:-
Sri. Vijayakukmar.V M/s Trinity Interiors, 49/1243-B
Amarjyothi Anchala Tower, Near Metro Station
Muttathiparambu.P.O, Thykoodam, Vyttila,
Cherthala, Alappuzha, Ernakulam-682019
(Party in person) Rep by Manager
(Party in person)
O R D E R
C.K.LEKHAMMA(MEMBER)
Complaint filed u/s 35 of the Consumer Protection Act, 2019
1. Brief facts of complainant’s case are as follows:-
The complainant ordered a book shelf from the opposite party on 21/11/2022. The opposite party assured to deliver the same before 21/1/2023 ie, 60 days from the date of confirmation of the order and advance payment. According to the complainant he has received the last update of the product in December 2022 stating tentatively deliver on 23.12.2022. Thereafter no communication from the opposite party and only in the 1st week of March 2023 a delivery confirmation was received that the complainant ordered said product for his house at Ambalappuzha during the finishing stage of his construction. But the product was not delivered on time the complainant went for another product. The complainant alleged that the opposite party had made a long delay in delivering the product and also they don’t even communicate with the complainant. After one month later the opposite party was ready for the product and was compelled to take the delivery. When the complainant requested to cancellation of the order and refund of Rs. 34,837/-, the opposite party is neglecting this request hence the complainant filed this complaint and sought for following reliefs.
1. To cancel the order and refund Rs. 34,837/- being the amount received from the complainant by the opposite party.
2. Directed to pay compensation for mental agony and the cost of the proceedings.
2. Version of the opposite party in short is as follows:-
The averments and allegations raised in the complaint are not fully true and correct and hence denied. The complainant first visited the opposite party's showroom at Vytila on 6/9/2022 as a part of an enquiry regarding the interior works, for his house which was under construction at Ambalappuzha. The complainant was satisfied with their products, services and also the work quality and requested to visit the construction site and prepare the cost for the interior works. Accordingly, the team of the opposite party made a list of products and took specific measurements in the complainant’s house.
After the discussion, the complainant and the opposite party agreed to start the work and as per the requirements, a total of 33 products were ordered by the complainant. The total cost of the products was Rs. 9,88,777/- (Rupees Nine lakh eighty eight thousand Seven hundred and seventy seven only) and a quotation was also forwarded to the complainant and the complainant paid Rs. 25,000/- (Rupees Twenty five thousand only) token amount as an advance and upon this, the booking was confirmed and finally, the booking was closed on 10/9/2022. Subsequently, the complainant informed the opposite party he was having some financial crisis and requested to hold the project. A few weeks later he requested the opposite party to cancel the order, as he couldn’t arrange money for the same. But as per the rules and procedure, does not allow cancellation once order is placed. It is also clearly mentioned in order closed quote. Considering the financial crisis of the complainant, opposite party suggested the complainant purchase a product worth Rs. 25,000/-, the advance amount paid and then only the complainant ordered the bookshelf. The complainant had nowhere in the complaint have mentioned these facts, the present complaint is filed suppressing vital and material facts germane to the issue under consideration of this Commission.
On 21/11/2022 the complainant approached the opposite party and ordered a book shelf. The order was closed at the value of Rs. 34,837/- and the balance amount of Rs. 9,837/- was paid by the complainant and the booking was closed. After getting confirmation from the customer on 26/11/2022 the production started. At the time of confirmation itself, the complainant had informed the opposite party that the construction of the house may take longer time than expected and would inform the opposite party when to deliver the product.
Even though automated messages were sent to the complainant as to the status of the product no response was received from the complainant. So the production was slowed and it was completed on 2/2/2023 and even then there was no response from the complainant.
On the first week of March, opposite party’s installation team contacted the complainant and informed him that the product is out of delivery and the address was sent by the complainant to our installation team. Unfortunately, the delivery could not be completed as the delivery vehicle broke down and the same was informed to the complainant and also apologized for the inconvenience caused to the complainant due to the delay in delivery. The complainant agreed on the delivery to a subsequent date.
But on 8/3/2023 the complaint sent a mail to the opposite party intimating that he wants to cancel the order. The opposite party again planned for the delivery of the product but the complainant refused to accept the order and demanded cancellation of the order. The opposite party is always ready to despatch the product at the convenience of the complainant, but whenever the opposite party tried contacting the complainant he did not respond properly.
The opposite party had already incurred a huge loss due to the breaches committed by the complainant and even then the opposite party provided an alternative to the complainant. The bookshelf is exclusively made for the complainant as per the measurements suggested by him that would fit his house. The opposite party had to spend time and money on this order. If the complainant cancels this order he would be liable to the opposite party to pay the expenses incurred on this particular work as this customization was done as per the demand of the complainants. If cancellation is made the product would become unworthy, since the products are made exclusively for all their customers.
The complainant had come up with this petition as an experimental basis, as a pressurizing tactics, to gain illegal benefits to obtain unlawful enrichment. The opposite party reiterate that, there is no deficiency in service in the subject as alleged by the complainant.
3. Points that arise for consideration are as follows:-
1. Whether the complainant is entitled to get a refund of Rs. 34,837/- from the opposite party?
2. Whether the opposite party committed deficiency in service?
3. Reliefs and costs?
4. Complainant and the opposite party appeared in person. The complainant was examined as PW1 and Ext.A1 to A4 were marked. The opposite party adduced oral as well as documentary evidence Ext.B1 series and Ext.B2 to B8 were marked. Heard both sides.
5 Point Nos. 1 and 2:-
The case of the complainant is that he ordered a bookshelf with the opposite party on 21/11/2022. As per the order, the opposite party assured delivery the same before 21/1/2023 ie, 60 days from the date of confirmation of the order and advance payment. Accordingly, he paid Rs. 34,837/- but the opposite party did not supply the product as per the assured period. Due to the delay in delivery, the complainant was constrained to select another product. Therefore the complainant requested to refund the amount paid by him but the opposite party neglected the request. Ext.A1 to A4 documents were marked from the side of the complainant.
The opposite party refuted the said allegation made by the complainant and contented that the complainant entrusted the interior work to his house with the opposite party. Accordingly the complainant ordered 33 products worth Rs. 9,88,777/- and the quotation was closed. The complainant paid the token amount Rs. 25,000/- as advance and the booking was confirmed and was closed on 10/9/2022. Thereafter the complainant cancelled the said booking and requested to return the advance amount. But as per the policy of opposite party the said amount is not refundable. So the complainant selected and ordered the disputed bookshelf worth Rs.34,837/- on 21/11/2022 and the balance amount of Rs. 9,837/- as paid by the complainant and booking was closed. In the meantime, there was some dispute in connection with the colour of the product and was taken time for settle the said dispute thereafter getting confirmation from the complainant and on 26/11/2022 the production started. At the time of confirmation of the order, the complainant informed the opposite party, that the construction of the house may take more time than expected and hence the date to deliver the product will be informed later. So the production was slowed and was completed on 2/2/2023. At this time there was no response from the complainant. Thereafter, the opposite party was ready to deliver the product but the complainant refused to accept the same. Hence there is no deficiency of service on the part of the opposite party.
On perusal of the evidence on records, it is reflected in Ext.A2 online communication, the complainant paid an amount of Rs. 25,000/- on 10/9/2022. Thereafter another sum of Rs. 9837/- was paid on 21/11/2022. Further on 21/11/2022, the complainant informed the opposite party to proceed with the order. On going through the testimony of PW1, the complainant agreed that there was an earlier order with the opposite party and it is understood that for the said order he paid Rs. 25000/- as an advance amount and later the said order was cancelled. The said fact was pleaded in the version of the opposite party but not found in the complaint. Subsequently, the disputed product was ordered and paid the balance amount.
Admittedly the opposite party was not supplied the product on the assured date. There is no dispute that the complainant did not pay the entire price of the product ordered. Ext.A2 e-mail communication revealed that the balance amount paid by the complainant was received by the opposite party on 21.11.2022 and on the same day itself the complainant had given consent to proceed with the order. On perusal of the records, it is specifically mentioned in ExtA1 communication that “Normal delivery - 60 working days” The opposite party admitted that they could not supply the product on the expected date. But the opposite party has not been able to prove that the production of the bookshelf had to be slowed down as per the request of the complainant as contended in the version. As per Ext.A3 e-mail the opposite party informed the complainant that 23.12.2022 is the tentative date of delivery. Further informed that the production of the bookshelf is completed on 25.02.2023. The opposite party admitted that they could not despatch the product on the above date and the reason for the non-delivery was duly intimated to the compt. But the complainant denied the said statement. Nothing is before us to prove the above contention of the opposite party. Further admitted in the version that after the issuance of Ext.A4 e-mail dt.8.03.2023, the complainant demanded to refund of the amount since the long delay in the supply of the shelf consequently the opposite party again planned for delivery of the product. On perusal of evidence we found that the opposite party failed to convince us the actual cause for delay in delivery. In the aforesaid reasons, we find that not supplying the product on the assured date thereafter no proper communication with the complainant from the side of the opposite party is a deficiency in service. Therefore, The complainant is entitled to get compensation from the opposite party and also liable to refund, Rs. 34,837/- as mentioned in Ext.A1.
6. Point No.3:-
In the result complaint is allowed in part and direct as follows:-
1. Opposite party is liable to refund Rs. 34,837/- (Rupees Thirty four thousand eight hundred and thirty seven only), being the price of the disputed product and also pay Rs. 2000/-(Rupees two thousand only) towards compensation for deficiency in service to the complainant, failing which the said amount shall carry interest @ of 8% per annum from the date of compliance of this order till realization.
2. The opposite party is liable to pay Rs. 1000/-(Rupees one thousand only) towards costs of the proceedings.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 24th day of July 2023.
Sd/- Smt. C.K.Lekhamma(Member)
Sd/- Smt. Sholy.P.R (President in charge)
Appendix:-Evidence of the complainant:-
PW1 - Vijayakumar.V(Complainant)
Ext.A1 - Quotation for Modular Kitchen
Ext.A2 - e-mail communication
Ext.A3 - e-mail communication
Ext.A4 - e-mail communication
Evidence of the opposite parties:-
RW1 - Paul.T.S(Ops representative)’
Ext.B1series - photographs
Ext.B2 - Token receipts
Ext.B3 - Order closed Quote
Ext.B4 - Order Confirmation
Ext.B5 - Order Confirmation
Ext. B6 - Receipt for Balance amount paid by customer
Ext.B7 - Colour Confirmation
Ext.B8 - Cancellation mail from customer.
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
