Complaint No: 35 of 2023.
Date of Institution: 06.02.2023.
Date of order: 09.02.2024.
Sukhwinder Singh Son of Gurbax Singh, resident of VPO Ghoman, Tehsil Batala and District Gurdaspur.
…...........Complainant.
VERSUS
Pee Kay Industries / Karan Fabricators, Outside Khajuri Gate, Near Jassa Singh Hall Chowk, Batala District Gurdaspur, through its Proprietor.
….Opposite party.
Complaint U/S 35 of Consumer Protection Act.
Present: Complainant: In person.
For the Opposite Party: Sh.Mohit Mahajan & Sh.Sahil Sharma, Advocates.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Sukhwinder Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act (here-in-after referred to as 'Act') against Pee Kay Industries / Karan Fabricators (here-in-after referred to as 'opposite party).
2. Briefly stated, the case of the complainant is that the complainant has purchased Steel Gate 10 feet width X 6 feet height and one small Steel Gate 4 feet width X 6 feet height from the opposite party on dated 03.02.2020 for the consideration of Rs.55,000/-. Thus, the complainant is consumer of the opposite party. It is pleaded that at the time of purchase said gates, the opposite party promised with the complainant that the Guarantee of said gates are 15 years. In case any kind of damages occurrences with said gates, the opposite party will be responsible for that. It is further pleaded that opposite party also promised in written to the complainant that if the said gates were damages, the opposite party will change the said gates or will return back the gates price to the complainant. It is pertinent to mention here that at the time of installing the said gates, the complainant has also incurred Rs.12 to 15 thousands on sand, cement, concrete and labour etc. It is further pleaded that after purchasing the said gates, the gates got damaged within one and half months. The complainant has made so many requests to the opposite party to change the gates or return back the said gates amount to the complainant, but the opposite party refused to accept the genuine request of the complainant and make one pretext to another. It is further pleaded that complainant also made request in written to the opposite party, but the opposite party refused to accept the genuine requests of the complainant. It is further pleaded that thereafter the complainant also issued a Legal Notice dated 24.11.2022 through his counsel Sh. Satinderbir Singh Ghoman Advocate, Batala and requested the opposite party to change the said gates or return back the said gates amount, but the opposite party did not give any reply to the said legal notice nor he return back the gates amount in question. It is further pleaded that due to this illegal act and conduct of the opposite party the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite party.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite party and prayed that necessary directions may kindly be issued to the opposite party to replace the said gates with new one OR to return the said gates amount of Rs.55,000/- plus Rs.15,000/- incurred as sand, cement, concrete and labour etc. with interest @ 18% per annum to the complainant and also pay him amount of Rs.50,000/- as mental pain, agony and harassment and also Rs.10,000/ as litigation expenses, in the interest of justice.
3. Upon notice, the opposite party appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint of the complainant is not maintainable in the present form and the present complaint is time barred. It is pleaded that the complainant has no cause of action to file the present complaint against the answering opposite party, as there is no deficiency in service on the part of the opposite party. It is further pleaded that complainant has filed the false and frivolous complaint against the answering opposite party just to harass and humiliate the opposite party and the complainant is liable to be prosecuted for procuring the false documents for filing the present false complaint. It is further pleaded that the invoice dated 03.02.2020 issued by the answering opposite party to the complainant, which clearly shows that steel fully guaranteed against any manufacturing defect upto 15 years. The gate which was sold to the complainant was made up off steel bars and plastic fibre sheet. The answering opposite party had given guarantee only on the steel bars and no guarantee was ever given regarding plastic fibre sheet, which was sold alongwith the steel bars. The invoice issued by the answering opposite party may also be taken into consideration for proving this fact. As per the invoice, the answering opposite party is liable only for the damage to the steel bars not anything else, but in this case, there is no damage mentioned in the complaint to the steel bars. It is further pleaded that in the complaint, the complainant has not specifically mentioned that damaged part of the gate. Gate consists of two parts, one is steel bar and second one is plastic fibre sheet, but the complainant with mala fide intention did not disclose the damaged part of the steel bars because guarantee was given only against the steel bars. It is further pleaded that complainant has not mentioned about the damage of the steel bars, so the answering opposite party is not responsible to pay any damages or return back or change the steel bars to the complainant. It is further pleaded that the answering opposite party never received any application from the complainant at any point of time in this regard. The answering opposite party had not received any application issued by the complainant and if there are any such applications, which are attached with the present complaint by the complainant, the same were procured on ante dated and the said applications are false and prepared with the motive just to harass the answering opposite party intentionally and willfully and just to get the money from the answering opposite party by hook or crook. It is further pleaded that at the time of purchasing the steel bars and fiber sheets, the complainant properly checked all the materials of the gate bars and fiber sheets. The workers / labourers visited in the house of the complainant and installed the gates in his presence and left house with premises of the complainant after fully satisfied him.
On merits, the opposite party has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. The complainant has placed on file affidavit of Sukhwinder Singh, (Complainant) as Ex.CW-1/A alongwith Self-Attested documents as Ex.C-1 to Ex.C-13 alongwith complaint.
5. Learned counsel for the opposite party has placed on file affidavit of Karan Bansal S/o Ravi Kumar, (Proprietor of Pee Kay Industries, Gurdaspur) as Ex.OPW-1/A alongwith other document as Ex.OP-1 alongwith reply.
6. Rejoinder filed by the complainant.
7. Written arguments not filed by the parties.
8. Counsel for the complainant has argued that complainant had purchased one steel gate and one small steel gate from the opposite party and paid Rs.55,000/-. However, after one and half month the gate got damaged and the fiber affixed in it also got damaged.
9. On the other hand counsel for the opposite party has argued that complainant had given guarantee in respect of steel only and no guarantee in respect of plastic fiber sheet was given. It is further argued that complainant had ordered the gate and had thoroughly checked the material and himself got the same affixed. As such there is no deficiency in service on the part of the opposite party and complaint is liable to be dismissed.
10. We have hard the Ld. counsels for the parties and gone through the record.
11. To prove his case complainant has placed on record his affidavit Ex.CW-1/A, copy of guarantee bill Ex.C1, copies of complaints Ex.C2 and Ex.C3, legal notice Ex.C4, postal receipt Ex.C5, affidavit Ex.C6, copy of report Ex.C7, Photographs Ex.C8 to Ex.C13 whereas opposite party has placed on file affidavit of Karan Bansal Ex.OPW-1/A and copy of bill Ex.OP-1.
12. Perusal of bill Ex.C1 shows that opposite party had received Rs.55,000/- from the complainant and it is written that steel gate complete with sheet, steel fully guaranteed against any manufacturing defect upto 15 years, Jindal Company Steel No.316G, steel material but perusal of Ex.C1 shows that opposite party has not mentioned anything about the quality of the fiber sheets, which shows that opposite party was already aware about the sub standard quality of the fiber sheet used in the gate and had intentionally not mentioned anything about the fiber sheet affixed in the steel. Perusal of complaints Ex.C2 and Ex.C3 shows that complaints have been lodged just after one and half month with the opposite party but opposite party had failed to remove the defect in the gate. Complainant has also placed on record report given by Khehra Welding Works Ex.C7 as per which said Khehra Welding Works has given opinion that gate cannot be repaired due to use of sub standard material and the steel had developed rusting at places. We have also gone through the photographs Ex.C11 to Ex.C13 wherein the sheets have got detached from the steel which itself shows and proves that opposite party had used poor quality material in the fabrication of the gates supplied to the complainant. It is pertinent to mention hereby that on 10.01.2024 opposite party had appeared in person and promised to repair the gate by removing the defects but later on refused to repair the same itself shows and proves deficiency and business malpractice on the part of the opposite party.
13. Accordingly, present complaint is partly allowed and opposite party is directed to refund the amount of Rs.55,000/- to the complainant within one month after receipt of copy of this order. Complainant is also directed to hand over both the gates with material to the opposite party after receiving the above referred amount of Rs.55,000/-. It is further clarified that if opposite party fails to pay Rs.55,000/- to the complainant within given time the amount of Rs.55,000/- shall carry interest @ 9% P.A. w.e.f. 06.02.2020 till realization.
14. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Feb. 09, 2024 Member
*YP*
