Date of Filing: 14/09/2011
Date of Order:05/11/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 5th DAY OF NOVEMBER 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO.1703 OF 2011
Shri. H.R. Nagaraj,
S/o. Rajendra,
R/at: No.770, 2nd Floor,
9th Main, 3rd Stage,
Basaveshwaranagar,
Bangalore-560 079.
(Rep. by Advocates “NISARGA LAW ASSOCIATES”)
…. Complainants.
V/s
The Manager/Managing Director,
(Whom so ever concerned)
Restolex Coir Products Pvt Ltd.,
No.21/7, Ravi Industrial Estate,
4th Main Road, Industrial Suburb,
2nd Stage, Tumkur Road,
Bangalore.
(Rep. by Sri.Rajaram Bhat.O, Advocate) …. Opposite Party.
BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT
-: ORDER:-
The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay Rs.25,480/-, are necessary:-
The complainant placed an order through Gayathri Furniture and Furnishings for a mattress of 78x60x8 size and paid an advance of Rs.4,500/-. On 30.12.2008 the complainant paid further sum of Rs.10,980/-. The opposite party delivered the mattress to the complainant. The said mattress was not up to the satisfaction, there appears to be some manufacturing defect and varied to the stipulated quality and when it was complained, the opposite party took the mattress on 09.07.2009. The delivery boy of the opposite party brought the mattress for delivery, but it was observed that there was no any change in the earlier observation and the defects were not cured. The complainant refused to take delivery of the same. Hence the complainant wrote to the opposite party on 29.06.2010 to which a reply was given on 02.07.2010, to which another letter was issued on 30.07.2010 to which a reply was given on 23.08.2010. On 29.09.2010 the opposite party has issued a letter asking to collect the money from the dealer after returning the mattress. The mattress was not delivered back to the complainant at all at any point of time by the opposite party. On 09.10.2010 the complainant issued a notice to the opposite party. Even then it has not been replied or complied. Hence the complainant has issued another notice on 13.05.2011 even then the opposite party has not replied. Hence the complaint.
2. In brief the version of the opposite party are:-
Booking of the mattress, receipt of the money, delivery of the mattress to the complainant by the opposite party are all admitted. The mattress was of the best quality. There was no manufacturing defects. It was delivered on 30.12.2008. On 09.07.2009 the complainant has given the mattress to the opposite party for alteration. After doing the alteration the mattress was delivered back to the complainant on 17.07.2009. After 11 months the complainant has issued notice to the opposite party on 29.06.2010. The correspondences were exchanged between the parties on 02.07.2010, 30.07.2010, 23.08.2010 and on 09.10.2010. As the opposite party understood that the complainant was not satisfied with the alteration of the mattress it decided to refund the money on returning back mattress to the dealer to solve the problem. Instead of that the complainant has come up with this case. The opposite party has not received the legal notice dated: 13.05.2011. The complaint is also bad for nonjoinder of M/s. Gayathri Furniture and Furnishings as a party to the proceedings.
3. To substantiate their respective cases the complainant has stated that his complaint and documents be read as his evidence. The opposite party has filed his affidavit along with Memo of Authorization. The arguments were heard.
4. The points that arise for our consideration are:-
:- POINTS:-
- Whether the complaint is bad for nonjoinder of necessary parties?
- Whether the mattress in question was received back by the complainant on 17.07.2009?
- What Order?
5. Our findings are:-
Point (A) & (C): As per the final Order
for the following:-
-:REASONS:-
Point A to C:-
6. Reading the pleadings in conjunction with the affidavit and documents on record, it is an admitted fact that one M/s. Gayathri Furniture and Furnishings is the dealer of the mattress manufactured by the opposite party. It is also an admitted fact that on 23.12.2008 the complainant placed an order for the supply of mattress manufactured by the opposite party, the Restolex Latex Top Spring mattress 78”x60”x8”, the top model by paying Rs.4,500/- on that day and paid another sum of Rs.10,980/- on 30.12.2008. In all he had paid Rs.14,586/- and the mattress was delivered to the complainant by the opposite party on 30.12.2008.
7. It is an admitted fact that the complainant returned the said mattress to the opposite party on 09.07.2009 for repair that means the mattress was not in good condition for about 6 months. The opposite party has received the said mattress on 09.07.2009. The relevant portion of the letter dated: 09.07.2009 reads thus:-
On this it was contended by the learned counsel for the opposite party that they have received the mattress for alteration and there was no defect in the quality of the mattress. This is an untenable contention. The complainant is a laymen. As the mattress was not up to the satisfaction and standard he returned the mattress to the opposite party and the opposite party has received it stating that it is for repair but in the body it has written that it is for alteration. Anyway what is the alteration that is required or sought is not explained by the opposite party. The mattress is of size 78”x60”x8” then what is the alteration that is to be made? There is no answer. The opposite party never stated what is the alteration that has to be made or sought or made by it. This itself clearly goes to show the opposite party has not placed the material with clean hands.
8. Further it is contended by the opposite party that it had delivered the mattress to the complainant. The complainant has clearly stated the boys of the opposite party brought the mattress, as it was not up to the satisfaction he refused to take it and the boys of the opposite party threw the delivery challan and went away. This delivery challan dated: 17.07.2009 reads thus:-
This delivery challan is addressed by the opposite party to Gayathri Furniture and Furnishings and not to the complainant and it is the Gayathri Furniture and Furnishings which has to receive the mattress from the opposite party and then deliver it to the complainant. The opposite party never stated that is has delivered the mattress to the complainant. As the delivery challan is addressed to Gayathri Furniture and Furnishings it is the Gayathri Furniture and Furnishings who had to acknowledge this mattress from the opposite party and deliver it to the complainant, but the opposite party never stated that it delivered the mattress to the Gayathri Furniture and Furnishings and the said Gayathri Furniture and Furnishings delivered it to the complainant on a particular date. This delivery challan does not contain the signature of the person who has received the mattress. If the contention of the opposite party were to be true it should have produced the delivery challan signed by the complainant or by the Gayathri Furniture and Furnishings. But that has not been done why? There is no answer. This clearly goes to show that the complainant has not received back the mattress from the opposite party.
9. Further on 29.06.2010 the complainant has issued a notice to the opposite party stating that the mattress was not accepted by him it was not delivered to him as the mattress was defective hence he sought the money from the opposite party. To this notice the opposite party on 02.07.2010 has written to the complainant asking him to submit the bill from the dealer, the warranty card, the receipt from the dealer regarding the money that’s all. It does not deny or dispute the contention of the complainant in the notice dated: 29.06.2010 that the mattress was not delivered to him. This clearly goes to show that the mattress was received by the opposite party and not redelivered to the complainant.
10. Further in their letter dated: 02.07.2010 the complainant submitted the particulars on 30.07.2010 to the opposite party. To this the opposite party has replied on 23.08.2010. Even in this reply the opposite party has never stated that it had delivered back the mattress to the complainant on 17.07.2010. The complainant again issued notice to the opposite party on 09.10.2010. To this on 09.09.2010 the opposite party has written to the complainant asking him to deliver the mattress to the dealer and collect the amount. When the mattress itself was delivered to the opposite party and not redelivered to the complainant the question of delivering the mattress to the dealer does not arise.
11. The opposite party accepts its liability to pay the money, but is taking an undue advantage against the complainant regarding the mattress. Hence the complainant issued a notice to the opposite party on 13.05.2011. The notice was returned to the complainant with a shara “insufficient address”. This clearly goes to show that the opposite party has avoided the notice. The notices, earlier letters were sent to the opposite party to the same address as mentioned in the cause title of this complaint but only this notice of 13.05.2011 has been returned to the complainant by the opposite party but just were received and replied. This clearly goes to show that the opposite party has not come to this forum with clean hands. It has received the mattress it has not redelivered it and has taken the mattress for rectifying the defects, returned the notice with unscrupulous shara. Opposite party is therefore liable to pay Rs.14,586/- to the complainant with interest.
12. Further it was contended that the dealer was not a party. The dealer is neither a necessary nor a proper party. Here through the dealer the opposite party transacted, it received the money, it manufactured and supplied the materials, it took tack the mattress but not returned the money or mattress. Hence the dealer need not be a party to the proceedings. When the manufacturer himself is before the Forum the question of its dealer or agent being a party does not arise. Hence we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Allowed-in-part.
2. The opposite party is directed to pay to the complainant a sum of Rs.14,586/- together with interest thereon at the rate of 12% per annum from 09.07.2010 until payment within 30 days from the date of this order.
3. The opposite party is also directed to pay Rs.2,000/- to the complainant as costs of this litigation.
4. The opposite party is directed to send the amounts as ordered at Serial Nos. 2 & 3 above to the complainant through DD by registered post acknowledgment due and submit the compliance report to this Forum with necessary documents within 45 days from the date of this order.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 5th Day of November 2011)
MEMBER MEMBER PRESIDENT