DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT
Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER
Tuesday the 10th day of August 2021
C.C. 38/2016
Complainant
Dr. Afsal
S/o. Abdulla
Narikkoottungal, Kadavathur (P.O)
Kannur – 670 643.
(By Adv. Sri. Shahzad)
Opposite Parties
1. Sri. Sameer
Manager, Nasco Furniture,
Kallachi Road, Kasthurikkulam,
Nadapuram (P.O), Kozhikode – 673 504.
2. Sri. Nasar,
Proprietor, Nasco Furniture,
Kallachi Road, Kasthurikkulam,
Nadapuram (P.O), Kozhikode – 673 504.
(By Adv. Sri. Anwar Ali.A.)
ORDER
By Sri. P.C. PAULACHEN – PRESIDENT.
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
2. The case of the Complainant, in brief, is as follows:
The Complainant purchased furniture from the showroom of the Opposite Parties. For that purpose, he visited the show room on 06/12/2014. The 1st opposite party showed various items of furniture and the complainant selected two cots, two beds, one dressing table, one sofa and two settees and paid a sum of Rs.5,000/- as advance. The cost of the cot was Rs.13,500/-, almirah (dressing table) Rs.16,000/-, cot Rs.7,000/-, and Rs.13,500/- for the Sofa and settees (Damro). On 18/12/2014, the complainant paid the balance amount of Rs.45,000/- to the opposite parties thus totalling to Rs.50,000/- as demanded by them. On 19/12/2014 during night, the opposite parties delivered the furniture at the complainant’s house. But some of the items delivered were not the items which were selected by the complainant at the show room. The two cots and the two beds were alright. But the dressing table, sofa, and settees were of purely substandard quality. On the next day morning, the complainant informed the opposite parties about the same who replied that since it was a busy day, such a mistake happened and that they would take back those items and supply new ones. But nobody turned up. Thereafter due to the intervention of Sri. Hameed Kariad, a member of the District Panchayath, the opposite parties took back one sofa and two settees in a vehicle. Regarding the dressing table, it was informed that the same
would be taken back in the vehicle in which the new sofa and settees would be brought. The complainant’s sister and her husband visited the shop of the opposite parties in order to see the new items to be substituted. But the 1st opposite party unnecessarily created problems and abused them. Eventhough the complainant contacted the opposite parties several times, no body brought back the new sofa and settees. Nothing was done with regard to the dressing table also. Finally, on 10/07/2015, the complainant issued a lawyer notice to the opposite parties. The 1st opposite party though received the notice, neither took any positive steps nor did he sent a reply notice. Notice sent to the 2nd opposite party was returned unclaimed. Complainant purchased the furniture from the opposite parties believing their promise about their quality and durability. The sofa and settees taken back by the opposite parties under the guise of replacement were not returned back. The dressing table is still available with the complainant in a totally useless condition. The opposite parties have cheated him by delivering substandard furniture and their acts amount to unfair trade practice. The complainant had to suffer much physical and mental agony. Hence the complainant prays to direct the opposite parties to deliver defect free and qualitative sofa and settees and dressing table to him or to return the price of the same. The complainant also seeks to realise compensation to the tune of Rs.25,000/- and also Rs.10,000/- as cost of proceedings from the opposite parties.
3. The opposite parties jointly filed version. Their contentions, in brief, are as follows:
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The complainant had not visited their show room or purchased any items of furniture as claimed. No advance amount was received by them on 06/02/2014 as alleged. Equally, a sum of Rs.45,000/- was not received by them from the complainant on 18/12/2014 towards balance amount as alleged. The allegation that on 19/12/2014 during night, the opposite parties delivered the furniture at the complainant’s house is false and hence denied. The further allegation that the items delivered to the complainant were not the ones selected by the complainant at the show room is false and hence denied. The averment that the dressing table, sofa and settees were of substandard quality and the further allegation that they had agreed to take back the delivered items and supply new items are not correct and hence denied. The averment that due to the intervention of the District Panchayath member Sri. Hameed kariad, they had agreed to take back the items is false and hence denied. They have not taken back the sofa and two settees from the house of the complainant. They had not informed the complainant that the dressing table would be taken back in the vehicle in which the new sofa and settees would be brought. In fact, the opposite parties have not sold any items to the complainant and they have not received any amount from the complainant towards sale consideration. There was no business transaction between them. The complainant has no cause of action. He is not entitled to the reliefs prayed for. With the above contentions, the opposite parties pray for dismissal of the complaint.
4. The points that arise for determination in this case are:
(1) Whether the complainant is a consumer or not ?
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(2) Whether there was any defect in the goods supplied to the
complainant and whether there was unfair trade
practice from the part of the opposite parties ?
(3) Reliefs and costs
5.Evidence in this case consists of the oral evidence PW1 and Exhibits A1 to A8 on the side of the complainant. RW1 was examined on the side of the opposite parties. No document was marked on their side. Ext. C1 was also marked.
6. Heard both sides
7. Point No.1 : The Complainant got himself examined as PW1. He filed proof affidavit and deposed in terms of the averments in the complaint and asserting that the disputed items of furniture supplied were not the ones selected by him at the show room and were of poor quality and though the opposite parties took back the sofa and settees under the guise of replacement, the same were not returned and the defective dressing table was also not substituted with a new one. According to PW1, the opposite parties have cheated him by delivering substandard furniture and neglected to supply new items despite the fact that they had taken back the defective items under the promise to replace them and their acts amount to unfair trade practice. PW1 has deposed that he had to suffer much mental agony due to the acts of the opposite parties. Ext A1 is the estimate No.802 dated 18/12/2014, Ext.A2 is the copy of the lawyer notice dated 10/07/2015, Ext.A3 is the postal receipt, Ext.A4 series are the postal acknowledgement cards , Ext A5 is the unclaimed postal article, Ext A6 series are the photographs, Ext A7 is the copy of complaint filed by
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the complainant before the Sub Inspector of Police, Kolavallur and Ext.A8 series are the mobile phone bills.
8. RW1 is the 2nd opposite party. RW1 has filed proof affidavit and deposed supporting the contentions in the version . According to RW1, there was no business transaction whatsoever between himself and PW1. RW1 has deposed that PW1 had not purchased furniture from his showroom. According to RW1, he is the Managing Partner of Nasco furniture and the 1st opposite party was one of the staff members and not the manager.
9. In the light of the rival contentions of the parties, first of all, it has to be considered whether the complainant is a consumer. According to the definition of consumer under Section 2(1) (d) of the Consumer Protection Act, 1986, a person who buys any goods for consideration is a consumer. So there must have been transaction of buying of goods for consideration. As per the complaint, the 1st opposite Party is the Manager and the 2nd opposite party is the proprietor of Nasco Furniture, Kasthurikulam, Nadapuram. The opposite parties have not disputed this aspect in their version. However, while in the box , the 2nd opposite party has deposed as RW1 that he is the Managing Partner of the said firm and the 1st opposite party is not the Manager, but only a staff. Admittedly, the 2nd opposite party is doing business under the name and style ‘Nasco Furniture’. The definite case of the PW1 is that he had purchased furniture from the show room of the opposite parties. PW1 has deposed that it was on 06/12/2014 that he visited the show room and the 1st opposite party showed him various items of furniture and he
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selected the items total worth Rs.50,000/- and paid Rs.5,000/- as advance on that date. The balance amount of Rs.45,000/- was paid on 18/12/2014 and on the next day the opposite parties delivered the furniture at his residence. The complainant has produced the estimate for the same which is marked as Ext. A1. There is no reason to disbelieve PW1. Eventhough PW1 was subjected to searching cross examination, nothing has been brought out to discredit his version. PW1 is a doctor by profession and it cannot be believed that he will falsely implicate innocent persons in a case like this. If the purchase was from any other show room, naturally PW1 would have proceeded against the said show room and not against the opposite parties herein. The opposite parties have no case that PW1 is having any ill-will or enmity towards them . It is true that Ext.A1 is only an estimate and no bill is produced by the complainant. Ext A1 does not show the name of the shop, the name of the party to whom it was issued, seal etc. It may be noted that it is only a common knowledge that many shops and establishments are issuing only estimates to the customers. This is rather admitted by RW1 also. The opposite parties have no case that in their show room there is no practice of issuing estimate like Ext.A1. It is seen that on 10/07/2015, the complainant had issued Ext.A2 Lawyer notice to the opposite parties. The first opposite party received the notice. Notice to the 2nd opposite party was returned with endorsement ‘unclaimed’. The endorsement of the postal authorities shows that intimation was given to the 2nd opposite party. So it has to be presumed that there was valid service of notice on the 2nd opposite party. But the opposite parties have not sent any reply. In Ext A2 it is clearly stated that the complainant purchased furniture from the shop
of the opposite parties. If it was not true, the opposite parties could have denied it in the first opportunity by sending a reply. But that was not done. Further, it is to be noted that subsequent to Ext.A2, the complainant had lodged a complaint against the firm and the 1st opposite party in the Police Station. Further the complainant has produced Ext A8 mobile phone bills which show that he had on several occasions contacted the 1st opposite party in his mobile phone with number 9946908080. Thus the evidence of PW1, the documents produced by him and the attendant circumstances would prove that the complainant purchased furniture from Nasco furniture show room. It appears that the denial of the transaction in the version filed by the opposite parties is only with a view to wriggle out of the situation. From the above discussion, we have no hesitation to hold that the complainant is a consumer who purchased furniture from the opposite parties and he is competent to file a complaint under section 12 of the Consumer Protection Act, 1986. Point found accordingly.
10. Point No.2 : Now the next point to be considered is as to whether the furniture supplied to the complainant was defective and whether there was any unfair trade practice from the side of the opposite parties. PW1 has deposed that on 19/12/2014, during night the opposite parties delivered the furniture at his residence. But the dressing table, sofa and settees supplied were not the ones selected by him and were of substandard quality and so on the next day morning itself he contacted the opposite parties and informed them about the poor quality of the items delivered. PW1 has deposed that the opposite parties had informed him that it was a mistake on their part and the defective items of furniture would be substituted by new
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items. But there was no response thereafter and finally due to the intervention of Sri. Hameed Kariad, a member of the District Panchayath, they came and took back the sofa and settees in a vehicle and promised to take back the dressing table in the vehicle in which the new sofa and settees would be brought. But the grievance of PW1 is that the opposite parties did not supply the new ones and the dressing table was also not substituted as promised. There is absolutely no reason to disbelieve PW1 in this regard. The opposite parties have no case that they have supplied new items to the complainant. If there were no defects, the opposite parties would not have taken back the items from the house of the complainant. Equally, they have no case that new dressing table was supplied to the complainant after taking back the old one.
11.The stand taken by RW1 is one of total and complete denial. But the opposite parties did not deny the allegation at the first opportunity by sending a reply notice to Ext.A2. They cannot avoid the liability by banking upon Ext A1 by taking the contention that no bill is produced by the complainant.
12. The complainant has taken out an expert commission to inspect the disputed dressing table lying in his house and file a report before this commission regarding the condition, the quality of the material, the defects etc of the dressing table. Ext.C1 is the report filed by the Junior Instructor (Carpenter) Govt. ITI, Kozhikode, after inspecting the dressing table (almirah). Ext. C1 shows that almirah is a defective one. The door is defective and unable to lock. There is fungal infection inside the almirah. It is further reported that the
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timber is not of good quality. Thus Ext C1 lends support to the case of the complainant that the dressing table (almirah) supplied to him by the opposite parties was defective. The contention of the opposite parties is that the expert has not given notice to them before the inspection. But it may be noted that they have not taken any steps to set aside Ext.C1.
13.To sum up, the evidence tendered by PW1 coupled with the documents produced and Exts. C1 would prove that the dressing table, sofa and settees supplied to the complainant by the opposite parties were of substandard quality and defective and though the opposite parties had promised to substitute the same with new items, no positive steps were taken. The sofa and settees taken by the opposite parties under the guise of replacement were not returned and the nothing was done with regard to the dressing table which is available with the complainant. The opposite parties have cheated the complainant by supplying substandard furniture. The acts of the opposite parties amount to unfair trade practice. The complainant is entitled to get new sofa and settees and dressing table or else to get return of the purchase price from the opposite parties. The complainant has also claimed compensation to the tune of Rs.25,000/- towards mental agony. It is in evidence that the complainant thought of purchasing the said items of furniture in connection with the marriage of his brother. Ext A2 indicates that the supply of the furniture by the opposite parties was on the eve of the wedding day. The act of the opposite parties in supplying defective furniture and the subsequent act of not substituting the defective items with new ones as promised amount to acts causing mental agony and pain to the
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complainant. Eventhough the claim of the complainant appears to be excessive , he is entitled to get a reasonable amount as compensation. Considering the entire facts and circumstances of the case, we are of the view that Rs.10,000/- would be reasonable compensation in this case. The complainant is entitled to get Rs.3,000/- as cost of proceedings. Point found accordingly
14. Point No. 3 : In view of the findings on the above points, the complaint is disposed of as follows:
(a) CC.38/2016 is allowed in part.
(b) The opposite parties are directed to deliver defect free and qualitative sofa and settees and dressing table (almirah) to the complainant, or else, to return a sum of Rs.13,500/- (Rupees Thirteen thousand and five hundred only) towards the purchase price of the sofa and settees and Rs.16,000/- (Rupees Sixteen thousand only) towards the purchase price of the dressing table (almirah), total being Rs.29,500/- (Rupees Twenty nine thousand and five hundred only). The opposite parties can take back the dressing table (almirah) supplied by them, from the house of complainant.
(c) The opposite parties are directed to pay Rs.
10,000/- (Rupees Ten thousand only) as compensation for mental agony to the complainant.
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(d) The opposite parties are directed to pay Rs.3,000/-
(Rupees Three thousand only) as cost of proceedings to
the Complainant.
(e) The order shall be complied with within 30 days
from today.
Dictated to the Confidential Assistant, transcribed by her and corrected by me and pronounced in the open commission on this the 10th day of August 2021.
Date of Filing: 23/01/2016.
Sd/-
PRESIDENT
Sd/-
MEMBER
Forwarded/By Order
//True copy
Senior Superintendent.
