Per:- Mr. Deshpande, President Place : BANDRA JUDGMENT The Complainant purchased a 05 doors wardrobe from the Opposite Party for sum of Rs.17,000/- on 27/12/2004. Delivery of the said wardrobe was received by the Complainant on payment of entire amount. However, according to the Complainant, from the month of March-2005 onwards, white powder started oozing out from the wardrobe and in the next rainy season, the wardrobe was affected by fungus. The Complainant did not initiate legal action immediately because the Opposite Party had not issued him a receipt. The Complainant started pursuing with the Opposite Party and the Opposite Party sent receipt/invoice on 19/12/2005. Thereafter, representative of the Opposite Party visited the Complainant’s house and inspected the wardrobe and suggested the Complainant to have pest control, but that suggestion was not acceptable to the Complainant. The Complainant started asking the Opposite Party to replace the wardrobe or refund its value Rs.17,000/- and sent such letters to the Opposite Party, vide his letters dtd.2/1/2006 & 10/4/2006. However, there was no response from the Opposite Party and ultimately, the Complainant filed the present complaint on 31/10/2006 seeking refund of sum of Rs.17,000/- together with interest thereon as from the date of purchase of wardrobe and compensation in sum of Rs.5,000/-. [2] The Opposite Party contested the complaint by filing an affidavit and took stand that the wardrobe was purchased by the Complainant on taking inspection and even at the time of delivery, the Complainant did not raise an objection. In fact, the Complainant kept quite till the month of December-2005 i.e. for a period of one year from the date of purchase and did not raise an objection. The Opposite Party denied deficiency in service on its part. [3] The Complainant filed his rejoinder to the written version field by the Opposite Party. The Complainant also filed his affidavit of evidence as well as documents. Both the sides filed their respective written notes of arguments. [4] We have gone through the pleadings, affidavits, documents and written notes of arguments filed by the parties. [5] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether the Complainant has proved that the Opposite Party sold him a defective wardrobe and thereby there had been deficiency in service on the part of the Opposite Party? | YES | 2. | Whether the Complainant is entitled to replacement or refund of price of wardrobe? | Refund of price of the wardrobe. | 3. | What order? | The complaint is partly allowed. |
REASONS FOR FINDINGS [6] According to the Complainant, he purchased a wardrobe from the Opposite Party for sum of Rs.17,000/-, but he did not receive the invoice from the Opposite Party at the time of delivery of the wardrobe, but it was subsequently tendered to him, when the Complainant started pursuing the matter. The Complainant has produced on the record a copy of the invoice dtd.26/12/2004, which shows that the Complainant purchased a wardrobe from the Opposite Party for sum of Rs.17,000/-. Below that there is copy of challan dtd.26/12/2004, regarding delivery of wardrobe and in the body of the challan, there is an entry to the effect that an amount of Rs.4,000/- was received from the Complainant. This corroborates evidence of the Complainant that he paid Rs.17,000/- in two installments to the Opposite Party towards purchase price of the wardrobe. According to the Complainant, from the month of March-2005 onwards white powder started oozing from the wardrobe. In his letter dtd.20/12/2005, the Complainant had mentioned that from the time of installation of the wardrobe, he had been noticing white powder oozing from the wardrobe and the wardrobe was affected by fungus from top to bottom. In its reply dtd.9/1/2006, addressed to Grahak Panchayat with regard to the complaint lodged by the Grahak Panchayat on behalf of the Complainant, the Opposite Party stated that after receipt of the complaint, they visited the Complainant’s house, inspected the wardrobe and there was no problem, but admitted that at some places yellow powder had came out and there was moisture problem in the house, which could have been solved by simple treatment of pest control. It does not stand to reason that in the humid atmosphere at Mumbai, there can be moisture problem. Thus, the Opposite Party admitted that white powder from the wardrobe was oozing out. In the affidavit of evidence, a partner of the Opposite Party, by name – Mr. Siraj Mohammed; has not deposed that there was no problem with the wardrobe. On the contrary, he deposed that if at all there was any problem, the Complainant should have raised an objection in time. In the Service Report, a copy of which was sent by the Opposite Party to Grahak Panchayat, there was mention of this problem. Thus, the evidence on record, substantiate the contention of the Complainant that the Opposite Party had delivered defective goods to him. [7] On delivery of such defective goods, it was not for the Opposite Party to suggest the Complainant to go for pest control. The Opposite Party should have replaced the defective goods or should have repaired the same to remove the defect. That did not happen and the Opposite Party suggested the Complainant to go for pest control. In the written notes of arguments, the Complainant has alleged that because of poor quality of wood with which the wardrobe was built, the said wardrobe got affected and has become useless. Therefore, we hold that the Complainant has proved that the Opposite Party is guilty of deficiency in service. [8] The Opposite Party has raised a contention to the effect that he is merely a dealer and not a manufacturer and being a dealer, he is not liable to pay compensation to the Complainant. However, in the affidavit of reply, this contention does not find place. Moreover, the Opposite Party has not adduced evidence to prove that the wardrobe was manufactured by any other party and it was received by the Opposite Party and being a dealer, it sold the same to the Complainant. Moreover, the invoice as well as the delivery challan does not refer to the Opposite Party, as a dealer and any other party as the manufacturer. In view of these facts, this contention cannot be entertained to dislodge the claim of the Complainant on the ground that the Opposite Party being a dealer is not liable to the Complainant for the alleged deficiency in service. [9] The Complainant has sought refund of amount paid towards price of the wardrobe. In view of the relations between the parties, we find that it would be appropriate to direct the Opposite Party to refund the amount of the wardrobe on giving redelivery of the wardrobe by the Complainant to the Opposite Party. So far as question of awarding compensation is concerned, we find that since we are awarding interest on the price as from the date of complaint, it would not be appropriate to award any separate amount by way of compensation. Hence, we proceed to pass the following order:- ORDER The complaint is partly allowed. The Opposite Party is hereby directed to pay to the Complainant, a sum of Rs.17,000/- together with interest thereon @ 9% p.a., as from 31/Oct/2006 till realization of amount by the Complainant, subject to handing over the possession of the wardrobe by the Complainant to the Opposite Party, as per invoice & delivery challan. It is made clear that payment of awarded dues and handing over the possession of the wardrobe shall take place simultaneously. The Opposite Party is further directed to pay to the Complainant a sum of Rs.500/- towards costs of the proceeding. The Opposite Parties shall comply with the foregoing order within a period of four weeks from the date of receipt of this order. Rest of the claims of the Complainant stands rejected. Inform the parties by sending certified copies of this order.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | |
