Advocate S.S.Joshi for Complainants

Opponent Nos. 1 and 2 exparte

Advocate S.S.Bhalerao for Opponent No.3

Per Hon’ble Shri. V.P. Utpat, President

                                     JUDGMENT

                                Dated 3^rd June 2014

                This complaint is filed by consumer against trader and service provider for deficiency in service u/s 12 of the Consumer Protection Act, 1986.  Brief facts are as follows-

[1]            Complainants are husband and wife and owners of Shop No.8, which is situated at Meenal Arcade, Karve Road, Erandawane, Pune 411 004. They were in search of flooring and door locks of ‘Sigma Company’ which were required by their Interior Decorator.  In this connection, they approached to the Opponent No.3, who had suggested to purchase flooring springs and door locks from Opponent Nos.1 and 2.  It is the case of complainants that, they are facing problem since the day on which the springs and locks were fitted.  The door was not stopping on the place of the lock and it used to go further ahead or remains backwards away from the locking places.  Complainants had intimated this fact to the Opponent Nos. 1 to 3 and requested to remove the defect.  Opponent No.3 had sent one representative who had inspected the door but could not remove the defect. Complainants are suffering a lot due to the defect in the product as electricity consumption is increased due to the non stopping of door at proper places. Opponents did not pay any heed for the request of complainants. Hence, complainants have filed present complaint claiming refund of price of product as well as compensation of Rs.3,00,000/- for physical and mental sufferings.

[2]            Opponent Nos. 1 and 2 though duly served remained absent. Hence, complaint is proceeded exparte against them. 

[3]            Opponent No.3 resisted the claim by filing written statement as well as affidavit.  It is the case of Opponent No.3 that there is no privity of contract between the complainants and himself, hence, complaint is not maintainable.  It is further contended that, the transaction between the parties is commercial transaction as complainants had purchased the articles for their business. Opponent No.3 has further denied all the allegations made in the complaint and prayed for dismissal of the complaint.

[4]            After scrutinizing the documentary evidence on record, pleadings of both parties, affidavits and written argument, following points arise for the determination of this Forum. The points, findings and reasons thereon are as follows-

Reasons-

As to the Point Nos. 1 to 3-

[5]            It reveals from the record which is produced by the complainants that, they have purchased the material from Opponent Nos. 1 and 2. The first receipt is as regards flooring springs worth Rs.5457/- which is from Namoh Hardware i.e. the Opponent No.2 and the second receipt is in the name of Tara Traders i.e. the Opponent No.1 as regards purchase of door locks worth Rs.31,587/-.  These facts are not denied by the Opponents. Opponent Nos. 1 and 2 did not appear before the Forum and resisted the claim. In such circumstances, it is the opinion of this Forum that, complainants have proved that, they have purchased the material from the Opponent Nos. 1 and 2.

[6]            It is the case of complainants that the said articles were defective and could not be fitted to the glass door of their shop. Hence, they had suffered lot of expenses due to the consumption of electricity. This fact is not denied by the Opponent Nos. 1 and 2.  Opponent No.3 has filed affidavit of representative Shri. Divyesh Shah, as well as written argument along with written version. It is the case of Opponent No.3 that the transaction between the parties is commercial transaction, hence, complaint is not maintainable.  But it reveals from the record that, the complainants have purchased the articles for their business but not for sale or resale. In such circumstances, it cannot be said that, it is a commercial transaction. It is also contended by the Opponent No.3 that, there is no privity of contract between themselves and the complainants. Complainants have failed to produce any documentary evidence to show that, they had engaged Opponent No.3 for fitting of the locks as well as flooring springs to the glass door of their shop.  There is no record produced by the complainants to show that, they had paid any remuneration to the Opponent No.3 for fitting of locks and flooring springs. In such circumstances, this Forum has no hesitation to held that, there is no privity of contract between the complainant and the Opponent No.3 and no relief can be granted against the Opponent No.3.

[7]            In the light of above discussion, it is established that the complainants have purchased the material from the Opponent Nos. 1 and 2 and which could not be fitted to the glass door of their shop. In such circumstances, it is the considered opinion of this Forum that, the products which are sold by the Opponent Nos. 1 and 2 are defective and complainants are entitled for the refund of price of those articles. Complainants are also entitled for compensation on the ground of mental and physical sufferings and cost of litigation.

                In the result, this Forum answers points accordingly and pass following order-

                                        :- ORDER :-

1. Complaint is partly allowed against Opponent Nos. 1 and 2 only.
2. It is hereby declared that the Opponent Nos. 1 and 2 have caused deficiency in service by selling defective product to the complainant.
3. Opponent Nos. 1 and 2 are directed to collect the material which was supplied to the complainant.
4. Opponent No.1 is directed to refund amount of Rs.31,587/- [Rupees Thirty One Thousand Five Hundred and Eighty Seven only] to the complainants within six weeks from the date of receipt of copy of order.
5. Opponent No.2 is directed to refund amount of Rs.5457/- [Rupees Five Thousand Four Hundred and Fifty Seven only] to the complainants within six weeks from the date of receipt of copy of order.
6. Opponent Nos. 1 and 2 are jointly and severally directed to pay amount of Rs.10,000/- [Rupees Ten Thousand only] to the complainants towards compensation for mental and physical sufferings  within six weeks from the date of receipt of copy of order.
7. Opponent Nos. 1 and 2 are jointly and severally directed to pay amount of Rs.2,500/- [Rupees Two Thousand Five Hundred only] towards costs within six weeks from the date of receipt of copy of order.
8. If the amount is not paid or deposited within the stipulated period, it shall carry interest @ 9% p.a. from the date of filing of complaint till its realization.
9. Complaint is dismissed against Opponent No.3
10. Both parties are directed to collect the sets which are provided for the Hon’ble Members within one month from the date of order. Else those will be destroyed.

        Copy of order be supplied to both the parties free of cost.