Date of filing : 11.07.2018
Date of Judgement: 27.09.2019
Mrs. Balaka Chatterjee, Hon,ble Member
This petition of complaint is filed under Section 12 of the Consumer Protection Act, 1986 by Asim Kumar Basu alleging deficiency in service on the part of the Opposite Parties ( referred to as OP hereinafter ) namely (1) The Beautility Beaucraft ( 2) Raj Burman.
Facts in brief are that the OP No.2 has been running a showroom for furniture in the name and style of ‘Beautility Beaucraft’ ( OP No.1 herein ) and the complainant along with her niece visited the said showroom on 23.01.2018 for purchasing some furniture for the purpose of marriage ceremony of his niece which was scheduled to be held on 01.02.2018. The complainant has stated that he categorically explained the sole purpose of purchasing the furniture to the OP and on receiving assurance from the OP that the items would be delivered on or before 30.01.2018 and being satisfied with their commitment the complainant booked two centre table cum ladder by paying Rs. 10,000/-. Out of entire consideration amount of Rs. 15,000/-. The complainant has further stated that on and from 27.01.2018 he and his niece made several phone calls to the OP enquiring about delivery of the items booked by them but the OPs did not take their call. However, on 30.01.2018 a message over ‘whatsapp’ was received by the nephew of the complainant sent by the OP stating that the items were ready for delivery and on receiving the said intimation the complainant along with his nephew went to the showroom of OP No.2 but on their utter surprise, they found that the items were not ready at all and, moreover, one centre table cum ladder having light grey colour top was remaining too dirty and base platform of the same contained scratch marks and part of it was also broken and second one having dark grey top was fitted in inclined mode, rolling wheels were absent and was extremely dirty. The complainant has further stated that the staff of the said shop room insisted them to take delivery of the said items claiming the broken base would not affect its utility and the second one was a displayed product but the complainant refused to accept the items as the purpose of purchasing the same was to send the same to the house of would be in-laws of his niece. It is further stated by the complainant that after having a brief discussion with the OP No. 2 it was decided that the fresh new items would be delivered on 10.02.2018 and again on 07.02.2018 the OPs informed to niece of the complainant that the furniture were not ready for delivery and another 7 to 10 days was required to deliver the same and at that point of time the complainant and his niece took the decision to cancel the said booking and informed the same to the OP No.2 over ‘WhatsApp’ message on 12.02.2018 and asked for refund of deposited amount. The OPs did not refund the same and, therefore, the complainant sent notice dt. 05.03.2018 but that yielded no result. It is further stated by the complainant that he filed a complaint before the Asstt. Director, Central Consumer Grievances Redressal Cell and lodged a General Diary being GDE No. 1600 of 2018 with Rabindra Sarovar Police Station, but, inspite of that, the OPs remained unmoved and, therefore, being aggrieved the complainant by filing the instant consumer complaint prayed for direction upon the OPs to refund Rs.10,000/- along with an interest @ 18% p.a. payable from 23.01.2018, Rs.50,000/- towards compensation, Rs.15,000/- towards cost of litigation and other reliefs.
The complainant annexed document s including photocopy of wedding card of his niece, order form and money receipt dt. 23.01.2018. Screen shot of the ‘WhatsApp’ messages dt. 31.01.2018 and 12.02.2018, notice dt. 30.01.2018.
OPs contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating, inter alia, that the complainant booked two centre table cum ladder on 23.01.2018 by paying Rs.10,000/.- out of total consideration of Rs. 15,000/- which was to be delivered on 30.01.2018 and the OPs intimated the complainant that the items were ready to deliver and receiving such intimation the complainant along with his nephew went to that show room but refused to take delivery of the items on the ground that there appeared light scratch marks on the base platform of the said items. The OPs further stated that to keep their reputation intact he was agreeable to deliver new products by or on 10.02.2018. The OP has further stated that they had to depend upon other suppliers for supply of iron structure which is required for making centre table cum ladder and due to non-supply of iron structure by the third party they have failed to prepare the booked item which is beyond their control. The OPs have further stated that in anticipation that they might deliver the same on 13.02.2018 they intimated the complainant through ‘WhatsApp’ message on 07.02.2018. It is stated by the OP that on 12.02.2018 the complainant through a ‘WhatsApp’ message cancelled the said booking when the items were about to ready for delivery and thereafter the complainant sent demand notice and lodged a diary against the OPs with Rabindra Savovar Police Station. It is further stated by the OPs that reason behind delay in delivery of items was beyond his control and therefore, as per terms and condition mentioned in the order form the OP was no way liable and as such there was no deficiency on his part and accordingly prayed for dismissal of the case.
The complainant adduced evidence. The OPs prayed for treating their written version as their evidence. Prayer was allowed. Both the parties filed questionnaire against the evidence of other side and reply thereto.
In course of argument both parties advanced their arguments respectively.
Points for determination :
- Whether there is deficiency on the part of the OP
- Whether the complainant is entitled to the reliefs as prayed for.
Points for determination :
Point No. 1 & 2 : Both points are taken up for comprehensive discussion and decision. Admittedly, the complainant booked two centre tables cum ladder by depositing Rs.10,000/- towards advance booking amount to the OP. It is stated by the complainant that the said items was to have been delivered on 30.01.2018 which the OPs admitted in their written version but disputed the said admission by filing reply. So it is evident that the OP made contradictory statements. It also appears from annexure ‘B’ to the petition of complaint that the complainant deposited the said amount on 23.01.2018.
Admittedly, on 30.01.2018 on receiving information from OP the complainant along with his nephew went to the showroom of the OP No.2. It is claimed by the complainant that he refused to accept the items on the ground that the booked items were defective. It appears from para no .3 of written version the OP also admitted that there were some light scratches on the base platform of the table which might have been happened due to careless handling of tools by the workmen. It is, therefore, evident that the items booked by the complainant were suffering with some defects. The OPs have claimed that the furnitures were perfect for use. However, it cannot be accepted that a purchaser being aware of the defects will purchase the same. The items was to be delivered on 30.01.2018 but the OPs failed to deliver the same on 30.01.2018. Moreover, on 30.01.2018 they made commitment to deliver the same on 10.02.2018 and again on 07.02.2018 sending message intimated their inability to deliver the same on the date fixed.
It appears from petition of complaint and photocopy of wedding card filed by the complainant that marriage ceremony of niece of the complainant was scheduled to be held on 01.02.2018 It further appears from the reply to the question no.7 put by the complainant the OP No.2 had admitted that he was aware about the date of marriage.
The complainant stated that the items booked by him for sending the same to the in-laws house of his niece. It is, therefore, evident that on the said date of marriage the items were not delivered which was supposed to be sent with his niece to her in-laws place.
However, Subsequently the complainant was agreeable to take delivery of the said items on 10.02.2018 but the OP expressed their inability to deliver the same on the said date too. It is specific defence of the OPs that as per terms mentioned in the order form, the OPs would not be liable for delay in delivery happened due to any reason which is beyond their control and further stated that iron structure which was required for making the Centre Table cum Ladder had been supplied by third party and non-supply of such structure was the reason behind delay which was beyond their control.
On perusal of documents on record we do not find any such document upon which the OP placed reliance and wherefrom it could have been evident that the iron structure has not been supplied. It is further claimed by the OPs that due to cancellation of booking on the part of the complainant they had to suffer monitory loss. In this regard, we find that admittedly the items were defective, admittedly the OPs failed to deliver the same on 10.02.2018 even after 10 days of marriage ceremony of the niece of the complainant. Moreover, the averment of OP made in the written version which was also treated as evidence, on the prayer made by the OP, the same has not been affirmed by swearing affidavit so the grounds taken by OP is not at all taken into consideration. In our view , this act of OP amounts to deficiency in service and, therefore, the complainant is entitled to the relief.
Regarding prayer for refund of deposited amount, in our opinion, this prayer is to be allowed.
As regards prayer for compensation, in our opinion, it will be just and proper if an amount of Rs. 1000/- is allowed towards compensation.
It appears from record that the complainant sent demand notice dated 05.03.2018 and lodged complaint before Consumer Grievance Redressal Cell but the OPs did not pay any heed to that steps taken by the complainant and therefore, compelled the complainant to file the instant case so they are liable to pay litigation cost.
Point No. 1 & 2 are decided accordingly.
Hence,
Ordered
That CC/ 419/2018 is allowed in part on contest with cost.
Opposite Parties are directed to refund Rs. 10,000/- to the complainant within one month from the date of this order.
Opposite Parties are further directed to pay Rs. 1000/- towards compensation and Rs.10,000/- towards cost of litigation within abovementioned period failing which the entire amount shall carry interest @9% p.a. till realisation in full thereof.
