Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that  On 01.03.2019 the petitioner for his personal requirement booked one five seated sofa set to the op-2 by Rs.1000/- as advance of Godrej Interio which is product of the op-1.  The op-2 delivered the same on same date with issuing a challan cum tax invoice of Rs.38500/- by their agent to the petitioner house but the agent had not opened the plastic cover of the said alleged product at the delivery time.  On 13.3.2019, when the petitioner opened the plastic cover surprisingly noticed that one of the single seated sofa is defective on its surface.

The petitioner then and there informed the matter to the op-2 and op-2 asked the petitioner to send the photography of the same and the petitioner did the same as per their direction. And on 02.4.2019 the petitioner being informed that the complaint dated 13.3.2019 has been lodged to the ops and the petitioner was asked to contact Mr. Subra Nandy. And the petitioner several; times contacted with the said number and the ops assured that the set will be replaced from one month to forty five days.  The petitioner lastly called on 17.7.2019 but the ops kept mum.

On 13-8-2019 the petitioner again posted a request letter to the op-2 and on 26.8.2019 the petitioner got two messages from the ops as ‘GODREJ SMS’ that technician will be attending to him and surprisingly on 30.8.2019 got a message that such service call is completed but no one came to the petitioner and no fruitful result till yielded.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 38500/- to refund the entire price of the sofa set or replace the set with same value and to pay a sum of Rs.25000/- for loss of service and to pay a sum of Rs.25000/- for mental pain, agony and to pay a sum of Rs.15000/-  for litigation cost.

Defense Case:-  The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the sofa set in question had alleged to have been purchased by the complainant on 01.03.2019 and on the same day the said sofa set was delivered towards his end by the op-2 and the next 12 days, the said sofa set had been used by the complainant which had also been admitted by him, had there been any defect and / or deficiency in the said sofa set the said complainant ought to have made the same earlier and moreover it is the duty on the part of the complainant to check the product and /or the purchased goods in question in the very first instance at the time of receiving the said item.  Moreover what kind of defect and deficiency the said sofa set is having had  not been defined by the complainant in his petition of complain which fact itself cast a huge shadow upon the claim of the complainant and moreover no documentary evidence had been annexed by complainant in his position of complain to substantiate his claim and the complainant had failed to provide a single scrap of paper where from it could well be presume that there was deficiency in service or defect in goods, in the absence of that the complainant has no cause of action against the op-1 and as such his petition needs to be rejected with exemplanary cost.

Considering the facts and circumstances of this written version the ld. Forum would found that the instant complaint as has been filed by the complainant is false, baseless and harassing one and moreover the complainant have no cause of action to file this case against the op-1 and moreover the complainant is not entitled to get the relief as prayed for and as such this instant case is liable to be dismissed.

The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that whenever any person comes to buy any product, not only the product is clearly shown, the pros and cons are explained to the purchaser but also the warranty policy with regard to the product is clearly explained and a print of the warranty policy is always handed over to all prospective purchaser. The op-2 submits that the warranty policy has been framed by the op-1 and op-2 is duty bound and adheres to the warranty policy of the op-1.  The op-1 company specifies a warranty policy wherein within the warranty period defective components may be rectified as a consequence of manufacturing defect but the company maintains a policy that the whole product would never be replaced.

The answering op-2 submits herein that immediately after receipt of complaint from the instant petitioner the op-2 informed theop-1 in accordance with the policy followed and also assured the petitioner that his complain about the product in question could be looked after in accordance with the terms of the company.  With regard to the complain of the sofa in  question the purchaser was intimated through email that as per the principle policy only the defective part of the damaged sofa can be changed and a date was sought for from the petitioner in which the said changes would be made but the petitioner chose to remain silent and did not confirm the date. As such the job remained incomplete because of lack of cooperation on part of the petitioner.  A mail was sent to the petitioner at the email address provided by him being

The petitioner wanted that the whole product would be replaced but the op-2 at all points of time made it clear that replacement if upholstery would be made and not of the whole sofa.

The op-2 submits at all material points of time was ready to replace the upholstery of the sofa and rectify the alleged defect.  Efforts were made to this effect.  It was the complainant who stuck to his wish of having the whole product replaced.  The op-2 humbly submits that replacement of the whole product herein this case the alleged sofa cannot be made as it is against the policy of the op-1.  From the very initiation and at all material points of time the complainant had specific knowledge of this fact. So, the case is liable to be dismissed with cost.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Serampore, Hooghly and the official place of business of op no. 2 is at Chinsurah, Hooghly which are lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, 1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986. Complainant is a consumer in the eye of law.     All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that ops engaged in the business of manufacturing furniture such as beds/ cots, side table, bed side table, cupboards, dressing table etc.
2. It is also admitted fact that the complainant agreed to purchase one Godrej five seated sofa set from op no. 2.
3. There is no controversy over the issue that the complainant paid advance amount of Rs. 1000/- out of total price of Rs. 38,500/-.
4. There is no dispute over the issue that the complainant had paid the balance consideration amount of Rs. 37,500/- as full and final payment.
5. It is admitted fact that the complainant had paid the entire consideration amount of Rs. 38,500/- to the op no. 2 for purchasing the product of op no. 1.
6. It is also admitted fact that op no. 1 on 13.3.2019 had sent its installer to install the aforesaid sofa set in complainant’s resident which has been mentioned in the cause title of the complaint petition.
7. There is no controversy over the issue that the installer handed over a challan to the complainant regarding the aforesaid sofa set wherein it is clearly written that before taking delivery of the article check the materials and as per advice written in the challan the complainant checked the aforesaid sofa set wherein he found that single seated sofa is defective on its surface.
8. There is no dispute over the issue that the complainant reported the said defect to the installer and asked him to take back the aforesaid sofa set.
9. It is admitted fact that the ops agreed to replace the sofa set and also agreed to give effect of the warranty from the date of replacement but not from the date of purchase.
10. It is also admitted fact that the ops failed to replace the sofa set within time assured by them.
11. There is no controversy over the issue that thereafter both parties had sent email messages/ notices to each other.
12. There is no dispute over the issue that the petitioner had sent photograph of the defective sofa set to the op no. 2 and on 13.3.2019 he lodged complaint to the ops.
13. It is admitted fact that the ops requested the petitioner to make contact with Mr. Subhra Nandi.
14. It is also admitted fact that the complainant thereafter had made contact with Mr. Subhra Nandi who assure that the said sofa set would be replaced within 5 days.
15. There is no controversy over the issue that subsequently the complainant has instituted this complaint petition praying direction upon the ops to replace the sofa set and to supply a new sofa set and for payment of Rs. 35,000/- for mental pain and harassment.
16. There is dispute over the issue that the ops have not prayed any expert commission or local inspection commission in this case to inspect as to whether only sofa set is defective or not?

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

                   On the background of the above noted admitted facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant has adopted the plea that he has paid the entire consideration money of Rs. 38,500/- to the ops but they have supplied a broken sofa set and inspite of several request they have not intentionally replaced the said sofa set with a new one and this matter is clearly reflecting that the ops are carrying on unfair trade practice and there is deficiency of service on the part of the ops but on the other hand the ops adopted the defence alibi that they are ready to replace the broken sofa set but the complainant was not interested of such replacement of such broken sofa set and it clearly indicates that there is no deficiency of service on the part of the ops.

                       For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the ops have not prayed any expert commission or local inspection commission in this case to inspect as to whether only sofa set has been found defective or not? In view of this position this District Commission is of the view that the prayer of the complainant for replacement of the sofa set is required to be allowed at the cost of the ops.

Thus, the above noted points of consideration adopted in this case are decided on favour of the complainant.

In the result it is accordingly

ordered

that the complaint case being no. 192 of 2019 be and the same is allowed on contest but in part against the ops.

The ops are directed to replace the broken sofa set at their own cost and to pay compensation of Rs. 20,000/- for causing mental pain to the complainant and deficiency in service, within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.