The complaint case is filed on 26.08.2020 u/s 35 read with 37 and 38 of the Consumer Protection Act ’2019, the OP1 being the contesting party. The case has been running ex-parte against OP 2 as per order dated 17.12.2020 since W/V was not filed.

The gist of the complaint as averred on affidavit by Mr. Navin Shah of Kolkata 700074 in a capsulated form is that the petitioner opted to purchase a set of modular kitchen from the OP 1 company Godrej & Boyce Mfg. Co. Ltd. who are also engaged in selling furniture and home essentials including modular kitchen set and the OP 2 namely –Eastman- is the franchisee of OP 1 company. The OP 2 was visited by the complainant for placing order for one number of modular kitchen (Kitchen cabinet set) against a total consideration money of Rs. 1,45,000/- (Rupees One lakh forty five thousand only) that was paid as full and final amount by two cheques on 17.04.2019 and 09.07.2019 drawn on State Bank of India duly acknowledged by OP 2 against receipts. The material was delivered at complainant’s place on 20.07.2019 contained in box pack which the complainant claimed having been received under open and broken seal condition. The petitioner also observed that the stickers pasted on the boxes bore the manufacturing date as January 2019. As the OP2 stated that such materials were manufactured in Mumbai hence two months would be required for delivery of the same from the order date to deliver at the complainant’s place. The complainant mentioned this aspect in the invoice dated 20.07.2019 issued by the OP 2 and further undertook installation within 2 to 3 days. Both OP 1 and OP 2 neglected to visit the complainants place to install the kitchen cabinet set for which the complainant visited the office of OP 2 several times and the same was ultimately installed on 09.08.2019. After the said installation of the kitchen items, it appeared to the complainant that the sets /colour of the kitchen cabinet and boxes were withered off, not properly painted, bore patches and the mark of repair works seems to be used one, old, fake and with poor type of installation. The complainant intimated the same to the OPs and on 18.08.2019 the OP 2 inspected the materials and took photographs of the said faulty items with a promise for replacement soon. Though complainant contacted both OP 1 and 2 for replacement of the kitchen cabinet set but the OPs delayed to comply, in spite of full payment made by the complainant for the materials. However on 16.10.2019, the OP no. 2 sent replacement materials which the complainant did not accept having such materials been faulty and defective like the previous consignment. It is also alleged that no guarantee card was provided by the OP 2 to the complainant. Feeling deprived the complainant issued a letter dated 26.08.2019 to OP 1 and 2 for replacement of the kitchen cabinet set which was never complied with. The complainant states that since the OPs are contractually obliged and liable for replacement of the defective kitchen cabinet set hence it is a case of gross negligence due to service deficiency by the OPs for which the complainant suffered mental harassment and agony till date. The complainant prayed for either replacement of the said defective kitchen cabinet set supplied or refund of the consideration money of Rs. 1,45,000/- by taking back the defective product along with compensation of Rs. 2,00,000/- for harassment and mental agony due to negligent and deficient service and litigation cost thereof.

The petitioner exhibited following documents as annexures during adducing evidence :-

1. Excerpt of the address of OP 2 as franchisee (Eastman) situate at 83/1, B.T. Road, Baranagar P.S., Kolkata-700090  (page 10)
2. Receipt no. 25168 dated 13.04.2019 for Rs. 900/- issued by OP 2 with rubber stamp and seal for visit charges (page 11)
3. Order confirmation form issued by OP 2 vide form no. 91379 along with rubber stamp, seal and signature for supply of one number Godrej Modular Kitchen with mention of door-Orange (PU) ; Salt White (PU) for order amount Rs. 1,45,000/- with advance payment of Rs. 80,000/- & balance outstanding being Rs. 65,000/- (page 12)
4. Receipt no. 25169 dated 17.04.2019 for Rs. 80,000/- by cheque no. 226620 dated 17.04.2019 drawn on SBI (page 13)
5. A black and white print out of model kitchen set (page 14)
6. List of components and drawing for setting up the modular kitchen with mention of complainant for installation (page 15)
7. Receipt no. 740203 dated 09.07.2019 for Rs. 65,000/- vide cheque no. 226623 dated 09.07.2019 drawn on SBI (page 16)
8. Challan no. EM/KIC/0369/2019-20 dated 20.07.2019 issued by OP 2 to complainant for a quantity of one number with item description as modular kitchen material (RPL no. wono12652) containing 11 packets transported by vehicle no. WB03C2290 with customer remark as “Navin Shah 20.07.2019 received with packets open and seal broken (page 17)
9. Complainant’s letter dated nil sent by registered post to OP 2 on 26.08.2019 (page 18-19)
10. Postal track report showing delivery completed of the complainant’s letter (page 20)
11. Photograph of defective material - illegible (page 21)
12. Photograph of kitchen cabinet kit/cooking/grocery/thali/dish kit packed on 12.01.2019 and 31.03.2019 (page 22, 23 and 25)
13. Completion certificate issued to OP 2 by the complainant on 09.08.2019 with remarks as “installation was delayed a lot” (page 24)
14. Challan number illegible dated 16.10.2019 with mention by complainant “the articles are defective and faulty like the previous one as such are not accepting” dated 16.10.2019 countersign by OP 2- material invoice (page 26)
15. Correspondences between OP 2 and complainant from their personal emails(page 27- 28)

The OP1 contested the case by filing Questionnaire, Reply and BNA. It was pointed out that the case was filed in 2020 under the Consumer Protection Act 1986 when the law got repealed. The OP1contended that the OP1 company branch name and address is not mentioned in complaint petition. The bank statement of paid amount is not filed by the complainant. OP1 contested that the challan dated 20.7.2019 was issued from GC 195 Salt lake and not issued from the store of OP1 company. Since complainant accepted to install the product inspite of not receiving warranty card, hence it amounts to acceptance by the complainant. The OP1 also contended that no expert opinion was requisitioned by complainant about alleged mis-match in shades/colour of the product. On 16.10.19 the OP2 tried to replace the goods but the complainant refused it. Complainant also claimed having sent a letter already on 26.8.19 to OPs intimating about the deficiency by registered post. The OP1 expressly denied having supplied the disputed materials or having any knowledge or connection with this sale whatsoever including issuance of any document as exhibited by complainant.

Points of consideration

1. Is the complaint of 2020 filed under Consumer Protection Act 1986 or 2019 ?
2. Whether the complainant purchased the product from the OP1 and OP 2 ?
3. Whether the OPs guilty of deficiency in sales & service and unfair trade practices ?
4. Is the complainant entitled to get relief as prayed for ?

All the points are taken up together for the sake of brevity and for avoidance of repetition of factum. The Ld. Advocate of the OP 1 argued that the case is not maintainable since the dispute of 2019 has been filed u/s Consumer Protection Act 1986. But upon perusal of complaint petition it is clearly stated therein in para 1, page 3, that the same is filed u/s 35, 37 and 38 under Consumer Protection Act 2019. Hence the point raised by the OP 1 is not substantiated and as such the point no 1 is decided in favour of the complainant.

Upon perusal of all records, documents and exhibits filed by both the parties, it appears that the complainant purchased the product from the OP no. 2 after payment of the consideration amount. The OP no. 2 also issued money receipt which reflects that the complainant duly made payment for getting the product and the services from the OP no. 2. Therefore the complainant is a consumer u/s 2(7) of the Consumer Protection Act 2019. The OP 1 contested the case by filing W/V and denied all material allegations of complainant. It also appears from records that there is not a single document that has been exhibited by the complainant which depicts that the OP no. 1 was involved in the sales & service of the product in question in whatsoever manner. To the contrary, it transpires from all the relevant documents that the sale was effected from the end of the OP no. 2. In absence of any cogent reason or documentation as a proof thereof, the product liability action u/s 83 of the CP Act 2019 could not be brought out by the complainant adequately against OP1 company as a seller or a service provider for the allegedly defective product. No vicarious liability of the OP 1 company could be established by the complainant as the essential ingredients to establish vicarious liability was found not present through any tortious act or negligence by the OP 1 Company. As such the point no 2 is decided in favour of the complainant and against the OP no. 2 only.

The OP 2 received the letter dated 26.08.2019 from the complainant by registered post and replied by email (exhibit – page 28) promising remedial measures but not taken up other repair/replacement jobs and also did not pay any heed, for which the complainant filed this case praying for a direction on the OPs for replacement or refund with costs.The OP 2 got the letter dated 26.08.2019 issued by complaint but failed to comply with the same, neither contested at that point with any cogent reason or during adjudication of this case. Therefore in absence of any defence, the averments of the complainant that the OP no. 2 being guilty of deficiencies in rendering services under the scope & meaning of Consumer Protection Act 2019 is getting unchallenged. The OP no. 2 failed to render satisfactory services as a seller and not appeared during adjudication of this case in hand, in his support. On the other hand, the inaction from the OP no. 2 caused harassment of the complainant due to deficiency in services. Thus the point no. 3 and 4 are also decided in favour of the Complainant and against the OP no. 2.

In the result, the complaint case succeeds.

ORDERED

That the instant case be and the same is allowed on contest with cost.

The OP no. 2 is liable and directed to report before the complainant and collect the materials supplied by them within 45 days from the date of this Final Order.

The OP no. 2 is also liable and hence directed to pay a refund of Rs. 1,45,000/- (Rupees One Lac Forty Five Thousand only) within 45 days from the date of passing the Final Order.

The OP no. 2 is also liable and directed to pay a compensation to the tune of Rs. 10,000/- (Rupees Ten Thousand only) for the mental pain and agony that the complainant suffered and a litigation cost of Rs. 5,000/- (Rupees five Thousand only) within 45 days from the date of passing the Final Order.

The complainant is at liberty to put this order into execution after expiry of 45 days from the date of this Final Order, in case the Order is not complied with by the OP no 2 within 45 days from the date of passing of this Final Order.

Let a copy be sent / supplied free of cost to both the parties. The Final Order shall be available in the website at  

Dictated and corrected by

[HON'BLE MR. Partha Kumar Basu]
MEMBER