CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM.
Present
Sri. Santhosh Kesavanath P. President
Smt. Bindhu M. Thomas, Member
Sri. K.N. Radhakrishnan, Member
CC No.322/10
Friday the 30th day of March, 2012
Petitioner : P.M. Abdul Vahab,
Parveen, Perunna,
Changanachery, Kottaym
Rep. by his Authorised agen t and
wife Smt. Mohamuda Beegum.
(Adv. Zakhier Huzzain)
Vs.
Opposite party : The Manager,
M/s. Style Spa Furniture Ltd.,
14/284, M.C.Road,
Opp.Sumangali Auditorium
Kodimatha, Kottayam.
(Adv.Sudhish.R, Ranjith. K.R
& Alex.M.Scaria)
ORDER
Smt. Bindhu M. Thomas, Member
The crux of the complainant’s case is as follows:-
The complainant, a retired College Professor purchased the following articles from the opposite party on 30/12/09 and 5-01-10 in exchange of two teak wood cots and balance payment of Rs.40,160/-.
a) Estilo Bed – 1
b) Estilo bed side table – 2
c) Trinidad – Two Door Wardrobe-1
d) Matress – 1
The articles were delivered on 31/12/2009 and 06-01-10 at the residence of the complainant which is a new concrete house. In March 2010, the articles were infected with fungus and a foul smell emerged from it. On repeated complaints the opposite party has applied some anti fungal chemicals and assured that there will not be any further problem. But after two months it again appeared and the same process repeated. Even now the defects are not cured and the complainant sent an e-mail requesting the opposite party to take back the articles which they did not heed to. From March 2010 onwards complainant could not use the bed rooms in which the articles were kept. All cloths kept in the wardrobes had a foul smell which could not be used without washing. Meanwhile the complainant had undergone an operation for hernia and he is put to much difficulty and mental agony in staying within the house were the fungal infected articles were kept. According to the complainant, he is entitled to get Rs.50,000/- as compensation for the mental agony and inconvenience suffered by him and his family members.
The complainant alleged that the articles were infected due to the usage of sub standard material. He further alleged that the opposite party could not cure the defect even after repeated attempts and therefore he is entitled to get the refund of the defective articles. Hence the complainant filed this complaint claiming the refund of Rs.40,160/- with 12% interest, compensation Rs.50,000/- and litigation cost.
The opposite party entered appearance and filed version with the following main contentions.
1) The complaint is bad for non-joinder of necessary parties. The manufacturer is not arrayed as an opposite party in the complaint.
2) The furniture made by the opposite party is in demand all over India and we are using good quality materials for the furniture. At the time of delivery of goods our staff gave instruction on how the articles are to be cleaned and not to use damp clothes for cleaning or dusting.
3) Since the allegation that there is manufacturing defect, wihtout expert opinion, the complainant is not entitled to any refund of money. As the said purchase was under an exchange scheme, the complainant is not entitled to any refund.
4) Depending on the humidity of an area, irrespective of the fact that the house is a new concrete house or old, not only the articles purchased from this opposite party but also all other wooden as well as leather, fabrics and rubber articles would get infected with fungus.
Hence the complainant prayed to dismiss the complaint with costs to them.
Points for consideration are:
i)Whether there is deficiency in service or unfair trade practice on the part of opposite parties?
ii) Reliefs and costs?
Evidence consists of affidavits filed by both parties and Exts A1 to A3, expert commission report Ext.X1.
Point No.1
Heard the counsels for both sides and perused the documents. The petitioner alleged that the fungal infection and foul smell is because of the substandard materials used by the opposite party to make the furniture. Whereas the opposite parties resisted the aforementioned allegation stating that the fungal infection was due to the high humidity and moisture as they were kept in an improper place in the room. The opposite party contented that the alleged fungal infection might have caused due to the improper maintenance of the articles such as cleaning them with damp clothes and handling in a manner against our instruction. But nothing is placed on record to prove that the opposite party had given any instructions concerning the maintenance of the articles sold by them. Moreover no evidence is placed on record by the opposite party to prove that the alleged defects in the furniture were caused due to improper handling, maintaining and using of them by the complainant.
The complainant filed a commission application vide IA no.329/11 to appoint an expert commissioner to ascertain the defects of the articles. The said IA was heard and allowed. The forum seeked the assistance of “The Rubber Board” in testing the furniture provided by the opposite party to the petitioner and we got reply from the same detailing their testing facilities. As per the direction of the forum, test of the furnitures were conducted by the Rubber Board and a report dtd 15-09-11 was filed. The said report is marked as Ext.X1.
As per Ext.X1 the two rooms in which the alleged furniture are kept is spacious with adequate number of windows and air holes for free air circulation. The Commissioner has not observed any water logging nearby or waste disposal area near to these rooms . X1 report, further states that all other furniture except the four furnitures referred in this case were found in good condition without any defects due to fungus. The commissioner noted white coloured patches on all areas of the furniture and found that these patches are the final stage of fungal growth. The commissioner next stated that the growth of fungal hyphae started from the inside of the laminated board and emerged out as white patches on the outer surface through the laminated coating. According to the commissioner this has happened due to lack of proper moisture reduction and lack of proper chemical application on the pulp which was used for the laminated board production. The Ext.X1 report is a clear proof of the opposite party’s act of using substandard materials for the production of furnitures.
In the light of Ext X1, expert’s report, we find that opposite party is deficient in their service. In our opinion what had happened would have definitely caused mental agony, monetary loss, time loss and inconveniences to the petitioner. Point no.1 is found accordingly.
Point No.2
It is not in dispute that the complainant purchased the furnitures in an exchange scheme. It is also not in dispute that the complainant made a balance payment of Rs.40,160/- to the opposite party. As we find that the furnitures supplied by the opposite party is defective, the opposite party is liable to compensate the inconvenience and mental agony suffered by the complainant.
In view of the findings in point no.1 and 2, we allow the complaint.
In the result the complaint is ordered as follows.
The opposite party will refund Rs.40,160/- to the complainant along with a compensation of Rs.10,000/-. The opposite party will also pay a litigation cost of Rs.5000/- which will include the expenses incurred for taking the expert commission. Opposite party can take back the furniture at their cost on compliance of the order.
This order will be complied with within one month of receipt of the order failing which the awarded sums will carry interest @9% per annum from the date of order till realisation.
Smt. Bindhu M. Thomas, Member Sd/-
Sri. Santhosh Kesavanath P. President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
Appendix
Documents of the petitioner
Ext.A1-Original retail invoice
Ext.A1(a)Original retail invoice
Ext.A1(b) “
Ext.A1(c) “
Ext.A2-Original discharge card
Ext.A3-Original bill dtd 27-9-11
ExtA3(a)copy of receipt dtd 27-9-11
Ext.X1-Expert commissioner’s report marked as Ext.X1
Documents of opposite party
Nil
By Order,
Senior Superintendent.
