| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION – X GOVERNMENT OF N.C.T. OF DELHI Udyog Sadan, C – 22 & 23, Institutional Area (Behind Qutub Hotel) New Delhi – 110016 Case No.135/2016 NALIN KUMAR RASTOGI S/O SH. HARI SHANKER RASTOGI C-004, YAMUNA APARTMENTS ALAKNANADA, NEW DELHI 110019 …..COMPLAINANT Vs. THE MANAGING DIRECTOR, FUTURE BUILDING SYSTEMS, INFINITY WINDOWS 924, HEMKUNT CHAMBERS 89, NEHRU PLACE NEW DELHI 110019 .…..RESPONDENTNo.1/ OP And- THE MANAGING DIRECTOR, FUTURE BUILDING SYSTEMS, INFINITY WINDOWS, A-42/ A-60, KARKHANA BAGH INDUSTRIAL AREA, 16/5, MATHURA ROAD, FARIDABAD-121002, HARYANA …….RESPONDENTNo.2/ OP Date of Institution-28/04/2016 Date of Order-30/03/2022. O R D E R RASHMI BANSAL– Member - The complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 against the opposite party, for seeking direction to the opposite parties for replacement of the defective good or refund thereof and compensation for the deficiency in services along with compensation for mental agony and harassment and litigation cost.
- The facts of the case are that the opposite party, M/s Future Building System has been involved in the business of manufacturing of wide range of Energy efficient uPVC/ metal/ Alu-would / hardwood sliding and casement windows. Complainant had availed the windows installation services from the OP for consideration in April 2014. A quotation of Rs. 2,51,781.06 /- with the basic design was presented to complainant for window installation on 24.06.2014, marked as Ex. CW1/1 terms and conditions which provided to complainant by OP on 28.06.2014,signed by both the parties, marked as Ex. CW1/2, a Performa Invoice of Rs. 2,83,254/ is Ex. CW1/3 , and production document, issued by OP is Ex. CW1/4. The complainant had paid a total sum of Rs. 2,53,000/- by cheque and cash to the opposite party vide receipts dated 28.06.2014, 02.07.2014 and 28.07.2014, marked as Ex. CW1/5 (Colly).
- This is the grievance of the complainant that windows supplied and installed at the complainant house did not work properly from the date of inception i.e.31.07.2014 and instead of fixing 180º hinges on the window OP has fixed the “friction stay” hinges, against the order quotation which clearly mentioned “Coupling 180º”, due to which complainant could not fix his window AC and desert Cooler and has faced several other problems like water leaking from the install window and as per the terms and conditions, the OP has undertaken to warrant against the leakage of water through the installation of uPVC windows, one big door and one window installed by OP had started sagging and was having visible gap in it and was not aligned. Also, instead of full length section several pieces were used in the upper portion of largest window as PVC fillers which have several visible joints. This is further grievance of the complainant that the main purpose of installing uPVC windows and doors was to get proper ceiling, airtight system for the house which remained unserved. Also, due to delay in installation, complainant could not complete the painting job, fixing of curtains, installation of the outer grill etc, which made the house and Room absolutely unsafe and non-usable, causing great deal of harassment, mental stress and agony to him. This is further alleged by complainant that executives of OP have been immediately informed about the issue through emails dated 01.08.2014, 19.08.2014 and 29.08.2014,, and were asked to rectify the problem. The staff of the opposite party tried to rectify the problem by installing 180° rotation hinges, however, the same was not successful and in the process damaged the existing window with deep grooves on the front side and repaired with silicon, which is visible, permanent and looking ugly and hideous. The photographs of damaged window are Ex. CW 1/6. It is further stated by complainant that he had to get the house ready for his daughter’s wedding and having no other alternative left with him he had to buy and install new split AC and discarded the old window AC for completing the renovation work. The complainant has also attached the purchase bill of new AC as Ex. CW1/7. Complainant stated that a great deal of inconvenience was caused to him as he could not fix his desert cooler in summer season and all over cooling of his house was effected. It is further stated by complainant that in spite of repeated follow-ups through telephone, email, SMS, there has been no response from the opposite party and immense time and money has been wasted in attempt to resolve the issue. The letters sent to opposite party has been marked as Ex. CW1/9 (Colly) and Ex. CW1/10(Colly). Complainant further submitted that the window installation work was already abandoned by OP on 01.08.20 and they are intentionally and deliberately avoiding their responsibility, causing great deal of harm, mental harassment and agony to complainant and his family resulting in loss of time and money and seeks relief from this Forum. According to complainant, the act of opposite party amounts to deficiency in service, defect in goods and unfair trade practice.
- Notice were issued to OP at both of his addresses given by complainant and track report showed him as served. Despite service, OP chose not to appear before this Commission, therefore, vide order dated 11.11.2016, OP was proceeded ex -parte. Complainant has filed ex parte evidence and written arguments.
- Deficiency in service on the part of the service provider has to be tested on the anvil of Sec. 2(1) (g) of the Consumer Protection Act, 1986, which means:
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- The Hon’ble Supreme Court in the matter of SGS India Limited vs Dolphin International AIR 2021 SC 4849 has held the following
- The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint. The Rule of evidence before the civil proceedings is that the onus would lie on the person who would fail if no evidence is led by the other side”
- It is therefore, upon the complainant to initially discharge its onus to prove that there was deficiency in service on the part of OP. This Commission has gone through the pleadings and documents on record and find that complainant has proved deficiency in service and defect in goods and thus discharged from the onus. The evidences on record are sufficient to conclude that there was major defect in the product sold by the OP to the complainant. This is also found that OP chose not to respond at all and failed to rectify the defects which not only made complainant to run from post to pillars without any fault of its own for all these years but also the whole purpose of investing hefty amount in a single product went into vain.
- Based upon the above, this Commission concludes that the OP has not only provided defective product to the complainant but also failed to provide its service. As a matter of fact, not providing windows installation as per the order quotation and non-repairing / replacement of the windows as per the terms and conditions agreed between the parties, within the reasonable time, amounts to breach of terms agreed between the parties and deficiency in service on the part of the OP.
We, are also of the view, that in the facts and circumstances of the case, no useful purpose would be served by directing the OP to repair the product in question because the consumer has lost faith in the company's product and also when OP failed to redress the grievance of the complainant at the time of installation, it seems difficult that OP wouldtake care interest of complainant now. Moreover, the matter pertains to 2016. If the repaired product develops the defect again then the consumer will be put to much larger inconvenience harassment. - The Hon'ble Supreme Court in many cases has observed that Consumer protection Act provides remedy for compensating the consumer for mental agony, harassment, emotional suffering, physical discomfort etc. While expanding the word compensation the Hon'ble Supreme Court in Ghaziabad Development Authority vs. Balbir Singh, Appeal (civil) 7173 of 2002, has categorically held that each and every element of suffering, while availing service as a consumer, has to be taken into consideration while compensating him for the loss or injury or otherwise suffered by him due to the negligence or deficiency in service of the service provider.
- Therefore, considering the facts and reasons, as mentioned above we deem it fit to allow the complaint directing OP to refund the amount of Rs. 2, 53,000/- paid by complainant along with the interest @ 10% p.a. from the date of issuance of the notice to the OP i.e. from 11.11.2016 till the date of realisation. The OP is also directed to pay Rs. 25,000/- as compensation for mental agony and harassment suffered by complainant. and Rs. 5000/- as litigation. The compliance of the order be made by OP within 90 days from the date of order failing which amount of Rs. 25,000/- and Rs. 5000/- will entail interest @ 6% p.a.
The copy of the order may be given to the parties free of cost within a period of 15 days from the date of pronouncement and file thereafter may be consigned to record room. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases. The order be uploaded on the website www.confonet.nic.in (Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA) MEMBER MEMBER PRESIDENT | |
