Karnataka

Chitradurga

CC/48/2015

Shri A.M.Kumar s/o Mallappa - Complainant(s)

Versus

The Owner,New Star Bedding - Opp.Party(s)

Shri.C.M.Veeranna

02 May 2016

ORDER

COMPLAINT FILED ON : 13/05/2015

     DISPOSED ON: 02/05/2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

CC. NO. 48/2015 DATED:  2nd May 2016

 

PRESENT :-     SRI. T.N. SREENIVASAIAH      PRESIDENT                                      B.A., LL.B.,

                        SRI.H.RAMASWAMY,               MEMBER

                                         B.Com., LL.B.,(Spl.)

SMT.G.E.SOWBHAGYALAKSHMI,       

                                         B.A., LL.B.,                   MEMBER

COMPLAINANT	A.M. Kumar S/o Mallappa, Age: 48 Years, Business, Nirupa Nilaya, I Cross, Dhavalagiri Extension, Chitradurga.   (Rep by Sri. C.M. Veeranna,  Advocate)
OPPOSITE PARTY	New Star Bedding House, Reptd by its Proprietor, B.R. Shaik Buden, Holalkere Road, Chitradurga.   (Rep by C.J.    Lakshminarasimha, Advocate)

SRI. T.N. SREENIVASAIAH. PRESIDENT.

ORDER

The complainant has filed a complaint U/s 12 of C.P. Act 1986 against the OPs for a direction to give 5" thickness Spinwell 3 new beds of Kurl-on company and Rs.5,000/- towards mental agony, Rs. 5,000/- towards cost and such other reliefs as the Hon'ble Forum deems fit to grant.

2.     The brief facts of the case of the complainant are that, on 17.02.2014 he purchased 5" thickness spinwell 3 beds of Kurl-on company vide cash bill No.629 and Tin No.29420466351, out of which 1 bed was measuring 78/72 and 2 were 78/66 for a sum of Rs.55,300/-.  At the time of purchasing the said beds complainant paid Rs.25,300/- to the OP.  But the OP sent Carewells (Marwells) beds instead of Spinwell beds.  It is further stated that, OP has removed the company bill affixed on the said beds and when the complainant enquired about the same, OP gave an untenable reply.  It is further stated that, OP gave low quality beds and they were very old.  Complainant paid Rs.25,300/- and he is ready to pay remaining balance amount of Rs.30,000/-, if the OP is ready to give 5" thickness spinwell 3 beds of Kurl-on company.  The complainant got issued legal notice on 18.11.2014 to the OP but, the OP gave an untenable reply.  The cause of action to file this complaint arose on 18.11.2014 when the complainant gave legal notice. Hence, there is a deficiency of service on the part of OP so, he sustained financial loss and mental agony and etc., and prayed for allow the complaint.

 

        3.     On service of notice, OP appeared through Advocate Sri. C.J. Lakshminarasimha and filed version denying the averments made in the complaint.  It is further stated that, complainant purchased 3 spinewell  beds of carewell company on 17.02.2014 from the OP for a sum of Rs.55,300/- and the complainant never asked for Kurl-on beds.  But, the complainant visited and verified and then decided to take 3 spine well beds from the OP.  It is further stated that, complainant paid Rs.10,000/- as an advance amount and then he paid Rs.15,300/- towards the same out of total sale price of Rs.55,300/- and he has requested 15 days time to pay the remaining balance amount of Rs.30,000/-.  It is further stated that, if the complainant is not interested in the said Spine well beds, then he has to sent back the same to the OP on the very next day itself.  When the OP demanded to pay the remaining balance amount of Rs.30,000/-, the complainant is postponing the same for one or the other reason and decided to escape from the liability.  He used the said beds from 17.02.2014 till date without paying balance amount to the OP.  It is further stated that, there is no spinewell bed models in Kurl-on company. It is further stated that, complainant went to the OP shop on 02.03.2014 and demanded for another 3 beds of Kurl-on company and undertaken orally that, he will pay the remaining balance amount of Rs.30,000/- and also the price of another sets of Kurl-on company beds of Rs.59,898/- within one month, in addition to the spine well bed models of Kurl-on company which were purchased previously.  It is further stated that, the spine well bed models are under the carewell company only.  It is further stated that, after purchasing the spine well beds on 17.02.2014 and Kurl-on beds on 02.03.2014, complainant has not paid the balance amount of spine well beds of Rs.30,000/- and Rs.59,898/- which is the price of Kurl-on beds which were purchased subsequently and undertake to pay the entire price of 3 of Kurl-on beds and the balance amount of spinewell beds.  Complainant is using 3 + 3 beds of spine well and Kurl-on beds without returning the spine well beds to the OP and he is in arrears of Rs.30,000/- and Rs.59,898/- and the complainant has retained both 3 spine well beds and 3 Kurl-on beds with him.  It is further stated that, the subject matter of this complaint is not within the purview of this Forum.  Therefore, there is no deficiency of service on the part of OP and prayed for dismissal of the complaint by issuing suitable direction to the complainant to pay the balance amount of Rs.30,000/- towards purchase of 3 beds of spine well and Rs.59,898/- towards 3 beds of Kurl-on Company with heavy cost.

4. Complainant himself examined as PW-1 by filing affidavit evidence and Ex.A-1 to Ex.A-7 documents are marked. 

        5. OP has examined one Sri. B.R. Sheik Buden, the Proprietor of OP as DW-1 by filing affidavit evidence and no documents have been got marked. 

 

        6.     Written Arguments filed and oral arguments heard.

 

7. Now the Points that arise for our consideration for the decision of the complaint are that:

 

Point No.1:- Whether the complainant proves that, he purchased 5" thickness spinewell 3 beds of Kurl-on company and they were old and low quality  and thereby complainant has sustained financial loss and mental agony and OP has committed deficiency of service and entitled for the relief as prayed in the complaint?

 

Point No.2:- What order?

 

        8. Our findings on the above points are as follows:

 

        Point No.1:- Partly Affirmative.

        Point No.2:- As per the final order.

 

                                        ::REASONS::

9. Point No. 1:- It is not in dispute that, complainant on 17.02.2014 purchased 5" thickness spinewell 3 beds of Kurl-on company vide cash bill No.629 and Tin No.29420466351, out of which 1 bed was measuring 78/72 and 2 were 78/66 for Rs.55,300/-.  At the time of purchasing the said beds, the complainant has paid Rs.25,300/- to the OP in two installments.  But the OP sent Carewells (Marwells) beds instead of Spinwell beds and OP has removed the company bill which was affixed on the said beds and when the complainant enquired about the same, OP gave a untenable reply.   The complainant has paid Rs.25,300/- and he is ready to pay remaining amount of Rs.30,000/-, if the OP is ready to give 5" thickness spinewell 3 beds of Kurl-on company.  But, it is observed that, the complainant is having two sets of beds with him i.e., spinewell beds and Kurl-on beds.  The same is supported by the documents produced by the complainant.  The complainant has not produced any piece of papers or documents to show that, the alleged spinewell bed modes are available in the Kurl-on company beds. The complainant is not disproved the fact stated by the OP in its version regarding the same.   

 

       10.  In support of his contentions,  complainant has relied on his affidavit evidence in which he has reiterated the contents of complaint.  Complainant has also relied on documents like copy of legal notice marked as Ex.A-1, postal receipt marked as Ex.A-2, original copy of reply to the notice marked as Ex.A-3, 3 positive photos of Kurl-on beds marked as Ex.A-4, 1 C.D  marked as Ex.A-5, Photo bill marked as Ex.A-6, Original bill dated 17.02.2014 marked as Ex.A-7 and they are not in dispute.

 

11.  On the other hand, it is admitted by the OP that, complainant purchased 3 spinewell  beds of carewell company on 17.02.2014 from the OP for Rs.55,300/- and he never asked for Kurl-on beds.  Complainant visited and verified and then decided to take 3 spine well beds from the OP and complainant has paid Rs.10,000/- as an advance amount and then he paid Rs.15,300/- towards the same out of total sale price of Rs.55,300/- and requested 15 days time to pay the remaining balance amount of  Rs.30,000/-.  It is agued that, if the complainant is not interested in the said Spine well beds, he has to sent back the same to the OP. When the OP demanded to pay the remaining balance amount of Rs.30,000/-, he postponing the same for one or the other reason and decided to escape from the liability of payment of balance amount.  He is using the said beds from 17.02.2014 till date without paying balance amount to the OP.  On 02.03.2014 complainant went to the OP shop and demanded for another 3 beds of Kurl-on company and orally undertook that, he will pay the remaining balance amount of Rs.30,000/- and also the present price of Kurl-on company beds of Rs.59,898/- within one month, in addition to the marvel bed models of Kurl-on company.  The spine well bed models are under the carewell company only.  After purchasing the spine well beds on 17.02.2014 and on 02.03.2014, complainant has not paid the balance of spine well beds and the entire price of 3 beds of Kurl-on beds.  Complainant is using 3 + 3 beds of spine well and Kurl-on beds without returning the spine well beds which he purchased previously to the OP and he is in arrears of Rs.30,000/- and Rs.59,898/- and the complainant has retained both 3 spine well beds and 3 Kurl-on beds with him.  These points are not denied by the complainant in his affidavit and also in written argument.  

12.   On hearing the rival contentions of both the sides and on careful perusal of the entire records, it clearly goes to show that, complainant purchased 3 spinewell  beds of carewell company on 17.02.2014 from the OP for Rs.55,300/- and he paid Rs.10,000/- as an advance amount and then he paid Rs.15,300/- towards the same out of total sale price of Rs.55,300/- and requested 15 days time to pay the remaining balance amount of  Rs.30,000/-.  Complainant is using the said beds from 17.02.2014 till date without paying balance amount to the OP.  Meanwhile in addition to that, on 02.03.2014 complainant went to the OP shop and demanded for another 3 beds of Kurl-on company and purchased the same from OP and orally undertook that, he will pay the remaining balance amount of Rs.30,000/- and also the present price of Kurl-on company beds of Rs.59,898/- within one month, in addition to the earlier bed models.  The spine well bed models are under the carewell company only.  After purchasing the spine well beds on 17.02.2014 and on 02.03.2014, complainant has not paid the balance amount of spine well beds and the entire price of 3 beds of Kurl-on beds, the same is evidenced by Ex.A-4 and also Ex.A-7, the original bill.  So, the said documents reveals that, the complainant is having both beds with him and OP has supplied marvel beds of Kurl-on company and also shows that, he is in arrears of Rs.30,000/- and also the balance amount of Rs.59,898/- towards the purchase of marvel beds of Kurl-on company which were purchased subsequently. Since, the complainant is not produced any cash receipt for having payment of Rs.59,898/- towards the purchase of Marvel model beds of Kurl-on company.   Complainant is using 3 + 3 beds of spine well and Kurl-on beds without returning the spine well beds which he purchased previously to the OP and he is in arrears of Rs.30,000/- and Rs.59,898/- and the complainant has retained both 3 spine well beds and 3 Kurl-on beds with him.  The complainant has not denied the averments made by the OP in its version with regard to the retain of both sets of beds and also non-payment of the balance amount and also the payment for having purchase of Kurl-on beds which he purchased subsequently.  Ex.A-4 shows that, the beds supplied by the OP is of Kurl-on company.  Ex.A-7 the cash bill, back side of the said bill shows that, complainant paid Rs.10,000/- as an advance amount and another sum of Rs.15,300/- and the remaining amount to paid by the complainant is Rs.30,000/-.  Complainant also took another 3 beds of Kurl-on beds from the OP, which clearly goes to show that, complainant is due for a sum of Rs.59,898/- as stated by the OP in its version.  Considering the facts and circumstances of the case and the reasons involved therein, we come to the conclusion that, the complainant is partly entitled to get the relief as prayed in the complaint since, he is already having the Marvel model beds of Kurl-on company.  The complainant has not denied the price of the beds of Kurl-on company shown in the version for having purchase of the same subsequently.  In view of non production of the receipt with respect to Kurl-on company beds which was purchased by him on 02.03.2014, the complainant is having liability of payment of Rs.59,898/-.  Accordingly, this Point No.1 is partly held as affirmative to the complainant.

13.  Point No.2:- For the foregoing reasons, we pass the following:

 

ORDER

 

The complaint filed by the complainant u/Sec. 12 of the C.P. Act, 1986 is partly allowed.  The complainant is hereby directed to handover or return the 2 sets of spinewell model beds of carewell company and also Marvel model beds of Kurl-on company to the OP which are in the custody of the complainant by paying balance amount of Rs.30,000/- to the OP.

 

Further the OP is directed to give the new beds of Kurl-on company models of the same price i.e., Rs.55,300/- from the complainant.  If there is any difference in the price, then the complainant is directed to pay the same to the OP.   

Further, the OP is hereby directed to comply the above order within 60 days from the date of this order. 

 

        (This order is made with the consent of Members after the correction of the draft on 2/05/2016 and it is pronounced in the open Court after our signatures.)         

 

MEMBER                                                         MEMBER    

     

          

PRESIDENT

 

-:ANNEXURES:-

Complainant by filing affidavit evidence taken as PW-1.

Witness examined on behalf of complainant:

                                                -Nil-

On behalf of OP Sri. Sheik Buden, the Proprietor of OP by filing affidavit evidence taken as DW-1:

 

Witnesses examined on behalf of OP:

-Nil-

Documents marked on behalf of complainant:

01	Ex-A-1:-	Legal notice
02	Ex-A-2:-	Postal receipt
03	Ex-A-3:	Original copy of reply notice
04	Ex-A-4:	3 Positive photos of Kurl-on beds
05	Ex-A-5:	1 C.D
06	Ex.A-6:	Photo bill
07	Ex.A-7:	Original bill dated 17.02.2014

 

Documents marked on behalf of OP:

-Nil-

MEMBER                                                         MEMBER  

 

                   

PRESIDENT

Rhr.