By. Smt. Beena. M, Member:
Brief facts of the case are given below:-
2. Complainant’s case is that the Opposite Party is a seller of wooden, plastic and fiber doors, kitchen articles, Hardwares, moulded bathroom doors, plywood and house building articles. The Complainant On 08-09-2017 approached the Opposite Party for purchase of three moulded bathroom doors for his newly half built house. At that time the Opposite Party assured that if he place an order
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making an advance payment the measurement will be taken within 3 days and they will deliver and fit the door within 12 days with guarantee.
3. Believing the words of the Opposite Party, on 8/09/2017 the Complainant placed an order for an Italian model door worth Rs. 8,000/-and two gen/cubic door worth Rs.7,000/- each for his bathrooms and paid Rs.5,000/- as advance by using his ATM card through the swiping machine of Opposite Party. As per the assurance of the Opposite Party, the Complainant gave his full address to the Opposite Party but they did not come and take measurement. In spite of repeated demands the Opposite Party has failed to fulfill their promise, the Complainant filed the above number complaint seeking return of advance amount of Rs.5,000/- and Rs.50,000/- towards compensation and Rs.5,000/- as cost and Rs.10,000/- as compensation for mental agony.
4. Opposite Party entered appearance and filed version. The Opposite Party admitted that the Complainant placed the order for supply of doors and he received advance amount of Rs.5,000/-. But the statement of the Complainant that the Opposite Party did not take any steps for measurement and he made
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deficiency in service are denied. The Opposite Party says that as the Complainant has not given the balance amount in time, the Opposite Party could not supply and fit the door in time. Though the Opposite Party had already taken out the measurement and as the full payment was not made by the Complainant, the Opposite Party could not depute his technician to fit the same. The allegation of the Complainant about the loss, damage and injury is false and without any basis. No deficiency in service has caused from the part of the Opposite Party and there is no cause of action for the complaint and the complaint is speculative and experimental in nature and an abuse of the process of law and the same is liable to be dismissed.
5. During the pendency of the complaint the Opposite Party has fitted the doors as per the direction of the Commission as the Complainant had deposited Rs.17,000/-.
6. On perusal of the complaint and documents the Commission raised the following points for consideration:-
1. Whether there has been any deficiency in service on the part
of the Opposite Party?
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2. Whether the Complainant is entitled to get compensation?
3. Relief and cost.
7. The Complainant was examined as PW-1 and documents were marked as Ext.A-1 to A-3 from his side. The Opposite Party was examined as OPW-1 and documents from his side were marked as Ext.B1 to B4.
8. Point No. 1 & 2 :- For the sake of convenience the points No. 1 and 2 are considered here together:-
On going through the complaint, version and evidence there is no doubt as to the relationship of the Complainant and Opposite Party. Only question remaining is whether any deficiency in service has happened from the side of the Opposite Party. Considering the evidences adduced we understand that the Opposite Party was not able to prove that he had taken measurement in time and that the item was fitted. On the other hand there is no evidence regarding any agreement for making full payment before fitting the doors and the completion of the work. During the pendency of the complaint the Opposite Party fitted the doors as per the direction of the Commission as the Complainant deposited Rs.17,000/-. Complaint in that matter was resolved and the remaining question is whether any amount is to be granted as compensation to the complainant for
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deficiency in service. It is evident that there was no agreement for making full payment before fitting the door and the completion of the work. The usual practice prevailing in any contract is to make an initial payment in advance and to make the full and final payment only after fulfillment of the contract or the work agreed upon between the parties to the contract. Here the Complainant had made initial payment but the Opposite Party failed to complete the work and to accept the final payment after completion of the work. The Opposite Party has completed the work only after making full payment by the Complainant after direction of the Commission. This has resulted in much delay in fitting the doors and completion of the work. So there has been deficiency in service on the part of the Opposite Party and hence he is liable to pay compensation to the Complainant.
9. Point No.3:- As point No.1 &2 are proved in favour of the Complainant, he is entitled to get cost of the complaint.
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In the result, the complaint is partly allowed and the Opposite party is directed to pay Rs.5,000/- (Rupees Five Thousand only) as compensation and Rs.3,000/- (Rupees Three thousand only) as costs of the proceedings to the Complainant. The Opposite Parties are hereby directed to comply this order within 30 days from the date of receipt of this Order failing which the Complainant shall have the right to recover the amount by due process of law together with interest at the rate of 6%.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Commission on this the 9th day of November 2020.
Date of Filing: 04.10.2017.
PRESIDENT :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. Rajendran. O. P. Section Officer, PSC, Kalpetta.
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Witness for the Opposite Party:-
OPW1. George Mathew.
OPW2. Anshid. E. K. Aluminum Fabricator.
Exhibits for the complainant:
A1. Cash Memo. Dt:08.09.2017.
A2. Receipt.
A3. Visiting Card.
Exhibits for the opposite party:-
B1. Copy of Measurement Book. (2 Pages).
B2. Copy of Order Form.
B3. Copy of Order.
B4. Copy of Bill. Dt:18.09.2017.
PRESIDENT :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
SENIOR SUPERINTENDENT,
CDRC, WAYANAD.
