This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step either to replace the bed with fresh and new one or to refund the amount as paid by him for purchasing the said bed till filing of this complaint.

The brief fact of the case of the Complainant is that the OP-1 is the proprietor of a furniture company and the OP-2 is his shop from where the proprietor used to sale different types of furniture, wall paper, modular kitchen etc. The Complainant went to the proprietor’s shop room and expressing his intention for purchasing of one Wrought Iron Hydraulic Box Bed (7’x5’) and with the advice of the proprietor he purchased a box bed on 16.05.2015. The total cost of the box bed was fixed at Rs.17,000/- in total. On that date the Complainant paid advance of Rs.1000/- and the OPs have assured him that the bed will be delivered at his residence and the balance amount will be paid at the time of its delivery. Inspite of such assurance the OPs have delivered the box bed in the month of June, 2015 after repeated reminders. It is surprising enough to the Complainant that the delivered goods was at per the order and at both the ends of the bed there ws huge yawning gaps measuring about 3.7 cm and 2.5 c.m. between the top board and the after closure of the box harmful insects can easily get access into the storage space. The Complainant had noticed that the hydraulic support system of the bed was found to be unable to hold the board because of its heavy weight. Initially the Complainant intimated the OPs about the defects and lastly he sent the photographs of the defects through whatsapp. 

Admitting the defects the OPs have referred the Complainant to the workshop manager with whom there is a sub-contract for assembling the bed, but it is shocking enough that after the aforesaid incident and numerous phone calls and reminders to the workshop manager no positive action was taken as the concerned experts had failed to turn up on the appointed day and as and when the incident was reported to the OPs, the Complainant was given false assurance. After a period of three months the OPs have offered the Complainant to get refund of the consideration money as paid by him towards purchase of the bed and return the bed to the OPs. Though the Complainant agreed with such proposal, but on various pretext the OPs were delaying to take back the sold bed and refund the consideration money to the Complainant. Therefore in this manner the OPs have failed to keep their own commitment. As the OPs have miserably failed to redress his grievance, having no other alternative the Complainant approached before the Department of Consumer Affairs praying for relief on 27.06.2016 wherein the OPs have deliberately and negligently failed to turn up on the schedule date. The Complainant had issued two legal notices on 22.03.2017 and 02.03.2019 through his Ld. Advocate, but no fruitful result had been yielded. Being compelled the Complainant had approached before this Ld. Commission by filing this complaint praying for direction upon the OPs to replace the bed with a new and fresh one or to refund the amount as paid by him to the tune of Rs.17,000/- , to pay compensation for Rs.30,000/- due to mental agony and harassment and litigation cost of Rs.10,000/- to him.

The petition of complaint have been contested by the OPs by filing conjoint written version contending that the questioned bed was delivered in perfect condition and as per specification, so the allegations as made out by the Complainant are not true and based on falsehood. But since the Complainant intimated the OPs regarding the yawning gap at both ends of the bed, although unfounded and unsubstantiated, on a good will and gesture and for the satisfaction of the customer the OPs have tried to attend the complaint of the Complainant on several occasions, but on each and every occasions the Complainant was not found at his flat, so the OPs were unable to do anything with regard to the defects as alleged by the Complainant. It is pertinent to mention that the OPs were not the manufacturer of the questioned bed. The OPs have stated that they have never given proposal to the complainant for taking back the bed and refund of the consideration money to him. According to the OPs the complaint is liable to be dismissed with exemplary cost.

The Complainant has adduced evidence on affidavit, questionnaire was filed by the OPs and the Complainant filed replies on affidavit. The OPs have also adduced evidence on affidavit, but the Complainant did not file any questionnaire challenging the evidence of the OPs, so question for filing replies from the end of the OPs does not arise. Both parties have filed BNA with a copy to the other side.

We have carefully perused the entire record and documents as available and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that though in respect of the questionnaire made by the OPs, the Complainant has replied on affidavit that he can prove the allegation as made out with the help of expert. But the Complainant did not file any application before this Ld. Commission praying for appointment of an expert for submitting the expert opinion as to whether the questioned bed is suffering from any defect or not. Moreover though in the petition of complaint it is stated by the Complainant on affidavit that the OPs   gave proposal to him that the OPs will refund the consideration money if the Complainant is interested to return the bed, but in respect of question no-9 the Complainant has replied on affidavit that the OPs have never agreed to refund the money and hence the Complainant is not liable to prove the same. We have also noticed that though the Complainant has made several allegations and incident against the OPs, but to substantiate the same no cogent is forthcoming from the end of the Complainant.

Admittedly this complaint was filed u/S 12 of the Consumer Protection Act, 1986. So this complaint should be adjudicated upon in view of the said Act. In the Section 13 (1) (c) of the Consumer Protection Act, 1986 it is enumerated that where the complaint  alleges a defect in the goods, the same cannot be determined without proper analysis or test of the goods ……….

In the case in hand as no expert opinion is forthcoming in respect of the alleged bed, we are not in a position to come to the conclusive conclusion that the question bed is suffering from defects, as alleged. Moreover the Complainant did not take any step to appoint an expert for expert opinion. Therefore until and unless any opinion will come before us, we cannot adjudicate the matter in a proper manner.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-CC/22/2019 is hereby dismissed on contest. Considering the facts and circumstances of this case there is no order as to cost.

Let plain copy of this judgment be given to the parties free of cost as per the CPR.s   

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER