SMT.MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/S 35 of the Consumer Protection Act 2019 for an order directing the opposite party to pay Rs.14,400/- to the complainant along with compensation and cost of Rs.5,000/- to the complainant for the deficiency of service on his part.
The brief of the complaint:
On 30/11/2019 the complainant approached OP’s shop for purchasing some tiles for furnishing his house. At the time of purchasing the tiles the OP issued an estimate receipt No.00459 for an amount of Rs.14,493/-. At the time itself the OP issued a tax invoice dtd.30/11/2019 for an amount of Rs.9070/-. Then the complainant paid the amount and taken the tiles from OP’s shop. After the Covid 19 pandemic period the workers came to complainant’s house and paving the tiles in the floor. Then the complainant and his workers noted that most of the tiles are not good quality and unsuitable for paving. The labourers states that 75% of the tiles are not in usable condition and not in good quality. Immediately the complainant informed the matter to OP and he is a poor man in lower strata of the society. He is not able to appoint an expert to check the tiles are good or inferior quality. The complainant informed the matter to OP and replace the unsuitable tiles also. But the OP’s not ready to replace the same. Then the complainant send a lawyer notice to OP dtd.11/2/2021. The OP received the notice and not send a reply to the notice. The acts of OP ,the complainant caused much mental agony and financial loss . So there is deficiency in service and unfair trade practice on the part of OP. Hence the complaint.
After receiving the notice OP entered appearance before the commission and filed his written version contending that the OP is not a single person, it consists of a partnership firm and 15 persons among them to conduct the shop. Moreover, the 00459 number estimate and 2357 number tax invoice is not issued by OP. The OP contended that the complainant is not take out an expert commissioner to prove the tiles are defective one or not. The allegation made by the complainant is that most of the tiles were defective and inferior quality and manufacturing defect also. But the OP is disputing the identity of the tiles also. The complainant filed this complaint against OP is to earn illegal benefit from OP. The complainant had no bonafide to file this case. The OP is not liable to replace the tiles also. There is no deficiency in service and unfair trade practice on the part of OP. The complaint is liable to be dismissed.
On the basis of the rival contentions by the pleadings the following issues were framed for consideration.
- Whether there is any deficiency of service on the part of opposite party?
- Whether the complainant is entitled for any relief?
- Relief and cost.
The evidence consists of the oral testimony of PW 1 and Exts. A1 to A5 marked. On OP’s side DW1 was examined . No documents marked.
Issue No.1:
The Complainant adduced evidence before the commission by submitting his chief affidavit in lieu of his chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. The documents Exts.A1 to A5 also marked on his part to substantiate his case. In Ext.A1 is the estimate for Rs.14,490/- and he stated that the complainant paid Rs.14,430/- to OP. In Ext.A2 is the tax invoice issued by the OP dtd 30/11/2019 to show that complainant had paid an amount of Rs.9070/- to OP for purchasing the tiles. At the time of evidence the complainant stated that “ ബില്ല് പ്രകാരം എണ്ണി തിട്ടപ്പെടുത്തിയാണ് tiles കൊണ്ടുപോയത് എന്നു പറയുന്നു? ശരിയാണ്. Moreover he stated that ടൈൽസിന് എന്തെങ്കിലുംകുഴപ്പം ഉണ്ട് എന്ന് കാണിക്കാൻ കോടതിയിൽ നിന്ന് ഒരു കമ്മീഷണറെ വച്ച് പരിശോധിക്കാതിരിക്കാൻ പ്രത്യേകിച്ച് കാരണമില്ലല്ലോ? സാന്പത്തിക പ്രശ്നം ഉള്ളതുകൊണ്ടാണ്. But the OP has not taken any steps to appoint the expert commissioner to prove that the tiles are in good quality and no manufacturing defect also. The OP also contended that the identity of the tiles. But no steps taken by the OP to prove the same. So the OP is either to replace the defective tiles or to refund the value of tiles to the complainant. In the evidence of OP he stated that “ Ext.A5 നെ ബന്ധപ്പെടുത്തി നിങ്ങൾക്ക് ഒരു വക്കീൽ നോട്ടീസ് Ext.A3 കിട്ടിയിരുന്നോ? കിട്ടിയിരുന്നു. ആ വക്കീൽ നോട്ടീസിലെ കാര്യങ്ങൾ നിഷേധിച്ച് നിങ്ങൾ ഒരു മറുപടി notice അയച്ചിരുന്നോ? ഇല്ല . So the OP is not ready to replace the defective tiles. So we are of the considered view that there is deficiency of service and unfair trade practice on the part of opposite party . Hence the issue No.1 found in favour of the complainant and answered accordingly.
Issue Nos.2&3:
As discussed above the OP is not ready to replace the defective tiles to the complainant. The complainant produced the ExtsA1 document, estimate Rs.14,490/- paid to OP. In Ext.A2 document which clearly shows that the complainant had paid Rs.9070/- to OP for purchasing the tiles. According to the complainant failure to replace the defective tiles the OP is bound to redressal the grievance caused to the complainant. Therefore, we hold that the opposite party is liable to refund the value of tiles Rs.9070/- along with Rs.4000/- as compensation and cost to the complainant. Thus issue No.2&3 are also accordingly answered.
In the result the complaint is allowed in part directing the opposite party to refund the value of tiles Rs.9070/- along with Rs.4000/- as compensation and cost to the complainant within 30 days of receipt of this order. In default the amount of Rs.9070/- carries 9% interest per annum from the date of order till realization. Failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.
Exts:
A1- Estimate dtd.30/11/2019
A2-Tax invoice
A3- lawyer notice
A4- Posta receipt
A5- Acknowledgment card
PW1-Sudhakaran.N.K- complainant
DW1-Siraj- OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
