(Delivered on 12/10/2018)
Per Mr. S.B. Sawarkar, Hon’ble Member
1. The instant appeal is filed against the order of the District Consumer Forum, Nagpur passed in complaint No. 468/2012 dated 03/09/2015 partly granting the complaint . Further directing the opposite party (in short O.P.) Nos. 1&2 to return jointly and severally the cost of three furniture items of Rs. 27,320/- with interest at the rate of 9% or provide new items in their place without taking additional present cost. Further directed the O.P.Nos. 1&2 jointly and severally to provide the complainant the compensation for physical and mental harassment of Rs. 3,000/- and Rs. 3,000/- as cost of complaint. Further directed the O.P.Nos. 1&2 to comply the order in the span of one month from the date of receipt of order jointly and severally.
2. The complainant filed a complaint that he purchased five furniture items from O.P.No. 1 which were manufactured by O.P.No. 2 for Rs. 37,770/- on 28/10/2010. However, he found them to be defective and one item virtually collapsed. He therefore, repeatedly complained for their repairy or replacement. However, did not get good response from the O.Ps. Hence, he sent a complaint on 29/10/2011.
3. Not getting reply to it he gave notice on 20/06/2012. Finding it to be unreplied filed a complaint with a grievance of deficiency in service and a prayer to direct the O.Ps. to replace the furniture or provide him the price of Rs. 27,320/- to purchase a new furniture item with interest at the rate of 18%. Further provide him Rs. 10,000/- for physical and mental harassment with interest at the rate of 18% p.a. and Rs. 13,000/- with interest at the rate of 18% from the date of disposal of the complaint.
4. On notice O.P.Nos. 1&2 countered the complaint stating that the complaint is time barred as filed after two years. The O.Ps. claimed that the furniture items purchased by the complainant were prepared for a different customer but he insisted to purchase them. Hence, they were given to him with a discounted price. He was told that the items are not sturdy and hence, need to be handled and used carefully. His requests were attended and when one item was found to have defect it was immediately replaced at the time of sale only.
5. The O.Ps. claimed that the complainant did not use the articles carefully and used them roughly which is the reason for their damage. The O.Ps. claimed that the complaint is filed after a long time of two years after use by the complainant. Hence, deserves dismissal.
6. The learned Forum heard both parties and holding that the furniture items were not properly provided by the O.Ps. as one item was replaced by them. Hence, passed the order supra.
7. Aggrieved against the order the O.P. Nos. 1&2 filed the appeal hence, are referred as appellants. Advocate Mr. Chichbankar appeared for the appellant. The original complainant was represented by advocate Mr. Pankaj Gupta who filed written notes of argument.
8. The advocate for the appellant submitted the contentions as per their respective written versions and submitted that the learned Forum erred in providing interest upon the furniture articles and also did not give directions to return the used items in the event of providing the respondent new item. Also provided the compensations and cost when the respondent mishandled the furniture item resulting in damage to them. Hence, the order needs to be set aside.
9. He also submitted the National Commission Judgment passed in Sandeep Bhalla Vs. Ashok Electronics, reported at IV (2011) CPJ 138 (NC) wherein the Hon’ble National Commission held that there was no warranty period of mobile and purchaser made the complaint of defect after long time of 8 months. Hence, complaint not maintainable due to delay and laches on part of the purchaser. The advocate of the appellant therefore submitted that the complaint filed is not maintainable and needs to be dismissed.
10. The respondent in written notes of argument reiterated the complaint and claimed the order to be appropriate as the respondent have grievance regarding three items only. Hence, requested to confirm the order.
11. We considered the contentions of both the parties. We find that any purchaser purchasing the furniture items would always use them carefully as per the expected use out of it. We find one item was replaced by the appellant. It was also incumbent upon the appellant to attend the difficulties of the respondent and respond to his complaint promptly. We find no caution given in writing or reported by the appellant to the respondent that the respondent was not using the items properly which would result in damage. We find that the case cited by appellant is in respect of sensitive electronic mobile which needs to have warranty. However, the issue in present case is regarding furniture which does not have any moving part in it. Its sturdiness and use is unrepeatable by common serve. Hence, the citation is not applicable here.
12. We therefore, find that the learned Forum has properly weighed the evidence and passed the order which is just. However, we find that the respondent filed a complaint almost after two years when he used the items. Therefore it would be unjustifiable to provide interest upon the amount of price to be returned to him. Also in the event of getting new furniture items it would be necessary to return the old items. However, the compensation and cost deserves to be paid to the respondent. It makes necessity to modify the order as below.
ORDER
i. The appeal is partly allowed.
ii. The direction of providing interest upon the price amount at the rate of 9% p.a. in clause No. 2 of the order is deleted.
iii. The clause vide 2A is added to operative part of impugned order with a direction to respondent to return the used furniture item in the event of getting new item by the said respondent.
iv. Rest of the impugned order stands confirmed.
v. Parties to bear their own cost in appeal.
vi. Copy of the order be provided to both the parties, free of cost.
