The complainant Vikram Garg (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Delite Kom Ltd. and another (here-in-after referred to as opposite parties).
Briefly stated, the case of the complainant is that opposite party No.2 has been inducing the general public at large for installation of Steel Modular Kitchen manufactured by opposite party No.1 by making tall claims regarding the quality of product. Accordingly complainant purchased Steel Modular Kitchen manufactured by opposite party No.1 vide incoice No. 1269 dated 04.03.2015 by spending an amount of Rs.1,77,015/- beside the remaining work of perparing cup board etc. Was done by opposite party No.2 and opposite party No.2 charged Rs. 2,45,000/- from the complainant including aforesaid amount of Rs.1,77,015/- and got the Steel Modular Kitchen installed/fitted in the kitchen of this house.
It is alleged that aforesaid kitchen has not been proved to be of good quality rather the aforesaid Steel Kitchen creating inconvience to the complainant being neither noise free nor the same of strong and durable product rather the said Steel Kitchen has started damaging due to jerk and further the abovesaid kitchen has become very loose.
It is alleged that complainant repeatedly informed the opposite parties about the aforesaid problems being face by the complainant and even got issued a legal notice upon opposite parties through counsel calling upon opposite parties to replace the aforesaid defective kitchen with new one or to refund total amount of Rs.2,45,000/- to the complainant within 15 days but all in vain and lastly opposite parties refused to exceed to the request of complainant.
It is alleged that due to the aforesaid act of opposite parties complainant has also suffered great mental tension, agony, botheration, harrasment, humiliation and financial loss.
On this backdrop of these facts, complainant prayed for direction to opposite parties to replace the defective Steel Modular Kitchen with new one or in the alternative to refund the total amount Rs.2,45,000/-, for direction to opposite parties to pay sum of Rs. 50,000/- as compensation on mental tension, agony, botheration, harrasment, humiliation and for direction to opposite parties to pay of sum Rs.5500/- as litigation expenses or to award any other additional or alternative relief to complainant for which he may be found entitled to.
Upon notice, the opposite parties put an appearance through counsel and contested the complaint by filing written reply. In written reply, the opposite party No.1 raised legal objections that complainant is not maintainable in the present form, that complainant is not locus standi or cause of action to file the present complaint, that complainant is estopped from filing present complaint by his own act and conduct, that this commission has no juridiction to try and decide the present complaint, that there is no deficiency in service on the part of opposite party No.1 and opposite party No.1 has not adopted any unfair trade practice rather the complainant himself is at fault, having shifted the aforesaid kitchen from the first floor of the house to the ground floor without the knowledge and consent of opposite parties and without any assistance of opposite party No.1 and as such as entire kitchen having been re-established by the complainant of his own has become out of warranty and complainant is not entitled to any relief and further taken legal obection that complaint is totally false, frivolous and vaxatious to the knowledge of complainant.
On merits, the opposite party No.1 has pleaded that opposite party No.1 never induced genreal public and complainant purchased the Steel Modular Kitchen as per his own convience and facility after carefully hearing and understanding the functioning of kitchen and its qualities. It is further pleaded that drawing was prepared for installation of kitchen in the 1st floor portion of house of complainant and the kitchen was got installed by opposite party No.1 through its authorized represented in the 1st floor portion of house in question but on complaint by complainant opposite parties found that complainant has got the said kitchen refitted/installed in the ground floor portion of house after dis-lodging the same from 1st floor portion without any prior intimation of the same to the opposite parties and without any assistance of the opposite parties or there authorized representative as such defect occured in the kitchen is only due to improper installation of the same by complainant from some un-authorized and in-comopetent person. Further denying any deficiency in service or unfair trade practice on their part, opposite party No.1 prayed for dismissal of complaint.
It has been further pleaded that opposite party wrote letters dated 21.08.2019 and 04.09.2019 to the complainant for submission of documents but the complainant failed to submit the documents. It is denied that the opposite party decided the claim of the complainant on any illegal ground rather the same was repudiated legally as the complainant failed to submit the fitness certificate. After controverting all other averments of the complainant, the opposite party prayed for dismissal of complaint.
Opposite party No.2 filed separate reply to the complaint by taking the same legal objections as taken by opposite party No.1 and detailed above.
On merits also opposite party No.2 replied as in line with opposite party No.1 and prayed for dismissal of complaint.
In support of his complaint, the complainant has tendered into evidence his Affidavit dated 24.11.2017 (Ex.C-10) and the documents (Ex. C-1 to Ex. C-9).
In order to rebut the evidence of complainant, the opposite party No.1 has tendered into evidence affidavit of Rahul Sexena dated 21-02-2018 (Ex.OP-1/1) and the documents (Ex. OP-1/2 to Ex. OP-1/3). Opposite party No.2 has tendered into evidence affidavit of Mohit Bansal dated 08.02.2018 (Ex.OP-2/1) and document (Ex.OP-2/2).
The learned counsel for the parties reiterated their version as pleaded in their respective pleadings.
We have heard learned counsel for parties and gone through the record.
In the case in hand, admitted facts are that complainant purchased Steel Modular Kitchen from opposite partis and got the same installed in kitchen of his house. It is also admitted fact that complaint was raised by complainant qua the said kitchen.
The grievance of the complainant is that opposite parties supplied defective kitchen to the complainant and after some time of its intallation said kitchen started causing inconvience, started damaging due to jerk and further the aforesaid kitchen had become very loose. It is further grievance of the complainant that on asking opposite parties neither replaced the defective kitchen with new one nor refunded the total amount of Rs.2,45,000/- to complainant.
Opposite parties specifically pleaded that the said kitchen was got installed by complainant in 1st floor portion of his house but later on the same was got shifted by the complainant on ground floor portion of his house. Though this fact was not mentioned by complainant in his complaint as well as in legal notice (Ex.C-6) but the same has been admitted by complainant in his evidence/affidavit Ex.C-10.
Perusal of the file reveals that complainant failed to bring on file any evidence to prove that there is any defect in kitchen. It is proved on file that complainant himself is negligent and at fault as he shifted the kitchen from 1st floor to ground floor of his house. We are also of the view that complainant filed present complaint by concealing material facts.
Hon'ble Supreme Court in the case titled Ravneet Singh Bagga Vs. M/s.KLM Royal Dutch Airlines and another, (2000) 1 SCC 66 has held:- “Deficiency in service Burden of proof – The burden of proving the deficiency in service is upon the person who alleges it.”
Hon'ble Supreme Court in 2020 in case titled as Indigo Airlined Vs. Kalpana Rani Deebbarma and others held that the initial onus to substantiate the factum of deficiency in service committed by opposite party was primarily on the complainant.
Thus keeping in view the facts, circumstances, evidence and law lay down by Hon'ble Supreme Court, this Commission is of the view that complainant is failed to prove any deficiency in service or unfair trade practice on the part of the opposite parties. Hence, complaint filed by complainant is hereby dismissed without any order as to cost.
The complaint could not be decided within statutory period due to Covid pandemic and heavy pendency of cases.
Copy of order be supplied to parties free of cost as per law. File be consigned to record room.
