Date of filing : 11.05.2018
Judgment : Dt.14.01.2020
Mrs. Sashi Kala Basu, Hon’ble President
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Arindam Sarkar alleging deficiency in service on the part of the opposite party (referred as OP hereinafter) namely Halder Enterprise represented by Sri Nasim Halder alias Toton Halder.
Case of the Complainant, in short, is that he purchased one wooden sofa cum bed, model Mourghorey from the OP at a price of Rs.26,500/- with certain specifications as agreed between the parties. The sofa-cum-bed was delivered to the Complainant on 12.8.2016. But, after delivery, within a few days, it was detected that the sofa-cum-bed was not built as per the specification as agreed and there was lot of defects such as front panel (Beat)of the sofa was not made of mehogony wood as agreed and there were several cracks in it. The back rest of the sofa was not fitted with ply wood support. The mechanical system of closing and opening the lower panel to make the sofa as a bed is not functioning properly. So, as soon as the said defects were detected the Complainant tried to contact with the OP on various dates. But the OP refused to meet the Complainant or to take his call. However, on 31.1.2017, OP sent a representative to see the defects of the said sofa-cum-bed and said representative admitted that the sofa was not made as per agreed specification and the material as agreed. OP promised to rectify the defects. But, on receiving the said sofa-cum-bed, defect was not removed. So, on 31.3.2018 when the sofa was delivered to the Complainant the same had the defects as detected earlier and it was looking very old as the polish disappeared. Complainant has also lodged a diary against the OP at the local police station. But, as the OP did not remove the defects the present complaint has been filed praying for directing the OP to rectify the defects of the purchased sofa-cum-bed according to the agreed specification and by using the quality materials or in alternative to replace the same with a brand new one, to pay compensation of Rs.15,000/- and litigation cost of Rs.10,000/-.
Complainant has annexed with the complaint, the bill dt.20.7.2016 showing the payment of the amount therein and specifications relating to sofa-cum-bed, copy of the complaint made before the local police station and also to the Deputy Commissioner of Police, a copy of the notice which was sent by the Complainant to the OP through his Ld. Advocate on 11.4.2018.
On perusal of the record, it appears that the case has been contested by the OP by filing written version denying and disputing the allegations contending inter alia that the sofa-cum-bed was delivered as per requirement of the Complainant. OP has further contended that the Complainant has falsely stated that OP has received the sofa-cum-bed with a promise to rectify the defects. So, the OP has prayed for dismissal of the case.
During the course of evidence, both parties have filed their respective affidavit-in-chief followed by filing of questionnaire and reply thereto. But, on the date of argument, OP did not take any step in spite of opportunity given and thus the argument of the Complainant has been heard.
So the following points require determination:-
- Whether there has been any deficiency in service on the part of the OP?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for a comprehensive discussion.
As it appears from the written version filed by the OP, claim of the Complainant that he purchased the sofa-cum-bed in question at a price of Rs.26,500/- has not been disputed and denied by the OP. Complainant has also filed relevant document dt.20.7.2016 showing the payment and the said documents contain that there was certain agreement between the parties about usage of the quality of wood and its size, to make the said sofa-cum-bed. According to the Complainant, on delivery of the sofa on 12.8.2016, it was detected that the sofa was not made as per agreed specification and there were defects. Though, the claim of the Complainant has been disputed and denied by the OP but on a careful scrutiny of the document dt.20.7.2016 bearing an endorsement dt.31.08.2017, it is apparent that it has been mentioned by the person visiting the house of the Complainant to check the said sofa-cum-bed, found the same to be defective. There is a clear endorsement in the said document “Found to be defective thus returned on 31.8.2017”. This endorsement in the said document has not been specifically denied by the OP that none of his representatives as claimed by the Complainant visited the house of the Complainant and made the said endorsement. In such a situation, on consideration of the said endorsement in the bill/document dt.31.8.2017 it is apparent that the sofa-cum-bed was found to be defective after its delivery. If that be so, it has to be established by the OP that after return of the said sofa-cum-bed on 31.8.2017 by the Complainant, the OP has taken step to remove the defects. But no document has been filed by the OP that the defects were removed and after removal of the defects the sofa-cum-bed was handed over to the Complainant with proper acknowledgment by the Complainant.
So, in view of the discussions as highlighted above, as it is evident that the sofa-cum-bed was not made as per the specification agreed between the parties and was defective, Complainant is entitled to get the said defects removed by the OP. However, in the given facts and situation of this case, we find no justification to allow compensation as prayed.
Hence
ordered
CC/247/2018 is allowed on contest. OP is directed to repair the defects in the sofa-cum-bed in question as per specification as agreed and hand over the same, within two months from the date of this order and to pay litigation cost of Rs.10,000/- within the aforesaid period of two months.
