DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

Dated this 27^th day of March 2024.                                                                                             

                           Filed on: 09/04/2019

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member Smt.Sreevidhia.T.N                                                              Member

C.C. No. 164/2019

COMPLAINANT

VC Paulose, S/o Chacko , Valakattu house ,Thykkudam, Vyttila Kochi-682019

(Rep. Adv. Tom Joseph, Court Road, Muvattupuzha 686661)

V/s

Opposite party

Jacob Daijan, Kandethu house,Tykkudam Bund Road, Vyttila,Kochi-20

(Rep. by Adv. Madhusoodanan S, Lipi Mol G., Akhil George, Aparna P. Menon & S Ravi Kumar, Law Associates, Matha Shopping Complex Building, Tripunithura 682301)

F I N A L   O R D E R

D.B. Binu, President:

1. A brief statement of facts of this complaint is as stated below:

This complaint was filed under Section 12 of the Consumer Protection Act, 1986, by a complainant against the opposite party. The case revolves around an agreement wherein the proprietor agreed to supply a kitchen cupboard designed for storing glasses, plates, and cups for Rs. 25,000. The dimensions of the cupboard were specified to be 7 feet in height and 3.5 feet in width, with glass doors. The complainant made an advance payment of Rs. 10,000 through a cheque from the State Bank of India, Vyttila branch, on April 12, 2018.

Despite the agreement and the advance payment, the opposite party failed to deliver the promised cupboard. Carpenters sent by the opposite party later informed the complainant that they could not produce the cupboard as specified. When the complainant sought a refund of the advance payment, the opposite party refused, claiming that the money was not available for refund. Following this, a complaint was lodged at the Maradu Police Station for intervention to secure a refund, but the amount was still not returned.

The complainant views these actions as a deficiency in service and an unfair trade practice, leading to a demand for a refund of the Rs. 10,000 advances with an interest rate of 12% per annum from the collection date until realization. Additionally, the complainant seeks compensation of Rs. 10,000 for mental agony and hardship, along with the cost of the proceedings. The complainant has approached the commission to grant the requested relief.

2) Notice

The Commission sent a notice to the opposite party, who subsequently appeared and submitted their version.

3) THE VERSION OF THE OPPOSITE PARTY

The opposite party contests the complaint's maintainability on both legal and factual grounds, suggesting that it suppresses material facts, lacks merit, and is allegedly filed with malicious intent to harass them and tarnish their reputation. Contrary to the complainant's assertion, the opposite party identifies itself not as the proprietor of M/s Kandeth Kitchen Accessories but as operating under Kandeth Wood Industries, specializing in wooden doors, windows, almirahs, cupboards, and kitchen accessories.

The background of the dispute involves the complainant ordering a customized kitchen almirah in 2018 for Rs 25,000, with specific dimensions and materials, and paying an advance of Rs 10,000. This advance was deemed non-refundable due to the custom nature of the work. The opposite party claims to have completed the almirah and attempted installation at the complainant's residence. However, the complainant allegedly refused to allow the modifications necessary for installation, contrary to the agreement and subsequently demanded a refund. The refusal is claimed to have breached the agreed terms and caused financial loss to the opposite party, given the uniqueness of the custom almirah making it unsellable to others.

The opposite party asserts that the complaint is devoid of truth and merit, accusing the complainant of whimsically changing his preferences and unjustly accusing the opposite party of service deficiencies. It is characterized as an attempt by the complainant to unjustly benefit at the opposite party's expense. Therefore, the opposite party requests the commission to dismiss the complaint and to award compensation for their incurred losses, including the cost of the proceedings.

4). Evidence

A proof affidavit was filed by the complainant and marked Exhibits A1 and A2 to support his case. The complainant was examined as PW1.

• Exhibit A1: Copy of the bank passbook showing the transfer of the amount.
• Exhibit A2: Copy of the complaint dated 26.2.2019 submitted before the police.

A proof affidavit was filed by the opposite party.

5) The main points to be analyzed in this case are as follows:

i)       Whether the complaint is maintainable or not?

ii)      Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant.

iii)     If so, whether the complainant is entitled to get any relief from the side of the opposite party?

iv)     Costs of the proceedings if any?

6)      The issues mentioned above are considered together and are answered as follows:

In the present case in hand, as per Section 2 (1) (d) of the Consumer Protection Act,1986, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment.  The true copy of the bank passbook produced by the complainant shows the transfer of the amount to the opposite party dated 12.04.2018 (Exhibits A-1). Hence, the complainant is a consumer as defined under the Consumer Protection Act, 1986 (Point No. i) goes against the opposite party.

The case involves the complainant seeking compensation and other reliefs due to the opposite party's failure to refund the Rs. 10,000 advances given for purchasing an almirah. This refusal constitutes a deficiency in service and unfair trade practice.

We have heard that the learned counsel representing the complainant summarizes as follows:

1. This grievance centers on the refusal to refund an advance payment of Rs. 10,000 made for the purchase of an Almirah.
2. The carpenters dispatched by the defendant visited the complainant's residence only to state that they could not manufacture the requested almirah. Consequently, the complainant requested the return of the advance payment.
3. Despite the request, the refund was not processed, leading the complainant to seek assistance from the Maradu Police Station, which proved unsuccessful. Thus, the complainant resorted to filing a complaint with this Commission.
4. Evidence was submitted by the complainant, including an affidavit, and documents Exhibits A1 and A2.
5. The defendant claims to have produced an almirah according to the complainant's specifications, which the complainant then refused to accept. However, the opposite party failed to present any formal agreement or specifications provided by the complainant as evidence. This lack of documentation suggests that the opposite party's story may have been fabricated to avoid refunding the advance payment. Given these facts, the complainant requests that the complaint be upheld.

We have carefully listened to the submissions made at length by the learned counsels representing both the complainant and the opposite party, and have considered the entire evidence on record.

The complainant sought redressal against the opposite party for the failure to deliver a kitchen cupboard as per an agreement, and the subsequent refusal to refund an advance payment of Rs. 10,000.

Consumer Status: As per Section 2(1)(d) of the Consumer Protection Act, 1986, a consumer is anyone who buys goods or avails services for consideration. The evidence, particularly Exhibit A1, confirms the complainant's consumer status by documenting the payment transferred to the opposite party, aligning with the Supreme Court's broad definition of a consumer in Morgan Stanley Mutual Fund v. Kartick Das (1994 4 SCC 225).

1. Deficiency in Service and Negligence: The refusal to deliver the agreed-upon cupboard or to refund the advance payment constitutes a deficiency in service and possibly negligence on the part of the opposite party. This is corroborated by the complainant's efforts to recover the advance, including lodging a complaint at the Maradu Police Station, which were unsuccessful and resulted in undue hardship.
2. Relevant Case Laws: The principles laid out in Lucknow Development Authority v. M.K. Gupta (1994 SCC (1) 243) reiterate the importance of holding service providers accountable for lapses in service, emphasizing the consumer's right to compensation for such deficiencies.

The opposite party's claim of completing the almirah as per custom specifications, without providing concrete evidence such as a formal agreement detailing these specifications, casts doubt on the veracity of their version. The absence of documented specifications or any attempt to accommodate the complainant's requests further illustrates a deficiency in service.

In the case of Morgan Stanley Mutual Fund v. Kartick Das (1994 4 SCC 225), the Honorable Supreme Court, with Justices M.N. Venkatachaliah (CJ), S. Mohan, and Dr. A.S. Anand, defined the term 'consumer' as follows:

"The consumer as the terms implies is one who consumes. As per the definition, consumer is the one who purchases goods for private use or consumption. The meaning of the word 'consumer' is broadly stated in the above definition so as to include anyone who consumes goods or services at the end of the chain of production. The comprehensive definition aims at covering every man who pays money as the price or cost of goods and services. The consumer deserves to get that he pays for in real quantity and true quality. In every society, consumer remains the centre of gravity of all business and industrial activity. He needs protection from the manufacturer, producer, supplier, wholesaler and retailer. "

3. Liability of the Opposite Party: Given the documentation and arguments presented, it is evident that the opposite party has not fulfilled their contractual obligations, thereby incurring liability for both the unrefunded advance payment and the consequent mental agony and hardship experienced by the complainant.

          We determine that issue numbers (I) to (IV) are resolved in the complainant's favour due to the significant service deficiency and unfair trade practice on the part of the opposite party. Consequently, the complainant has endured considerable inconvenience, mental distress, hardships, and financial losses as a result of the negligence of the opposite party.

In view of the above facts and circumstances of the case, we are of the opinion that the opposite party is liable to compensate the complainant.

Hence the prayer is allowed as follows:

1. The Opposite Party shall refund the advance amount of ₹10,000 (Ten Thousand Rupees) to the complainant for the payment made towards the undelivered almirah, as evidenced by Exhibit A-1.
2. The Opposite Party shall pay ₹10,000 (Ten Thousand Rupees) to the complainant as compensation for mental agony and hardship resulting from the failure to refund the advance payment for the almirah. This refusal constitutes a deficiency in service and unfair trade practice.
3. The Opposite Party shall also pay the complainant ₹5,000 (Five Thousand Rupees) towards the cost of the proceedings.

The Opposite Party is mandated to comply with the directives mentioned above within 30 days from the date of receipt of this order. Failure to comply with the payment orders under points I and II will result in interest at the rate of 9% per annum from the date of filing the complaint (09-04-2019) until the date of full payment realization.

Pronounced in the Open Commission on this the 27^th day of March, 2024                                                                                  

Sd/-

D.B. Binu, President

Sd/-

Sreevidhia.T.N, Member

Forwarded/By Order

Assistant Registrar

/by Order

Assistant Registrar

Appendix

COMPLAINANT’S EVIDENCE

Exhibit A1: Copy of the bank passbook showing the transfer of the amount.

Exhibit A2: Copy of the complaint dated 26.2.2019 submitted before the police.

OPPOSITE PARTIES’ EVIDENCE

Nil

Despatch date:

By hand:     By post                                                       

kp/

CC No. 164/2019

Order date:  27/03/2024