DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 8 day of March 2023.
Filed on: 13/04/2018
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C No. 168/2018
COMPLAINANT
Nelson Thomas, S/o. M.U. Thomas, A 806, Pearls Garden View, Chilavanoor, Kadavanthara, Kochi-682020.
(party-in-person)
Vs.
OPPOSITE PARTIES
- , Home Centre, 2 Floor, Grand Mall, Edapally P.O. Kochi, Ernakulam, Pin- 682 024.
2. Managing Director, M/s. Lifestyle International Pvt Ltd., Home Centre, 77 Town Centre, Building No.3, West Wing, Off Old Airport Road, Yemlur P.O., Bangalore-560037
(O.ps rep. by Adv.P.B.Sajith, :Dhanya Law Chambers’, Puthiyara,
Calicut-673 004)
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:
The complaint was filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainant herein purchased a Set (2 numbers) of Dining Chairs from the Edapally Show room of opposite parties on 20th March 2018 for Rs.9,300/- and delivery of the items was promised within seven days. On 27th March 2018, the complainant received an SMS message informing that the items will be delivered on that day. But it was not delivered and the complainant received another message expressing the opposite parties’ regret in not delivering the items and the same shall be done within 48 hours. The opposite parties failed to deliver the items as per their promise, the complainant registered a complaint at the opposite party’s Toll-free number provided on the Invoice and also sent an e-mail communication and again the complainant was promised that the items will be delivered in 2 days. The opposite parties again failed to honour their commitments. The complainant repeated the process of registering the complaint and sending emails for which opposite parties continued to give the same standard reply that it will do within 2 days and the last mail the complainant received from them was on 4th April 18 promising delivery on 5th April 18. The opposite parties have neither honoured their commitments to deliver the items nor refunded the money collected from the complainant along with interest and compensation as requested. The complainant had approached this Commission seeking an order directing the opposite parties to refund Rs. 9300/- with interest and Rs.25000/- as compensation for the mental agony, suffering, and monetary loss caused to the complainant and the cost of the proceedings.
2). Notice
Notices were issued from the Commission to the opposite parties. The opposite parties received the notice and filed their versions jointly.
3). Version of the opposite parties No. 1 & 2
The complainant had purchased two dining chairs (a set of 2 antique walnuts) from opposite parties on 20-03-2018 for an amount of Rs. 9,300/-. But the fact that the opposite parties were reluctant to deliver the items even after repeated demands by the complaint, etc., are all false, baseless and hence denied. The tentative date of delivery of the items was informed to the complainant on 27-03-2018. Further the invoice dated 20-3-2018 specifically states tentative dates not guaranteed delivery dates. The opposite Party's delivery team attempted delivery of the items to the complainant's residential address, since the complainant was not available at the given address on that delivery date, the delivery could not be affected. The opposite Parties informed the complainant about their attempt to deliver the items on the said date. The complainant then informed the opposite Party's delivery team that he is neither available at the station to receive the delivery nor in a position to make arrangements to receive the same and the complainant requested the opposite party's delivery team to postpone the delivery. The opposite party’s delivery team was thus forced to return without being able to deliver the items as there was no one to receive the items at the complainant's residence. Thereafter, as recommended by the complainant, the delivery of the items was. scheduled to 29-03-2018 and the complainant also assured the opposite parties that he will be available on the said date to make the arrangements to receive the items. Once again, the opposite party’s delivery team as re-scheduled by the complainant attempted to deliver the items at the complainant's residence on 29-03-2018, but after too much agony, the complainant's house was locked and there was no one at the complainant's residence to receive the item. The opposite Party's delivery team once again informed the complainant that they had come to the complainant's house to deliver the items. The complainant again requested the opposite party’s delivery team to postpone the delivery of the items as the complainant was not available at the given address. On the following dates, 30-03-2018, 31-03-2018 and 01-04-2018 the opposite parties’ delivery system was not in operation. The next date on 02-04-2018 due to the hartal at Cochin, no vehicles were allowed to ply and hence the opposite parties could not make delivery on 02-04-2018. Thereafter the complainant demanded delivery of the items on either 03-04-2018 or 04-04-2018, but the same day when the e-way billing system implemented by the central government came into effect, due to a technical snag in the e-way billing system the opposite parties could not deliver the items and this fact was duly informed to the complainant. Subsequently as informed to the complainant the opposite parties attempted to deliver the items at the complainant's residence on 05-04-2018. But the complainant refused to accept the delivery and instead abused the opposite party's delivery team of the opposite parties in filthy and unparliamentary language and that apart the complainant demanded a refund of the items purchased. The complainant thereafter sent an email to the opposite parties expressing his grievance about the non-compliance of the delivery as scheduled. The opposite parties replied to the email sent by the complainant about all the inconvenience caused to the delivery team due to the non-availability of the complainant to receive the items whenever the delivery of items was attempted. There was absolutely no fault on the side of the opposite parties in making the delivery or refunding the amount back to the complainant. It is all because of the complainant's wilful non-co-operation and arrogance, the delivery of the items could not be affected. Due to the complainant's above-mentioned ill acts, the opposite parties suffered huge financial losses.
4). Evidence
The complainant had filed a proof affidavit and 6 documents that were marked as Exhibits-A-1- to A-6. DW 1 Cross-examined by the complainant.
Exbt.A-1. Invoice copy
Exbt.A-2. Credit Card payment slip
Exbt.A-3. Delivery instructions (Help us serve you better)
Exbt.A-4. Warranty Card
Exbt.A-5. Copy SMS communications
Exbt.A-6. Copy of mail communications
5) The main points to be analysed 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:
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 which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant produced true copies of the Invoice and the Credit Card payment slip (Exhibits A-1 and A-2). Hence, the complainant is a consumer as defined under the Consumer Protection Act,1986 (Point No. i) goes against the opposite parties.
The case of the complainant is that he purchased 2 dining chairs from the showroom of the opposite parties on 20.3.2018 for which the complainant paid Rs. 9.300/- and the 1st opposite party assured the complainant that the items will be delivered to his home within 7 days. The items were neither delivered as per the commitments nor were the money collected by the opposite parties refunded to the complainant. The claim was made by the opposite party that they tried the delivery on many occasions and the opposite parties found the complainant’s house locked.
The complainant submitted that as committed by the opposite party regarding the delivery of the items, The complainant received an SMS message on 27.03.2018 at 12.40 pm, stating that the consignment is out for delivery. Immediately, 9 minutes after that the complainant received another SMS message at 12.49 pm conveying their regret for the inconvenience caused in completing the delivery. (Exhibit A-5). Within a short span of 9 minutes, the delivery agent cannot reach the complainant’s place from their store and updated that the delivery could not be affected as The complainant was not available and the house was locked. Moreover, in none of the subsequent SMS or mail communications from the opposite party, it is not mentioned that the non-delivery of the consignment was due to the complainant’s unavailability or due to the reason that the house was locked other than in the version filed by them. which was an afterthought, an imaginary and false allegation raised after the complaint was filed. It was also ascertained that the version given by the opposite parties are false during the cross-examination of opposite party no.1 on 28-09-2022, wherein the opposite party agreed that he doesn't know the distance between their store and the complainant’s house and also, the type of building he was staying. The very short gap of 9 minutes between 2 SMS messages informing the consignment is dispatched for delivery and a regret message about the inconvenience of incomplete delivery. Subsequent communications from the party. The complainant staying with his family and sister in a flat and someone is always available at home. In addition to that, the complainant also has a facility in his apartment to receive any parcel/ material/ couriers or any correspondences as the apartment is a gated colony and has a caretaker and other security persons round the clock, who are authorized to receive such items in his absence. So, the version of the opposite party that "but too much agony, the complainant's house was locked and there was no one at the residence to receive the item" is false. In para 4 of the opposite party s version, it is mentioned that they made a final attempt to deliver the consignment on 05-04-2018, but the complainant refused to accept delivery and instead abused the delivery person is again false and imaginary. On the contrary, no one came to my residence for delivering the items or met the complainant to have any such conversations and as mentioned above it is just a wild imagination and allegation without any proof. Whereas as per their e-mail communication itself, it is stated that they have never attempted delivery and regretted that also, the complainant has established during the cross-examination of opposite party no.1, that no one from the opposite party's side has met the complainant had paid the entire money upfront, there is no reason for the complainant not to accept the consignment if it would have been brought to the complainant place. The statement by the opposite parties that they agreed to refund the money itself is clear proof of accepting the deficiency at their end. So, all the above points clearly establish that the opposite parties did not deliver the items purchased by the complainant and thus there was inaction and deficiency in services on the part of the opposite parties to deliver the items within the agreed period and it amounts to "restrictive trade practice" defined under Consumer Protection Act, 1986 as it has caused hardship and monetary loss to the complainant. The opposite party’s statement that the complainant has refused to accept the refund is absolutely incorrect. But the opposite parties themselves have accepted in their communications and version that the refund was not done as the complainant did not give a cancelled cheque and Pan card copy. There were valid reasons for the complainant to not give a cancelled cheque and Pan card.
The counsel for the opposite parties submitted that on many occasions when the opposite parties attempted to make delivery by making prior information to the complainant the delivery could not be affected due to the non-availability of the complainant. It is just because of the complainant's non-availability the items could not be delivered by the opposite parties for which the complainant is solely liable and responsible. For the fault of the complainant the opposite parties had been demanded to pay an exorbitant amount to the complainant along with interest and the same cannot be allowed under any stretch of the imagination. The complainant's demand to refund the price of the items was accepted by the opposite parties as informed to the complainant and the opposite parties are still willing to refund the amount. The opposite parties initiated the refund and as a matter of procedure to pay the amount to the complainant, the opposite parties requested the complainant to provide pan card details and a cancelled cheque to transfer the amount to the complainant's bank account. When this was informed to the complainant, he turned violent against the opposite party and refused to accept the refund as well as the delivery of the items.
The opposite parties 1 and 2 had inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of the opposite parties 1 and 2 in failing to provide the Complainant desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainant.
We find the issue Nos. (II), (III) and (IV) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite parties 1 and 2. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite parties 1 and 2.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
- The Opposite Parties shall refund Rs.9300/- to the complainant being the purchase price of the Dining Chairs paid by the complainant. (Exhibit A-1).
- The Opposite Parties shall pay Rs.10,000/- as compensation for the mental agony, suffering, and monetary loss caused to the complainant.
- The Opposite Parties shall also pay the complainant Rs.5000/- towards the cost of the proceedings.
The opposite parties shall jointly and severally liable for the above-mentioned directions which shall be complied with by the Opposite Parties within 30 days from the date of the receipt of a copy of this order failing which the amount ordered vide (i) and (ii) above shall attract interest @7.5% from the date of receipt of a copy of this order till the date of realization.
Dictated to the Confidential Assistant Ambily transcribed and typed by her corrected by me and pronounced in the Open Commission on this 8th day of March 2023
Sd/-
D.B.Binu, President
Sd/- V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
Forwarded/by Order
Assistant Registrar
APPENDIX
Complainant’s Evidence
Exbt.A-1. Invoice copy
Exbt.A-2. Credit Card payment slip
Exbt.A-3. Delivery instructions (Help us serve you better)
Exbt.A-4. Warranty Card
Exbt.A-5. Copy SMS communications
Exbt.A-6. Copy of mail communications
Depositions
DW1 : Joseph Mathew
