State Consumer Disputes Redressal Commission
Mrs Chandrika Devi vs The Proprietor Ganesh Trading Company on 4 August, 2011
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/645/2010 DATE OF FILING : 18.11.2010 DATE OF FINAL ORDER: 04.08.2011 APPELLANT: Mrs. Chandrika Devi, W/o Late Ram Sagar Jha, 161/5, Ram Krishnapur Lane, P.O. & P.S. Shibpur, Dist- Howrah. RESPONDENT : The Proprietor, Ganesh Trading Company, 167, Ram Krishnapur Road, P.O. & P.S. Shibpur, Dist- Howrah. BEFORE HONBLE MEMBER
: Smt. Silpi Majumder.
HONBLE MEMBER : Sri Shankar Coari.
FOR THE APPELLANT : Malabika Mukherjee, Advocate.
FOR THE RESPONDENT : Mr. Pithiraj Sarkar, Advocate Silpi Majumder, Member This appeal has been directed against the judgment passed by the Ld. District Forum, Howrah, on 13.10.2010 in the case no- HDF/34/2010, wherein the Ld. Forum below was pleased to dismiss the complaint against the OP on contest without any cost.
The brief fact of the case of the Complainant is that she has placed an order with the OP for supply of wooden goods namely window, shutter, chalk-bandi, wooden door and paid a sum of Rs 30,000/- as advanced out of Rs.46,000/- against proper receipt. After lapse of about one year the OP supplied the goods to the premises of the Complainant by two phases. In the last week of April, 2008 the OP delivered some shutters and rest were delivered in the last week of May, 2008 within two days from the first date of delivery of goods. The Complainant and her family members detected that the OP had supply the wooden shutter made with rotten and law quality wood. It was also found that the shutters were cracked at many places and some portions have been finished with pudding for filling up the whole and cracks. It is contended that the Complainant without any delay reported the same to the OP who assured her to look after into the matter, but the OP did not replace the same rather within a very short time delivery of the rest of the wooden shutter and fitted the same in spite of protest. The OP promised that they would return the said shutters but the OP did not do the same. Thereafter, the Petitioner send an Advocates letter through registered post with A/D on 15.09.2000 and the OP received the same. In spite of receipt of the two notices the OP did not replace the same. So, the Complainant finding no other alternative has filed the petition of complainant before the Ld. Forum below but after filing of this case the OP has issued an Advocates letter through registered post with A/D to the Complainant. It has been prayed the before the Ld. Forum below by the Complainant for giving direction upon the OP either to return the advance amount of Rs.30,000/- or to change the bad and bellow quality of wooden materials which were supplied to the Complainant along with a compensation of Rs.50,000/-.
Before the Ld. Forum below the case of the OP was that he supplied the entire articles on good faith and without receiving the balance amount of Rs.16,000/- and the Complainant after being duly satisfied with the quality and quantity with the aforesaid articles accepted the same. It has been contended by the OP that in spite of repeated requests to the Complainant for making payment of the balance amount of Rs.16,000/- but to no effect and the Complainant avoided to pay the aforementioned amount on some false and flimsy pretext and ultimately on 27.04.2010 flatly refused to make payment of the same only with a view to grab the entire amount of Rs.16,000/- by a letter of demand dated 30.04.2010 through his authorized legal agent namely Mr. Pradip Kumar Adak which was send to the Complainant by registered post with A/D on 30.04.2010 and the said letter was duly received by the Complainant on 01.05.2010 by putting her signature on the A/D card. It was further stated by the OP that no such document has been placed by the Complainant to show that the employees of the OP painted the shutters after taking primer from the Complainant or fitted the shutter with the frame. Moreover there was no such contract between the parties on the other hand there was only contract to supply the wooden shutters and nothing more as such the allegations made by the Complainant in this regard has got no legs to stand upon. It was contended that if there be any must have been caused or occurred due to natural wear and tear and not due to inferior quality of articles or materials as alleged by the Complainant in the instant case.
The AppellantComplainant has preferred the present appeal before this Commission, being aggrieved by the above mentioned judgment passed by the Ld. Forum below wherein the Appellant has stated the same fact as stated by her in the petition of complaint before the Ld. Forum below. In the grounds of memorandum of appeal the Appellant has mentioned that the Ld. Forum below ought to have considered the averment of the original application as well as the deficiency and illegal act on the part of the RespondentOP for whose harassment the Complainant incurred loss and damage. The Complainant has been able to prove that she is entitled to relief. It was the obligation on the part of the Respondent whether the defects were occurred due to natural wear and tear or the defects were inherent. Though the Respondent assured for replacement of the goods, but has failed to maintain his commitment, but unfortunately the same has not been considered by the Ld. Forum below. According to the Appellant the judgment passed by the Ld. Forum below is liable to be dismissed being erroneous and illegal and has prayed for allowing the present appeal.
For adjudication of the present appeal the LCR has been called for from the Ld. Forum below and we have duly considered the record, LCR and various documents as available in the record and the LCR and also heard the submissions as advanced by the Ld. Counsel for the parties. It is seen by us that admittedly delivery of the entire goods to the Complainant was made after payment of Rs.30,000/- towards advance payment and the remaining balance amount of Rs.16,000/- was required to be paid by the Complainant to the OP at the time of delivery of the entire goods. There is no controversy in respect of receipt of Rs.30,000/-, balance amount of Rs.16,000/- and the payment receipt as issued by the OP to the Complainant. Only allegation is in respect of defects in the materials supplied by the OP. Before the Ld. Forum below the OP has emphatically denied all the allegations as made out by the Complainant in the petition of complaint in respect of the goods supplied by the OP. We have noticed that order was placed before the OP for supply of some wooden goods namely windows, shutter, chalk-bandi, wooden door and paid a sum of Rs.30,000/- towards advance payment out of Rs.46,000/- against proper receipt. It is also an admitted fact that the OP supplied the above mentioned goods to the Complainant by two phases, but it is the allegation of the Complainant that within a very sort period of delivery the Complainant found that the materials supplied by the OP suffered from several cracks and defects. The OP also finished the goods with pudding for filling up the hole and cracks. The Complainant has submitted that the OP was informed about the said defects and cracks who assured her that the goods will be replaced or proper steps will be taken in respect of cracks and defects in the goods. Further allegation of the Complainant is that in spite of several requests the OP did not take any step to replace the defective goods with a new one. Thereafter finding no alternative the Complainant filed a petition of complaint before the Ld. Forum below alleging defective goods supplied by the OP and deficiency in service on behalf of the OP. The submission so put forward before this Commission on behalf of the Respondent that it is the well settled principle that in respect of defective goods onus lies upon the Complainant who alleges the defectiveness of the goods to prove such defectiveness by adducing cogent/ expert evidence from the respective field. But in the case in hand the Complainant has failed to adduce any expert evidence in support of her allegation i.e. in respect of defective goods. It has also been submitted by the Ld. Counsel for the Respondent that the Complainant has filed one report from M.B.B. Enterprise, contractor for and general order supplier, Hooghly, wherein it is stated that the wood of the said goods is low class quality, there are many cracks in the Pallas, rough finishing, cracks were filled up by wooden dust, chemicals and wooden pudding and the woods are not seasoned. We have perused the said report. It has also been submitted by the Respondent that a general order supplier cannot give any certificate in respect of defectiveness in the goods against another general order supplier and contractor and in this respect the contractor who used to give any such certificate/opinion against the other always tries to hamper the business of the other contractor and general order supplier. For this reasons the report or the opinion as given by the M.B.B. Enterprises cannot be accepted as an expert opinion in respect of defective goods in question.
After careful perusal it transpires to us that admittedly the Complainant filed the said opinion from M.B.B. Enterprises before the Ld. Forum below, but it is curious that no discussion has been made by the Ld. Forum below about the said report/opinion in the impugned judgment. Whether such report has been filed or not by the Complainant before the Ld. District Forum or not, to know the actual position the lower court record has been called for. Though at the time of hearing before this Commission the Ld. Counsel for the Appellant has submitted that inspite of submission of expert opinion the Ld. Forum below did not accept the same as an expert opinion and even no discussion has been made in respect of the said report, to that context whether it can be accepted as an expert opinion or not. Before this Commission the Ld. Counsel for the Respondent has submitted that no opinion has been filed before the Ld. Forum below. In respect of the opinion as given by Sri Gourab Ghos, being the proprietor of M.B.B. Enterprises, we are of the view that against such report the OP did not bother to file counter evidence and did not take any step to cross examine Sri Gourab Ghosh by filing questionnaires. No contrary expert evidence or opinion has been filed by the OP before the Ld. Forum below. As no objection has been raised against the expert opinion in question by the OP, the opinion of Sri Gourab Ghosh can be termed as expert evidence. No where the OP has challenged the educational qualification of Mr. Ghosh or the sanctity of the said report. After careful consideration of the report it is evident to us that the wood of the delivered material are made of low quality wood, there are many cracks and hole in the pallas, damaged wood has been repaired by pudding, wooden dust, chemicals etc, thickness of the palla are very thin and weak and the wood of the materials are not seasoned.
In the view of the foregoing discussion hence, it is ordered that the appeal be allowed on contest with cost of Rs. 1,000/- payable by the OP to the Complainant. The OP is directed to replace the entire damaged goods as supplied by him by defect free new goods as per earlier specification as ordered by the Complainant, failing which the OP is directed to refund the entire amount to the tune of Rs.30,000/- paid by the Complainant to the OP towards advance within 45 days from the date of passing of this judgment. In default of such payment along with cost the entire amount i.e. Rs.31,000/- total shall carry interest @ 9% p.a. for the default period. As the OP has supplied defective goods and for redressal of her grievance the Complainant being compelled approached before the Ld. Forum below, the Complainant is entitled to get compensation and in our opinion it will be justified if we grant a sum of Rs.2,000/- towards compensation payable by the OP to the Complainant. In this respect also the OP is directed to pay the compensation of Rs.2,000/- within a period of 45 days from the date of passing of this judgment in default the abovementioned amount also shall carry interest @ 9 % p.a. for the default period. With the abovementioned explanation the appeal be disposed of and the complaint it hereby allowed. The office is directed to return the LCR to the Forum below along with a copy of this judgment forthwith.
Silpi Majumder Shankar Coari (Member) (Member)