DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,

 KOLKATA-700 0144

      C.C. CASE NO. _160   _ OF ___2016

DATE OF FILING : 23.12.2016    DATE OF PASSING JUDGEMENT:  _12.7.2018_

Present                 :   President       :   Ananta Kumar Kapri

                                 Member(s)    :    Subrata Sarker  & Jhunu Prasad

COMPLAINANT   :            Sri Sripati Dutta, son of late Durga Das Dutta of Village Gangarampur(S), P.O Kaijuri, P.S Uliberia, Dist. Howrah, Pin-711316.

•  VERSUS  -

O.P/O.Ps                    :  1. Biswanath Moira, Prop. Of Lakshmi Narayan Mistanna Bhandar, son of Laxmipada Moira of Village Shibpur, P.O & P.S Mathurapur, Dist. South 24-Parganas, ,Pin- 743354.

                                      2.   Sri Uttam Moyra (Mondal), another Prop. Of Lakshmi Narayan Mistanna Bhandar, son of Biswanath Moira of Village Shibpur, P.O & P.S Mathurapur, Dist. South 24-Parganas, ,Pin- 743354.

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                                                J  U  D  G  M  E  N  T

Sri Ananta Kumar  Kapri, President

                 The nub of the facts leading to the filing of the instant case by the complainant may be reproduced as follows.

                  Complainant is an ardent lover of “Joynagar Moya”; he has a special penchant for such sweetmeat. One day, i.e on 18.12.2016 he purchased some Moyas from the shop of the O.Ps with a view to relish the same with his family members in his house. But all his dream was shattered to pieces, when he came to find that the said Moyas are not up to the mark. The test of the said Moyas was not like the actual Moya of Joynagar. He realized that he has been deceived by the O.Ps. So, he has filed the instant case ,praying for refund of Rs.350/- which was taken by the O.Ps as consideration price and also for compensation of Rs.50,000/- for mental agony and harassment suffered by him. Hence, this case.

                 The O.Ps have filed written version of their statements ,wherein it is contended by them that a false case has been fabricated against him by the complainant. According to them, there are competitors of them and those competitors have helped the complainant to file the instant case in order to malign his reputation in the market. According to them, there is no deficiency in service on their part and that he has not cheated the complainant in any manner.   

                  Upon the averments of the parties following points are formulated for consideration.

POINT FOR DETERMINATION

1. Has the complainant been able to prove the deficiency in service or defects in goods on the part of the O.Ps?
2. Is the complainant entitled to get relief or reliefs as prayed for ?

EVIDENCE OF THE PARTIES

                 Both the parties have led their Evidence on affidavit. Questionnaires, replies, BNAs filed  by the complainant and O.Ps are kept in the record for consideration. 

DECISION WITH REASONS

Point no.1 & 2 :

                 In the instant case, the allegation leveled by the complainant against the O.Ps is that the O.Ps sold some Moyas to him on receipt of consideration price and that those Moyas were not up to the mark in their tests. It has also been argued on behalf of the complainant that “Moyas”of Joynagar have recently got G.I Mark under Geographical Indication Act, 2003. The O.Ps have been selling their Moyas branding it as Moyas prepared at Joynagar. The public are misled by such statement of the O.Ps, which is a false one. The Moyas of the O.Ps are not manufactured in conformity with G.I Norms and as such, the O.Ps should be held guilty of deficiency in service for not observing the G.I Norms in manufacturing the Moyas.

                  We mainly deal, inter alia, with two kinds of transactions – 1)  Sale of goods, when coupled with defect in goods,  2)  sale of service when there is also any defect in the service.

                 Defect in service is technically called deficiency in service. We have also to keep in mind that there is also a distinction  between the sale of goods and sale of service and both the things are not synonymous. In case of a sale of goods, there is no promise of service to be rendered in favour of the Buyer. The seller accepts the price for the goods and the transaction is closed on the delivery of the goods to the buyer. But sale of service stands on a different footing. In case of such transaction one person promises to do some work for the benefit of another, though in lieu of consideration price . So, it will not be wise to amalgamate the two transactions and two transactions stand on different footing. Coming to the facts of the instant case, it is found that the allegation as brought by the complainant relates to the allegation of defect in goods i.e the Moyas. It does not relate to any kind of deficiency in service, because the O.Ps did not promise to render any service to the complainant. So, in the context of the allegation of the complainant , as is made out and presented in the complaint, the complainant will have to prove that the Moyas suffered from manufacturing defect. The burden of proof lies upon the complainant and upon none else. The complainant has placed no cogent materials before us to prove that the Moyas suffer from any kind of defect and that the Moyas are not up to the mark as laid down in the G.I Act. The only evidence which has been given by the complainant on record is that the complainant has relished inumerable moyas in his life and that he knows  best what the test of actual Moya is. This is not cogent evidence . It is nothing but an appreciation of the test of Moyas by the complainant himself and such evidence  based on subjective appreciation of a person has no value in so far as the allegation of the complainant is concerned. The complainant is bound to produce the expert opinion before the Forum to the effect that the Moyas actually fall short of the norms and standard as laid down in G.I Act, 2003. But no such evidence has been placed on record by the complainant and in absence of such cogent evidence on record, we feel no hesitation to say that the complainant has failed to establish any defect in goods as alleged by him. 

                  In the result, the case fails.  

                  Hence,

ORDERED

that the complaint case be and the same is dismissed on contest against the O.Ps, but without cost

     Let a free copy of this order be given to the parties concerned at once.   

                                                                                                                   President

I / We agree

                              Member                                            Member     

Dictated and corrected by me

                         President