DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _314_ OF ___2015_
DATE OF FILING : 6.7.2015 DATE OF PASSING JUDGEMENT:04/052017
Present : President : Udayan Mukhopadhyay
Member(s) : Jhunu Prasad & Subrata Sarker
COMPLAINANT : Partha Biswas, s/o late Patit Paban Biswas of 189/R, Roy Bahadur Road, Kolkata – 34, P.S Behala.
-VERSUS -
O.P/O.Ps : 1. M/s Metal Forge ( Nugabest)
2. The Manager, M/s Metal Forge (Nugabest), both holding office at 25/1B, Diamond Harbour Road, Barisha Janakalyan, 2nd Floor, P.S Thakurpukur, Kolkata – 700 008.
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J U D G E M E N T
Jhunu Prasad, Lady Member
Filtering out the unnecessary details in the complaint, may be summarized thus:-
The complainant stated in the complaint that the complainant booked one automatic machine being No.NM4000 from the O.P on 08.09.2014 and paid entire amount of Rs.1,29,000/- in four installments by cash in different dates and the said machine was delivered on 27.02.2015.
After delivery of the said machine the complainant noticed that the said machine was used one as well as the seal pack of the machine has been broken and machine has also been damaged to some extent.
Thereafter on 09.03.2015 the complainant informed the matter to the O.Ps and requested them to replace the said machine with a new one having intact seal and well packed.
The complainant also stated that the OP.No.2 agreed to take back the said machine without issue of receipt. Thereafter the OP. No. 2 informed by letter vide letter dated 31.03.2015 that due to mishandling of the said machine at security check points or during its usage in the house the machine has been damaged. The OP. No. 2 also stated that the said machine could be exchange by extra payment of Rs. 30,000/-.
The complainant stated that due to negligence of the O.Ps the complainant could not use the said machine and the said defective machine also lying at the house of the complainant.
Having no other alternative the complainant sent a legal notice through his Ld. Advocate, but the same is refused by the O.Ps.
Hence, the complainant filed this instant complaint for getting relief.
Issued notices upon the O.Ps by way of paper publication, but O.Ps did not appear to controvert the case. So, the case is heard exparte against the O.Ps.
POINTS FOR DETERMINATION:-
The point for determination in the instant case is whether the complainant is entitled to get the relief as prayed for in the facts and circumstances of the case and in view of material evidence on record and have any deficiency on the part of the O.Ps.
DECISIONS WITH REASONS:-
At the time of argument the complainant filed affidavit –in – chief, BNA and some Xerox copies of documents to support of his claim.
All the points are taken up together for consideration for the sake of convenience and brevity.
We have carefully considered the submissions made before us by the Ld. Advocate for the complainant and perused all the material documents on record.
On evaluation of the case record, it is evident that, the complainant purchased one automatic machine being machine NO.NM-4000 from the OPs. on 08.09.2014 on payment of entire consideration amount of Rs.1,29,000/-by four installments.
The complainant alleged that at the time of delivery of the machine the complainant noticed that one used machine has been delivered by the O.Ps to the complainant. Immediately the complainant informed the same and asked for replacement of the said machine with new one. But the O.Ps deliberately ignored to solve the problem to the complainant. Moreover, the O.Ps did not give any reply to the complainant’s letter dated 28.03.2015 and 23.04.2015.
All allegations made by the complainant are unchallenged, though the O.Ps got chance to contest and to refute by appearing before the Forum. So, there is no reason to disbelieve the unchallenged testimony of the complaint.
Therefore, in light of the above discussion, we are of the view that the entire conduct of the O.Ps are illegal, unwarranted and arbitrary in nature and in fact by adopting such procedure the O.Ps committed unfair trade practice u/s 2(1)(r) of C.P. Act 1986 and we have no hesitation to hold that the complainant is entitled to get relief as prayed for and consequently the points for determination are decided in affirmative.
In short, the complainant deserves success.
In the result, we proceed to pass
ORDER
That the complaint be and the same is allowed exparte against the O.Ps with cost.
That the OPs. are jointly and severally directed to replace the said automatic machine being No.NM-4000 with a new one with fresh warranty to the complainant or refund the money of Rs.1,29,000/- ,which had been paid by the complainant to the O.Ps ,within one month from the date of this order.
That the O.Ps are also jointly & severally directed to pay Rs.10,000/- as compensation for causing mental pain & agony and Rs. 2,000/-as litigation cost to the complainant within one month from the date of this order.
That in case of non compliance of the order passed by the Forum, the O.Ps shall have to pay @9% interest from the date of this order till its realization, as punitive damages, which shall be deposited by the O.Ps to the Consumer Legal Aid Fund .
Let a plain copy of this order be supplied to the parties free of cost.
Member Member President
Dictated and corrected by me
Member
The Judgment in separate sheet is ready and is delivered in open Forum, as it is :
ORDER
That the complaint be and the same is allowed exparte against the O.Ps with cost.
That the OPs. are jointly and severally directed to replace the said automatic machine being No.NM-4000 with a new one with fresh warranty to the complainant or refund the money of Rs.1,29,000/- ,which had been paid by the complainant to the O.Ps ,within one month from the date of this order.
That the O.Ps are also jointly & severally directed to pay Rs.10,000/- as compensation for causing mental pain & agony and Rs. 2,000/-as litigation cost to the complainant within one month from the date of this order.
That in case of non compliance of the order passed by the Forum, the O.Ps shall have to pay @9% interest from the date of this order till its realization, as punitive damages, which shall be deposited by the O.Ps to the Consumer Legal Aid Fund .
Let a plain copy of this order be supplied to the parties free of cost.
Member Member President
