DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 09_ OF ___2017
DATE OF FILING : 13.01.2017 DATE OF PASSING JUDGEMENT: 15.03.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker
COMPLAINANT : Sk. Rafikul Islam, son of Sk. Sayek Mohammad at Vill. & P.O- Palaspai, P.S Khanakul, Dist. Hooghly-712416, Sole Proprietor of M/s Jyoti X-Ray Home Khanakul, Hooghly.
- VERSUS -
O.P/O.Ps : 1. Smt. Anjana Ganguly, wife of Sri Kaushik Ganguly, Sole Proprietress of M/s Anjana Medical Trading Corporation
2. Sri Kaushik Ganguly, son of none known, Authorised Signatory of M/s Elesonic Equipments Pvt. Ltd. Also at Elisonic Medical System,
Both of Saheban Bagicha, Kalitala, P.O Muchisa, Bakrahat, P.S Nodakhali, Pin-743377, South 24-Parganas.
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J U D G E M E N T
Sri Ananta Kumar Kapri, President
Facts unfolded in the complaint filed by the complainant may be reproduced briefly as follows.
Complainant got a decree for Rs.65000/-in C.C no. 94 of 2013 from this Forum on 27.9.2013 against the instant O.Ps. He was also directed by the Forum to return the defective X-ray machine to the O.Ps in execution case no.E.A 201 of 2014. Complainant returned the machine with the help of Packers & Movers Company at the cost of Rs.12,516/- which was to be indemnified to the complainant by the O.Ps. To make the said payment, the O.P-2 issued a cheque which was dishonoured by the Bank for ‘insufficient fund’. Thereafter, the Forum by its order no.14 dated 12.4.2016 passed in E.A no. 201 of 2014 directed the complainant to file a complaint or to take necessary step under section 138, N.I Act. Hence, this case filed by the complainant.
O.P-1 is the wife of O.P-2 . She has not turned up to contest the case and ,therefore, the case is heard exparte against her.
It is the O.P-2 who has filed written statement wherein he has admitted his liability and also the issue of cheque for liquidation of his liability. According to him, he was in financial stringency and, therefore, requested the complainant to wait for some days for encashment of the cheque. But the complainant did not. Dishonour of cheque is not deliberately caused by him.
Upon the averments of both the parties ,the following points are formulated for consideration in this case.
POINTS FOR DETERMINATION
- Whether the O.Ps are guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
The complaint filed by the complainant is treated as evidence vide his petition dated 12.7.2017. The O.P-2 filed affidavit in chief and the same is kept in the record. The questionnaires , replies and the BNAs filed by the parties are also kept in the record.
DECISION WITH REASONS
Point nos. 1 and 2:-
Heard the submissions of Ld. Lawyers appearing for both the parties. Perused the complaint and also the written statement filed therein. Also perused the questionnaires, replies and the BNA filed by the parties.
Considered all these.
Ld. Lawyer appearing for the complainant has argued that the O.Ps are liable to make payment of Rs.12,516/-to the complainant and to liquidate that liability, O.P-2 issued a cheque for the said amount , but the said cheque was dishonoured for insufficient fund in the account of O.P-2. According to him, this is nothing but an instance of unfair trade practice on the part of the O.P-2. O.P-2 has defied the order of the Forum by not making payment of transportation cost of Rs.12,516/- to the complainant and the complainant has undergone a tremendous harassment and mental agony due to non-payment of the aforesaid money by the O.P-2. It is clearly a deficiency in service on the part of the O.P-2, as goes his submission.
Ld. Lawyer appearing for the O.P-2 has contended that there was no direction passed in C.C no.94 of 2013 by the Forum upon the O.P-2 to make payment of transportation charge for the X-ray machine and ,therefore, the O.P-2 has not violated any order of the Forum and as such there is no deficiency in service caused by him.
Now to see whether there is any deficiency in service caused by the O.P-2 in issuing a cheque which was likely to be dishonoured for insufficiency of fund. In the order passed on 27.9.2013 by the Forum in C.C no. 94 of 2013 the O.Ps were directed to refund the sum of Rs.65000/- to the complainant within one month from the date of order after taking back the X-ray machine from the complainant in “As it is” condition. This order of the
Forum indicates and indicates only that the X-ray machine is to be taken by the O.Ps at their cost and it is implicit therein. That apart, an Executing Court is not toothless to pass an order necessary for implementation and execution of the decree passed by it. While dealing with the execution case i.e E.A 201 of 2014 this Court directed that the transportation cost would be paid by the O.P-2. In the face of such order the O.P-2 who was one of the JDrs. in the aforesaid execution case should have complied the order of the Executing Court and by not complying the said order of the Executing Court, the JDrs./O.Ps has certainly caused deficiency in service on their part and, therefore, they are liable to the complainant. The complainant has certainly undergone a tremendous mental agony for non-payment of the aforesaid money to him by the O.Ps and, therefore, the O.Ps will have to pay compensation to the complainant in this regard.
Thus both the points are answered in favour of the complainant accordingly.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against O.P-2 with cost of Rs.5000/- and decreed exparte against O.P-1 without cost.
The O.Ps, who are jointly and severally liable, are directed to make payment of Rs.12,516/- to the complainant with interest @10% p.a from the date of disposal of the execution case i.e E.A 201 of 2014 till full realisation thereof along with compensation of Rs.5000/- and the litigation cost as referred to above to the complainant within a month of this order, failing which the compensation amount will bear interest @10% p.a till full realisation thereof.
Let a free copy of this order be given to the parties concerned at once.
President
We / I agree
Member Member
Dictated and corrected by me
President
