DATE OF FILING                    :           25-05-2012.

DATE OF S/R                            :         22-08-2012.

DATE OF FINAL ORDER      :           22-03-2013.

Noor Islam Mondal,

son of Harun Rasis Mondal,

resident of village Bhaira, P.O. Belson,

P.S. Pandua, District – Hooghly.-------------------------------------------- COMPLAINANT.

Versus   -

Anklist Exim Inc. ( Company ),

company being run for business of

Jewellery Industrial Consumables and Machinery and

carrying on business at its head office

at shop no. 6, Floral Deck Plaza near SEEPZ,

Andheri(E), Mumbai – 400096,

having its branch office at

North Jhapardah ( Charak Tala ),

57A, Last Bus Stop Road, Domjur,

Howah – 711405.

Sri Pradip Versale,

representing as a partner of

Annklist  Exim. Inc. having his

office at shop ;no. 6,  Floral Dock

Plaza near SEEPZ, Andheri(E),

Mumbai – 400096.

having its branch office at

Domjur North Jhapardah,

57A, Last Bus Stop Road,

Domjur, Howrah – 711 405.

Hitendra Patel,

Branch Manager,

Domjur, Howrah of Anktish Exim Inc.

having his main office at shop no. 6,

Floral Deck Plaza near SEEPZ, Andheri(E),

 Mumbair-400096, having its branch office at

North Jhapardha, 57A, Last Bus Stop Road, Domjur,

District –Howrah.--------------------------------------------------OPPOSITE PARTIES.

                                                                P    R    E     S    E    N     T

President-in-charge     :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                                 F  I   N   A    L       O   R   D    E     R

The instant case was filed by complainant U/S 12 of the C.P. Act, 1986 as

amended against the O.Ps. alleging deficiency in service U/S 2(1)(g), 2(1)(o) & 2(1)(r) of the C.P. Act, 1986 wherein the complainant has  prayed for direction upon the o.ps. towards refund of Rs. 13,72,750/- being the cost for purchase of a new gold testing machine X R F ( 6900 ) with 3.0 software and to pay compensation of Rs. 3 lakhs together with costs of the present proceedings as the O.Ps. in spite of several intimations  given by

the complainant for malfunctioning of the purchased item did not take care for set right the machine. 

The o.ps. by filing written version challenged the maintainability of the

complaint and contended interalia that none of the O.P. nos. 1 to 3 against whom the petitioner claimed the relief resides within the jurisdiction of the Ld. Forum nor none of the O.P. nos. 1 to 3 resides in the State of West Bengal.

The O.Ps. also opined that the petitioner with an ill motive impleaded the O.P.

nos. 4 & 5 as prforma O.Ps. to establish the cause of action within the jurisdiction of the ld. Forum and as such the petition  of complaint filed by the petitioner before the Forum is frivolous and vexatious for which the instant case is liable to be dismissed with cost.

4.            Upon pleadings of both parties three  points arose for determination :

Is the complaint maintainable before this Forum ?

Is there any deficiency in service on the part of the O.P.  ?

Whether the complainant is  entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

POINT NO. 1

                                Since the complainant is a consumer within the meaning of the Consumer Protection Act, 1986 and since there are catena of decisions from the Hon’ble Apex Court with respect to the identical disputes, we are of the view that the complaint is quite maintainable before the Forum. The point no. 1 is accordingly disposed of.

POINT NOs. 2 & 3

Both the points are  taken up together for consideration. Admittedly the

complainant purchased  the new gold testing machine X R F ( 6900 ) with 3.0 software against granted loan amount of Rs. 13,72,750/- by O.P. nos. 4 & 5 and handed over the same to O.P. no. 3 on 25-02-2011 vide bank draft no. TST. 580104 and TST 580105. The said testing machine delivered on 22-03-2011 to the petitioner at Domjur Branch, District – Howrah, and the complainant received the machine at  Domjur, District Howrah on the same date i.e. 22-03-2011 under territorial jurisdiction of this Forum and utilize the said machine to his home town at Pandua for his domestic and personal use. The said gold testing machine developed / started malfunctioning to give incorrect reading and show itself uncertified one which had  informed to the O.P. no. 3  over telephone and through advocate’s notices by the complainant against which the O.Ps. did pay no heed to the petitioner for set right the same. It is an admitted fact that the O.P. no. 3 has delivered a defective and unsound machine to the petitioner for which he has suffered a lot. The O.Ps. without taking any positive action for set right the machine adopted the plea of non-

maintainability of the case with the  contention that the transaction either of the gold testing jewellery machine or transaction of money took place was beyond the territorial jurisdiction of the Forum and pray of the time only to  disentitle the complaint. This amounts to gross deficiency in service together with the conduct which comes under the purview of the Consumer Protection Act, 1986 as deficiency in service  together with unfair trade practice.

                In the   result, we are of the view that this is a fit case where the prayer of the complainant shall be allowed. Both the points are accordingly disposed of.

                Hence,                                                

O     R     D      E      R      E        D

                That the C. C. Case No. 45 of 2012 ( HDF  45 of 2012 )  be  and the same is allowed  on contest with  costs  against  the O.Ps. 

                The O.P. no. 3 be directed to replace the old machine by a new one with same model and same specification together with guarantee certificate for at least 06 months from the date of replacement of the machine or alternatively refund the entire amount ( sell value ) of Rs. 13,72,750/- ( cost of purchase of gold testing machine ) within 30 days from the date of this order..                 

                The dilatory tendency of the  o.p. no. 3 for not attending the fault rectification for more than one year the O.P. is saddled with a cost of Rs. 50,000/-. The cost so realized, 50% of the same ( Rs. 25,000/- ) shall be deposited to the Consumer Welfare Fund and the rest to be received by the complainant. 

                The O.P. no. 3 do pay a compensation of Rs. 25,000/- to the complainant for causing prolonged pain and harassment.

                The complainant is further entitled to litigation costs of Rs. 5,000/-.

                The complainants are at liberty to put the decree into execution after expiry of the appeal period.

                Supply the copies of the order to the parties, as per rule.