THE PRESIDENT

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA : AGARTALA

 

CASE No. CC- 56  of  2019

 

 

Sri Samitabha Saha Roy,

S/O- Sri Ashimabha Saha Roy,

B/193, Police Quarter, 

A.D Nagar, Agartala,

P.S. A.D. Nagar, West Tripura. …...................Complainant.

 

 

-VERSUS-

 

Bajao Music Pvt. Ltd.,

Hightech Plaza, Unit -2, 

Ground Floor,

VLCC Compound,

Shanti Nagar, 

Mahakali Caves Road,

Andheri(E), Mumbai-40009 . ....................Opposite Party.

 

 

     __________PRESENT__________

 

 SRI RUHIDAS PAL

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION

      WEST TRIPURA, AGARTALA. 

 

Dr (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.

 

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.

 

 

C O U N S E L

 

For the Complainant : Sri Sri Kumar Sankar Sarma,

  Sri Diptanu Debnath,

  Learned Advocate.

    

For the O.P. No. : Mr. Saikat Rahman,

  Mr. Bhaskar Deb,

  Mr. Soumyadeep Bhattacharjee,

  Hrishikesh Bhattacharjee,

  Ramij Ali,

  Learned Advocates.

 

 

JUDGMENT  DELIVERED  ON  : 29.10.2021

 

 

J U D G M E N T

The Complainant Sri Samitabha Saha Roy filed this case U/S 12 of the Consumer Protection Act against the O.P. The complainant's case in short is that he purchased one electronic musical instrument on 04.10.2018 from the web site of Bajao.com namely 'Abelton Push 2 + Line 10 suit bundle' consists of both hardware and software part for Rs.66,800/- through e-payment  being unique order ID No. 151155. Complainant installed the instrument in his house on 09.10.2018 but unfortunately the instrument did not work properly even after repeated try. Complainant contacted with the Bajao Music Pvt. Ltd. and made complaint informing the defect in the instrument and also sent E-mail. O.P. issued a ticket vide no- 5390889777 in respect of the complaint. Complainant demanded new instrument by replacing the defective one on which the O.P. refused to replace the same with a new one. Then the complainant demanded the refund of the price of the instrument along with cost of the exclusive warranty purchased by the complainant Rs.5,800/-. O.P. even refused to refund the cost of the instrument and price of the warranty.  On various occasion complainant contacted with the O.P. for taking step by the O.P. then the O.P. took the product from the complainant for repairing the defective product. O.P. returned the product to the complainant on 25.11.2018  claiming as repaired. Again the complainant installed the instrument in his house but the instrument was found to be still defective. Again the complainant contacted with the O.P. company for refund of the cost of the product but the O.P. refused to refund the same. Finally the O.P. agreed to replace the defective instrument with a new one. The complainant received a new product as replaced against the old defective product. After installing the new product it was found with same defect. He again informed the O.P. and again the O.P. replaced the defective product with a new one. But shockingly the said product had found with same defect. He again informed the O.P.  then again he requested for refund of the price of the product but the O.P. ignored.  On several occasion complainant requested to repair or replace the defective product but without any result. Being deprived by the false assurance of the O.P. company complainant filed this case claiming refund of the price etc. and compensation of Rs.30,000/- for unfair trade practice  on the  part of the O.P. Rs.20,000/- for mental agony and harassment and Rs.10,000/- for legal cost. 

 

On the other hand O.P. appeared and filed written statement denying all the allegations made by the complainant. In the written statement the O.P. stated that the complaint filed by the complainant is not maintainable in law and liable to be dismissed with heavy costs as complainant did not approach the court with clean hands and suppressed the truth and material facts with a view to misguide the court and to obtain illegal order in his favour. O.P. stated that the complainant filed a vague and baseless case. O.P. tried their level best to provide every sort of assistance with in the purview of the Exclusive Warranty Plan. There is no latches on the part of the O.P. towards their customer. It is also stated by the O.P. that the complainant filed this case with false allegations against the O.P. to ill-repute and acquire monetary benefits from the O.P. Company. It is stated by the O.P. that complainant being young, bought this product only to sharpen his music skills, could not handle such a sophisticated product which is built only for the professionals.  Complainant should have rather taken assistance of an expert before handling such a product and also should have gone through the instruction manual of the product in detail before using it, which he clearly did not. After mishandling and misusing the product and diligently making it faulty he came before this court to seek assistance with bunch of lies and false allegations. That the complainant handled the product in a very immature manner and now putting the entire blame upon the O.P. Company.  There is no deficiency of service on the part of the O.P. and hence prayed for dismissal of the complaint with exemplary costs upon the complainant.

 

3. EVIDENCE ADDUCED BY THE PARTIES:-

Initially complainant gave general power of attorney to his friend namely Rupam Roy to pursue the case as well as to give evidence on his behalf. Accordingly Rupam Roy submitted his examination in chief on affidavit as P.W.1, but complainant himself appeared subsequently and filed his examination in chief on affidavit. As a result the examination in chief on affidavit submitted by Rupam Roy was not pressed. Complainant submitted his examination in chief on affidavit as P.W. Another witness namely Ashimabha Saha Roy, father of the complainant also submitted examination in chief as P.W.2.  The document submitted by the complainant are marked as Exhibit- 1 Series. Complainant is cross examined by the O.P.

 

On the other hand, one Akram A Saha, authorized signatory of the O.P. company submitted his examination in chief along with some photocopies of documents. In the light of the judgment passed by the Hon'ble National Commission  in  Dr. Swapan Gopal Vrs. Goli Vankateswar Rao and 4 Ors and also Con Dor Rep. by its Managing Director Vrs. Smt. Smriti Kanta Ghosh and Anr. the O.P.W was exempted from cross examination.

 

4. POINTS TO BE DETERMINED: - 

(i) Whether there is deficiency of service on the part of the O.P.?

  (ii) Whether the complainant is entitled to get compensation/ relief as prayed for?

 

5. ARGUMENTS: - 

Written Arguments are submitted by both the parties. At the time of argument Learned Counsel of the complainant submitted that the complainant purchased one electronic musical instrument namely ''Abelton Push + Line 10 suite bundle''  from the O.P. through on line shopping on payment of Rs.66,800/- only  dated 04.10.2018. Time and again the instrument was found defective and for that reason complainant made contact with the O.P and the instrument was repaired by them but it was not made with properly repaired for use by the complainant. Ultimately the O.P. replaced the instrument twice within warranty period. However, the second replaced instrument was also found defective. And complainant made contact with the O.P. to replace the same, but O.P. did not pay any heed. So, complainant filed this instant complaint for replacement of the instrument as well as compensation. 

 

On the other hand learned Counsel of the O.P. submitted that the O.P. is a renowned company and they got reputation in their business. The complainant in their good gesture replaced the instrument within the warranty period though the instrument was mishandled by the complainant. The instrument was a sophisticated product. Complainant was not in a position to handle the same. It is due to the complainant that the instrument was time and again went on disorder. Learned Counsel Mr. Rahman submitted that there was no extended warranty period, so the O.P. is not liable to replace the instrument after the expiry of the warranty period and there was no deficiency of service on the part of the O.P. and the complaint is liable to be dismissed.

 

6. FINDINGS  AND  REASONS  FOR  DECISION:-

All the points are taken up together for convenience.  We have perused the pleadings as well as the evidences adduced by the parties. On perusal of the complaint, written version as well as the evidences of both sides, we find that there is no dispute in respect of repairing of the instrument and thereafter the said product was replaced by the O.P. twice with brand new product. The last replacement was received by the complainant on 21.05.2019. It was also found that there was exclusive warranty period of one year from the date of the purchase. The date of the purchase was 09.10.2018 that means the warranty period commenced from 09.10.2018 and it expires on 08.10.2019. Complainant in his deposition stated that finally on 23.10.2018 the O.P. company has taken back the product from him and the instrument has been repaired. Complainant further deposed that on 23.01.2019 he received a new product replacing the old defective one. Thereafter also complainant received another new instrument by replacing the earlier one and he received the second new instrument on 21.05.2019. From the evidence of the O.P. we also find that the last replacement was received by the complainant on 21.05.2019. 

From the above evidence we find that replacement was made within the warranty period. From the evidence of the O.P. we find that after the complainant received the second replacement on 21.05.2019 there was no communication from the side of the complainant with the O.P. company regarding any issue. But the O.P. very surprisingly in the month of October, 2019 suddenly received the notice in respect of the instant case and found that the complainant filed the complaint against the O.P. In their examination in chief on affidavit the witness of the O.P. stated that all the allegations leveled by the complainant upon the O.P. company was completely false and fabricated and made only with the ulterior motive of squeezing out money from the O.P.  company. In their evidence O.P. also stated that all the products sent by the company was checked multiple times and only after they are found 'O.K.' they are shipped to the customers. The O.P. in their  examination in chief stated that complainant mishandled the product and used them in an unwarranted manner and tried to use the product without going through the instruction manual in detail which in turn made the product defective. The said musical instrument is very complex one and needs proper skill and knowledge to handle the same. 

Complainant in his cross examination admitted that he has not submitted any document/certificate in support of his claim that he has good hand in various musical instrument. Complainant stated that he is a young music aspirant of the state of Tripura and has got good hand in various musical instrument. But we find that complainant has failed to submit any document/ certificate in respect of his good hand. On over all appreciation of the evidences as well as facts of the case, we are in the opinion that the complaint was filed after expiry of the warranty period and the O.P. have discharged their duties by replacing the instrument in twice as and when they received the complain from the side of the complainant. We do not find any deficiency of service on the part of the O.P. 

 

7. On scrutiny of the record, we find that the complainant filed the complaint mentioning his name as Samitabha Saha Roy but subsequently complainant mentioned his name as Sumitabha Saha Roy in the examination in chief on affidavit as well as general power of attorney executed by him to Sri Rupam Roy. Everywhere we find that the complainant identified himself as Sumitabha Saha Roy but the complaint petition was registered in the name of Samitabha Saha Roy. It is a major mistake on the part of the complainant. At this stage we can not rectify the complaint as it is a stage of judgment. So, we are in the opinion that the complainant was very much careless and negligent at the time of filing the complaint. The complainant ought to have carefully checked the complaint petition so that there may not any error in the title of the complaint. So, we are in the opinion that we do not find any evidence adduced in favour of Samitabha Saha Roy in this case or on his behalf. It is an irregularity which can not be cured at this stage. 

 

8. In the result, we are in the opinion that complainant has failed to prove his complaint filed U/S 12 of the Consumer Protection Act, 1986. Accordingly the complaint is dismissed. No costs.  

Supply a certified copy of the judgment to both the parties free of cost. 

 

Announced.

 

 

SRI R. PAL

PRESIDENT, 

DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

WEST TRIPURA, AGARTALA. 

 

 

 

Dr (SMT) B. PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION, 

  WEST TRIPURA,  AGARTALA.

 

 

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.