HON'BLE MR. ASHIS KUMAR BASU, MEMBER 

Order No. : 12

Date :31.07.2019

The record is put up today for order.

The appeal is heard in earlier date of hearing in presence of both sides.

The instant appeal is directed towards the impugned order dated 30 Nov’2018 passed by the Hon’ble District Consumer Dispute Redressal Forum ( DCDRF ), Purulia in Case No. CC/58/2017.

The dispute in the present case has arisen out of a complaint filed by the appellant- complainant of a deficiency in service and unfair trade practice on the part of respondent-opposite parties in relation to a Paper Plate  manufacturing  machine with dies, purchased by him.

The order dated 30.11.2018 delivered by Hon’ble DCDRF, Purulia is extracted for convenience of reference.

“  That the case…. Is allowed on contest against the O.P. No 1 with litigation cost Rs.5000=00 and the case is dismissed against the O.P. No. 2 and 3 without cost. The O.P No.1 is hereby directed to repair the Paper Plate making machine  of the complainant no.1 within 30 days from this date and if the said is not repairable then O.P. No.1 supply a new Paper Plate making machine of same price within 60 days from this date to the complainant.

The O.P.No.1 is further  directed to pay compensation of Rs.10000=00 to the complainant no.1 through complainant no. 2 for loss, harassment, mental pain and agony.”

On appeal, it was contended for appellant-complainant that Hon’ble DCDRF, Purulia has fallen into error in various respects.

The appellant aggrieved as the Ld. Forum is incorrect in law as well in fact. The decision of Ld. Forum is based on surmise and not materials on record  resulting error in its findings.

The appellant also aggrieved that Ld. District Forum arrived at incorrect decision by directing that the complainants  are entitled to get repaired machine or replaced machine. Ld. Forum did not pass the order to refund the paid amount of Rs. 190000=00 which was the main prayer of the complainants. Hence the said impugned order passed in case no.58/2019 should be reviewed for the end of justice.

The facts in brief are that  in the month of February’ 2017, OP No. 1, who was a neighbor of complainant No. 1 & 2, gave a proposal  to sell a Paper Plate manufacturing  machine for starting a business  for the livelihood of  Sri Chayan Banerjee , a deaf and dumb, complainant No. 1 whose father is  Sri Himangshu Banerjee, appellant No.2, a retired postal employee. OP No.1 also disclosed that he was the selling agent of OP No. 2,  a manufacturer and  reseller of Paper Plate machine and its spare parts.   OP No.1 assured them that complainant No. 1 would have  a secured earning around Rs.8000=00 to Rs.10000=00 per mont by selling the product from the said machine and stated that the cost of the Paper Plate machine with three dies would be Rs. 190000=00. OP No. 1 also assured  that he would cooperate for marketing  the product- Paper Plate, bowels etc. so long the raw materials would be purchased from him.   Impressed by this proposal of OP. No.1  for  the livelihood  of his deaf and dumb unemployed  son,  appellant-complainant no. 2 withdrew money in four  installments totaling Rs. 190000=00 from his various accounts and gave the entire amount to OP.No.1 for the purchase and installation of a Paper Plate making machine with three dies.  OP No.1  delivered and installed the said machine along with three dies of 12”, 8” and 6” sizes at complainant’s residence/ business premises on 12.05.2017. Complainants did not receive any  Money Receipt/ Cash Memo/ Tax invoice or similar other documents  in support of his purchase  from OP. No.1.   OP No. 1 also supplied  raw materials like paper and plastics for making paper plate for Rs. 5675=00 to complainants on the same date and the corresponding  sale bill raised by  Arijit Mahato, OP. No.3, proprietor of Atika Enterprise, Purulia , who is the son of OP No. 1. While OP No. 1 was Installing and operating the paper plate machine on 12/05/2017, the 12” dies  suddenly broken into pieces.  OP. No. 1 assured that the broken dies would be replaced by a new one within a week  but after repeated requests of complainants it was replaced after two months from date of breakage. The  new replaced dies also did not function properly resulting a huge loss for non-production  of 12” size paper plate.  OP. No. 1 further supplied paper and salpata to the complainants to the tune of Rs.34355/- without taking any order or prior intimation, vide  money receipt no.503 dated 13/08/2017 raised by  respondent no. 3  But the complainants were compelled to pay the said amount to avoid any unpleasant  situation.

 Complainant no.1 requested OP No.1 several times to give  cash memo/tax invoice regarding purchase of paper plate machine but  OP No 1 gave the same after much delay . In October ,2017, complainant received the  purchase bill  issued by Debadrita Enterprise, whose proprietress is Jayashree Chakraborty , OP No.2 and price  of the  machine with three dies stood at Rs. 184800=00, vide cash memo no.28 dated 10/04/2017. From  market survey,  Complainant  no.2  came to know that the price of the paper plate machine and three dies were approximately Rs. 90000=00 and Rs. 26000.00 respectively and realized that OP No. 1 claimed much higher price.  Complainant no.2 tried earnestly to contact OP. No. 1 at his home or over the telephone regarding machine which was  malfunctioning from the beginning.  But OP.No1 did not pay any heed to his complain in relation to defective machine and did nothing.  Complainants  realized that the defective paper plate making machine with dies  actually supplied by OP No. 2 through OP No. 1. Complainant No 2  also contacted to OP. No. 2 regarding malfunctioning of the machine but all in vain.  Complainant No. 2 also realized that  there existed a collusion between OP. No.1 and 2  in selling an old defective  paper plate machine with dies  which was not functioning properly since its inception resulting a huge loss. Moreover, respondent no. 1 did not supplied dies 8” Ultimately, complainant no.1 and 2  filed the case being no, 58/2017 before Hon’ble DCDRF ,Purulia  praying for refund  to the tune of Rs. 190000=00 which was paid to OP. No 1 for purchase  of the said machine with dies  along with interest @ 10% and compensation of 50000=00 and cost of litigation Rs. 10000.00 for proper redressal.

 The contention in the written arguments filed by Respondent- OPs No. 1 and 3 is that the instant appeal/ revision is not maintainable as the complaint is misconceived and the judgment passed by Ld. Forum is absolutely wrong having no base  and desire to be set aside.  Respondent 1 and 3 claimed that they have no liability or any connection with the complainants in any way as the complainant is not at all a consumer as enumerated under CP Act.  Respondent no.1 denied that he had taken any money from complainant no 2 and never supplied him  any machine, on the contrary, respondent no. 2 sold the machine. Respondent no 1. also argued  that ld. District Forum  failed to pass any order against respondent  no 2 who had supplied the said machine and there was no relation existed between appellants and respondent no 1.

In the brief notes of  argument filed  by  Respondent no 2 , a reseller and manufacturer of Paper plate Manufacturing  machine, contended that  respondent no 1 visited several times at her sales office and purchased a Paper Plate making machine with three dies and directed to raise the bill in the name of  Chayan Banerjee, appellant no 1, on payment  of Rs. 105000/- in three installments out of total bill amount Rs 1,20,000=00. Respondent no. 1 took the delivery of the machine from  respondent no.2 and installed the same by the technician of respondent no 2 in presence of him.  Respondent no 2 also argued that  the cash memo submitted by complainant no 2 is not bonafide where the price has been inflated and bears no seal and signature. Appellant no 1 had never communicated with respondent no 2 in connection with service of the machine. Respondent no.2 also denied that  respondent no 1 never was  her selling agent and did not communicate  regarding the defect of the  machine after installation.

 If we relook into the mater, we will find  there is an anomaly in the statement of respondent no. l  that he did not taken any money from  appellant no 2 for sale of the machine , hence payment given to respondent no 2 for purchase of machine did not arise though  it was an  admitted fact that  Arijit Mahato, respondent no 3, prop. of Atika Enterprise  and son of respondent no 1 supplied  raw materials on  12/05/17 and 13/08/17 and got the full payment from appellant no 2. Moreover , respondent no 2 claimed that respondent no. 1  being a frequent visitor of her sales office and  ordered  for a paper plate making machine, subsequently took the delivery himself and made the payment of Rs.105000.00 out of total price 120000.00 and ultimately it was installed by the technician of respondent no 2 in presence  of him  as per his instruction.  Respondent no 2 could not explain that  though respondent no 1 was very known to her , why she raised the bill in favour of  Chayan Banerjee, appellant no 1, while she took the payment from respondent no 1 and installed the same at his premises. Respondent No. 2 claimed that the sale Bill submitted by appellants before the commission was not genuine as it was not issued by her and the GST No. mentioned in the Bill was also incorrect. But we find that the OP No. 2 did not file any G.D. against the  appellants regarding the misuse of her cash memo/sale Bill.                                                                                      

Let us have  a close look into the mode of payment  in relation to purchase of machine where  appellant nos. 1&2, respondent no1 and 2 were involved.  Appellant no 2 , made payment to respondent no 1 for purchase of a machine in four installments – on 10/04/2017 for Rs.100000.00, on 01/05/17 for Rs.40000.00, on 03/05/2017  for Rs. 50000.00 totaling  Rs. 190000.00. As per  respondent no 2 , respondent no 1 made payment  of Rs. 105000.00 for purchase of machine from her concern  Debadrita Enterprise and the said amount was paid in three installments -  on 13/03/2017, 30/03/2017 and 10/04/2017.  The date in the cash memo for sale of machine  issued by respondent no 2 was also 10/04/2017. Therefore, it’s a logical conclusion that  appellant no 2 made a payment of 100000.00 on 10/04/2007 to respondent no 1  who paid the same amount as final payment to respondent no 2 on the same date  and naturally respondent no 2 raised the invoice  of the machine on the same date i.e. 10/04/2007. Hence it is crystal clear that  appellants  paid money to respondent no 1 for purchase of paper plate making machine and that amount had been paid  to respondent no 2 by respondent no 1 for purchase of the same.  Hence , respondent no 1 is very much involved in sale proceedings of the machine from the very beginning  taking payment from appellant no. 2, taking delivery of the same and  ultimately  respondent no 2 supplied the defective machine with dies  and raised the bill in favour of  appellant no 1  at the instruction of respondent no. 1.  Respondent no 2  admitted that  respondent no1 was very known to her  though he was not her selling agent but she was utterly failure to explain why she had issued the bill in favour of  appellant no 1 while got payment  from  respondent no .1 and installed  the machine at his premises.  Respondent no 2 also claimed that  appellants did not inform him about the malfunctioning of the machine which is absurd.  It is quite evident  that  appellants would communicate with respondent no.2  for supplying defective machine and dies as his production was severely hampered  and incurred a huge loss.  Ld. Forum below did not notice that actually  respondent no. 2 supplied the defective machine with three dies  through respondent no 1 and did not take any steps to  solve the problem  though she had been communicated by  appellant no 1&2 for its  malfunctioning.  On the other hand,  appellant no 1, a retired postal employee and father of a deaf and dumb all along made full payment  for purchasing machine with dies and raw materials without any delay.                                                                                                                                                                          From the facts and figures and circumstantial evidences it is very clear that there was a strong nexus and collusion between  respondent no. 1 &2 in connection with the sale of a Paper Plate making  machine to appellant no 1, a deaf and dumb person  which was  proved  to be a defective one from the very beginning and the fault of the machine was not solved after several requests.  Hence, this is a clear case of  deficiency in service and unfair trade practice on the part of respondent No, 1 &2.  It is very painful that a deaf and dumb  suffered so much financially as the production was largely hampered  from  starting of the business  due to malfunctioning of the machine.   In case of Respondent no. 3 , we find there was no dispute  as he supplied raw materials to appellant no. 1  on two occasions and got the full payment for sale price from  the same. Therefore, deficiency in service and unfair trade practice does not arise on the part of respondent No. 3.    Though appellant No. 1 & 2 claimed refund the tune of Rs. 1,90,000/- which was paid for  cost of paper plate  making machine with three dies, but submitted the cash memo before the Commission for Rs. 1,84,800/-  for the said purchase.

For all the aforenoted  reasons, we deem it appropriate and proper to refund 1,84,800/- to appellant No. 1 by the Respondent No. 1 &2 jointly or severally along with litigation cost 5,000/- . Respondent No. 1 & 2 are directed to pay Rs. 10,000/- to  appellant No. 1 for loss, harassment and mental agony. Complainant No. 1 & 2 are directed to return the defective paper plate making machine with three dies to respondent No. 2 immediately on receiving the decretal amount.

Ordered

 The instant appeal be and same is allowed on contest in part.

Respondent No. 1 & 2 are jointly or severally directed to refund Rs. 1,84,800/- along with litigation cost of Rs. 5,000/- to appellant No. 1 within 45 days from the date of this order.

 Respondent No. 1 & 2 further directed to pay Rs.10,000/- to appellant No. 1 jointly and severally for loss, harassment and mental agony.

Appellant No. 1 & 2 are directed to return the paper plate making machine with three dies  to respondent No. 2 subject to satisfaction of the decree by the OP No. 1 & 2 immediately, in default the respondents have to pay interest @ 7% p.a. on the decretal amount till compliance.

The impugned judgement is modified accordingly.

No order as to cost.

Let a copy of the judgement be supplied to the parties free of cost.