The case of the complainant, in short, is that the complainant with a view to start a new business for his livelihood purchased a Caliber Scale Machine (Weight Machine) from the O.P.No.4 vide Approval No. IND/09/2004/92, Model No. CST-5000 Kg, Sl. No. 157150790 on 03/12/2015 and the consideration was fixed at the tune of Rs. 1, 40, 000/- and accordingly the complainant paid the aforesaid amount of Rs.1,40,000/- to the O.P No.4 through Bank. But the O.P did not issue any money receipt or cash memo to the complainant. The further case of the complainant is that the complainant mortgaged his landed property and took loan from Co-Operative Bank of India, Haldibari Branch. The complainant spent a sum of Rs.2, 00000/- for purchasing of Scale Machine and installation of the same. At the time of installation of the said machine Inspector of Legal Metrology issued a valid certificate of verification and also issued money receipt in favour of the complainant.
The further case of the complainant is that after making of full payment of consideration in advance, through O.P.No.1 through Bank vide A/C No. 20621218315, O.P.No.4 installed the machine on 03/12/2015 but inspite of request the O.Ps did not issue neither any cash memo nor any warranty card to the complainant. After some days from installation the said scale machine was not working properly towards proper weight/measurement of customer’s goods and as such the complainant informed the matter to the O.P.No.4 and O.P.No.4 repaired the said scale machine. But after few says of repairing of the machine became defective again and the O.P’s serviceman attended the complainant’s premises twice or thrice for repairing scale machine and on each occasion the complainant had to incurred huge amount for their transportation. The O.Ps assured to the complainant that the machine is to be replaced but no such replacement has yet been made till date. Due to such defects of the machine the complainant has to face various troubles and the complainant requested the O.Ps on several times to replace the scale machine which is not functioning within the warranty period. Thereafter the complainant sent letter to the O.P.No.4 and the same was returned to him and thereafter the complainant sent legal notice through his Lawyer Mr. Sankar Das to the O.Ps and the same was also returned to him. Due to such acts of the O.Ps the complainant sustained irreparable loss and suffered mental agony.
Hence, this case filed by the complainant against the O.Ps with a prayer to direct the O.Ps to replace the defective Scale Machine with new warranty or to return the entire consideration amount of Rs. 2,00, 000/- with interest and also prayed for a sum of Rs. 40,000/- as compensation for harassment and mental agony from the O.Ps and also prayed for an amount of Rs.10,000/- towards litigation costs from the O.Ps.
Appearance made on behalf of the O.Ps No. 2 & 4 before this Forum and filed W/V wherein categorical denials are made against the complaint. The O.P side raised some legal points denying the prayer of the complainant and admitted the fact of sale of the Caliber Scale Machine (Weight Machine) to the complainant and took plea that the consideration amount of the said machine was fixed at Rs. 1,94, 460/- (based on their Annexure-‘1’- i.e. Bill No.66 dated 01/10/2015, Challan No. 66 dated 01/10/2015 & Annexure-‘2’ i.e. Bill No.44 dated 04/08/2015,Challan No. 44 dated 04/08/2015)and admitted further that the complainant paid Rs. 1, 40,. 000/- out of that consideration amount. It is also submitted on their part that the complainant promised to pay the rest consideration amount of Rs. 54, 460/- to O.P.No.4 within March, 2016 and as such O.P.No.4 has delivered the said machine to the complainant on good faith. The capacity of the machine was maximum up to 5000 kgs. They found no manufacturing defect of the machine. Said machine been defected due to carry heavy load beyond it’s capacity. They prayed for dismissal of this case with heavy costs.
The complainant as well as the O.Ps filed some documents as per their ‘firisti’ in support of their respective cases.
The complainant and the O.Ps have filed evidence on affidavit.
The complainants as well as the O.Ps have also filed written argument in support of their respective cases.
Be it mentioned here that Pro-O.P No.5 did not file any separate evidence on affidavit and written argument.
We have gone through the materials on record very carefully and also perused the documents which are lying on record and also heard arguments of the parties.
In this context, the following issues are necessarily come up for consideration to reach just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s.2 (1)(d)(i)(ii) of Consumer Protection Act ?
- Has this Forum jurisdiction to try the instant case?
- Is there any deficiency in service on the part of the O.Ps?
- To what other relief/reliefs the complainant is entitled?
DECISION WITH REASONS
All the points are taken up together for consideration for the sake of convenience and brevity as all the points are interlinked to each other.
It is admitted facts that the complainant purchased the aforesaid machine from O.P.No.4 and the same has been delivered by the O.P.No.4 to the complainant. The complainant has already installed that machine but dispute arose between the parties centering on consideration money. It is also admitted that the complainant has already paid Rs. 1, 40, 000/- as cost price of the machine. Therefore, the relation between the complainant and the O.Ps is buyer and seller for which the status of the complainant here is as a consumer resulting which he is entitled to seek relief u/s. 12 of the C. P. Act.
O.P No.4 runs his business from Birpara Chowpathi Mazdoor Club within the District of Alipurduar and the claim amount of the complainant does not exceed the pecuniary jurisdiction of this Forum. As such this Forum has both territorial and pecuniary jurisdiction to try this case.
Date of purchase of the machine is on 03/12/2015 and it’s date of installation is also on 03/12/2015. Certificate of verification to that effect issued by the Inspector of Legal Metrology, Mekhliganj, Unit-35, Cooch Behar also supports the installation.
Despite purchase of machine on 03/12/2015 and it’s installation on the same day the O.P.No.4 did not issue cash memo and warranty card to the complainant up till now. O.P side also did not give any reasonable explanation to that effect.
O.P side has based on their Annexure- ‘1’ & ‘2’ and tried to show that the consideration price of the machine is Rs. 1, 94, 460/-. They admitted that out of the said consideration the complainant paid them Rs. 1, 40, 000/-. Therefore, they tried to show that the O.P side is still entitled to realize Rs. 54, 460/- from the complainant. But they never demanded it from the complainant for realization. Mere evasive denial that for the purpose to avoid the said rupees (Rs. 54, 460/-) the complainant instituted this case against them does not excuse them as the O.Ps Nos. 1 to 4 are bound to carry out their responsibility to issue cash memo and warranty card of the machine to the complainant. Specific explanation from their end is required as to why they did not issue the cash memo and warranty card in the name of the complainant up till now. It is also nowhere mentioned that the O.P side has demanded for realization of their rest amount (Rs.54, 460/-) from the complainant and they have nothing produced any document to that effect (Such as demand notice etc.) which leads to presume that the O.P.No.4 has waived that amount (Rs. 54, 460/-) and all the O.Ps have acquiescence therein. Rather they virtually admitted that the machine became defective due to carry heavy load beyond it’s capacity although the report dated 06/09/2016 by Inspector of Legal Metrology, Mekhliga j, Unit No. 35, Cooch Behar, Govt. of India does not speak so clearly.
However, dormancy of the O.P side in respect of issuance of cash memo and warranty to the complainant leads to presume that there is deficiency in service on the part of the O.P side.
We cannot base the quotation written on the pad M/S. Chowdhury & Sons dated 27/02/2015 banking on which the complainant tried to show that the consideration amount (price of the machine) is Rs. 1, 41, 000/- as the same is not signed by the issuing authority.
Above discussion shows that points Nos. 1, 2 & 3 have become positive result and on the basis of this result point No.4 also bears positive result but that should be reflected in the ordering portion.
Fees paid are correct.
Hence, for ends of justice, it is –
O R D E R E D
That the instant case be and the same is allowed on contest.
The O.P No. 1 to 4 are hereby directed to take back the present weight machine as stated above by replacing a new one of the same quality and standard at their own cost at their own costs and issue the cash memo and warranty of the new machine to the complainant within 30 (thirty) days from this day, failing which the complainant will do get decree of his paid amount of Rs. 1, 40, 000/- together with Rs. 40, 000/- for harassment and mental agony plus Rs. 10, 000/- for cost of litigation i.e. total Rs. 1, 90, 000/- (One lakh and ninety thousand) only along with 10% compound interest per annum on the total amount of Rs. 1, 90, 000/- from the date of filing of this case from 23/05/2016 till realization of the entire decreetal amount.
If the O.P Nos. 1 to 4 fail to comply with this direction in that event the complainant will be at liberty to put the decree into execution according to law.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me
