26.11.2015

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The present Appeal u/s 15 of the Consumer Protection Act, 1986 has been preferred by the OP challenging the impugned judgment and order No. 16 dt. 18.9.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in C.C.No. 244 of 2012, directing the OP to give the Complainant ‘such relief by restoring his satisfaction in respect of the said glass top dinner table’ within 45 days from the date of the order.

          Brief facts of the case are that the Respondent/Complainant purchased a dinner table on 21.3.2012 by cash under a Quotation/Estimate,  duly signed by the representative of the Appellant/OP, in place of pacca bill which the Appellant/OP did not agree to issue as averred in the Petition of Complaint.  Thereafter, on 15.5.2012 the said dinner table got broken ‘completely’ as alleged in the Petition of Complaint.  After such breakdown of the table in question the Respondent/Complainant visited the shop of the Appellant/OP with a request for replacing the same, but the Appellant/OP allegedly refused.  Then the Respondent/Complainant wrote a letter dated 2.6.2012 which appears to have been delivered to the Appellant/OP on 8.6.2012 as appearing from the copy of the Acknowledgement Card available on records.  In response to the said letter the Appellant/OP, by an Advocate’s letter dated 19.6.2012, replied to the Respondent/Complainant to the effect “at the time of delivery the said goods from the shop of my client after being satisfied from all concerns, you had taken the same in your own custody and you have used the same in good condition and after two(2) months is found to defect by you, then as an owner of the said goods, you will be held liable and responsible and it will not come on the shoulders of my client”.  Further, it was written in the said letter by the Ld. Advocate for the Appellant/OP to the effect “....you are not entitled to claim against my client after more than two (2) months from the date of purchase the imported goods from my client…”.  With this factual background, the Ld. District Forum passed by the impugned judgment and order in the aforesaid manner.  Aggrieved by such order the OP has approached this Commission by filing the instant Appeal.

          The Ld. Advocate for the Appellant/OP submits that the Appellant/OP never sold the table in question to the Respondent/Complainant, but provided to the Respondent/Complainant only with a ‘Quotation/Estimate’ dated 21.8.2012 which is usually provided to an intending purchaser, but the said Quotation/ Estimate does not prove the completion of sale of the table in question.

          The Ld. Advocate continues that the Respondent/Complainant has failed to produce any Cash Memo/Bill to substantiate his claim of purchase transaction of the table in question and hence, the claim of the Respondent/Complainant is not bonafide.

          The Ld. Advocate finally submits that in view of the submission so put forward the instant Appeal should be allowed and the impugned judgment and order be set aside, the same being unjust and improper.

          None has appeared on behalf of the Respondent/Complainant on the date of final hearing although the Respondent/Complainant appeared in person on 19.3.2015 as evident from the order dated 19.3.2015 of this Commission.

          However, in the written submission, as filed by the Respondent/ Complainant before this Commission, the Respondent/Complainant has stated that the transaction in question with the Appellant/OP did take place, as is evident from the documentary evidence of the voucher dated 21.8.2012 as placed on records, which was shown by the Appellant/OP as ‘Quotation/Estimate’, with the sole objective of shaking off their liability for transaction of the goods involved therewith if the same goods are found defective after transaction of sale and  also to evade the payment of tax due to the Government Exchequer as is the common experience of the customer in general.

          We have heard the Ld. Advocate appearing for the Appellant/OP and also considered the materials on records.

          The documentary evidence dated 21.8.2012 duly signed by the representative of the Appellant/OP indicates the transaction of the goods in question on 21.8.2012 for a price of Rs. 7,000/-, no matter what the nomenclature of the document is.  Had there been no transaction, the Appellant/OP would have no scope to issue such documentary evidence of Quotation/Estimate which is usually done in case of transaction with the Government, but not in case of transaction with an individual person.  The transaction in question is further corroborated from the Advocate’s letter dated 19.6.2012 which was written by the Ld. Advocate for the Appellant/OP to the Respondent/Complainant in reply to the Respondent/Complainant’s letter dated 2.6.2012.  The relevant portion of the same is extracted hereinafter.

“…..at the time of delivery the said goods from the shop of my client after being satisfied from all concerns, you had taken the same in your own custody and you have used the same in good condition and after two(2) months is found to defect by you, then as an owner of the said goods, you will be held liable and responsible and it will not come on the shoulders of my client”

“....you are not entitled to claim against my client after more than two (2) months from the date of purchase the imported goods from my client…”

          The aforesaid evidence on records indicates the preponderance of probability of the transaction of sale of the dinner table in question of inferior quality to the Respondent/Complainant against consideration and in such sale of the dinner table of inferior quality lies the deficiency in service on the part of the Appellant/OP and, hence, the Appellant/OP cannot shake off their liability.

          On the above facts and evidence on records we, on the principle of equity, deem it just and proper to allow the Appeal in part and modify the judgment and order impugned to the extent hereunder.

          The Appellant/OP is directed to pay within 45 days from the date of this order to the Respondent/Complainant Rs. 4,000/- as compensation and Rs. 1,000/- as litigation cost, failing which the Appellant/OP shall have to pay a simple interest @ 9% per annum on the aforesaid amount for the entire period of default.