In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/55/2021.
Date of filing: 16/03/2021. Date of Final Order: 11/10/2023.
Academy of Technology
Represented by Chairman Trustee
Shri Jaganath Banerjee,
Son of Anandamoy Banerjee,
Having office at Aedconagar, P.O. Aedconagar,
P.S. Mogra, Dist. Hooghly, PIN. 712121. ……complainant
-vs -
- Head (General Manager) Sales of IT UPS Channel Business,
Hitachi Hi- Rel Power Electronics Pvt. Ltd.
B-14/1, 171, 117 and 118, GIDC,
Electronics Zone, Sector -25,
P.S. Gandhinagar, Gujrat- 382044.
- National Head,
Customer Support- IT UPS,
Hitachi Hi- Rel Power Electronics Pvt. Ltd.
B-14/1, 171, 117 and 118, GIDC,
Electronics Zone, Sector -25,
P.S. Gandhinagar, Gujrat- 382044.
- Regional Head, Customer Support-IT UPS,
Hitachi Hi- Rel Power Electronics Pvt. Ltd.
902- Shaila Tower, 9th floor, J1/16 EP Block,
P.S. Bidhannagar, Salt Lake, Sector-V, Kolkata 700091.
- Manager-Sales and Marketing IT UPS,
Hitachi Hi- Rel Power Electronics Pvt. Ltd.
902- Shaila Tower, 9th floor, J1/16 EP Block,
P.S. Bidhannagar, Salt Lake, Sector-V, Kolkata 700091.
……opposite parties
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that complainant is a premier educational institution in Hooghly; West Bengal affiliated to West Bengal University of Technology. Academy of Technology is governed by a public charitable Trust in name of ÄNANDA EDUCATIONAL DEVELOPMENT & CHARITABLE ORGANISATION”. The trust amongst other objects has the object to promote, establish, support, maintain or grant aid to Institutions in various fields. The institute / complainant under the said trust is a non-profitable concern imparting service to the community at large and the nation as a whole. Complainant in collaboration with Tata Consultancy Services hosts various examinations in the institute. Hitachi Hi-Rel Power Electronics Pvt. Ltd. represented by the OPs are manufacturer and service provider of various electronic devices. The complainant purchased four 30 KVA UPS from Hitachi Hi-Rel power electronics Pvt. Ltd. on 14.10.2015. The same was delivered on 11.12.2015. The complainant paid and the OP-3 received a total sum of Rs.1575000/- only for the same. A warranty of 5 years from the date of delivery for both UPS and battery was provided. Hitachi Hi-Rel power Electronics Pvt. Ltd. also agreed to provide service within 4 hours from the nearest service centres in case of break down. Hitachi Hi-Rel power Electronics Pvt. Ltd. also agreed to keep one engineer with spars ready in the nearest service station when examination activities will go on in Academy of Technology.
On 27.10.2020 one of the UPS out of the four UPS mentioned above was continuously beeping and there was fault in backup. The complainant had sent the OP-3 an email at 7.49 am the same day and requested the OP-3 to send a representative as soon as possible On the same day at 10.34 am an email was received from the end by the complainant stating therein that the complaint has been logged and also provided the complaint no. as HITACHI 1603775037470. On the very day an engineer of the OP visited the site and found the rectifier card faulty. The complainant at 10.59 pm on the same day send the op-3 an email to arrange spare on urgent basis to resolve the problem at earliest. On 28.10.2020 and 29.10.2020 the OP-1 sent emails to complainant stating that the op-3 is arranging to resolve the issue at earliest. On 31.10.2020 complainant sent an email requesting to share the expected date for closure of the above referred complaint. On 4.11.2020 again the complainant send an email requesting the op-3 to do the needful and on 4.11.2020 the OP-3 sent an email to the complainant stating to share spare dispatch detail shortly. On 6.11.2020 the complainant sent an email to share dispatch details. On 10.11.2020 the complainant send an email to the op-3 stating that highly important central government exams are being conducted in the centre and to treat the complaint with utmost urgency. On 19.11.2020 another email was sent to the op-3 requesting response and on 19.11.2020 the op-1 send an email to complainant apologizing for the inconvenience and stated that spare part will arrive within a couple of days. On 24.11.2020 OP-1 send an email that an engineer will visit on 25.11.2020. On 5.12.2020 complainant sent an email to the op-1 that even after repeated requests and reminders the problem is yet to be solved and further requested to solve the problem at earliest. On 11.12.2020 complainant again send an email to theop-1 stating that no initiative was taken to solve the problem and requested the op-1 to look into matter. On the same day the op-1 send an email to complainant apologizing for inconvenience and to update and resolve shortly. Again complainant on 14.12.2020, 18.12.2020 and 24.12.2020 send emails but there was no reply from the end of the OPs and due to the breakdown of of UPS the complainant was forced to use generator as back up to the computer labs. The complainant incurred fuel expenses amounting to about Rs.401346/- only in this period.
Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 401346/- to hand over the complainant and to pay a sum of Rs.1000000/- for compensation and to pay a sum of Rs.50000/- for litigation cost.
Defence Case:- In this case the OPs appeared before this District Commission and had filed an application on the ground that the above noted C.C case is not maintainable. But the OPs thereafter had not appeared and so the said petition filed on the ground of maintainability was rejected vide order no.8 dated.24.3.2022. Ultimately this District Commission vide order no.10 dated 20.7.2022 has passed the order of ex parte hearing against the OPs. The OPs neither filed any w/v nor filed any evidence on affidavit.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition
Argument highlighted by the ld. Lawyers of the parties
Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.
Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant has given emphasis on evidence and document produced by complainant.
DECISIONS WITH REASONS
The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration are clubbed together and taken up for discussion jointly at first.
Regarding these three points of consideration it is very important to note that the opposite parties inspite of receiving notice have not filed any W/V and also have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. This District Commission after going through the materials of the case record finds that the complainant is a resident of Mogra, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. It has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus on close examination of the pleadings of the complainant it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.
All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.
The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.
For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the complainant and there is also necessity making scrutiny of the documents filed by the petitioner of this case.
For the purpose of arriving at just and proper decision in respect of points of consideration nos. 4 and 5 this District Commission finds that there is necessity of making scrutiny of the evidence given by the complainant. In this regard it is important to note that the ops have neither filed any W/V nor filed any evidence on affidavit to disprove the case of the complainant. On close examination of the evidence given by the complainant side it is revealed that the complainant has categorically described his case in the evidence and the evidence given by the complainant is also supported by documents. It is also revealed that the evidence (oral and documentary) which is given by the complainant side remains unchallenged and/ or uncontroverted as no cross examination has been highlighted in this case by the ops. After going through the materials of this case record this District Commission finds that there is reason to disbelieve the unchallenged and uncontroverted testimony of the complainant side. It is also transpires that the complainant has proved his case by way of adducing evidence in connection with the points of consideration nos. 4 and 5 which have been adopted in this case.
All the above noted factors are clearly reflecting that the complainant is entitled to get relief in this case which has been prayed by this District Commission.
In the result it is accordingly
ordered
that the complaint case being no. 55 of 2021 be and the same is allowed on ex parte but in part.
Opposite party nos. 1 to 3 are directed to pay the amount of Rs. 401346/-within 60 days from the date of this order otherwise complainant is given liberty to execute this order as per law.
In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 to 3 are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
