DISTRICT  CONSUMER DISPUTES REDRESSAL FORUM, MALDA,

MALDA D.F.ORIGINAL CASE NO.03/2007

Date of filing of the Case: 04.01.2007

For the Petitioner :  Sk. Jahiruddin, Md Muzibar Rehman, Chabilal Mondal, Advocates

For the O.P.s :        :     Sudarshan Gupta, Pampa Das, Advocates        

Order No. 18     Dt. 11.06.2007               

          In essence, petitioner has filed the present case stating that on 28.02.2006 he sent two defective batteries to the Siliguri Office of Exide Industry through O.P. No. 1. But has come to know that those batteries were not sent to the destination where he came to know that those batteries have been misplaced. But after lapse of time on 09.08.2006 the plaintiff received a letter wherein he was requested to settle the matter amicably in consultation with Siliguri Office. The petitioner acted accordingly but ultimately they refused to concede to the request of the petitioner on 20.10.2006 giving rise to the instant proceeding for the reliefs mentioned in the petition of complaint.

          O.P. No.1 appears and files a written version. Subsequently O.P. No.2 appears and files written version. On prayer of ld.advocate this version of O.P. No. 2 has also been accepted as written version of O.P. No.3.

          O.P. No.1 contests the case by filing written version denying the statement of the petitioner that the consignment has been misplaced and those batteries could not be handed over as no representative of the petitioner turned up for which the O.P. sent a regd. letter on 16.02.2007 requesting the petitioner to take the delivery of the defective battery. But none responded to that call and hence he has no deficiency in service.

          O.P. No.2 has filed written version which also is treated as written version of O.P. No.3 contests this case corroborating the statement of O.P. No.1 and lastly a letter has also been issued on 21.05.2007. The claim of the petitioner is false, motivated and is not maintainable in law.

          The following points seem to be essential for effective disposal of the case:

1)     Whether the petitioner is a ‘Consumer’ in terms of Sec. 2 (1)(d) of the C.P. Act ?

2)     Whether the service of the O.P.s suffers from any deficiency ?

3)     Whether the petitioner is entitled to get any relief as prayed for ?

:DECISION WITH REASONS:

Point No. 1

          According to Sec. 2(1)(d) of the C.P. Act ‘Consumer’ means any person who hires any services for consideration. ‘Service’ means service of any description which is made available to potential users as defined in Sec. 2 (1) (d) of the Act. In the instant case the petitioner has sent two Excide batteries addressed to Excide Industries, Siliguri on payment of consideration as is evident for Ext-2.

          Thus having regard to facts and circumstances of the case there can be no dispute that the petitioner hired the services of the O.P.s for a consideration and in that view of the matter the complainant be termed as ‘Consumer’ in view of Sec. 2 (1) (d) of the Act.

          This point is thus disposed of.

Point No. 2

          The pertinent question to be disposed of at this stage is whether

the service of the O.P.s suffers from deficiency ? It has already been stated hereinbefore that the photocopy of the booking receipts has been marked Ext-2. It can definitely be said that when there is specific term of the contract, which is the case before us, the parties are barred by the terms of the contract. In the instant case petitioner has been examined as PW-1 and has categorically stated that he sent two nos. of Excide battery to the Excide Co. Siliguri through Gitanjali Roadways on 28.02.2006 and categorically in his evidence stated that the O.P.s have failed to deliver the same to the Excide Office, Siliguri. In course of his cross-examination he has stated that  his man made search about such receipt of the batteries by the Excide Co. at the Siliguri Office.

          In this connection this Forum finds opportunity to have a glimpse over the testimony of O.P. No.1 who is the Manager of  Gitanjali Roadways, who appears to have admitted , “ Petitioner sent two damaged Excide Batteries to Siliguri through the present O.P. which was received by our Company at Siliguri within a week from the date of dispatch. ” It further appears that this OPW-1 has been constrained to admit, “ It is a fact that we have not informed the consignee that the batteries have reached our Siliguri Office,nor I asked the petitioner to receive the same from our Siliguri Office.

          In view of above without entering into the other intricate questions of laws and facts and keeping in mind that the batteries were taken by the OPW-1 for sending the same to Siliguri Office and to act according to the terms of contract. The OPW-1 cannot be allowed to take any plea otherwise than the frank admission of him quoted hereinabove. Admittedly the batteries did not reach the consignee and the admission of O.P. No.1 ( OPW-1) about admission of not taking any steps to inform the petitioner appears to be a clear violation of the terms Contract and that cannot but be said to be deficiency in service.

          The point is thus disposed of in the affirmative. 

Point No. 3

          In the result the case succeeds.

          Receipt of compensation only in respect of loss. This Forum after taking into consideration of the facts and circumstances of the case finds that one of the batteries could carry 30 % of the demurrage and the rest one is likely to fetch compensation to the extent of 70% considering the purchase value of both the batteries and the total loss likely to have been sustained by the petitioner for not receipt of consignment within a reasonable period as has been assessed from the claim form and warranty service cards, the total compensation is assessed to Rs. 5, 000/-.

          As this Forum, on consideration of different angles, assessed the compensation and there appears no need for grant of separate compensation.

          In view of above this Forum is of considered opinion that the petitioner is entitled to compensation of Rs. 5000/-.

          Proper fees have been paid.

Hence,                                     Ordered

that Malda D.F. Case No. 03 of 2007 is decreed on contest against all the three O.P.s with no order as to the cost. The petitioner do get compensation of Rs. 5000/-. All the three O.P.s jointly and severally do pay the aforesaid compensation within a period of 30 days from today, failing which the complainant should get interest @ 10 % from the date of institution of the complaint till actual date of payment.

          Let a copy of this order be given to both the parties free of cost.

Sd/-                               Sd/-                               Sd/-

Sumana Das                        A.K. Sinha                    S.K. Chakraborty

        Member                            Member                                President

D.C.D.R.F., Malda      D.C.D.R.F., Malda                  D.C.D.R.F., Malda