Date of filing :- 09/01/2015.
Date of Order:- 20/07/2016.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (COURT)
B A R G A R H
Consumer Complaint No. 02 of 2015
Santanu Kumar Satpathy S/o Mohan Satpathy aged about 38(thiityeighty) years R/o W.No.09(nine) V.S.S Nagar Bargarh P.o/P.s/Dist. Bargarh.
..... ..... ..... ..... Complainant.
- V e r s u s -
Gopinath Rath S/o- Late Shyamlal Rath aged 48 (forty eight) years, Proprietor of M/s Surya Pustak Bhandar, Near Piplani Sweets, Daily Market, Bargarh. Dist-Bargarh (odisha).
The Secretary, Central Board of Secondary Education, Sikhya Kendra to Community Centre, Preet Bihar, Delhi – 110092. ..... ..... ..... Opposite Parties.
Counsel for the Parties.
For the Complainant:- Sri D. Acharya, Advocate with other Advocates.
For the Opposite Party No.1(one):- Sri D.N. Sahu, Advocate with other Advocates.
For the Opposite Party No.2(two):- Sri S.K. Mahapatra, Advocate with other Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.
Dt.20/07/2016 -: J U D G E M E N T :-
Presented by Sri K.P. Mishra, President:-
The Brief case of the complainant is that, he is the maternal uncle and is the legal guardian of one Sourav Gantayat, who was a student of the Rotary Public School Bargarh reading in Class -X, and he had purchased some text books including one English literature book of C.B.S.E Delhi publication, who is the Opposite Party No.2(two) for his said nephew from one Gopinath Rath M/s Surya Pustak Bhandar of Bargarh herein after called as Opposite Party No. 1(one) on cash payment and he was issued with a Cash Memo No.1400 Dt. 05.04.2014, by the Opposite Party No. 1(one). But Later on he found in the English literature reader book, some pages from page 69(sixty nine) to 84(eighty four) are missing & after page 68(sixty eight) page No. 101(one hundred one) to 116(one hundred sixteen) are attached and after page 116(one hundred sixteen) page no 85(eighty five) to 164(one hundred sixty four) are there and also found page 149(one hundred forty nine) to 164(one hundred sixty four) were there which are the inherent defects in the said Book. So immediately thereafter he ran to the Opposite Party No. 1(one) and complained before him about the defects in the book and requested him to replace the same & give him a new one but being adamant the Opposite Party No. 1(one) did not replace rather he told him that, the same is a manufacturing defect and the publisher i.e the Opposite Party No. 2(two) is responsible for the same and he was liable to replace the same and in this particular circumstance his said nephew could not get a book for his study for which suffered a lot due to the defective publication by the Opposite Party No. 2(two) & sold the same by the Opposite Party No. 1(one) & by not replacing the same and consequently the complainant sustained mental agony, physical harassment and severe disturbance in the study of his said nephew and as such he filed this case along with the cash memo issued by the Opposite Party No.1(one) and the said defective book as documentary evidence claiming an amount of Rs 10,000/-(Rupees ten thousand)only for his mental agony, physical harassment and severe disturbance in the study of his said nephew and Rs.2,000/- (Rupees two thousand)as litigation expenses , Rs 85/- (Rupees eighty five)only for the cost of the book, in total Rs.12,085/-(Rupees twelve thousand eighty five)only with an allegation of unfair trade practice and deficiencies in service,against the Opposite Party No.1(one) & Opposite Party No.2(two).
The same complaint of the complainant was admitted by the Forum after perusal of the petition and hearing the advocate for the complainant which is registered as Consumer Complaint No. 02 of 2015.
On being noticed the Opposite Party No. 1(one) appeared through his lawyer & Opposite Party No.2(two) appeared through its regional office of Bhubaneswar through his lawyer before this forum & filed their respective written versions, completely denying to have their liabilities flately with different please as mentioned in their respective versions.
On perusal of the complaint, documents filed by the Complainant and the version filed by the Opposite Parties and after hearing the argument advanced by their respective lawyers some points as mentioned below have cropped up before the Forum for determination.
(i) Whether the complainant is a consumer or not.
(ii) Whether the case is maintainable against the Opposite Parties or not.
(iii) Whether the complainant is entitled for compensation or not.
In the way of giving our opinion, we vividly verified both the complaint, the documents filed by him and the version of both the Opposite Parties and having regards to their vehement arguments of both sides of lawyers we are of the opinion that the complainant is a bonafide consumer in as much as has suffered a lot due to the sale of defective book specially in Class- X which is a turning point of every students for their carrier who so ever he may be, specially when he has purchased the said book against money for it and the Opposite Party No.1(one) is very much deficient in giving its mandatory service keeping in view the class in which the nephew of the complainant was reading and specially his dealing with him because he has relied on the Opposite Party No.1(one) shop and has purchased other books also along with the defective one , so the contention of the learned counsel for Opposite Party No.1(one) that he has got some malafide intention to defame him and falsely claiming against him is out rightly rejected because it is his bounden duty to verify and sale the correct things and if at all later on found to be defective one then should have replaced immediately but in this case he has not done so and denied for the same by shifting his liabilities to the Opposite Party No.2(two) saying that he is the publisher of the same and is liable for replacement with new one as such committed unfair trade practice and deficiencies in giving service to the complainant.
And so far the version of the Opposite Party No.2(two) is concerned the contention made by him in para No. 6(six) of its version that imparting of education and an educational institution does not come within the purview of the Consumer Protection Act- 1986, has got no bearing with the present case because here is a case where a student (the nephew of the complainant) has purchased a book of the publication Opposite Party No.2(two) in as much as the contention made by the learned Advocate for the Opposite Party No.2(two) that they don’t supply the books in the open market is not substantiated by their version rather in para no-15(fifteen) of their version they have admitted that they publish some materials but nowhere they denied that they don’t sale their any publication in the open market and supply to only authorized dealer as submitted by the learned counsel in his reply to the Complainant, other averment made in the other paragraphs have got no bearing in this particular case hence not accepted by us.
While dealing with the question of the maintainability of the case under the act, the Opposite Party No.1(one) admitted to have sold the book along with other books in its version but his only allegation against the complainant is his ulterior motive for his such allegation and claim in this case, but has failed to give any materials before the forum in support of his such allegation and hence we are of the view that the case against him is maintainable in its present form.
And so far as the Opposite Party No.2(two) is concerned he has admitted in his version as in aforesaid paragraph that they used to publish some materials but nowhere denied to have supplied such publication to the Opposite Party No.1(one) or in the open market as such the case is also maintainable against it. And the averment made by it in para no-13(thireen) about the order of the Honourable Supreme Court is not applicable in this case from any angel specially when they admit that they publish study materials and sale the same and when the said order of the Honourable Court is concerned in the context of its conduct of examination.
Lastly whether the Complainant is entitled for compensation or not, in this context. We are of the opinion that when it is proved that the complainant is a bonafide consumer of the Opposite Party No.1(one) and as he is dealing with the materials of the Opposite Party No.2(two) against consideration but did not get proper service when the sold items found to be defective book in that case both of the opposite parties are found to be deficient in giving proper service at a critical juncture of a student hence liable under the Act for unfair trade practice and deficient in giving service to the complainant as such both the opposite parties are jointly and severally liable for such of their practice hence accordingly ordered against them.
In view of above facts and circumstances we are of the view that both Opposite Party No. 1(one) and Opposite Party No. 2(two) are guilty of unfair trade practice and deficiencies in service against the complainant & his minor Nephew for whom he has represented and filed this case.
Hence both of the Opposite Parties are jointly and severally liable for unfair trade practice and deficient in giving proper service to their consumer and as such are directed to pay an amount of Rs.3,000/-(Rupees three thousand)only each to the Complainant with an interest @ 6% per annum from the date of purchase of the said defective book i.e Dt. 05/04/2014 as compensation for the physical and mental harassment sustained by him and his nephew and Rs.1,000/-(Rupees one thousand)only as cost of litigation and the same will be given to the complainant by the Opposite Party No.1(one) as, if he would have replaced the defective book the question of filing of the case would not have arisen. And Rs. 85/-(Rupees eighty five)only as the cost of the concerned defective book would be given by the C.B.S.E, Opposite Party No.2(two) as he has published defective book.
Hence the Opposite Party No.1(one) is directed to pay Rs. 4,000/-(Rupees four thousand)only in total with interest as afore said and the Opposite Party No. 2(two) is directed to pay Rs. 3,085/-(Rupees three thousand eighty five)only with interest as aforesaid in total to the Complainant within the stipulated period of one month from the date of the pronouncement of the order, in default of which the said rate of interest @12% (twelve percent) would accrued open each of them till realization of the same.
We pronounced the order to-day the Dt.20/07/2016 in the open Forum and accordingly the case is disposed off.
Typed to my dictation
and corrected by me.
I agree, (Sri Krishna Prasad Mishra)
P r e s i d e n t.
(Sri Pradeep Kumar Dash)
. M e m b e r.
