Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No.81/2018

The complainant of this case has instituted this complaint case before this District Commission with the prayer for passing an order directing the OPs to deliver the “Toaster” and to make payment of Rs. 80,000/- as compensation  for suffering / causing physical  and mental harassment  and also for passing an order of litigation  cost of Rs. 10,000/- in favour of the complainant.

Fact of this case

Case of the complainant -  The case of the complainant  which is deciphered  from the complaint petition in bird’s eye view  is that on 11.10.2017 the OP published  an advertisement at their showroom’s  wall  stating that if any person purchased  any home appliances of Rs. 20,000/- to 35,000/-, then he will be provided a “Pop up Toaster” and Headphone  and thereafter  watching the advertisement  the complainant purchased  a 32”LED Television  set worth of Rs. 32,000/- from the OP and accordingly the complainant  has paid the said amount  of Rs. 32,000/-  through Debit Card and at the time of receiving  the said amount  the OP assured the complainant that they would deliver the said product including  the Toaster and Head Phone within 3 days from the date of making payment .  It is alleged  that after expiry of 3 days  on several occasions  the complainant  requested the OP to deliver the said items  but OP did not deliver the said items  within  3 days  but they delivered the said 32”LED TV and Head Phone  without the Toaster after 10 days  which cause mental pain  and agony  to the complainant.  It is stated  that at the time of selling the above noted product, the Sales Personnel    assured  and  / or promised that the Toaster  and Head Phone  will be delivered  to the complainant but in spite of said assurance the OP did not hand over the Toaster to the complainant  after purchasing  the said Television set.  It is submitted that the complainant  on several occasions went to the OP for getting  the Toaster but till this date the OP has not provided / delivered the said Toaster to the complainant.  It is further alleged  when the OP has failed to deliver the said Toaster to the complainant,  the complainant had sent a legal notice dtd. 15^th January, 2018 to the OP requesting the complainant  to hand over the Toaster and even after receiving the said notice  the OP did not hand over the said Toaster to abuse  the complainant.  For all these reasons the complainant has instituted  this case  as per prayer  of the complaint petition.

Defence Case -  The OP appeared in this case and has been contesting  this case  by filing W/V where the  OP has categorically denied each and every allegations of the complainant.  This specific case of the OP in bird’s eye view is that on 11.10.2017 after reading the OP’s advertisement  the complainant purchased 32”LED TV worth Rs. 32,000/- from the OP and the payment has been made through debit card and at the time of selling the said product the Sales Personnel  of the OP assured  and / or promised  that a Toaster  and Head Phone  will be delivered to the complainant but in compliance  of said assurance  the Head Phone  was delivered  to the complainant as a free gift item and the complainant was assured  to hand over the Toaster as a free gift item and ask the complainant to come to the show room of the OP to take delivery of the Toaster but the complainant  did not approach  to the OP’s office  to take the Toaster with them.  It is submitted that the OP as a responsible  service provider always wanted to deliver the Toaster to the complainant but the complainant wanted to gain illegally.  It is also pointed out that on 25.04.2018 the OP entered appearance  in this complaint case and on the very first day the OP brought the new Toaster for the complainant  and wanted to deliver  the same but the complainant  did not  accept  the Toaster and instead of settling the dispute amicably, he made prayer before this District Commission to proceed  with this instant case and this fact itself  proves  the courteous  relation  of the OP towards its customer.  It is alleged  that the complainant  is not a consumer in the eye of law and so this case is not maintainable  in its present form and all these reasons  the OP has prayed before this District Commission for dismissing  this case with heavy cost.

Points of Consideration

On the basis of the pleadings  of the parties  this District Commission  for arriving at just and proper  decision of this case and also for purpose of deciding the fate  of this case  is going  to adopt the following points for consideration :-

1. Whether the complainant is a consumer  under the OPs as per provisions of Consumer Protection Act, 1986 or not?
2. Whether there is a gross negligence  or deficiency of service on the part of the OP or not?
3. Whether  the complainant  is entitled to get  relief  as prayed  before this District Forum / Commission or not?

Evidence on record

In this instant case the complainant in order to prove the complaint case has submitted evidence on affidavit of the complainant  and against the said evidence on affidavit the OP has failed  interrogatories and the complainant has also given reply against the said interrogatories.

On the other hand the OP in order to deciding the case of the complainant  has submitted evidence on affidavit and against the said evidence on affidavit the complainant has filed interrogatories and the OP has also given reply against the said interrogatories.

Argument highlighted by the parties

In course of argument  the complainant side, OPs have filed Brief Notes on Argument and in addition to said argument the Ld. Lawyers  of both sides  also have highlighted  their verbal submission.

Decision with reason

For the interest of convenience  of discussion and as the questions involved  in the above noted points of consideration are interlinked  and or interconnected with one another but all the points of consideration are clubbed together and taken up for discussion jointly.

In the matter of arriving at just and proper decision in connection with above noted points of  consideration  and also for deciding  the fate  of this case  there is urgent  necessity  of making scrutiny  of the material of this case record and there is also urgency of making scrutiny  of the evidence on record.  In this regard,  this District Commission after going through the  evidence  on record  and also after making scrutiny of the pleadings of the parties finds  that the OP  of her to deliver  “ Pop up Toaster” and Head Phone  as free gift  with domestic appliances worth of Rs. 20,000/-  to 35,000/-.  In this case the complainant has alleged  that free gift item namely “Pop up Toaster” has not been  delivered  alongwith  the product 32” LED TV.  In this regard  it is very important to note that the complainant has been made  upon the free gift i.e. Toaster for which no consideration  money has been paid to the OP by the complainant.  When there is no consideration money  has been paid to the OP by the complainant , it cannot be said that the complainant is a consumer under the OP.  In other wards  it can be said the proper  ingredients  to constitute the relation  of consumer and service provider  is not present in this instant case as the complainant  has only paid consideration money  in respect of LED TV and has paid any consideration money  for the said Toaster or for the Head Phone .  It is needless to mention that the Toaster was a mere free gift  with the LED TV.  As such  the status of the OP in respect of the said Toaster is not  service provider in respect of which the complainant has claimed himself  consumer.  Moreover, in this regard  it is very important to note  that it is the settle principle  of law that  when there is no consideration, there is no contract.  So, when there is no relationship of consumer  and service provider in between  complainant and OP, it can easily be  with this case is not maintainable .

After going through the material of this case record it is reflected that the OP with a good intention  with that of a responsible service provider, thereby discharge  its duty towards  complainant and try to complainant  the free gift item  i.e. Toaster even on the first day of appeals   in this instant complaint case on 25.04.2018 but the complainant declined  to accept  the said Toaster.  In this regard it is very important to note  that the Order dtd. 25.04.2018 which has been passed  in this case has not been challenged by the complainant  before the Higher Authority   and so the complainant  is now estopped from adopting  the plea that the free gift item  Toaster  has not been  provided to him by the OP.  In this regard the “principle of estopple “ which has been embodied  in the Section 115 of the Evidence Act is very important .  As per provision of Section 115 of the Evidence Act the complainant  is no longer  entitle to get the Toaster from the OP.

A cumulative consideration of the above noted discussion  goes to show  that the complainant is not entitled to get any relief from the OP in this case and this case  is not maintainable  in the eye of law.

In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 81/2018 be and the same is dismissed on contest.  No order is passed as to cost.

The parties of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment be uploaded in the official website  of this District Commission immediately.

Dictated & corrected by me

             President