In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/171/2023.
Date of filing: 07/09/2023. Date of Final Order: 02/08/2024.
Smt. Sumitra Das,
w/o Mr. Gobinda Chandra Das,
r/o village Nabasan, Block and Police station Haripal,
Nalikul Gram Panchayat (West), Dist. Hooghly, Pin. 712407.
…….complainant
vs
M/S MIR ENTERPRISE AND AGRO
Represented by its authorized signatory,
- Registered office: Village Garuimari post Dewil,
Police Station Chakda, Dist. Nadia, West Bengal, PIN. 741222.
- Corporate/ Marketing office: Konch Pukur, New Town (near Aquatica),
Police Station Baguiati, Kolkata-PIN-700156.
……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 the petitioner is the sole and absolute owner of the A schedule property and as owner of the same has duly got her name recorded in the record of rights and while cease and possessed of the said A schedule property, the petitioner has been enlightened that for her own livelihood by means of self employment, she is well eligible to avail the benevolent Government scheme for making naturally ventilated greenhouse tabulated structure for rowing/rearing agro products under MIDH 2022-23 of the Govt. of West Bengal from the District Horticulture office, Chinsurah, Hooghly and the petitioner being an unemployed have whole heartedly approached for the said scheme for securing herself livelihood and lead her life. The OP being engaged in constructing green house tabular structure have gathered the information about the intention of the petitioner from the office of the BL & LRO, Haripal, Hooghly and thus approached the petitioner for undertaking the construction job over the A schedule property, and the petitioner herself having got no such experience, having considered the proposal of the OP as being bonafide, have accepted the same, against a total consideration of Rs.706181/- inclusive of all materials and labour. The aforesaid proposal of the OP and its acceptance by the petitioner coupled with the payment of consideration money Rs.706181/- by the petitioner to the OP together constituted a legally enforceable concluded contract, on the basis of which a greenhouse tabular structure measuring 640 sq. mtr. As approved by the Dy. Director Horticulture, vide letter under memo no.345(8) dated 14.2.2022 was constructed by the OP and the entire payment by the petitioner to the OP was against the Invoice raised by the OP being no.NEA/22/810 dated 27.12.2022 and the payment was duly acknowledged by the later vide money receipt no.000825 dated 28.12.2022. The said construction of Green House Tabular Structure over the A schedule property measuring 640 sqa.mtr. structure is fully described in sch.B of complaint is also the subject matter of the instant case. The petitioner having hired the service of the Op in the making the B schedule structure over the A sch. Property against the total consideration of Rs.706181 only have not only form a legally enforceable contract but have also qualified the petitioner to be a consumer within the meaning of consumer protection Act 2019.
With an ill intention for gaining maximum profit from the construction of the B sch. Structure, the Op have undertaken the construction of the B schedule structure with absolutely low quality material and have erected a feeble steel structure on shallow foundation for which even under a mild tempest on 23.5.2023 the said B sch. Structure was completely blown away and damaged and reduced to that of debris though verbally the OP assured the construction of the A sch. Structure to survive more than a decade, yet its poor construction have damaged the same completely. The said incident was duly reported to the BDO, Haripal by the petitioner on 28.6.2023. Such poor construction of the B sch. Structure by the OP indeed tantamount to “deficiency in service” and unfair trade practice” within the measuring as contemplated in the Consumer Protection Act, 2019 thereby making the OP liable to compensate the petitioner with an amount of Rs.1000000/- for loss of material, stock in trade for harvesting, mental stress, anxiety an loss of appetite besides the payment of Rs.706181/ towards construction of the B sch. Structure. For all such aforesaid reasons the petitioner through her authorized representative Advocate served a notice to the Op under registered post with A/D on 10.7.2023. The said notice was served to the OP at both their registered office as well as corporate and was duly received by them as per track report as maintained by the Department of Post, Government of India in the usual course of their business transaction but unfortunately in spite of receiving the said notice, the Op having turned deaf ears, the petitioner having compelled to file this instant case necessary relief. Having realized that the construction of the B sch. Structure over the A sch. Property was not up to the mark of any standard level, the OP through their authorized representative, Advocate have served a letter on 25.7.2023 admitting almost all the aforesaid fact except poor construction, but expressed their intention to provide free service for repairing the project though remained silent about replacing the substandard materials. The petitioner through her advocate immediately replied to the said letter on 2.8.2023 and specifically stated that the petitioner has got no objection if the B sch. Structure is restored in its original position but with standard and quality materials and not subject to threat of getting damaged and decayed on fragile and unconvincing reason.
Complainant filed the complaint petition praying direction upon the opposite party to repair and reconstruct the B sch. Structure over the A sch. Property with standard quality material and adequate foundation so that the same be not subject to damage and destruction in mild tempest or other fragile and unconvincing ground and to pay a sum of Rs. 706181/- with interest @ Rs.12% p.a from 28.12.2022 till the date of realization and to pay a sum of Rs.1000000/- for loss of raw material, stock in trade for harvesting, mental stress, anxiety and loss of appetite.
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 parties.
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 Haripal, 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 points 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. 171 of 2023 be and the same is allowed ex parte but in part.
It is held that the Op is liable to pay Rs.706181/- alongwith the interest @9% per annum from the date of filing of this case (7.9.2023) to the complainant within 45 days from the date of this Judgment / final order. Otherwise complainant is given liberty to execute this award as per law.
No order is passed as to the payment of compensation and litigation cost.
In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 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.