Smt. Sangita Paul, Member
This is a case filed by Smt. Sarbari Niswas wife of Shri Palash Baran Biswas of 34 Sreenagar Main Road, Ganapati Apartment, Ground Floor, P.S. – Narendrapur, Kolkata-700 094, Dist. – 24 Parganas (South) against H. P. India sales Pvt. Ltd and Trishita Marketing Pvt. with a prayer for a directing the OP No.2 to repair the machine immediately so that the machine will regain its working condition and to pay the required compensation to the tune of Rs.2,00,000/- to the complainant for her sufferings as well as to pay the litigation cost amounting to Rs.50,000/-.
OP No.1 is H P India Sales Pvt. Ltd. The address is Martin Burn Business Park, Block-BP, Sector-V, Salt Lake City, Mahadiganta Shilpa Nagari, Bidhannagar, P.S.-Bidhannagar East, Pin-700 091, Dist. – North 24 Parganas.
The OP No.2 is Trisita Marketing Pvt. Ltd. The address is 8, HO chi Minn Sarani, P.S. – Shakespeare Sarani, Kolkata-700 071.
The complainant, by filing this case states that she applied for a loan under self-employed scheme from Government of West Bengal. The complainant received Rs.1,50,000/- as subsidy from Government of West Bengal and the balance amount of Rs.3,94,350/- she received through loan facilities from State Bank of India which was for the tenure of 5 years.
Out of the loan, the complainant purchased one H P Brand T2500 Multi function printer having MODEL No.I P D N J 2500 PS 36” printer C R 359A amounting to Rs.5,90,000/- from the counter of OP No.2 on 28.05.2015. OP No.2 is the whole sale dealer of H P Products.
The complainant got 1 year warranty from the date of purchase. The OP No.2 persuaded the complainant to enter into 5-year contract and that the OP No.2 would take the responsibility at the time of any problem. OP No.2 also informed that if the complainant entered into the contract, it will help the complainant to repay the loan along with interest and OP No.2 would repair the machine.
The complainant entered into the contract with Op no.2. The agreement was termed as per M A Smart Click agreement with the OP No.2 on 28.05.2015. As a result, the complainant was entitled to pay the service charge Rs.500/- + tax per month. After the contract, the complainant did not get proper service from OP No.2. Even the ink was also filled by the OP No.2 as and when they wish OP No.2 deliberately violated the terms of contract due to non-supply of ink, the complainant had to stop their work. Even the Op No.2 did not repair the machine, when it was badly needed. The complainant could not earn. The complainant suffered due to deficiency in service adopted by the OP.
The complainant never refused to pay service charges, but Op No.2 failed to render proper service to the complainant. The business of the complainant had stopped permanently.
That the cause of action finally arose on 28.05.2015, when the complainant purchased the printer and the cause of action is still continuing.
Hence the complainant prays for a direction up the OP No.2 to repair the machine immediately so that the machine will regain its working condition and to pay compensation to the tune of Rs.2,00,000/- for her sufferings, to pay the litigation cost amounting to Rs.50,000/-.
OP No.2 in his written version states that the instant petition is not maintainable either in law or in facts.
That the instant proceeding is based on false assertion, baseless allegations and is guided by harassing motive to waste the valuable time of the Commission.
That the complainant is not a consumer under the provisions of law. The complainant purchased the printer for commercial purpose. It was not purchased for domestic use. The complainant purchased the printer on 28.05.2015 which bears the warranty of one year from the date of purchase.
That the proceeding is barred by the Law of Limitation. The present case is filed beyond the Limitation period Under Section 69 of the C P Act 2019.
The OP No.2 denies each and every allegation brought against them. There is nothing to prove deficiency in service and unfair trade practice.
That the agreement signed on 28.05.2015 was for commercial use. The agreement was signed for 5 years. The agreement was signed for providing services which includes consumable and maintenance under the manufacturer’s warranty and as per the terms and as per conditions of the said agreement, the complainant is liable to pay Rs.500/- and tax and Rs.32/- per ml. excluding all taxes.
The OP No.2 further states that they always provide best services as and when required. The complainant always delayed in making payments despite repeated request.
The OP No.2 denied the statement that they never sent their representatives.
The complainant used to send date on the very first day of every month to enable invoicing. The complainant would not allow the engineers of the OP No.2 to take meter reading with some mala fide intention. As a result the OP No.2 could not collect payments in time.
The OP No.2 supplied the complainant all the materials required by her within 48 hours. OP No.2 supported the maintenance of the complainant’s office even if OP No.2 did not get the charge.
It is false that no action has been taken by OP No.2, even after the expiry of contractual period. The complainant did not permit to take page-count from February 2020, to May, 2020 as the page-count was not received, the OP No.2 could not be able to raise invoice for consumption of Ink.
The complainant prays for dismissal of the complaint with cost.
That the complaint was filed on 29.12.2021. The complaint was admitted on 18.01.2022. OP No.2 appeared on 23.02.2022. The annexures were delivered to OP No.2 from record. On 20.04.2022, the OP No.2 files W/V. Copy served. OP No.1 did not appear. So the case proceeded ex-parte against OP No.1. On 22.06.2022, the complainant files evidence on affidavit. Copy served. On 25.08.2022 the complainant appears. OP No.2 files questionnaire with copy. The complainant receives the copy. On 28.09.2022 the complainant files questionnaire along with copy. On 30.11.2022 OP No.2 prays for time. Prayer for time is allowed with cost of Rs.200/-. On 12.12.2022 Op No.2 files evidence on affidavit. On 01.03.2023 the complainant herself files BNA. Copy served. OP No.2 also files BNA. Argument of both sides was heard. Accordingly we proceeded for giving judgement.
Points for consideration :-
- Is the complainant, a consumer?
- Are the OPs guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get relief as prayed for?
Decision with reasons :-
Point No.1:-
On perusal of documents and records, it appears that the complainant was an employed lady. She applied for a loan under self-employed scheme of SVSKP of Govt. of West Bengal. The complainant got loan of Rs.5,00,000/- (Rupees five lakhs). Out of the amount, she got Rs.1,50,000/- as subsidy from the Govt. of West Bengal and the balance amount of Rs.5,00,000/- (Rupees five lakhs) would have to repay by the complainant. The balance amount of Rs.5,00,000/- (Rupees five lakhs) which she received as loan from State Bank of India. As the complainant pays back the loan amount he is a consumer u/s 2(7) of the Consumer Protection Act, 2019. So, the first point is decided in favour of the complainant.
Point No.2:-
Out of the aforesaid amount the complainant bought one H P Brand T 2500 Multi Function Printer having Model No.-“H P DNJ 2500 PS 36’, printer C R 359A from Op No.2 on 28.05.2015. Op No.2 is the authorized whole sale dealer of H P Printers. The complainant was offered a one-year warrantee from OP No.2. The complainant entered into a 5-year-contract with Op No.2. But it is pertinent to mention that the complainant is deprived of getting proper service from OP No.2. If there is any dispute regarding the machine, OP No.2 would solve the problem. But the complainant hardly received any facility from OP No.2. OP No.2 is the whole sale dealer of H P Products. But the complainant’s problems were not solved. OP No.2 hardly inspected the machine. OP No.2 assured that any problem regarding ink, cartridge, printed meter reading, to know the status of the Ink would be solved within 48 hours. But the reality was somewhat different. The complainant faced series of problems after making a contract with OP No.2. The complainant had to suffer monetary loss, though it was her only means of livelihood. All these happened due to unfair trade practice and deficiency in service adopted by the OP. The complainant paid service charge but did not get the service. So the second point is decided in favour of the complainant and against the OPs.
Point No.03 :-
The complainant purchased one H P DNJ 2500 PS 36 Printer C R 350A from OP No.2, Trishita Marketing Pvt. Ltd. for maintaining her livelihood through self-employment. As the complainant entered into a contract with OP No.2 the complainant was supposed to get all the required facilities from Op No.2. The complainant was assured by OP No.2 that every problem regarding Ink, Cartridge, Printed Meter Reading would be solved by the personnel sent by OP No.2 and the complainant would not be required to move. The complainant entered into the contract per M 1 Smart Clink Agreement with the Op No.2 on 28.05.2015. As the day passed the complainant started to suffer the most. She faced unending troubles and harassments. The company officials did not provide service. They did not fill the ink but collect the money for servicing. Everything was on the whim and wishes of OP No.2. The complainant was put in trouble. OP No.2 failed to understand the complainant’s problem. So, it was not possible for the complainant to run the machine properly and make adequate payments. The complainant mailed to the OPs 1 & 2 but without any result. The OPs hardly cared to attend the case. The complainant spends time in mental agony due to monetary loss. Hence, she is entitled to get relief as prayed for. So, the third point is decided in favour of the complainant and against the OPs.
In the result, the complaint case succeeds.
Fees paid is correct.
Hence, it is,
ORDERED
That the complaint be and the same is allowed on contest against OP No. 2 and ex-parte against OP No.1 with cost of Rs.30,000/- (Rupees thirty thousand).
That the OPs 2 is directed to repair the machine within 45 days from the date of this order. So that the machine would regain its working condition.
That the OP No. 2 is directed to pay compensation to the tune of Rs.1,00,000/- (Rupees one lakh) with 10% interest w.e.f. 28.05.2015 till realization within 45 days from the date of this order.
That the litigation cost of Rs.30,000/- (Rupees Thirty Thousand) is to be paid by the OP Nos. 1 and 2 jointly and/or severally within 45 days from the date of this order.
That the complainant is at liberty to put the order into execution if the orders are not complied with within 45 days from the date of this order.
Ld. Member Sri Partha Kumar Basu joined on 11.04.2023 and he did not take part in hearing the argument of the case. As such he did not sign the judgement and order passed on this day.
Let a copy of this order be supplied to the parties concerned free of cost.
That the final order will be available in the following website: www.confonet.nic.in.
Dictated and corrected by me.
Sangita Paul
Member
