Dtd. 18.01.2023

Final Order/Judgment

Debasis Bhattacharya:- Presiding Member

Being aggrieved and dissatisfied with treatment extended by the opposite parties as mentioned prepage in the matter of purchase of two Commodes worth Rs.20,001/- from the shop of the OP 2 and the post sales services thereof, the instant case has been filed by the complainant on 04.01.2021, u/s 35(1) of the Consumer Protection Act 2019.

The fact of the case after trimming the unnecessary details is as follows.

The complainant purchased two commodes from OP 1 on 26.01.2020. As reported by the complainant, one commode was found defective and damaged while unpacking the box the very next day.  On being reported instantaneously, the complainant was advised by the OP 2 to lodge a complaint with OP1 and the complaint was accordingly lodged with OP 1 on 27.01.2020 and the same was registered with a specific service request number. Consequent upon that, a technician representing OP 1 attended the issue at the complainant’s place and on inspection of the commode, prepared a job sheet in which it was mentioned that the defect was a manufacturing one and a replacement was recommended.

The OP1 by sending SMS on 29.01.2020 thanked the complainant for giving them an opportunity to serve him and requested for some more time to resolve the issue.

However on 03.02.2020 the OP1 by sending further SMS informed the complainant allegedly without assigning any reason, that replacement request was not approved.

Now, it transpires from the supplementary affidavit and evidence on affidavit filed by the petitioner that the scenario was changed as soon as the complaint petition was filed on 04.01.21 and the same was admitted by this Commission on 18.01.21. One official of OP1 made contact with the complainant and proposed to replace the item in question by sending SMS as well as a formal letter in PDF format. However the complainant was requested to collect the said item from their authorized dealer at Palta, North 24-Parganas. The complainant here points out that the advice extended by the OP 1 to lift the article from a place which is 45 KM away from complainant’s residence indicates that OP 1 has no authorized dealer within the district of Hooghly.

Simultaneously, in course of the proceedings of this case, a person claimed to be authorized representative of OP 1 filed a prayer stating that the OP 1 was ready to replace the article. Accordingly this Commission passed an order directing OP 1 to replace the article within 08.07.2022 and submit a compliance report. On 08.07.22 the same person conveyed that though they were inclined to replace the article, the complainant was not co-operating in the matter of replacement. On 15.09.22 OP 1 once again expressed their willingness to replace the commode but the complainant at that juncture was interested not only in the replacement but also in compensation.         

Considering the aforementioned as deficiency of service and unfair trade practice on the opposite parties’ part, the complainant approaches to this Commission and prays for imposition of direction upon the opposite parties to 1) refund the entire consideration price of the commode amounting to Rs.10,000/- 2) pay Rs.75,000/- as compensation for mental pain and agony, 3) pay interest @18% on the said Rs.75,000/- with effect from 26.01.20 till payment of such amount and 4) pay Rs.25,000/- as litigation cost and also such other reliefs as the Commission may deem fit and proper for the ends of justice.

 As documentary evidence, the complainant has annexed all the copies of the electronic communications received from OP1, and the relevant tax invoice with the complaint petition.

So far as the history of the case proceeding is concerned it is apparent that initially OP 1 was indifferent towards attending the case hearings. No evidence on affidavit appears to have been filed by the OPs.   The case ran ex parte against OP 2. A purported written version and a purported written argument have been filed by the OP 1. The written version is signed by one Sri Srikanta Hazra and the written arguments is signed by someone claimed to be authorized representative of OP 1. But the signatories of the written version and the written arguments did not file any authorization which might be recognized as authentic ones. Thus the content of the written version and argument purportedly filed by OP 1 cannot be taken for consideration.

Now in the light of the discussion made hereinabove, the complainant having purchased goods for his own use against a consideration price is a consumer u/s 2(7) (i) of the Act.

The complainant and the OP 2 are resident/having their office address within the district of Hooghly and the claim preferred by the complainant does not exceed the amount of Rs.20,00,000/-. Thus this Commission has both territorial as well as pecuniary jurisdiction to proceed in the instant matter.

The questions whether there was any deficiency of service on the opposite parties’ part and whether the complainant is entitled to get any relief are taken together in the following part of this order.

Decision with reasons: In view of the foregoing discussion it is evident that the case ran almost ex parte against both the opposite parties. On the other hand the complainant submitted all the relevant documents related to this case before this forum.  

In view of the above and on perusal of the case record and documents, this Commission is of the opinion that there was gross deficiency of service on the part of the opposite parties. The complainant wasted no time to lodge the complaint with the OPs in the matter of the defective article. The concerned technician who attended the issue also recommended a replacement. But the OP1 declined to replace the item without showing any reason. However the OP 1 performed a complete volte-face by expressing their desire to replace the item as soon as the complainant approached to this Commission. Deficiency of service, unfair trade practice and tendency to harass are once again established when the OP 1 asks the complainant to pick up the article from a retailer having their business at a place which is as far as forty five kilometers from the complainant’s place.

Thus, it is held that the complainant is entitled to get the replacement of the item immediately and that too without taking the trouble of going anywhere to pick up the said replacement. Besides the complainant is also entitled to get compensation and litigation cost.  

Hence, it is     

ORDERED

 that the complaint case bearing no. 03/2021 be and the same is partly allowed on contest.

The Commission hereby directs the opposite party 1 to take steps to replace the defective commode free of cost by taking initiative to deliver the same at the complainant’s place within 30 days from the date of this order. Apart from the above, the opposite party 1 will also pay Rs.20000/- as compensation and Rs.5000/- towards litigation cost to the complainant within 45 days from the date of this order. In the event of failure to comply with this order, the opposite party 1 will pay cost of Rs.10000/- by depositing the same in the Consumer Legal Aid Account.

Let a plain copy of this order be supplied free of cost to the parties or their authorized Advocates/Agents on record, by hand against proper acknowledgement or sent by ordinary post for information and necessary action.