Consumer Complaint No.182 of 2015
Date of filing: 17.8.2015 Date of disposal: 19.01.2017
Complainant: Prasanta Das, S/o. Uttam Kumar Das, resident of Kalna Baruipara, PO. & PS: Kalna, District: Burdwan, PIN – 713 400.
-V E R S U S-
Opposite Party: 1. I. T. Solution, represented through its Proprietor, having its office at Tentulta More, Station Road, PO: Kalna, District: Burdwan, PIN – 713 409.
2. Konika Minolta Business Solution, represented through its Branch Manager, having its office at GF Godrej Water Side, Sector 5, Salt Lake, Kolkata, PIN – 700 091.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party (s): None.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs have delivered a defective printer machine to him.
The brief fact of the case of the Complainant is that he purchased one Konika Minolta Page Pro 1590 MF Xerox machine from the OP-1, manufactured by the OP-2 on 18.02.2015. The consideration amount for the said printer was for Rs.15, 000=00 including VAT. The Complainant paid the entire amount to the OP-1 in cash and the OP-1 issued an invoice on 18.02.2015 in favour of the Complainant. The Complainant purchased the said machine for earning his livelihood. There was two years warranty for the said machine. On the very next date i.e. 19.02.2015 the representatives of the OPs came at the house of the Complainant for setting up the machine but vey surprisingly the representatives of the OPs at the time of installation of the machine declared that the machine is not working properly as the ink not properly pasted. The representatives of the OPs assured the Complainant that the machine will be repaired within few days. At that time the Complainant repeatedly requested them to replace the machine as it is a new one and not working properly. On the date of installation of the same the representatives of the OPs assured that they will do the needful within a short span, but thereafter they neither took any step regarding replacement of the machine nor they pay any heed to the request of the Complainant. Being frustrated with the conduct of the OPs the Complainant wrote a letter to the OP-1 on 13.03.2015 and sent the same through speed post with A/D requesting to replace the machine as early as possible. But inspite of receipt of the said letter the OPs did not bother to give reply and remained silent over the matter. Thereafter the Complainant lodged a complaint before the Consumer Affairs Department who arranged a meeting for amicable settlement of the dispute by and between the Complainant and the OPs. On the date of settlement talk the OPs sent their Ld. Advocate and agreed to return the consideration amount of the said printer to the Complainant. But thereafter the OPs neither paid any amount to the Complainant nor replaced the machine till filing of this complaint. Moreover when the Complainant went to the office of the OP-1 then the OP-1 behaved with him very rudely. According to the Complainant knowing fully well the inherent defect in the printer the OP-1 supplied the same to him for monetary gain and with a view to harass him. As his grievance have not been redressed by the OPs before approaching to this Ld. Forum, having no alternative the Complainant has filed this complaint praying for direction upon the OPs either to replace the printer machine in question or refund the consideration amount to him, to pay compensation to the tune of Rs.25, 000=00 due to mental pain, agony and harassment and litigation cost of Rs.25,000=00 to him.
After admission of the complaint notices were sent to the OPs through speed post with A/D. From the track report it is evident that inspite of receipt of notices the OP-1 & 2 chose not to appear before this Ld. Forum to contest this complaint neither orally nor by filing written version. So this Ld. Forum was pleased to fix this complaint for ex parte hearing.
As the Complainant has alleged defects in the printer machine, on 02.02.2016 the Complainant filed one M.A. being no. 32/2016 praying for appointment of an independent expert to examine the printer machine as mentioned in the complaint and to prepare a report along with bill showing actual cost of examination. The Ld. Expert was directed to file the report before this Ld. Forum on 21.03.2016. It is evident from the order dated 02.02.2016 in connection with the M.A. no. 32/2016, that the Complainant was directed to hand over Rs.2,500=00 as approximate cost of examination and report to the expert at the time of examination of the machine. On 21.03.2016 though the record was fixed for submission of the report by the expert, but no report was forthcoming. The track report shows that the order dated 02.02.2016 was duly served upon the Manager, Cannon Sales and Services, but no report was received from the Manager, Canon Sales and Services. For ends of justice further date was given for submission of the report by Manager, Cannon Sales and Services/expert on 25.04.2016. Neither on 25.04.2016 nor till the date of argument expert opinion is forthcoming. It is also seen by us that the Complainant also failed to take any positive step in this regard though specific direction was made by this Ld. Forum to hand over Rs.2,500=00 as approximate cost of the examination and report to the expert but no step has been taken by him. Not only that the Complainant did not bother to make any connection with the Expert as appointed by this Ld. Forum and bring the questioned machine before the Ld. Expert for its necessary examination and report. Till 21.12.2016 this Ld. Forum was pleased to fix this complaint for expert opinion. On 21.12.2016 as the Complainant was absent on call and record showed that the Complainant has failed to comply with the direction of this Ld. Forum, the Complainant was directed to show cause as to why the complaint shall not be dismissed due to non- compliance of the order passed by this Ld. Forum. Date was fixed on 10.01.2017. On 10.01.2017 the Complainant was also absent without taking any positive step. For this reason the Ld. Forum took up the record for its disposal on merit without dismissing the same for default.
We have carefully gone through the petition of complaint and other related papers and documents as field by the Complainant. Admittedly the Complainant had purchased one printer machine from the OP-1 manufactured by the OP-2 by making payment of Rs 15,000=00. The OP-1 accordingly issued an invoice in the favour of the Complainant. But it is alleged by the Complainant that the said printer machine suffers from its inherent defect for which he is not in a position to carry on work with the machine for earning his livelihood. As the dispute of the Complainant have not been resolved by the OPs hence by filing this complaint the Complainant has prayed for either replacement of the said defective machine or return of the actual price of the machine as paid by his along with other reliefs.
In the Section 13 (1) ( c ) of the Consumer Protection Act, 1986 it is enumerated that ‘where the Complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the Complainant, seal it and authenticate it in the manner prescribed and referred the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, which may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of 45 days of the receipt of the reference or within such extended period as may be granted by the District Forum’.
In the case in hand allegation has been made by the Complainant in respect of defects in the printer machine. So in view of several judgments and orders passed by the Higher Forums/Commission or Courts an independent expert should be appointed with a view to examine the alleged goods and prepare a report by the said Ld. Expert before the Ld. Forum /Commission. In consonance of the said observation this Ld. Forum was pleased to appoint an independent Expert in connection with an application made by the Complainant praying for appointment of an Expert, with a view to examine the defective printer machine, as alleged by the Complainant and to prepare a report and submit the same before this Ld. Forum. But it is evident that no expert opinion has yet been forthcoming before this Ld. Forum, and after giving direction to the Complainant as well as the Ld. Expert, the Complainant did not bother to take any positive step either to make any connection with the Ld. Expert or bring the defective printer machine before the Ld. Expert for its necessary Examination. As the defects in the goods cannot be adjudicated upon without any Expert opinion hence in the case in hand we are not in a position to adjudicate the instant complaint as to whether the questioned machine is suffering from any defects or not, without any expert opinion. As the Complainant has failed to prove his complaint hence the complaint does not stand.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint be dismissed ex parte against the OPs. However, considering the facts and circumstances there is no order as to cost.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
