IN THE COURT OF DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION

WEST SINGHBHUM AT CHAIBASA

Present: -  1. Sri Vijai Kumar Sharma, President,

                 2. Sri Rajiv Kumar, Member,

                 3. Smt. Deoshree Choudhary, Member.

C. C. No.02/2014

Chaibasa, Dated: 23.08.2022

Chandra Prakash S/o Late Shashi Bhushan Singh resident of Gutusai, P.O Chaibasa, P.S. Muffasil Chaibasa, District West Singhbhum Jharkhand………………..Complainant

Vs.

Krishna Diesel and Machinery Store, Shop No.16 near Hanuman Mandir, Azad Nagar, Main Road, Mango, Jamshedpur, East Singhbhum, Jharkhand …………Opposite Party

Advocate for Complainant……………Shri P. K. Daripa, Advocate.

Advocate for Opposite Party……Shri Shiv Das Dey & Rajeev Kumar Sinha Advocates.

Judgment

     Complainant Chandra Prakash S/o Late Shashi Bhushan Singh aged about 30 years, resident of Gutusai, P.O Chaibasa, P.S. Muffasil Chaibasa, District West Singhbhum Jharkhand has filed instant case against opposite party Krishna Diesel and Machinery Store, Shop No.16 near Hanuman Mandir, Azad Nagar, Main Road, Mango, Jamshedpur, East Singhbhum, Jharkhand for an award of Rs.130000.00 including compensation towards mental and physical harassment for deficiency of service.

     Briefly stated case of the complainant named above is that he purchased one Kirloskar Mixture Machine on 06.12.2013 from the shop of the Opposite party on the price of Rs.100000.00 only.  Further that he paid Rs.80000.00 cash and Rs.20000.00 transferred online to the Bank Account No.450410100022228 on 06.12.2013.

     Further that there after delivery of mixture machine, Challan No.61 dated 06.12.2013 was issued by and his vehicle was arranged by the O.P. Further after receiving the vehicle tried to start the machine, but machine broken down within one hour, for which complainant informed O.P and he was assured by O.P to look into the matter through sending a mechanic but O.P didn't send any mechanic, then complainant made contact with local mechanic, who after inspection found that instead of first hand, second hand machine supplied by the O.P to complainant and despite request when second hand machine was not replaced by O.P, then he demand for money along with interest that he has given for purchasing new machine but O.P did not pay any interest, then complainant filed instant case in this Forum.

     After admission notice was issued to opposite party who has appeared in this case and show cause has been filled on behalf of opposite party with intention to contest the case.  On perusal of the show-cause it transpired that initially objection have been raised by O.P about jurisdiction of the Court. Further it has been claimed that new machine was sold by opposite party to the complainant but due to mishandling machine was broken down and in order to cover fault, complainant filed false case before this Court and further that complainant has not sent any notice to answering O.P and directly case has been filled before this Forum, which shows ulterior motive of the complainant and finally prayer has been made to dismiss the case of the complainant.

     In support of the complaint case complainant has filed affidavited evidence and evidence of witness Guru Mukhi and Lakhi Rawani which have been numbered P.W.01, P.W.02, and P.W.03 respectively.  In addition to that complainant has also filed photocopy of estimate regarding mixture machine issued by the O.P in favour of the complainant on 05.12.2013, photocopy of retail invoice dated 06.12.2013 issued by O.P. in favour of the complainant in which Rs.84000.00 amount has been mentioned, photocopy of Bank slip dated 06.12.2013 in which Rs.20000.00 has been shown as transferred in Account No.450410100022228, receiving original copy dated 14.12.2013 regarding one bag mixture machine with engine receipt has been issued by the O.P.

     On the other hand O.P has also filed affidavited evidence of Sunny Kaura along with affidavited evidence employee of the O.P namely Abhisek Kaura in support of the W.S.

     After hearing argument, case has been fixed for judgment.

   On the basis of above evidences adduced by the parties’ case will be decided, giving finding in this case.

FINDING

Learned counsel for the complainant argued that the legal ground of jurisdiction of this court has been raised by the O.P  in his written statement by stating that business transactions have taken place within the jurisdiction of East Singhbhum, so instant case should be filled before the Consumer Forum of East Singhbhum and instant case should be dismissed on this ground alone but as a matter of fact this Forum has got very well jurisdiction under the provision section 11(c) under Consumer Protection Act 1986. So this forum has got jurisdiction to try the case.  On the other hand learned counsel of O.P. gave force to the contention that since the machine was purchased in the District East Singhbhum Jamshedpur, so Jamshedpur Forum has got jurisdiction to try this case.

     Since legal ground of jurisdiction has taken place by the O.P. and case is related for the year 2014 so it is very much clear that provision of Consumer Protection Act 1986 will be applicable in this case and got jurisdiction of this forum.

     Section 11 of Consumer Protection Act 1986 provides about the jurisdiction of the District Forum and as per Section 11 (2) (a)(b) of Consumer Protection Act 1986 it has been provided that case will be instituted where O.P. reside or carried out business or has a branch etc., but section 11 sub section 2(c) also shows that case can be instituted wholly or in part where cause of action arises.  As per the complaint case it has been made averment that purchase machine from the O.P. was delivered to the complainant’s address and machine was broke down at the complainant address which is within the jurisdiction of this forum, so in our view cause of action has arises within the jurisdiction of this forum and complainant can be filed before this forum under the provision of Section 11(2)(c) of Consumer Protection Act 1986.  So we are of the view that there is no force in the submission on learned counsel of the O.P. and with respect to jurisdiction of this forum and this forum has got jurisdiction to try the case.

     On perusal of the evidence of the Pw1, Pw2 and Pw3 we find that above three witnesses have supported the complaint case and complainant has categorically stated that he purchased the machine after paying Rs.80000.00 cash and Rs.20000.00 online given account of the O.P. and thereafter delivery of the machine was given by the O.P. by Challan No.61 dated 06.12.2013 by the O.P. and all witnesses also stated about breaking down of the purchased machine and further complainant has stated that cause of action arose on 07.12.2013 at Gutusai Chaibasa and further that he is entitled to receive the price of the machine along with Rs.30000.00 with compensation.  On the other hand O.P. has stated in his affidavited evidence that he has sold new machine to the complainant and local mechanic has not given any detail description about the fact that sold machine was second hand but he has fairly considered he is ready to replace the machine and also he has admitted that sold machine was returned by complainant on 14.12.2013 at his shop when he was out of station.  One thing he has alleged that complainant has not paid VAT on the purchased of machine.  Pw2 Abhishek Kaura has also admitted fact that he is employee of the O.P. shop since 6 years and complainant has returned mixture machine on 14.12.2013 when owner of the shop was out of station and he had also made request to the complainant that machine will be replaced but complainant was adamant to take only cash.

      Although O.P. has admitted fact that he has sold mixture machine to the complainant and he is also shown his intention to replace the machine which will be in working condition but one thing he has alleged that complainant has not paid the VAT applicable on the purchased machine.  It is well settled law that admitted things need not to be proved as Section 58 of The Evidence Act.

     Yet complainant has adduced delivery challan dated 06.12.2013 which shows that complainant has paid Rs.80000.00 for mixture machine and Rs.4000.00 as VAT and this amount has been shown as a received by the authorized person of the O.P., so para 9 of the affidavited evidence of O.P. becomes contradictory from the retail invoice/bill cash dated 06.12.2013 issued by the O.P. in favour of the complainant.

     Since O.P. is ready to replace the machine as per his affidavited evidence and from the evidence of complainant and O.P. it is also clear that purchased machine was returned by the complainant to O.P. on 14.12.2013 for which receiving has been given from the O.P. side.  The only thing which needs decision in this regard is that whether complainant is entitled for cash or replacement of the machine which has purchased from the O.P.  Since O.P. is fear in his affidavited evidence by saying that he has ready to replace of the machine, so we are of the view that if the machine is replaced by O.P. to the complainant, then it will meet ends of justice.

       So finally we came to the conclusion that O.P. should replace the mixture machine to the complainant so no need to return the cash.  So up to this extend we are of the view that complainant is entitled for getting relief along with compensation towards litigation cost and complaint case is worthy for an award.

     Accordingly it is therefore.

ORDER

     That case of the complainant is decreed on contest against O.P. and O.P. is directed to supply the new mixture machine to the complainant along with Rs.5000.00 as litigation cost within a month from the judgment communicated to him, failing which complainant will be entitled to get the amount of purchase i.e, Rs.100000.00 (Rupees One Lakh) only @ 9% per annum from the date of filing till final realization.  Let copy of this judgment be furnished to both parties free of cost for their information and compliance.

    (Rajiv Kumar)                  (Deoshree Choudhary)               (Vijai Kumar Sharma)

        Member                                   Member                                         President