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 complainant placed an order of a water tank from the respondent’s store and paid Rs.90000/- in May 2022 thereafter when the complainant did not received the water tank within the promised date he contacted the respondent concern regarding the same and it is also pertinent to note here that though the complainant informed the respondent concern about the same but there was no cooperation from the respondent’s end. The complainant states that the complainant tried to contact the respondent concern several times to resolve his issue but there was no proper response from the respondent’s end and as the complainant is the customer of the respondent’s services it is the respondent’s responsibility to resolve the issue of the complainant and it is also pertinent to note here that due to the respondent’s unprofessional behavior and negligence ultimately the complainant had to face mental and financial harassment. The complainant states that the complainant has contacted the respondent concern several times requesting the respondent concern to resolve his issue but there has been no proper response from the respondent’s end which is absolutely wrong and unacceptable and the respondent concern kept on making excuses due to which ultimately the complainant had to face mental agony due to the respondent’s unprofessional behavior. The complainant states that the complainant felt that he had been defrauded cheated and misguided and humiliated and in light of the aforementioned intentional act of negligence committed by the respondent concern, the complainant has requested the respondent concern several times for resolving his issue, but he got “NO SUPPORT” from the respondent’s side to resolve this issue which is utterly unprofessional from the respondent’s end and by not providing proper quality service to customer falls under unfair trade practices as well as complete deficiency in service on the respondent’s part. The complainant states that being deprived of the proper and facilitated procurement he again and again intimated the respondent byway of the telephonic conversation and by way of electronic mail conversation in order to solve the said issue, however the executive of the respondents have acted like flogging of ahead horse in lieu of providing the proper services to the complainant and inlieu of providing the constructive reply to him till date.
Complainant filed the complaint petition praying direction upon the opposite party with refund to pay a sum of Rs. 90000/- and to pay a sum of Rs.100000/- for deficiency in service and mental harassment and agony and to pay a sum of Rs.20000/- for litigation cost.
In this case the opposite party inspite of receiving notice have not appeared and even after getting 45 days statutory time limit have not file written version and so this District Commission has heard this case ex parte.
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 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 has given emphasis on evidence and document produced by complainant.
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 Mogra, 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 pints 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.
On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by complainant it appears that the complainant by way of giving oral and documentary evidence has proved his case in respect of all the issues and the evidence given by the complainant remains unchallenged as the ops have not adduced any evidence and documents. There is no reason to disbelieve to unchallenged and uncontroverted evidence given by the complainant side. The evidence given by the complainant side goes to show that he has proved the fact that the complainant paid Rs. 90,000/- to the op in the month of May of the year 2022. So, the complainant is entitled to get the said amount of Rs. 90,000/- along with interest @ 9% per annum from the date of filing of this case (20.9.2022). Thus, all the points of consideration framed in this case are decided in favour of the complainant side.
In the result it is accordingly
ordered
that the complaint case being no. 199 of 2022 be and the same is decided ex parte against the opposite party.
It is held that the complainant is entitled to get a sum of Rs. 90,000/- along with interest @ 9% per annum from 20.9.2022 and the complainant is also entitled to get compensation of Rs. 10,000/- and litigation cost of Rs. 5000/-.
Opposite party is directed to pay the said amount within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.
In the event of nonpayment/ non compliance of the above noted direction the opposite party is 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.
