Ld. Advocate(s)
For Complainant: Nabanita Kar
For OP/OPs : None
Date of filing of the case :09.10.2020
Date of Disposal of the case :20.04.2023
Final Order / Judgment dtd.20.04.2023
Complainant above named filed the present complaint u/s 35 of the Consumer Protection Act, 2019 against opposite parties praying for direction for take back the defective goods, replace the defective goods or return the price of unsold goods amounting to Rs.5,24,572/- (Rupees five lakh twenty four thousand five hundred seventy two), return the expenses amounting to Rs.30,000/- (Rupees Thirty thousand), return the security deposit amounting to Rs. 4,25,000/- (Rupees Four lakh twenty five thousand) pay the go-down charges amounting to Rs.60,000/- (Rupees Sixty thousand), pay of truck fair amounting to Rs.1,06,000/- (Rupees One lakh six thousand), interest amounting to Rs.1,45,572/- (Rupees One lakh forty five thousand five hundred seventy two), compensation amounting to Rs.50,000/- (Rupees fifty thousand).
He alleged that he being an unemployed youth have been allured by the advertisement of the OPs who were dealing with wall putty and offered for appointment of distributors for selling out their products. Complainant agreed to start a new business of wall putty. Thereafter, he applied for the same. Thereafter one agreement was executed in between complainant and OPs and thereafter OP gave distributorship to the complainant for one year by issuing one certificate of authorization commencing from 01.12.2019 to 31.01.2021. On the date of agreement complainant deposited amounting to Rs.4,25,000/- (Rupees four lakh twenty five thousand) to the OPs out of Rs.7,00,000/- (Rupees Seven lakh) as security. As per the said agreement complainant took one go-down on rent and for that purpose complainant had to bear rent @ of Rs.60,000/- (Rupees sixty thousand) per year and complainant paid the rent to the go-down owner amounting to Rs.60,000/- (Rupees Sixty thousand). Complainant incurred expenses amounting to Rs.30,000/-( Rupees Thirty thousand) for the advertising etc. After the said agreement complainant procured wall putty of 1200 bags weighing 40 kg and 20 kg each worth to Rs.5,84,572/- (Rupees Five lakh eighty four thousand five hundred
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seventy two) vide Tax Invoice dated 09.12.2019. Complainant paid Rs.1,06,000/-(Rupees One lakh six thousand) for fair charges , loading and unloading charges etc. As he started said business during the Covid,19, he compelled to give around 100 bags of wall putty by pushing sell to the buyers by visiting door to door. After the aforesaid sell customers made complaint to the complainant that the aforesaid wall putty was defected and not up to the mark and below standard quality and they demanded return of wall putty and finding no other alternative, complainant reported the entire matters to the OPs through mail, SMS etc. But OPs did not make any contact with him. Complainant repeatedly requested the OPs to take back the unsold 11000 bags through email, SMS etc. But OPs did not pay any heed. Hence, this complaint.
We find that from order no.3 dated 11.01.2021 that OP NO.1-3 appeared through Vokalatnama and prayed for time for filing W/V and that was allowed but till 29.06.2022 OP NO.1-3 not yet filed W/V. Case is running ex-parte against them vide order no.11 dated 29.06.2022. OP NO.4 received the notice on 10.11.2020 as per order dated 22.03.2022, but he did not appear in this Commission nor filed W/V till 29.06.2022. Hence, as per order no.11 dated 29.06.2022 case is running ex-parte against him.
Trial
During trial complainant filed affidavit in chief.
Documents
Following documents have been produced viz :
- Original Copy of Terms of condition of distributor issued by Bright Faith Pvt. Ltd............(Three sheets)
- Original copy of Certificate of Authorization issued by MULTICO TRADERS.....(One sheet)
- Xerox copy of Tax Invoice dtd. 09.12.2019..........(One Sheet)
- Computer copy of e-Way Bill generated date 10.12.2019......(Two sheets)
- Original copy of Transport Company..........(One sheet)
- Carbon copy of Transport Company........(One sheet)
- E-mail copy...............(Nine sheets)
- Original copy of application issued by Bethuadahari-I Gram Panchayet dtd. 07.10.2020.........(One sheet)
- Original copy of House Rent Receipt dtd. 05.06.2020..........(One sheet)
10)Original copy of House Rent Receipt dtd. 04.05.2020..........(One sheet)
11)Original copy of House Rent Receipt dtd. 11.12.2020..........(One sheet)
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12) Agreement copy of House.............(One sheet)
13) Computer copy of document...........(one sheet)
14) Notary Certificate dtd. 29.07.2022...........(One sheet)
15) Power of Attorney..........(Three sheets)
Brief Notes of argument.
Complainant in support of his case filed Brief Notes of Argument.
Argument
Ld. Adv. for the complainant argued before this commission that complainant purchased the aforesaid articles from OP No.1 &2 but within very short period it was noticed that product was defective. He made several communications with the OP No.1 & 2 but they did not take any steps and lastly he compelled to file this case. He prayed for return of purchase money, compensation and cost of the suit.
Decision with Reasons
On perusal of original “terms of condition of distributor” executed by complainant and OP NO.1, we find that both parties were agreed relating to terms of condition of distributor. As per the said document complainant paid Rs.4,25,000/- in favour of OP NO.1 and he was asked to pay Rs.159572/-.
On perusal of certificate of authorization, we find that same has been issued by OP No.1 in favour of complainant.
On perusal of tax invoice, we find that 500 bags bright faith wall putty (each bag contains 40 kg wall putty) and 700 bags bright faith wall putty (each bag 20 contains 20 kg wall putty) were supplied to the complainant. Total amount of the aforesaid articles were Rs.5,84,572/- (Rupees Five lakh eighty four thousand five hundred seventy two). It is the contention of the complainant that aforesaid products were defective. He sent e-mail.
We have carefully gone through the same OP NO.1 sent a letter to the complainant dated 25.01.2020. As per document dated 07.10.2020, we find that Pradhan Bethuadahari-1 Zilla Parishad stated that business of the complainant remain closed. On perusal of three rent receipt we find that complainant paid Rs.30,000/- to OP NO.4 as house rent. On perusal of document dated 10.12.2018 we, find that same has been issued in favour of the complainant. On perusal of power of Attorney, we find that
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complainant authorise his wife Serina Khatun as his true and lawful attorney.
Complainant alleged in para 10 of his petition of complaint that as per direction of the OPs some samples of the goods were sent to Berhampore, Dum Dum, Mayapur, Katwa and some other places but after some days of such sale the customers made complaints to the complainant that the aforesaid goods i.e wall putty were defective and not up to the mark and below standard quality and for that reason they demanded return of price of wall putty and complainant reported the said matter to the OPs through e-mail, SMS etc. But OPs did not make any contact with him. Complainant repeatedly requested the OPs to take back the unsold 1100 bags wall putty but OPs did not pay any heed. He further stated that aforesaid 1100 bags wall putty were defective goods.
In this context, we have carefully gone through section 38(2) (c) which rates as under:-
“If the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, obtain a sample of the goods from the complainant, seal it and authenticate it in the manner as may be prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory to make an analysis or test, whichever 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 Commission within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by it.”
As per the aforesaid provision of Consumer Protection Act, 2019, it was the duty of the complainant to take necessary steps for analysis or test of the aforesaid goods. It was his duty to produce the sample for analysis or testing but he did not to do so.
To get the desired relief it was the duty of the complainant to prove before this Commission that he informed the OPs about the defect of goods. He alleged in para 10 that through e-mails and SMS he informed the companies about the defect of goods but he failed to produce copy of any such e-mail or SMS. The copy of e-mail and SMS which have been filed by the complainant does not contain any such fact. Those e-mail and SMS are relating to other matters. There is no whisper in those e-mails and SMS about defect of goods.”
Having regard to the aforesaid discussion, we are of the firm view that complainant failed to establish before this Commission that he informed the OPs about defect of goods which were supplied to him. Moreover, he did not take any steps u/s 38(2) (c) of Consumer Protection Act, 2019.
Accordingly, we have no satisfaction to say that complainant failed to established his case.
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In the result present case fails.
Hence,
It is
Ordered
that the present case be and the same vide no.CC/137/2020 is dismissed ex-parte against the OP No.1-4 but without any order as to cost.
Let a copy of this order be supplied to both the parties as free of cost.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) .................................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
