Tripura

StateCommission

A/11/2015

Mr. Saikat Saha - Complainant(s)

Versus

Mr. Milanmoy dewan - Opp.Party(s)

Mr. A.L Saha, Mr. A.Saha, Mr. K.Nandi

13 Oct 2015

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

APPEAL CASE No.A/11/2015.

 

SAIKAT SAHA,

Proprietor of M/S Sigma System,

Swasti Bazar, Room No.59,

HGB Road, Agartala, District-West Tripura.

                   ….    ….    ….    ….    Appellant.

                   Vs

MILANMOY DEWAN

S/O. Lt. Nilendralal Dewan

B 66, ONGC Colony,

Souty Badharghat, P.S-Amtali,

P.O :- ONGC

District-West Tripura.

PIN:- 799014           

             .….    ….    ….    ….    Respondent.

 

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

 

              MR.NARAYAN CH. SHARMA,

          MEMBER

            STATE COMMISSION.

               

 

For the Appellant            :      Mr.A.L.Saha,Adv.,Mr.K.Nandi &               

                                           Mr.A.Saha,Adv.

          For the respondent         :      Mr. P.Ghosh,Adv.,Smt.M.Bhattacharjee &

                                                     Mr.R.C.Deb,Adv.

                                           

Date of Hearing              :      21.09.2015.

Date of delivery of Judgment  : 13.10.2015.

             

J U D G M E N T

 

S.Baidya,J,

            This appeal filed on 04.04.2015 under Section 15 of the Consumer Protection Act., 1986 by the appellant-O.P., Saikat Saha is directed against the judgment dated 04.03.2015 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-48 of 2014 whereby the Ld. District Forum allowed the complaint filed under Section 12 of the Consumer Protection Act in part directing the O.P., the appellant herein to refund Rs.2,200/- to the complainant, being the price of the RAM with a further direction to pay Rs.2000/- as cost of litigation to the complainant payable within a month from the date of receipt of the copy of the judgment, failing which the amount payable shall carry interest @ 9% p.a. till the payment is made.        

2. The case of the appellant as narrated in the memo of appeal, in brief, is that the appellant herein is a business-man in the territory of Tripura and carrying on his business of computer, hardware and other related products and the respondent on or about 25.11.2009 purchased a computer from the shop of the appellant with a warranty period of one year on the defective parts. It is also stated that on or about 19.11.2012 i.e. after three years from the date of purchase the complainant handed over the CPU of the computer for fixing/curing the defects and the appellant-O.P. after checking suggested that the RAM needs to be replaced and accordingly, it was done on payment of Rs.2200/- as price of RAM and Rs.300/- as service charge.                                                 
3. It is also stated that after replacement of RAM the computer was working properly and after about 6/7 months the computer again started showing some problems which was brought by the complainant to the notice of the appellant by producing the said computer to the shop of the appellant. It is also stated that after proper servicing and checking, it was suggested that SMPS of the computer needs to be replaced. It is also alleged that the complainant stated that 6/7 months back the RAM was unnecessarily replaced and requested the O.P.-appellant for a refund of the money paid by the complainant and due to good relationship with the complainant, the O.P.-appellant agreed to take back the used RAM on a condition that the complainant would not receive refund, but would take any other goods/products from the shop of the O.P. for Rs.2200/- and a due slip was issued to him.
4. It is also alleged that there was no negligence, deficiency in service and unfair trade practice on the part of the O.P.-appellant in the above transaction and the due slip was issued on the basis of the existence of a good relationship then with the complainant on mutual understanding. It is also stated that Ld. District Forum held that there was no unfair trade practice adopted by the O.P.-appellant, but still allowed the complaint partly by the impugned judgment directing the O.P. to make payment as mentioned earlier.              
5.  That being aggrieved by and dissatisfied with the impugned judgment dated 04.03.2015, the O.P. being the appellant has preferred the instant appeal praying for setting aside the impugned judgment on the grounds that the Ld. Forum failed to consider that when there is no unfair trade practice, there cannot be any liability, that the Ld. Forum failed to appreciate the fact that due slip was issued to maintain a good business-customer relationship and going beyond the usual business practice of not taking back the used goods/products, that the Ld. Forum failed to consider that the complainant never consulted any reliable expert before asking the O.P. to take back the RAM, that the Ld. Forum failed to consider that the complaint filed by the complainant suffers from inherent suppression of fact and is a made-up story to extort money from the O.P. and that Ld. Forum erroneously passed the impugned judgment and hence, the instant appeal has been preferred praying for setting aside the impugned judgment.              

Points for consideration.

6.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in allowing the complaint in part by the impugned judgment and (2) whether the impugned judgment should be set aside as prayed for.     

                         Decision with Reasons.

7.  Both the points are taken up together for the sake of convenience and brevity.
8. Admittedly, the complainant-respondent purchased a computer from the shop of the appellant-O.P. on 25.11.2009 for an amount of Rs.30,500/- with one year warranty period in respect of parts of the computer. It is also admitted fact that no problem arose concerning the functioning of the said computer during the said warranty period. It is also admitted fact that on or about 19.11.2012 i.e. after three years the complainant handed over the CPU of the computer for curing its defects and the RAM was replaced on payment of Rs.2200/- when the service charge was taken at Rs.300/-. It is also admitted fact that thereafter, the complainant again reported about the problems in the computer to the appellant who after checking suggested to replace SMPS (Switch Mode Power Supply). It is also admitted fact that the O.P. received back the RAM which was installed in the computer of the complainant who asked for refund of Rs.2200/- and at this, the O.P.-appellant issued a due slip for Rs.2200/-.   
9. The learned counsel for the appellant submitted that due to the existence of the good business relationship between the appellant and the complainant, the appellant received back the RAM with an understanding that the complainant would take any other product from the shop of the appellant for the said amount of Rs.2200/- and accordingly, the appellant issued a due slip for Rs.2200/- and handed over the same to the complainant. He also submitted that instead of taking some other products from the shop of the appellant for the said amount of Rs.2200/-, the complainant lodged the complaint under Section 12 of the Consumer Protection Act on a false allegation before the Ld. District Consumer Disputes Redressal Forum. He also submitted that it is not a business practice to receive back any used product, but the appellant only did this to maintain good business relationship with his then customer-complainant. The learned counsel for the appellant also submitted that it is nobody’s case that the appellant-O.P. was then a poor shop-keeper and had no financial capacity to make payment of Rs.2200/- in cash to the complainant while he received back the used RAM from the complainant. He also submitted that the appellant-O.P. had the sufficient financial capability to make refund of the price of RAM then and there, but the issuance of the due slip makes it clear that at the relevant time there was an understanding between the complainant and the O.P. that the complainant would purchase some other products of the same value of Rs.2200/- from the shop of the O.P. on any date, but the Ld. District Forum failed to appreciate this fact and also the reason behind the issuance of the due slip for Rs.2200/- by the O.P.-appellant.   
10. The learned counsel for the appellant also submitted that the Ld. District Forum clearly held in the impugned judgment that there is no unfair trade practice on the part of the appellant, but in spite of that, the Ld. Forum held the O.P. liable and directed the O.P to make refund of Rs.2200/- as the price of RAM along with Rs.2000/- as litigation expenses by the impugned judgment which cannot be sustained in the eye of law and is liable to be set aside.
11. The learned counsel for the appellant lastly submitted that the appellant is not in favour of causing any damage to his business reputation and is agreeable to make refund of the price of RAM, if the respondent-complainant visits the shop of the appellant to receive the said price of RAM therefrom.
12. On the other hand, the learned counsel for the respondent-complainant submitted that the appellant-O.P. could not show any document regarding the existence of any understanding to the effect that the respondent would take/purchase some other products from the shop of the complainant as the price of RAM subsequently. He also submitted that at the very relevant time, the appellant issued due slip and handed over the same to the complainant who thereafter visited the shop of the appellant on many occasions and requested to make refund of the said amount, but the appellant, not only refused to make refund of the said amount of Rs.2200/-, but also misbehaved with the complainant.
13. The learned counsel for the respondent also submitted that the conduct of the appellant-O.P. clearly indicates that he is guilty of doing unfair trade practice, but the Ld. Forum erroneously held that there was no unfair trade practice on the part of the appellant. He also submitted that the Ld. Forum considering the facts and circumstances of the case passed the impugned judgment directing the appellant-O.P. to make refund of the price of RAM at Rs.2200/- along with a cost of litigation of Rs.2000/- to the complainant. He also submitted that the appellant-O.P. has compelled the respondent-complainant to knock the door of the Ld. District Forum and thereafter, the question of going of the complainant-respondent to the shop of the appellant to receive the said amount of Rs.2200/- as the price of the RAM and also Rs.2000/- as cost of litigation from the appellant does not arise at all. He also submitted that the respondent-complainant is agreeable to receive the said amount through the Ld. District Forum who has been pleased to pass such directions in the impugned judgment. He lastly submitted that as the judgment passed is based on proper reasoning, it should be affirmed and the appeal is liable to be dismissed.    
14. It transpires that the complainant-respondent filed the complaint petition before the Ld. District Forum also claiming compensation of Rs.50,000/- on the ground of mental agony, harassment and pain. It also transpires that the Ld. District Forum declined to pass any order awarding any compensation on that count. It also transpires that the Ld. District Forum found no unfair trade practice on the part of the respondent in any manner. But the respondent who was the complainant in the complaint case did not prefer any counter appeal challenging the finding of the Ld. District Forum on these two points. So, the respondent is legally debarred from making any argument assailing the judgment of the Ld. District Forum on the point of alleged unfair trade practice and also non-awarding of any amount as compensation on the ground of alleged mental agony, harassment and pain.
15. According to the case of the complainant, the defect was in respect of SMPS (Switch Mode Power Supply) and not in respect of RAM of the CPU, but as per version of the appellant-O.P., the complainant-respondent was compelled to purchase a new RAM for an amount of Rs.2200/- for installing the same in the CPU for the proper functioning of the computer. In this regard, the complainant as P.W.1 stated in his cross-examination that “It is my presumption that the earlier RAM was not defective and it was unnecessarily replaced. Except the O.P., I did not show my computer to any person for taking second opinion as to the defect of the computer”. It further appears from the cross-examination of the complainant as P.W.1 that the RAM was replaced on 20.11.2012, but the computer was again started giving trouble and then he placed the computer further with the O.P. after 5/6 months of the said replacement of RAM. So, it is found that after the replacement of the RAM of the CPU, the computer was functioning well for about 5/6 months. Therefore, it cannot be said definitely that earlier RAM was not defective one. From the above, we are also of the view that the Ld. District Forum rightly held that the O.P.(appellant) adopted no unfair trade practice in any manner.
16. In the instant case, the dispute arose regarding the making of payment of Rs.2200/- as the price of the RAM to the complainant as per due slip issued by the O.P.-appellant to the respondent-complainant on receiving the replaced RAM back by the O.P.. The O.P. as O.P.W.1 stated in his cross-examination that no cash amount was refunded against the due slip (Ext.1). He also admitted in his cross-examination that it is not written in the due slip that similar amount of goods is to be purchased from the same shop. Admittedly, there is also no such understanding in writing in the said due slip. Going through the impugned judgment, we find that the Ld. District Forum held in para-13 of the impugned judgment, “……….there cannot be a logic behind it that the complainant is to purchase spare parts of equal value of the amount mentioned in the due slip from the shop of the O.P. It may so happen that the complainant may not require any of the spare parts sold by the O.P. at any point of time. In that case, does it mean that he will not get back the amount of the due slip any more. In other words, it amounts to denial of the promise made to the complainant by the O.P.” Considering the facts and circumstances of the instant case, we are also of the view that the Ld. District Forum rightly observed in respect of the refund of the price of RAM as agreed upon by the O.P. to the complainant.
17. Going through the impugned judgment and considering the submissions made by the learned counsels of both sides, we are of the view that there is no scope to give any direction to the complainant-respondent for going to the shop of the O.P.-appellant for receiving the awarded amount which includes the price of RAM at Rs.2200/- and litigation cost of Rs.2000/-.  However, we find no merit in the appeal and as such, the instant appeal calls for no interference by this Commission and accordingly, it is liable to be affirmed and the appeal is also liable to be dismissed.      
18. In the result, the appeal fails. The impugned judgment dated 04.03.2015 passed by the Ld. District Forum, West Tripura, Agartala in case No.C.C.48/2014 is hereby affirmed. There is no order as to costs.

 

    

         MEMBER                          MEMBER                       PRESIDENT

               State Commission              State Commission             State Commission

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