DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 47 of 2018

 

1. Dr. Moumita Roy Chowdhury,

W/O. Debabrata Sikdar,

M/S Chowdhury & Co. Masjid Road, Kumudini Mansion,

Agartala, Tripura(West).........…....................Complainant.

 

-VERSUS-

 

1. Mr. Soumen Ghosh,

37/7 Thakurpalli Road,

Near Skylark Club, Krishnanagar,

Agartala, Tripura(West).

 

2. Medicare Surgicals,

(Deals with dental materials, instruments & surgical items)

37/7 Thakurpalli Road, Near Skylark Club, 

Krishnanagar, Agartala, Tripura(West),

 

3. Modular Dental Equipments,

Address:- No.47/21, 6th Main, Sri Gandhada Kaval,

Sunkadakatte, Vishwaneedam Post, Magadi Main Road,

Bengaluru 560079, Karnataka. ......................... Opposite parties.

 

      __________PRESENT__________

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

 

SRI U. DAS

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

 

SMT. DR B. PAL,

 MEMBER, 

DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA

 

C O U N S E L

 

For the Complainant : Sri Amrit Lal Saha,

  Sri Manisha Chakraborty,

  Advocates.  

For the O.Ps. : Sri Kishor Kr. Pal,

  Sri Dilip Ch. Nath,

  Advocates.  

                                                             

JUDGMENT  DELIVERED  ON: 16/09/2019

J U D G M E N T

The complainant Dr. Moumita Roy Chowdhury, set the law in motion by presenting the petition U/S 12 of the Consumer Protection Act 1986 complaining unfair trade practice of the  O.Ps..  

Complainants' case in brief is that the Complainant is a qualified Dental Surgeon. The Complainant in order to purchase a Dental chair and also one compressor for her chamber contacted with the O.P. No.1 who according to her deals in such items at Agartala. The price of the compressor was settled at Rs.20,000/- and that of the Dental Chair at Rs.92,000/-. She accordingly paid Rs.1,12,000/- in total to the O.P. No.1 in installments. After making full payment of the amount, the O.P. No.1 did not give her any cash memo & warranty card against the compressor and the Chair though the O.P. before being paid the amount in full had promised her to supply the cash memo & warranty card. The complainant alleged in her complaint that the dental chair which was supplied to her was defective and causing discomfort from the very beginning. The matter was duly intimated to the O.P. No.1. She also made a complaint to the O.P. No.1 alleging that though she had ordered for supplying her ALPHA MODEL dental chair but such Branded chair was not supplied and installed in her chamber. According to the Complainant the chair which was supplied did not match exactly with the picture of the ALPHA MODEL chair which was shown to her. Though she approached to the O.P. No.1 a number of times and conveyed him about the defects in the chair but the O.P. No.1 even after inspecting the chair in her Chamber has not entertained  the allegations of the Complainant that defective dental chair was supplied to her. The Complainant has also stated in her complaint that as per advise of the O.P. No.1 she contacted the O.P . No.3, the Manufacturer of the Chair and registered a complaint with the O.P. No.3 about the defects in the chair.  Though the O.P. No.3 agreed the replace chair but till filing of the instant Consumer complaint the dental chair has not been replaced by the O.Ps.  

Before filing of the Consumer complaint before the Forum the Complainant served legal notice dated 25/04/2018 upon the O.Ps.   As the Complainant did not get any satisfactory reply to the legal notice she has filed the instant Consumer complaint claiming refund of the amount Rs.92,000/- being the cost of the Dental Chair, Rs.2,00000/- as compensation & Rs.20,000/- as litigation expenses from the O.Ps.  

Hence, this case.      

 Based on the complaint notices were duly sent to the O.Ps. from the Forum. The O.P. Nos. 1&2 appeared and engaged a lawyer to defend the case on their behalf. The O.P. No.3 though received notice from the Forum has not appeared before the Forum to contest the case. So as per order dated 20/12/2018 the case proceeded exparte against him.  

  The O.P. Nos.1&2 have however filed written objection jointly denying the claims and contentions of the complainant. They have stated that the complaint is not maintainable as the Complainant does not come under the purview of the definition of consumer under the Consumer Protection Act,1986. Both the O.Ps. have denied any kind of financial transaction with the Complainant regarding purchase of Dental Chair & a Compressor. They have stated in their W.O. that O.P. No.1 is a medical representative and that he used to visit to the Chamber of the Complainant for promoting and sale of the medicines of the company namely ICPA Health Products Ltd. where he was engaged as a medical representative and also that O.P. No.2 Medical Surgical shop belongs to his wife. According to the O.Ps. the Complainant used to purchase medical equipments like Seizure, Cotton, Gloves, Bandage, Apron & Musk from the O.P. No.2 and that the O.P. No.1 use to collect amount of those article from the Complainant on behalf of his wife. Both the O.Ps. have strongly asserted that they were in no way connected with the manufacturing, selling and supplying of the Dental Chair and also the Compressor as alleged by the Complainant. Both the O.Ps. have also refuted the allegations of the Complainant that they were engaged in unfair trade practice with the Complainant as they never sold Dental Chair & Compressor to the Complainant.  

      They have thus prayed for dismissal of the compliant with costs. 

3. EVIDENCE ADDUCE BY THE PARTIES:-

  The Complainant and her one witness have been examined as Pws.-I & 2. The Complainant has produced  05 documents comprising 11 sheets. The documents are: Copy of Advocate's notice dated 25/04/2018 in favour of the O.P. No.1 Sri Soumen Ghosh, Copy of Advocate's notice dated 25/04/2018 in favour of the O.P. No.3 Modular Dental Equipments, Xerox Copy of Postal receipt dated 25/04/2018, Reply dated 09/05/2018 to the Advocate's notice dated 25/04/2018 given by the O.P. No.1 Sri Soumen Ghosh & Copies of track consignment reports of the India Post regarding the notices sent by post to the O.P. Nos.1 & 3.  The documents on identification by the complainant were marked Exhibit-I series. 

  The O.P. No.1 has examined himself as DW for himself and on behalf of his wife who is the O.P. No.2. This witness has produced 02 documents namely: Reply furnished by him to the Complainant against the legal notice dated 25/04/2018 issued to him by the Complainant &   Postal receipt under speed post dated 10/05/2018. The documents on identification by the O.P. No.1 were marked Exhibit-A series.

 

4. POINTS TO BE DETERMINED:- 

  (i) Whether the O.P. Nos. 1 & 2 had sold a defective Dental Chair to the Complainant?

  (ii) Whether the O.P. Nos.1&2 have indulged in unfair trade practice with the Complainant ?

       (iii) Whether the Complainant is entitled to get compensation / relief ?

 

5. DECISION AND REASONS FOR DECISIONS:- 

We have heard arguments advanced by Learned Advocates for the complainant and the O.P. Nos.1 & 2.

  We have also gone through the complaint, the evidence adduced by the Complainant, her witness, the documentary evidence produced by the Complainant. We have also perused the evidence adduced by the O.P. No.1 and documentary evidence produced by him.  

            It is evident from the complaint and the Evidence adduced by the Complainant that she being a Dental Surgeon contracted the O.P. No.1 Sri Soumen Ghosh for purchasing  a dental chair for Rs.92,000/- and a Compressor price of which was Rs.20,000/-. The Complainant in her evidence-in-Chief stated that up to June, 2017 she paid Rs.43,055/- to the O.P. Sri Soumen Ghosh and thereafter she has paid Rs.68,945/- in various installments from 05/07/2017 to 30/10/2017. The Complainant has alleged that the O.P. No.1 having been paid the full amount of Rs.1,12,000/- did not furnish cash memo & warranty card against the Dental Chair. She further alleged that though she had asked the O.P. No.1 to supply her ALPHA MODEL Dental Chair being manufactured by the O.P. No.3, the O.P. No.1 actually supplied her a different model one and that the chair which was supplied did not match exactly with the picture of the Dental Chair which was shown  to her before the purchase. The complainant further alleged that the dental chair which was supplied to her was defective and causing discomfort after 3 months of its using. The Dental Chair was not replaced by the O.P. Nos.1 &2 even though the Complainant served legal notice dated 25/-04/2018 upon the O.P. Nos.1 & 3. The Complainant thereafter filed the consumer complaint against the O.Ps. 

    The O.P. Nos.1 & 2 in their W.O. have denied  any sort of financial transaction held between them and the Complainant regarding the alleged Dental Chair. In this case the O.P. No.2 being the Proprietor of Medicare Surgicals has not come forward to lead evidence but on her behalf the O.P. No.1 Sri Soumen Ghosh who is her Husband deposed before this Forum as Defense Witness.  The O.P. No.1 in his Examination-in-Chief has completely denied selling and supplying of Dental Chair to the Complainant. But he has admitted that he being a medical representative used to visit to the Chamber of the Complainant for promoting and sale of the medicines of the company namely ICPA Health Products Ltd. where he was engaged as a Medical Representative and also that the Complainant used to purchase medical equipments like Seizure, Cotton, Gloves, Bandage, Apron & Musk from the O.P. No.2 who is his wife and also that he used to collect amount against those articles from the Complainant on behalf of his wife. 

          The assertion of the O.P. No.1 that he had not  received any amount from the Complainant against selling of Dental Chair    does not appear to us trustworthy in view of the accounts maintained by the complainant in her Diary No.1 which was produced by the Complainant as evidence under Exhibit-I series before the Forum wherein we find that the Complainant had paid Rs.43,945/- to the O.P. No.1 on different dates from 12/08/2017 to 30/10/2017. The complainant in her evidence  has emphatically stated that she had paid the amount to the O.P. No.1 for the  Dental Chair and the O.P. No.1 has also acknowledged receipt of the amount by putting his signatures against each of the amount paid to him. The entries made in the Diary No.1 of the Complainant is admissible in evidence U/S 34 of Indian Evidence Act,1872. We find that regarding payment of this amount made by the Complainant for the Dental Chair to the O.P. No.1 has also been corroborated by the evidence of PW-2 Smt. Bela Roy who worked as a Chamber Assistant of the Complainant.  

We further find that the O.P. No.1 in his cross examination as DW-1 has admitted the signatures appearing in the Diary No.1 are of him and the signatures are accordingly marked Exhibit-I/1 series. The O.P. Nos.1 & 2 have not adduced documentary evidence to controvert the evidence produced by the Complainant on this count. The assertion of the O.P. No.1 that he used to collect cost of medical equipments such as Seizure, Cotton, Gloves, Bandage, Apron & Musk from the Complainant on behalf of his wife and that he did never collect price of the alleged Dental Chair from the Complainant, has not been proved by any cogent evidence from the side of the O.P. Nos.1 & 2. 

    That the O.P. No.2 deals in Dental Chair, Dental materials, Instruments and Surgical items under the name and style of Medicare Surgicals finds support from the cash memo dated 15/06/2017 issued by the Proprietor of Medicare Surgicals Smt. Rupali Ghosh, the wife of the O.P. No.1. On behalf of the the Complainant copy of the said cash memo dated 15/06/2017 was filed before the Forum on 02/09/2019. As this document was filed at belated stage (at the stage of final argument of this case) we were not inclined to accept the document then. But for fair ends of justice and for arriving at a just decision of this case we find it necessary and proper to take judicial notice of the cash memo dated 15/06/2017 by invoking the provisions laid down U/S 13(4)(ii) of Consumer Protection Act, 1986 read with Section 57 of the Indian Evidence Act,1872. From the copy of the cash memo dated 15/06/2017 it reveals that the O.P. No.2 had sold out one ALPHA DENTAL CHAIR along with other accessories to one Dr. Nabanita Ghosh. So it is abundantly proved that  the O.P. No.2 sells ALPHA DENTAL CHAIR from her Medicare Surgicals shop.   

As regards payment of Rs.43,055/- to the O.P. No.1 in two installments by the Complainant has not been proved as we find that the Complainant has failed to produce cogent evidence in support such claim. 

The allegations of the Complainant that the Dental Chair supplied to her by the O.P. Nos.1 & 2 is defective is found to have been supported by the evidence of PW-2. The PW-2 Smt. Bela Roy in her evidence stated that the Dental Chair suffers from various defects and that in her presence the Complainant had shown the defects of the Chair to the O.P. Sri Soumen Ghosh when Sri Ghosh visited to the Chamber of the Complainant. 

As there is no tangible evidence on record against the O.P. No.3 we are not O.P. No.3 we are not inclined to fix any liability on the said O.P. 

In view of the above discussion we are convinced that the O.P. Nos.1 l& 2 had sold out a Dental Chair to the Complainant. We are also convinced from the evidence of the Complainant that the O.P. Nos. 1 & 2 had not supplied  the Complainant cash memo and warranty card of the Dental Chair to the Complainant in spite of repeated requests made by the Complainant to the O.P. No.1 for those two documents.  

6.  We accordingly find and hold that the complainant has succeeded in establishing her case  U/S 12 of the Consumer Protection Act 1986 against the O.P. Nos. 1 & 2. The Complainant according to us has suffered harassment and mental agony due to the unfair trade practice indulged in by the O.P. Nos.1 & 2. The Complainant as such is entitled to get compensation.

The issues which were framed in this case are answered accordingly. 

 

  In the result, it is hereby directed that the O.P. Nos.1 & 2  shall return Rs.43,945/- to the Complainant which she had paid to the O.P. No. 1 for the purchase of Dental Chair which was found defective after three months from the date of purchase. Both the O.Ps. shall also pay Rs.25,000/- to the Complainant for causing harassment  and mental agony  and Rs.5,000/- as cost of litigation. The O.P. Nos.1 & 2 shall pay the aforesaid amount of Rs.73,945/-(Rs.43,945/- + Rs.25,000/- + Rs.5,000/-) in total to the Complainant within a period of 2 months from the date of judgment failing which the amount of shall carry interest @ 9% P.A. till the payment is made in full. 

It is made clear that the Complainant shall return the Dental Chair to the O.P. Nos.1 & 2 as and when the O.P. Nos.1 & 2 pay her the aforesaid amount of Rs.73,945/- in terms of the above direction.

 

ANNOUNCED

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA

 

 

 

 

 

SRI U. DAS

MEMBER,

DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

 WEST TRIPURA,  AGARTALA.

 

 

SMT. DR  B. PAL,

 MEMBER, 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA