Ld. Advocate(s)

                                                For Complainant: Makbul Rahaman

                                                For OP/OPs : Rajdeep  Majumder  

                        Date of filing of the case                        :10.05.2023

                        Date of Disposal  of the case                   :31.07.2024

Final Order / Judgment dtd.31.07.2024

The pith and substance of the case of the complainant is that the complainant Surajit Saha purchased a Jazz Mixer from Mridha Marbles on 10.04.2023 for Rs.3,288/- through Phone Pe. The OP Mridha Marbles gave cash memo to the complainant as estimate of the product but did not issue proper cash memo. The complainant noticed that the MRP of the said Jazz Mixer is Rs. 2,980/- but the OP charged extra price. The complainant requested to the OP to refund the excess price of Rs. 308/- but the OP refused to return the extra price of Rs. 308/-. The OP also misbehaved with the complainant. OP uses to demand more money over the MRP from other people and thereby deceived other people of the locality. So the present case is filed. Cause of action arose on 10.04.2023 and everyday till the filing of the case.  The misdeed of the OP caused harassment and mental pain and agony and deficiency in service to the complainant for which he suffered loss of Rs. 1,00,000/- . The complainant prayed for an award for Rs. 308/- together with interest @ 12% per annum for the extra price, Rs. 1,00,000/- towards harassment  and mental  pain agony and litigation cost.

 OP contested the case by filing W/V wherein they denied the allegations against them. The OP challenged the case as not maintainable on the ground that it is barred by law and there is not cause of action.  The OP admitted the statement of Para 2 of the complaint and denied the other statement of the complaint. The Positive defence case is that the OP Mridha Marbles runs a shop at village Dayal Nagar, Jughpur, Nakashipara, Nadia. The complainant is a customer of the OP shop. On 10.04.2023 the complainant came to the shop of the OP and purchased Jazz Centre Hole Basin Mixer (JBD). Maximum retail price of the said item was Rs. 4,110/-, after 32.21 % discount Price was 2,786.17 + C.GST @ 9% (250.76) + S.GST @ 9% i.e Rs. 250.76= Rs.3,288/-. The complainant paid the said price through phone pay and the OP issued GST invoice being  invoice no. 11 dtd, 10.04.2023. The OP mentioned details of the complainant, particulars of the items, price and OP’s authorised signature  and Buyer’s signature in the said GST invoice being invoice no. 11 dtd. 10.04.2023. Out of grudge the complainant intentionally filed this case for harassment to the OP and defame him. The allegations are false and frivolous.

 OP claimed that the case is liable to be dismissed with cost.

 The disputed points involved in this case demands for adjudication of the following points.

Points for Determination

Point No.1.

Whether the present case is maintainable in its present form and prayer.

Point No.2.

          Whether the complainant is entitled to get the relief as prayed for.

Point No.3.        

To what other relief if any the complainant is entitled to get.

Decision with Reasons

Point No.1.

It is the admitted fact that the complainant purchased a disputed product from the shop of the OP. The OP categorically admitted in Para 18 (b) of the W/V that the complainant is a customer of the OP shop. Having perused other portion of the pleading of both the parties it transpires that the relation between the complainant and the OP is like consumer and seller. The OP did not raise any other point as regards maintainability of the case. However, having perused the pleading of the parties and evidence in the case record the commission considers that the present case is not barred under any provision of law.

 Accordingly, the case is maintainable in its present form and prayer. Point no. 1 is accordingly answered in affirmative on behalf of the complainant.

Point No.2 and 3

Both the points no. 2 and 3   are very closely interlinked with each other and as such as these are taken up together for brevity and convenience of discussion.

Complainant in order to substantiate the case proved the following documents in course of trial of this case.

Annexure: 1 is the estimate in respect of Jazz Mixer (T 31176) for Rs. 3,288/- issued by OP Mridha Marbles  Proprietor  Sushil Mridha Jugpur Bazar  Bethuadahari, Nadia. The said cash memo is duly signed.

Annexure: 2 :  is the document of  payment through Phone Pe.

Annexure: 3    is the copy of MRP of said disputed product (Jazz Mixer) wherein the MRP as written as 2,980/-.

Annexure: 4  Voter i.d card of the complainant Surajit Saha.

Annexure : 5  is a copy of Aadhaar card of the complainant Surajit Saha.

 Complainant in order to substantiate the case adduced further evidence by filing affidavit in chief. The complainant categorically stated in his pleading and evidence that the OP charged more than the maxium retail price of the said Jazz Mixer product. As per Annexure-1 the complainant paid Rs.3,288/- to the OP. Annexure -2 is the receipt of Phone Pe wherein a sum of Rs.3,288/- was paid through phone Pe on 10.04.2023. Annexure-3 is the copy of the tag of the said product Jazz Mixer wherein the MRP is written as Rs.2,980/- for the product code T3117C batch no. A/B/20 Month & Year of Mfg. June 2020.

 It is admitted fact that the OP charged Rs.3,288/-. The OP stated that the break up is 2787.17+ C.GST 9% = 250.76 and S.GST @ 9% = 250.76= Rs.3,288/-.

 The complainant filed the box of the said product before the court wherefrom it is found that inside the packet there is a price tag with the name of the manufacture, code number, batch number of month and year of manufacture and MRP. As per the said price tag in the box the MRP of the said product Jazz Mixer code no. T3117C batch no. A/B/20 is Rs.2,980/- inclusive  of all tax.

  The OP stated in the W/V about the price taken by him on the basis of the MRP of Rs. 4,110/-.

 As per  the price tag submitted by the complainant along with evidence  and the box it is found that the MRP all the said product Rs.2,980/- inclusive of all tax. It means that OP could not charge more than the maximum retail price. Both the C.GST and S.GST are inclusive of the said price. Ld. Adv for the complainant rightly argued that the OP has no right to charge extra price under the guise of C.GST and S.GST.

 Ld. Av for the complainant further argued that the OP did not submit any document of payment of C.GST or SGST by the OP to the Government.

 After scrutiny of the entire case record it appears that the OP has not filed any copy of the GST bill.

 OP cross examined the complainant by putting interrogatory to which the complainant answered. After pursuing the entire answered of the complainant against the said interrogatory. It is found that the OP asked  the complainant as to whether  they gave any cash memo of the said item to the complainant to which the complainant answered  “yes” it means that the complainant confirm  in cross examination that  the OP issued a cash memo to the complainant.  Other than the cash memo as Annexure -1 filed by the complainant. The OP could not file any copy of the cash memo of disputed Annexure-1. As per Annexure-1 the price charged for the said product is Rs.3,288/-. But in the box of the said product MRP is written Rs.2,980/-. It means that OP has charged more than MRP printed in the box of the material.

 However, the OP filed one packet / box of the product namely Jazz Mixer of code no. T 3117C batch no. RM/G/21/ month and year of Mfg July 2022 MRP Rs 4,110/- .

Ld. Adv for the complainant strongly raised objection against the said submission of the packet/box. The objection is acceptable on the ground that the batch no of the said product and the year of manufacture are different from the product of the complainant. So the MRP of the said product for Rs.4,110/- cannot be accepted as a price of the product in dispute. The OP stated in Para 18 about the calculation of the price charge wherein OP claimed that a discount of 32.21 % was given to the complainant and thereafter the C.GST and S.GST were charged. But in the estimate or the cash memo there is no mentioning that the discount  of 32.30 % was given against the said price to the complainant. OP could not also prove the copy of cash memo to establish that discount of Rs. 32.21 was given against the said product.

 It is the settled position of law, that if a person fails to produce the best evidence which is in his custody, then the adverse presumption will be drawn that if the said document is produced it will go against him.

 In the instant case OP has made out the defence case that the actual price of the said product is Rs.4,110/- and after discount and addition of GST, price was charged for Rs.3,288/-. So the onus is shifted upon the OP to prove that discount was given to the complainant. But the OP suppressed the said document. Failure to produce the copy of cash memo which was issued to the complainant led to infer that if the said cash memo/ estimate was produced it would have gone against OP.

Ld adv for the OP further argued that the said cash memo/ estimate is manufactured since some objectionable words were written in the said estimate ( Annexure-1).

 Ld Adv for the complainant argued that it is a document of the OP and the complainant is nothing to do it.

 After perusing the said document (estimate) Annexure -1 it transpires that the OP signed the said documents.

Complainant filed a copy of original GD no. 894 dtd. 13.09.2023 to the I.C Nakashipara P.S wherein it is claimed that the original cash memo was missing from him.

 From the case record it transpires that during cross examination the OP put suggestions that the said cash memo/estimate is manufactured. The complainant answered against the said suggestion that the complainant did not admit it.

The complainant specifically asked the OP as to whether he submitted any GST bill to the complainant although the OP answered “yes” yet in course of trial the OP could not prove any document of GST bill. OP also stated in answer to cross examination that he submitted GST bill but in the case record there is nothing to show that OP submitted any GST bill before this commission in course of trial. So the submission of the OP that he submitted GST bill is not correct.  

Ld Adv further argued that the OP submitted one box of the alleged product which is not actual box of the product purchased by the complainant because after selling the product box, it is not supposed to have with the seller that is the OP.

 Argument is acceptable. Moreover the said product is different from the batch number sold to the complainant.

 Thus having assessed  the entire evidence and in the   light of the aforesaid  discussion vis-a-vis the observation  made hereinabove commission finds that OP has acted in a manner with the complainant by selling the said product which tantamounts to unfair trade practice for which the complainant suffered  loss and harassment together  with mental pain and agony. So it should be compensated in terms of money.

 Accordingly points no. 2 and 3 are answered  in affirmative in favour of the complainant.

 Consequently the complaint case succeeds on contest with cost against OP

Hence,

It is

Ordered

that the complaint case no.CC/33/2023 be and the same is allowed on contest against the OP with cost of Rs 5,000/- The complainant do get an award for a sum of Rs 308/- together with interest @ 12 % per annum from 10.04.2023 till the date of payment ,Rs. 20,000/- towards unfair trade practice  and  harassment and mental pain and agony and Rs. 5,000/- towards litigation cost. OP Mridha marbles is directed to pay Rs. 25,308 + interest as above  to the complainant Surajit Saha  within 30 days from the   date of passing the final award failing which the entire award money shall carry an interest @ 8% per annum from the date of passing the final award till the date of its realisation.

All Interim Applications (I.A) stand disposed of accordingly.

D.A to note in the trial register.

The case is accordingly disposed of.

Let a copy of this final order be supplied to both the parties at free of costs.         

Dictated & corrected by me

 ............................................

                PRESIDENT

(Shri   HARADHAN MUKHOPADHYAY,)                               ................ ..........................................

                                                                                                                          PRESIDENT

                                                                                          (Shri   HARADHAN MUKHOPADHYAY,)

I  concur,          

 ....................................................................                                                   

 MEMBER                                             

(  SHRI NIROD  BARAN   ROY  CHOWDHURY)