This appeal is directed against final order dated 7/7/2017 delivered by Ld. D.C.D.R.F, Jalpaiguri in reference to consumer case no. CC/10/2017. The appeal case in nut shell is that the respondent P Debnath has registered a consumer complaint bearing no. CC/10/2017 before the Ld. D.C.D.R.F, Jalpaiguri to the extent that being a marginal entrepreneur, she used to run any envelop making unit in the name and styled as Mata Enterprise for her self-employment and only source of sustenance. In the month of June 2016, learning from the website, sent a request for quotation to the appellant Anil Patel, proprietor for Tech master engineering at Gujrat as the complainant intended to purchase an envelope making machine. The complainant received the quotation from the appellant company on 22/6/2016 about the price of such machine at the rate of rupees 7,90,500 and complainant was requested to visit the working place of appellant for inspection of the machines and to have a demonstration. Being satisfied with the terms and conditions in the quotation, the complainant paid advance of rupees 10,000 as booking money through a cheque on 24/6/2016.

Subsequently, the machine was ready for delivery and the complainant was asked to make payment of rupees 3,60,000 and the said payment was completed on 22/8/2016 through NEFT from Bandhan Bank.

Subsequently, the rest amount 3,60,000 was paid by the complainant on 24/8/2016 through NEFT system.

Subsequently, the complainant was again requested to make payment of another Rs. 30,000 and in response to that direction, the complainant again paid rupees 30,000 through NEFT. The appellant sent envelop machine on 26/10/2016 through MATA Transport Agency and total transportation cost was borne by the complaint. The further case of the complainant is that since the installation of the said machine, they revealed some problems in functioning of the same and it was duly intimated by the complainant to the appellant company but no service was provided. The machine remained inoperative and in spite of repeated requests, the difficulties of the machine could not be repaired.

So, the complainant in repeated occasions by making postal correspondence and personal correspondent asked the appellant for remove difficulties of the machine but it was remained un attended.

Therefore, the complainant was compelled to register the consumer complainant with prayer to replace the machine. Compensation rupees 3,30,000 for practicing unfair trade practicing. Rupees 1,50,000 for sufferance of the complainant. Litigation cost of rupees 20000 and interest at the rate of 12 percent per annum. The appellant/OP after receiving the notice appeared before the Ld. Forum and prayed for a time to file written version but subsequently the OP/appellant could not contest the case by filing the WV in due time and for that reason, the Ld. Forum was compelled to hear the case ex-parte against OP/appellant. The consumer complaint was allowed ex-parte with cost of rupees 2000 imposed upon the appellant and also he was directed to pay rupees 1,50,000 for loss suffered by the compli9nant and rupees 3,30,000for compensation due to unfair trade practice on the part of the appellant and he was also directed to replace the old machine by new machine with same quality and same model as mentioned in the quotation. Being aggrieved with the said ex-parte order, this appeal follows on the ground that the Ld. Forum has failed to consider the clear evidence. Ld. Court has failed to understand that the complainant was not a consumer as per definition of CP Act. That the Ld. Forum has failed to consider that the complainant operated the machine by unskilled hand causing the damage to the machine. That the observation and order of Ld. Forum was based on misappropriation of facts and the order of Ld. Forum suffers from irregularity and not vested with law. The appeal was admitted by this Commission and asked the respondent/complainant to contest the case of appeal. The respondent has contested the appeal through Ld. Advocate appointed by her and the appeal was heard in presence of Ld. Advocate of both sides.

Decision with reasons,

Admitted position is that the complainant/respondent runs a business of envelop making unit by manufacturing process for her self-employment and she used to maintain her livelihood through such entrepreneurship and it is argued on the part of the appellant that the activities of the complainant/respondent in the said business which are found to be the commercial activities and for that reason, consumer protection Act does not come to help the case of the respondent/complainant. At the time of hearing the Ld. Advocate of the respondent vehemently raised objection and mentioned that the complainant/respondent are engaged herself in the said entrepreneurship which is the only means of livelihood of the complainant/respondent and it does not come within the purview of  commercial activities as defined in the consumer protection Act and for that reason, the complainant is a benevolent consumer who is entitled to get the reliefs as meted out in the consumer protection Act. It appears after hearing both sides that the respondent is a housewife who used to run her business as entrepreneurship of envelop manufacturing through her unskilled hand and no labourers was deputed and engaged in the said manufacturing process and for that reason, we cannot presume that the activities involved in said business may come with in the purview of commercial activities.

The respondent/complainant certainly as a bonafide consumer paid the full money to install an envelope making machine after being satisfied with the quotation tendered by the appellant for smooth running of her manufacturing unit. It is also established beyond the doubt that at the time of install of such machine, the appellant company did not send any skill hand to assist the complainant at the time of installation of the said Machine resulting disfunction of the Said machine since its inception and it was duly intimated to the appellant/OP who paid no heed in spite of repeated request and for that reason, the complainant was compelled to come before the ld. Forum. Ld. Forum has heard the case ex-parte and Ld. Forum has delivered the judgment on the basis of finding that since the appellant/OP could not contest the case and for that reason, the contents of petition of complaint remained unchallenged. In a case of consumer complainant, if the OP fails to contest the case for not filing the written version in due time then the consumer complaint may be heard ex-parte and the dispute to be settled ex-parte on the basis of evidence brought to its notice by the complainant where the OP omits or fails to take any action to represent his case within the time given by the Forum. It is admitted position that the OP/ appellant was provided 45 days’ time for filing the WV and in spite of that the appellant did not file the WV. So the best option was there on the part of the Ld. Forum to proceed with the case and adjudicate the dispute on the basis of evidence brought to the notice of the Ld. Forum. But here in this case no evidence could be recorded. The complainant/respondent did not submit any evidence-in-chief on oath. Ld. Forum had decided issues on the basis of statement of the consumer complainant and the relevant documents. The admitted position is that all the documents produced by the complainant before the Ld. Forum was not challenged here also in the appeal on the part of the appellant as because the complainant had paid the full price and consideration money of the said envelopment making machine and after being satisfied with full payment, the OP/appellant has sent the machine through transportation and the entire transportation cost was also borne by the complainant/respondent. During the course of hearing, the Ld. Advocate of the appellant submits that the appellant come to know that the machine was started disfunction from its inception but due to some misunderstanding between the customer and the seller of the machine, the problem of the machine could not be redressed by the side of the appellant and for that reason, the appellant is bound to replace the machine if the Commission thinks it so. After hearing both sides, the Commission finds that though the order of Ld. Forum suffers from irregularity which is very apparent in the face of it. Yet the observation of Ld. Forum could not be treated as invalid or contrary to the provisions of law as because deficiency on the part of the appellant is clearly established. For such deficiency of service, the complainant/respondent suffered a lot in running the said business. On the other hand, the compensation amount which is awarded in this case does not match with the actual loss sustained by the complainant/respondent for the commission or omission on the part of the appellant/OP. So, the amount of compensation should be reduced to rupees 1,00,000 instead of rupees 4,82,000. The Ld. Forum has directed the appellant to replace the envelop making machine with a new one in working condition with same quality and same model, mentioned in the quotation, within 30 days and this order does not suffer from any defect in this case. Therefore, the appeal succeeds in part.

hence, it is,

Ordered,

that the appeal be and the same is hereby partly allowed on contest without any cost. The finding of Ld. Forum dated 7/7/2017 is hereby modified to the extent that the order of Ld. Forum directing the OP/appellant to replace the envelopment making machine with a new one in proper working condition with same quality and same model that is mentioned in the quotation dated 22/4/2016 to the working place of the complainant/respondent within one month is hereby affirmed. If the appellant/OP complies the direction of the Ld. Forum regarding the replacement of the said machine within stipulated period then the award of compensation to be reduced to rupees one lakh instead of Rs 4,82,000 as awarded by the Ld. Forum. The rest ordering portion of the Judgement of the Ld. Forum shall remain intact.

Let the order be supplied to the concern parties free of cost and also to be sent to the Ld. D.C.D.R.F, Jalpaiguri by e-mail.