Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 31.05.2016
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite party to pay Rs. 80,780/- with interest @ 18% till its final payment.
- To direct the opposite party to pay Rs. 1,00,000/- (Rs. One Lakh only ) as compensation.
- To direct the opposite party to pay Rs. 15,000/- ( Rs. Fifteen thousand only ) as litigation costs.
- The facts of this case lies in a narrow compass which is as follows:-
The complainant has asserted that he is by profession medical practitioner and he has purchased an electronic Jogger “Vixen” 2HP with vibrator (motorized treadmill) after paying the price of Rs. 33,280/- vide annexure – 1. He has paid Rs. 1,000/- as carriage charge and Rs. 250/- as charge of mechanic also.
The aforesaid machine was installed at the residence of the complainant by mechanic of opposite party. The aforesaid machine was purchased on 24.04.2009.
The aforesaid machine was subsequently installed in his house and thereafter receipt was issued by opposite party on 13.05.2009 as will appear from annexure – 1.
After installation of the aforesaid machine, the said machine stopped functioning after lapse of 2 months and complainant informed the opposite party on telephone as well as personally about the defect of the aforesaid machine.
After repeated request one of the staff of opposite party namely Shyam Kumar visited the residence of complainant and after examination he found that the kit of the machine is defective and took away the same for repairing after separating the kit from the machine.
On 15.09.2009 the said Shyam Kumar again visited the residence of the complainant with repaired kit and tried to start the machine but failed and thereupon he hired a vehicle on rent of Rs. 1,000/- and dispatched the machine to the shop at Patna with staff of opposite party. The staff of opposite party granted a note to the aforesaid fact with his signature which has been annexed as annexure – 2.
It is further case of the complainant that on 19.10.2009 the complainant again visited the shop of the opposite party for enquiry of the machine but he was told by opposite party’s staff that it will take some time and whenever the machine will become defect free, the same will be handed over to him. He was advised by opposite party to purchase a new Jogger machine worth of Rs. 42,000/- i.e. (Fox – Exer DC motorized folding treadmill ) with foldable facility and with assurance that this new machine has no complaint so far.
As the complainant was in the need hence he purchased the new machine after paying the amount of Rs. 42,000/- on 19.10.2009 which was installed at his residence on 20.10.2009 but instead of issuing final money receipt the opposite party issued a receipt to that effect on the back of brochure of the said new machine as will appear from annexure – 3.
The new machine also stopped functioning after 3 months of installation and when the opposite party did not repair it despite repeated request by the complainant, then the complainant hired a vehicle (small van) and took it to the shop of opposite party on 11.05.2010. One of the staff of opposite party examined and found the Kit of machine also defective.
The opposite party retained the kit of machine for repair and advised the complainant to take back the machine to his residence with assurance that very shortly the kit will be repaired.
The grievance of the complainant is that till date neither the old machine has been replaced nor the kit of new machine has been repaired by the opposite party and the second machine is lying in his house unused.
The complainant thereafter served a legal notice to the opposite party vide annexure – 4 but the registered envelope containing the notice returned unserved on 20.09.2010 with a note of postal peon “Refused” as will appear from annexure – 4.
Complainant has also stated that due to ill advice he has filed a complaint bearing no. 49/10 before the District Consumer Forum, Nawada on 28.09.2010 but the same has been dismissed at admission stage on the ground of territorial jurisdiction as will appear from annexure – 5.
From record it further appears that the complainant has filed this case on 06.01.2011 which has been admitted on 18.01.2011 and on behalf of opposite party a Vakalatnama was filed on 18.05.2011 but despite several opportunities no written statement has been filed and as such this case was heard exparte.
It is needless to say that the aforesaid fact stated by the complainant on affidavit definitely constitute deficiency of service because after receiving the amount for two machine the opposite party have not given service in accordance with law.
It is further stated that as there is no counter affidavit of opposite party hence we have no option but to accept the fact asserted by the complainant in his complaint petition.
It goes without saying that from perusal of annexure – 5 it is crystal clear that District Consumer Forum Nawada have not decided the complaint on merit rather during admission stage itself the aforesaid complaint was dismissed for want of jurisdiction hence this Forum has right and jurisdiction to decide the case on merit.
Hence we direct the opposite party to return the price of two machines i.e. 33,280/- + 42,000/- to the complainant which he has taken vide annexure – 1 and 2 within the period of two months from the date of receipt of this order or certified copy of this order failing which the opposite party will have to pay an interest @ 12% on the aforesaid amount till its final payment.
It further appears that the complainant is fighting this litigation since 28.09.2010 as will appear from annexure – 5 and the conduct of opposite party has not been proper because after filing Vakalatnama he did not filed written statement. From annexure – 4 it further appears that he has also refused the legal notice sent by complainant. Hence the opposite party is directed to pay Rs. 50,000/- to the complainant by way of compensation and litigation costs within the period of two months.
The complainant is also directed to hand over machine to opposite party if the same is under custody of the complainant at the time of receiving the aforesaid amount.
Accordingly, this complaint stands allowed to the extent indicated above.
Member President
