Dt. Of filing- 07/03/2018
Dt. Of Judgement- 23/08/2018
Mr. Ayan Sinha, Member.
This is a complaint case under sec.12 of the CP ACT 1986 made by Sri Somir kumar Daskar , residing at 15, Kalipada Mukherjee Road, P.S. Haridevpur, Kolkata-700008 against M/s. Electronic ‘N’ Gadget, having its office at 316, Sarkarhat Lane, Kolkata-700061 ( OP NO. 1 ) and Neeraj Singh of 316, Sarkarhat Lane, Kolkata-700061 ( OP NO. 2 ) praying for directions upon ops to replace the said machine Reserver Model + OHT MODEL + Wire with new one or alternatively refund the price of said machine amounting to Rs.4000 along with compensation of Rs.70000 for harassment and Rs.20000 as Litigation costs and an interest @ 18% Rs.1692 .
Facts in Brief are as that the Complainant purchased two water regulator machines for regulating the overflow of water from underground and overhead water reservoir at 15, Kalipada Mukherjee Road under P.S. Haridevpur, Kolkata- 700008 from OP NO.1.
OP NO.2 who represented as the sole proprietor/ owner of OP NO.1 assured that the machine is of excellent quality and gave one year warranty for the said machine.
On the basis of such representation of op no.2, the complainant purchased the said machines against the Invoice Bill dtd.11/03/2017 and the same was fixed by op no. 2 at complainant’s address.
Soon after installation of the said machine, the machine started giving trouble against which the complainant lodged a complaint to which op no.2 tried to fix the problem on several occasion but the problem remained continued. The complainant sent letter to op no.1 to fix the problem or replace the same but the ops did not reply. The said machine stopped functioning from June 2017 and in spite of repeated request the ops remained silent.
Thus the complainant filed this case.
Notices were served upon Ops. Ops did not contest this case by filing Written Version.
Complainant has filed Affidavit In Chief in order to prove his case where he has reteirated the facts as mentioned in the complaint petition.
Main points for Determination is to
- Whether the complainant is a consumer
- Whether the case is maintainable in this forum for Territorial jurisdiction
- Whether there is any Deficiency on part of the Ops
- Whether the complainant is entitled to the reliefs as prayed for
Decision with Reasons
Point no. (i)
On perusal of the Xerox copy of bill in file, it reveals that the complainant had purchased by cash one Reservoir model + OHT model wire + installation for a total price of Rs.4000 along with one Year Warranty and the said bill is duly signed by OP no.2.
So there is no dispute that the complainant is a consumer in this instant case.
As such point no.(i) answered accordingly.
Point no. (ii)
The complainant has already specified the police station of the Ops as P.S.Thakurpukur in his complaint petition and the actual cause of action has arosed at the address of complainant i.e. P.S. Haridevpur and both the P.S. are well within the jurisdiction of this forum.
As per CP ACT 1986 Sec 11 (2) “A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction –
- The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
- Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be acquiesce in such institution; or
- The cause of action, wholly or in part, arises.”
So the case is maintainable before this forum since the forum has territorial jurisdiction to entertain this case.
As such point no. (ii) Answered accordingly
Point no. (iii) & (iv)
Although the complainant has stated in the complaint petition that he has repeatedly requested the ops to repair the problem alternatively for replacement, but no such documents have been filed to establish except a letter dtd. 18/8/2017 from where it appears that he himself is a LD. Advocate and has requested ops to repair the defective machine or replace the same. But no proof of documents have been filed by him that the ops have acknowledged his letter.
The complainant has not sought for any technical expert report to prove that the machine is defective.
In this matter we have relied upon Judgement passed by HON’BLE NCDRC in 2013 in TATA MOTORS VS RAJESH TYAGI & ANR where HON’BLE NCDRC was pleased to observe
“ 8. From the entire factual matrix of the case, it is very clearly brought out that the vehicle in question is a defective vehicle when judged from the definition of defect as contained in section 2(1)(f) of the Consumer Protection Act,1986.In reply to the legal notice dated 18.07.2003,sent by the petitioner to the Complainant, there is a non-ambiguous admission on the part of the OPs that the allegation leveled in the complaint about the defect of water accumulation inside the vehicle are true. The basic question is whether this kind of situation about the vehicle as admitted in the reply to the show cause notice cane be categorized as manufacturing defect or not. In the strict technical terminology, this kind of situation may not lead to the conclusion that there is a manufacturing defect, but still, it goes without saying that whatever defect has been observed in the vehicle for which the Complainant had to suffer the mental agony of taking the vehicle to the workshop so many times, has to be attended to in proper prospective. It is the bound duly of both the manufacturer and the dealer to attend the said defect and make it a defect- free vehicle and if they are not in a position to do so, they should either refund the cost of the vehicle or provide a new vehicle to the consumer. We, therefore, agree with the conclusion arrived at by the State Commission that whenever the brand new vehicle is sold to a consumer, there is implied contract that the vehicle being sold does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.
9. It is further observed that the Consumer Protection Act, 1986 is a benevolent social legislation as held by the Hon’ble Appex Court in their Judgements from time to time and is aimed at providing for better protection of the interests of the consumer as defined in the preamble to the act itself. Given the facts at hand, the interests of the consumer in the present case can be protected only if he is provided a vehicle which is free from defects from all angles and he is not subjected to the technicalities of providing whether any manufacturing defect exist or not.
Since the allegations in the instant case remained unchallenged and unrebutted we hold there is a deficiency of service on part of the Ops and the complainant is entitled to the reliefs.
As such point no. (iii) & (iv) answered accordingly.
The complainant has also prayed for Rs. 70000 as damages for harassment and Rs.20000 as litigation costs with 18% interest of Rs.1692.
In this matter we have relied upon Judgement In Charan Singh v. Healing Touch Hospital and Others, reported in (2000) 7 SCC 668, where the HON’BLE Supreme Court was pleased to hold as follows:
“12. ….. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.”
In the instant case the Complainant has not filed any evidence also, showing the quantum of losses due to which he has to arrange alternative arrangement but it can be said that a problem was faced by the complainant since the the matter was related to water.
So we are of the view if a Direction be given upon Ops to Repair the alleged machine and install the same Free of cost and Free from any problem at complainant’s address along with a Damages cost of Rs. 2000 and litigation costs of Rs.1000 justice would be served.
HENCE ORDERED,
CC/105/2018 and the same is allowed in part ex-parte against the Ops.
The Ops are Directed to Repair the said Reservoir model machine + OHT model wire ( as per the specifications mentioned in the purchase bill) and install the same at complainant’s address Free of Cost within 30 days from the date of this order along with a fresh warranty certificate for 1 year from the date of installing the same.
The Ops are further directed to pay cost of damages of Rs.2000 for harassment and litigation costs of Rs.1000 to the complainant within the aforesaid period.
The liabilities of Ops are joint and several.
