DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _465_ OF ___2015_
DATE OF FILING : 10.12.2015 DATE OF PASSING JUDGEMENT: 31/03 /2017
Present : President : Udayan Mukhopadhyay
Member(s) : Sharmi Basu & Subrata Sarker
COMPLAINANT : 1. M/s National Diagnostic Centre, Abdus Sukur Road, near Central Bank, Mallickpur, P.S Baruipur, Kolkata – 144, represented by its Partnes
2. Mr. Golam Imam Shaheed,son of Janab Anwar Waris, 12, Princep Street, Kolkata – 72.
3. Md. Sirajul Halder,son of Alinoor Halder, Vill. & P.O Baighata, P.S. Joynagar, Pin-743338.
-VERSUS -
O.P/O.Ps : 1. M/s Elesonic Medical Systems, Sahaban Bagicha, Kalitola, Bakhrahat, P.O Muchisa, P.S. Nodakhali, Pin-743377.
2. Kausik Gnaguly, Proprietor of M/s Elesonic Medical Systems , Ebony Home, Flat A-1, Rasapunja, P.S Thakurpukur, Kolkata – 104.
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J U D G E M E N T
Udayan Mukhopadhyay, President
This is an application under section 12 of the C.P Act filed by the complainant on the ground that complainant is a partnership business for their livelihood for their self employment ,for which they proposed to purchase X-ray Imagine System from the O.P who is a manufacturer of the same. After satisfying the terms and conditions of the O.P , the total price of the Radiography system being Model no.”Vita XE 69 CR-Lesser Imager 5800” was assessed at Rs.6,50,000/- on 19.12.2014 ,for which one offer of acceptance was done which was accepted by the O.P. Complainant paid Rs.2,80,000/- from time to time and thereafter approached the O.P and expresses reasons for not making payment of the rest amount. O.Ps agreed to the said inconvenience of the complainant but inspite of that they did not provide the said X-ray machine within 45 days from 10.3.2015 ,which was committed by the O.Ps. It has further stated that the complainant is ready to pay balance Rs.3,70,000/- by nine installments month after month after delivery and installation of the machinery by the O.P. But the same was not installed. Hence, this case praying for installation of the machinery at their place of business and Rs.3 lacs compensation for causing money loss of earning business for default of supply, litigation cost Rs.20,000/- , harassment cost Rs.10 lacs, alternatively to pay back the amount of Rs.2,80,000/- with 18% interest in default supply of X-ray machine under purchase.
It appears that inspite of serving summon none of the O.Ps is turned up. Hence, the case is running in exparte.
Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.Ps or not.
Decision with reasons
We have perused the offer letter of the complainant ,which is annexure A, wherefrom we find that there was some terms and conditions wherein the total value of the machine was fixed at Rs.6,50,000/- and advance payment was made Rs.1,00,000/- and thereafter Rs.1,80,000/- by 30.1.2015 and balance will be paid by installment of Rs.30,000/- and each installments will be paid 9th of every month after delivery. It appears that signature of Koushik Ganguly, Proprietor ofO.P-1, is there in the photocopy of the annexure A, wherein month was tampered. However, partners of the complainant company put their signature. We have perused the money receipts from where we find that from time to tome Rs.2,80,000/- was paid. Apart from that there is no document regarding payment of Rs.1,80,000/- within 10.1.2015 ,although in para 8 complainant has claimed that such payment was done on 21.1.2015 and thereafter Rs.25000/- was paid to the O.P on 10.3.2015 and thereafter approached the O.P regarding the reason of non-payment of Rs.30,000/- . Both parties consented to modify every terms and conditions of the mode of payment of Rs.1,8,000/-. The O.Ps agreed and accepted the amount of Rs.10,000/- in cash. But that document is not file, So, that claim although not challenged by the O.P, but complainant has to prove his case and in that score complainant failed to prove that there was any subsequent agreement regarding mode of payment as claimed in para 8 of the complaint.
Be that as it may complainant paid from time to time Rs.2,80,000/-.So, breach of contract was happened on the part of the complainant as well as the O.Ps. So, it is a contributory negligence from both sides i.e. complainant did not comply the terms of payment, simultaneously O.P failed to install the said Xray machine(radiography system) . So, in this circumstances although O.P not appeared ,but one thing is clear that payment in terms was not made. Thus an argument may be cropped up for non-installation of the machinery, for which we find it is better and that is why complainant knowing all these laches on their part already prayed return the amount of Rs.2,80,000/- with 18% interest and we accept the said prayer at this stage which will be just and proper. But had the complainant been able to pay the entire contract money in time , in that event for want of installation of Radiography system complainant would have suffered mental agony for not giving services to the common people ,but that situation has not yet been cropped up because complainant failed to deposit the money in time and no subsequent agreement was placed, although claimed in para 8. But that cannot be proved since it is a version of the complainant and no documentary evidence is produced. It is well known to us that when there is any documentary document ,if any departure is there subsequently, documentary agreement is required o prove the same, which complainant miserably failed .
Accordingly, it is
Ordered
That the complaint filed by the complainant is allowed in exparte .
The O.Ps are directed to return Rs.2,80,000/- to the complainant along with interest @10% p.a treating from the date of deposit of money from time to time and lastly on total amount of Rs.2,80,000/- till realization, within 30 days from the date of this order.
Since complainant has laches to comply the terms and conditions of the agreement, so complainant is not entitled to get any compensation at this stage but complainant will get litigation cost Rs.10,000/- which will be paid by the O.ps within 30 days from the date of this order.
The other prayers are very much imaginary and when complainant voluntarily wanted to get back the deposited amount ,besides that prayer he is not entitled to get anything in the Consumer Court.
All the order should be complied with within 30 days from the date of this order, failing which complainant is at liberty to execute the order through this Forum.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.
Member Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the complaint filed by the complainant is allowed in exparte .
The O.Ps are directed to return Rs.2,80,000/- to the complainant along with interest @10% p.a treating from the date of deposit of money from time to time and lastly on total amount of Rs.2,80,000/- till realization, within 30 days from the date of this order.
Since complainant has laches to comply the terms and conditions of the agreement, so complainant is not entitled to get any compensation at this stage but complainant will get litigation cost Rs.10,000/- which will be paid by the O.ps within 30 days from the date of this order.
The other prayers are very much imaginary and when complainant voluntarily wanted to get back the deposited amount ,besides that prayer he is not entitled to get anything in the Consumer Court.
All the order should be complied with within 30 days from the date of this order, failing which complainant is at liberty to execute the order through this Forum.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.
Member Member President
