West Bengal

Paschim Midnapore

CC/78/2017

Lakshmi Kanta Bera - Complainant(s)

Versus

M/s. Mallick Marble - Opp.Party(s)

Tapas Adhya

23 Feb 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

Bibekananda Pramanik, President,

 and

 Sagarika Sarkar, Member.   

   

Complaint Case No.78/2017

 

                                                 Lakshmi Kanta Bera, S/o-late Santosh Bera, Vill-Shalya,

P.O.-Sonakhali & P.S.-Daspur,

District- Paschim Medinipur

Represented by constituted power of Attorney : Sudarshan Ghanta of

Vill- & P.O.-Gochhati, P.S.-Daspur, Dist-Paschim Medinipur   

                                                                                      ..…….……Complainant.

Vs.

M/s-Mallick Marble, proprietor Abujafar Mallick,

P.O.-Bakultala & P.S.-Daspur,

District- Paschim Medinipur.

                                                          ………….….Opp. Party/Parties.

                                                     

            For the Complainant  :  Mr. Tapas Adhya, Advocate.

            For the O.P.                 :  Mr. Samarendranath Das, Advocate.

                                                             

                                                             Date of filing : 26/04/2017.     

                                                             Decided on  : 23/02/2018 .                            

                               

ORDER

                         Sagarika Sarkar, Member –

                                   This instant case is filed u/s-12 of the C.P. Act, 1986 by the complainants Lakshmi Kanta Bera, S/o-late Santosh Bera alleging defects in goods and deficiency in service on the part of the above mentioned O.P.

                 Case of the complainants in brief is that the complainant purchased wall tiles and marbles from the shop of the O.P. at a consideration of Rs.2,04,919/-.  It is stated by the complainant that the O.P.  has received the said

                                                                                                                                                                 Contd………..P/2

                                                                                 ( 2 )

 consideration in respect of  the ISI mark tiles but the standard of the tiles supplied by the O.P. was not of that standard and as a result it damaged the wall of the newly constructed building for which he had to suffer a great loss. It is stated in the petition of complaint that the complainant informed the aforesaid facts to the O.P. requesting him to replace the bad quality tiles by new good quality ones but the O.P. refused to do the same. It is further stated by the complainant that on served occasions he requested the O.P.  to replace the tiles in question by good ones but O.P. did not turn up. At last O.P. assured the complainant to replace the tiles within very short period but he failed to do the same.  Therefore the complainant sent a notice dated 06/02/2017 through his Ld.  Lawyer to the O.P., requesting him to replace the tiles in question by new standard quality tiles. O.P. sent reply on 22/02/2017 of the said letter stating that the claim of the complainant was baseless. It is the specific allegation made by the complainant  that non-replacement of the tiles in dispute by the O.P. amounts to deficiency in service on the part of the O.P. Accordingly the complainant has prayed for direction upon the O.P. to pay Rs.78,000/- along with 18% interest and to pay Rs.2,00,000/- as compensation and Rs.1,00,000/- as litigation cost.  

                    O.P. has contested this case by filing written version. Denying and disputing all the material allegation made against him it is the case that he is a retailer of the O.P. not manufacturer of the product sold by him. O.P. further stated that the complainant opted for the said tiles out of his own will and not being persuaded by the O.P. and, therefore, by supplying the said tiles of his choice to  the complainant the O.P. committed no wrong and thus he has no deficiency in providing service. Accordingly the O.P. has prayed for dismissal of the case with cost.

In support of his case complainant tenders his written examination-in-chief in evidence as PW-1 and during his evidence few documents are marked as Exhibit 1 to 4 respectively. On the other hand O.P. adduced no evidence.                                                                                                                     

                                                  Points for  determination

1. Whether  this case is maintainable under its present form and prayer ?
2. Whether there is deficiency in service on the part of the O.P. for non-replacement of the alleged bad quality tiles by good quality ones  ?
3. Whether the complainant is  entitled to get the reliefs as prayed for ?

                                                   Decision with reasons

               Point nos.1.

Admittedly the complainant purchased wall tiles and marbles from the shop of the O.P. by paying agreed consideration amount. The complainant has alleged that he purchased the tiles from the O.P. but those were found bad quality. The complainant

                                                                                                                                                                   Contd………..P/3

                                         

                                                                                                              ( 3 )               

impleaded the retailer as party to the case but did not impleaded the manufacturer of the said tiles as party. Since the retailer sells the goods manufactured by the manufacturer, the manufacturer is the necessary party in this case. Thus this petition of complaint suffers from non-joinder of necessary party. 

Point no.1 is decided accordingly.

               Point nos. 2 & 3.

                 The complainant has alleged defects in goods and deficiency in service by filing this case. In the instant case no authentic document or expert opinion has been furnished before us where from it would have been evident that there is any element of defect as enshrined under section 2(1)(e) of the C.P. Act. Hence the alleged defects in tiles have not been substantiated.

                   The complainant has alleged that non-replacement of bad quality tiles by the O.P.  amounted as deficiency in service  on the part of the O.P. but the complainant fails to substantiate the alleged bad quality of the tiles in question and, therefore, the complainant also fails to substantiate that the O.P.  is liable to replace the same. In this case there is no element of deficiency prevails in the service provided by the O.P.

                  Since the complainant fails to substantiate his allegation against the O.P., no relief is admissible in favour of him.  

Point nos. 2 & 3 are decided accordingly.                                                                                                             

In the result the petition of complaint does not succeed.

                                  Hence, it is,

                                                          ORDERED

                                   that the consumer complaint case being no. 78/2017 is hereby dismissed but considering the circumstances without cost.

                               Let plain copy of this order be given to the parties free of cost.                 

                Dictated and Corrected by me

                             Sd/- S. Sarkar                                                                      Sd/-B. Pramanik. 

                                  Member                                                                                  President

                                                                                                                              District Forum

                                                                                                                           Paschim Medinipur