Sri Sushil Kumar Das,

under the name and style ‘S.K. Das & Co.’

son of late Joggeswar Das,

residing at A/8-523, Kalyani,

Nadia.----------------------------------------------------------------------------- COMPLAINANT.

-          Versus   -

Nikhil Manna,

proprietor of Arunita Print ‘O’ Plastic,

P.O. Brindabanpur, Uluberia,

PIN – 711316,

District – Howrah.-------------------------------------------------------------OPPOSITE PARTY.

                                                P    R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                                 F  I   N   A    L       O   R   D    E     R

1.                  Shortly stated, the facts leading to the filing of the present complaint is that the

complainant in order to purchase shuttle cock went to the O.P. and the O.P. subsequently showed him ( the complainant ) the sample and ordered for purchase of 1000 boxes  such plastic shuttle  cock from the O.P.,  accordingly purchased the same by paying Rs. 20,500/- in cash on 21-07-2012 which was noticed by the complainant after returning at home that the material so purchased was not as per sample, against which he could not sell the same shuttle cock in the market and faced huge financial loss consequently starvation as thus selling of plastic cock as a hawker is his only source of income to earn his livelihood. The complainant requested the O.P. in several times to replace the cock or to get the money back of the purchased goods. Due to negligent and reluctant attitude of the O.P. and getting no other way, complainant has filed the present case as he suffered harassment, mental agony and also deprived, prayed relief and compensation from the Forum in connection with this complaint petition.

2.                  The O.P. is contesting the case contending interalia that the case is not

maintainable as well as in facts.  The allegation as made in the petition is false, frivolous and motivated with an intention to harass the O.P. The O.P. admitted that the fact leading to  the order placed by the complainant for purchase of 1200 boxes and thereby paid Rs.

20,500/- against goods on or about 21^st July, 2012 and after a lapse of so many times the complainant most allegedly and willfully made a fictitious stories in respect of alleged goods which he ( complainant ) has no right to do the same. Moreover, the O.P.  stated that the complainant is not at all a consumer and the petition itself is not maintainable and the ld. Forum has got no jurisdiction to try the suit and wants to get sympathy from the ld. Forum and prayed for rejection of the petition with costs.

3.                  Upon pleadings of both parties three points arose for determination :

i)          Whether the complainant is a consumer  ?

ii)                  Whether the O.P. has negligent in activities and also deficiency in service by not settling the matter for replacing the defective  goods  ? 

iii)                Whether the complainant is entitled to get relief and compensation as prayed for ?

DECISION  WITH   REASONS      :

4.                   Perused the evidence adduced by both the parties. Perused also the evidence in

opposition filed by the complainant. Considered. Undisputedly complainant purchased 1000 boxes shuttle cock after being paid the consideration money of Rs. 20,500/- as the cost of purchase the said goods against bill / challan dated 21-07-2012.

5.                  The point of dispute is that the complainant purchased  thousand boxes shuttle

cocks at the cost of Rs. 20,500/- from the O.P. But the said goods were not as per his ( complainant ) sample caused dispute with the O.P. for replacing the purchase goods by new one or alternatively refund the entire amount against purchased value but on the contrary O.P. did not pay heed to mitigate the complainant’s grievances resultant the complainant suffered huge family problem and tension of financial crisis.

6.                  We have gone through the records carefully and also heard the complainant

and the ld. Counsel of the O.P.

7.                  It is evidentially proved that the complainant purchased goods against money

through a bill / challan for selling the same in the market. There is nexus of form and kind between goods purchased and the goods sold. In brief the immediate purpose as distinct from the ultimate purchase and sale  in  the same form and direct nexus with profit and loss. Thus buyers of goods or commodity for self consumption for his livelihood in economic activities in which he / she engaged would be treated as consumer as per Clause no. 2(1)(d)(1) as defined in the case study Synco Textiles Pvt. Ltd. vs. Greaves Cotton and Company Ltd. 1991 (1) CPR 615 of 621, 622 (1) 1991 CPJ 499, 1991(2) CPC 35 (NC). 

8.                  The O.P.  has taken plea that the complainant on full satisfaction and

through enquiry has taken away all the supplied goods on 21-07-2012 and after lapse of so many times the complainant made a fictitious story in respect of defect of goods which does not hold goods in the present case. It is admitted facts that the complainant ordered the materials / goods as per sample but on the contrary he received the supplied materials with a defective one/ not as per his requirement in the present market which tantamount the gross negligence in activities and unfair trade practice of the O.P. resultant the complainant as a poor hawker did not sell his purchased material as a whole to the local market.

9.                  Therefore, it is a clear negligency and deficiency in service and unfair trade

practice.  The O.P. has failed to show / adduce any evidence which proved that the materials supplied in as per sample and without any defects.

10.              In this case the O.P. harassed the complainant by doing the act of negligence

and irresponsible manner which is not expected by a mere common people. It is also not fair that one  consumer will be harassed or deprived by the acts of others as a negligent manner.

11.              Therefore, we hold our considered opinion that the O.P. has deficiency in

service by not taking due care for replacement the goods so supplied or alternatively refund the paid amount to the complainant which tantamount gross violation U/S 2(1)(g) and 2(1)( r ) of the C.P. Act, 1986.

12.               As it is already proved that the O.P. has deficiency in service and unfair trade

practice, therefore,  the complainant is entitled to get the relief.

Both the points are accordingly disposed of.

In the result, the complaint succeeds.

      Hence,

O     R     D      E      R      E        D

      That the C. C. Case No. 68  of 2013 ( HDF 68 of 2013 )  be  allowed on contest with a litigation costs of Rs. 5,000/-.

      The O.P. is hereby directed to refund the  amount of   Rs. 20,500/-  so paid for purchasing the goods by the complainant within 30 days from the date of this order.  

      The complainant is  hereby directed to return all the defective goods lying under his control after receiving the full awarded amount within 7  days.

      The O.P. is also directed to pay Rs. 20,000/- as compensation  for mental agony and harassment of the complainant.

      The entire amount of Rs. 45,500/- ( Rs. 5,000 + 20,500 + 20,000 ) should be payable within 30 days from the date of this order  i.d. a penal interest of 9% per annum shall be levied on the unpaid amount till realization.

      The complainants are at liberty to put the decree into execution after expiry of the appeal period.

      Supply the copies of the order to the parties, as per rule.

DICTATED  &    CORRECTED

BY   ME.  

  (   P. K. Chatterjee )                                                          (    P. K. Chatterjee)

  Member,  C.D.R.F.,Howrah.                                       Member,  C.D.R.F.,Howrah.

     (  Jhumki Saha  )                                                                (  T.K. Bhattacharya  )

 Member, C.D.R.F.,Howrah.                                            President,  C.D.R.F.,Howrah.