Orissa

Jajapur

CC/30/2017

Haragouri Fly Ash Bricks,Izapur.(Proprietor Fani Bhusan Nanda.) - Complainant(s)

Versus

Odisha Solutions Pvt.Ltd. - Opp.Party(s)

Kishore Chandra Dash.

03 Nov 2017

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.

                                              Dated the 3rd day of November,2017.

                                                      C.C.Case No.30 of 2017

Haragouri Fly Ash ,Bricks Izapur,Jajpur  

Represented through proprietor ,Fani Bhusan

Nanda,S/O Harendra Kumar Nanda  

Of vill.Bindhan, P.S/ Dist.-Jajpur.                                                                            …… ……....Complainant .                                                                       .

                   (Versus)

Odisha Solutions pvt.ltd, Plot No.1938, Satya Vihar ,Rasulgarah,

Bhubaneswar

                                                                                                                          ……………..Opp.Party.                  

For the Complainant:                      Sri K. Ch.Dash, Sri M.K.Nath, Advocates.

For the Opp.Party                             Mr. T.S, Viswanathan  , Mr.P. Patsani, Sri P.Mishra , Advocates.

                                                                                                     Date of order:  03. 11.2017.

SHRI  JIBAN BALLAV DAS, PRESIDENT .

Deficiency in service  is the grievance of the complainant.

This is a case filed by the complainant making allegations against the O.Ps for non performance ,dis- service or no service and ultimately for unfair trade practices adopted by the O.Ps.

            This is not the only instance and people are being very often mis-led by deceptive and false  advertisements  which are not just unethical but they distort competition and also choice of the consumers is minimized .False  and mis-leading advertisements violate several  basic rights of the  consumers including right to choose and right to be protected against unsafe goods and unfair trade practice. Thus despite of several laws meant to protect consumers against unfair trade practice ,false  and mis-leading advertisements continuing to exploit the consumers.

            Coming to the facts of the case it is stated by the complainant that the complainant intended to install one Fly  Ash  brick making unit at jajpur in their personal land and for this purpose the O.P gave a quotation for installation of the brick making machine on 18.06.15 amounting to Rs.12,80,000/-. On 25.10.16 the O.P took the final payment of Rs.14,07,630/- including vat and other taxes. It is also mentioned that the proprietor Jayaprakash  Biswal has given his signature with  the seal of the O.P with date 25.10.16 written inside the seal which is visible to necked eyes as reveals from the tax invoice . But in the invoice No.1021 the date have been wrongly printed to be 15.02.16  where as  the actual signature with date 25.10.16 have been written in the seal . So the date of seal shall be 25.10.16 and from that date on wards the warranty period starts. The warranty period is 12 months from the date of purchase. It is mentioned by the complainant that after installation due to technical problem the machine could not function till February’2017. The 1^st electricity bill amounting to Rs.14,976/- was paid by the complainant .The Xerox copy of electricity bill have been filed by the complainant. Despite the fact that there was no production of bricks . According to the complainant on 12.03.17 the technician of the O.P failed  to repair the machine after which the technician assured the complainant to come on  15.03.17  but nobody came from the side of the O.P .On 19.03.17 and on 24.03.17  the technician of the O.P failed  to carry out the repair works as a result of which the machine was unable to function from the date of installation. The complainant paid huge amount for installation of the machine . Due to non functioning of the machine the complainant  sustain huge loss by paying Rs.30,000/- towards remuneration of the employee and inspite of several charges the O.P remained silent. After 24.03.17 the O.P did not take care to see whether the machine was functioning or not  inspite of telephone and other mode of request , the O.P remained callous  and careless and did not perform  his duty for which the complainant was bound to file the grievances praying for adequate compensation as mentioned in the petition which is supported by an affidavit .

            On the other hand the O.P entered appearance and raised the issue of jurisdiction to try the complain of the complainant at jajpur. The O.P denied  that the Proprietor Jaya prakash Biswal has signed the seal on 15.02.16 but it is 25.10.16 . According to the O.P the date of dispatch of the machine is 14.02.16  and not 25.10.16. According to the O.P from 22.02.16 to 10.03.16 after successful installation was completed demonstration was also made and the complainant was

satisfied with working of the machine . It is astonishing that by the running of the machine known  to the O.P and also the complainant made great profit out of sale of bricks produced  by the machine  given by the O.P . The  O.P also denied about the date 25.10.16 and stated from 14.02.16 to 19.02.16 the date of installation  .On 24.03.17 the machine was repaired by the O.P  and properly installed in the factory premises of the complainant. According to the O.P the complainant has only paid Rs.14,00,000/-  and remaining  Rs.7,630/- is to be paid by the complainant including interest. The O.P submitted that the complainant has failed to make out a case for which it is to be dismissed in limini  and the written version is supported by an affidavit by Mr.Jaya Prakash Biswal the proprietor  of the firm of the O.P.  

During the course of argument both the learned counsels were heard at length in the matter. The main point raised by the O.P that  this forum has got no jurisdiction to try this case as the cause of action arose at BBSR . But section-11(C) of the statute prescribes the cause of action wholly or in part  arises ,  so when the machine is installed at jajpur and the complainant ordinarily resides at jajpur and the machine did not function during the warranty period  no obstacle on the question of jurisdiction as raised by the learned counsel of the O.P is there .   Therefore , all his arguments regarding jurisdiction can not be accepted that all disputes between the parties are subject to BBSR only ,So  section 11 (C) is directly applicable to this case and the question of jurisdiction  is set at rest in view of the fact that this is a beneficial legislation and the complainant giving hard cash to the O.P purchased a machine . The machine did not function , so the O.P’s  bounden duty is to  come to the rescue of the complainant and get it  repaired   so that the purpose for which the machine is installed by the O.P could have been fructified .  Instead of doing his own duty , the O.P indulged in  fighting litigation  on the baseless point having no legs to stand upon  . There is no doubt that the O.P accepted  Rs.14,07,630/- the tax invoice dt.25.10.16 with signature  of Mr.Jaya prakash Biswal and the same is a valid document  . Add to it the complainant has paid Rs.14,976/- towards  electric bill on 29.03.17 without any production    of bricks  . Therefore, it is established that the complainant has installed the machine to earn his livelihood and for that purpose he is a consumer as settled by the Hon’ble Supreme court and Hon’ble  Appex consumer Fora and in view of section 11(c) it is cristal clear that this court have ample  jurisdiction to try this case . As per observation  of Hon’ble National commission reported in 1997(2)-CLT-345- M/S patel Roadways Ltd, Vs. Tokuson-Menson paper manufacturing Co. Ltd  and  1997(1)CPC-666-N.C ,wherein it is held that:

“jurisdiction-Cause of action-Branch office –Sec.11(2)(a)(b) of C.P.Act R/W Sec.20     CPC-No cause of action accrued at the place where the complaint is filed as the company has its Branch office there. Held that mere existence of a Branch office of company does not give jurisdiction unless cause of action had accrued at that place “.

                                 And

Diarv No (S) 15120/2017 (S.C.)  Arising out of impunged final judgement and order dt.07.02.2017 in R.P.No.1396/2016 passed by the hon’ble  National  commission, New Delhi .(Spicejet Ltd, Vrs.Ranju Aery)

Add to it we are in a digital age and  due to prevalence of E-commerce  most of the transactions are now performed online .So the question of jurisdiction being old and out dated has lost  its significance .  

                                                    O R D E R   

Hence, after having heard the rival contention of both the learned counsels we are of unanimous  opinion that the complainant is a consumer who has suffered due to the negligence  and inaction of the O.P by not attending to  the repair of the installed machine in time , for which the O.P is liable and the complainant come out successful to establish the case. The O.P is directed to take back the machine with his own cost and supply a tested and fault free machine to the factory premises of the complainant  and installed it with demonstration within one month after receipt of this order and the O.P is further directed to pay Rs.1,00,000/- ( one  lakh) towards remuneration charges of the employee and electricity charges and loss accrued to the complainant due to gross deficiency of service by the O.P  in this regard.                                             

This order is pronounced in the open Forum on this the 3rd day of November,2017. under my hand and seal of the Forum.