Ld. Advocate(s)

                   For Complainant: Debraj Das

                   For OP/OPs : None.

Date of filing of the case                    :25.04.2022

Date of Disposal  of the case            : 12.07.2023

Final Order / Judgment dtd.12.07.2023

Complainant above named filed this complaint u/s 35 of the Consumer Protection Act, 2019 against the aforesaid opposite party praying for an order to make the refund of the amount of the damaged and Wastages goods amounting to Rs.4,00,000/- along with interest at the rate of 24% per annum, compensation amounting to Rs.10,00,000/-, cost of the case amounting to Rs. 25,000/- and other reliefs.

Complainant alleged that he has a proprietorship business in the name and style as Manorama Enterprise for his livelihood regarding stock business. On 09.09.2019 complainant has purchased some non-alcoholic beverage products for selling in his shop. On 19.09.2019 complainant had received the goods sent by OP through the currier namely TCI Express and after receiving the said product, he opened the boxes by which products were sent before him. After opening the same he became shocked by observing that most of the products are damaged and broken. Some of the products were very near to the expiry date. Complainant has immediately informed the matter to the OP over telephone. Aforesaid products were mainly uses for human consumption. Selling of expires food beverage will cause serious harm in the society. Complainant purchased those articles on 09.09.2019 value at Rs.4,10,222/- including GST. As the complainant did not get any reply from the OP then he sent further two e-mails on 18.12.2019 and asked the OP to take immediate return to the aforesaid goods. On 29.12.2019 complainant sent another e-mail to the OP but he did not get any response. Hence, he filed this case.

On perusal of record, we find that case is running ex-parte against the OP vide order dated 16.02.2023.   

Trial

During trial complainant filed affidavit in chief.

Documents

Complainant produced the following documents viz :

1. Tax Invoice dated 09.09.2022 in respect of sale of 6 items in favour of the complainant value at Rs.4,10,222/-.......(Three sheets).........(computerised copy)

2. E-Web bill regarding  sending of aforesaid product.......(One sheet)......(Computerised copy)
3. Documents of TCI Express........(Two sheets).........(Carbon copy)
4. Tax invoice in respect of sale of 6 items in favour of the complainant dated 20.08.2019.........(Three sheets).......(Computerised copy)
5. E-Web bill dated 20.09.2019 in favour of the complainant.......(One sheet)........(Computerised copy)
6. Legal notice  dated 08.12.2021 issued by Ld. Adv. for the complainant.......(Four sheets)........(Original)
7. Returned Envelop of OP NO.2 with the ground left......(One sheet)....(Original)

Brief Notes of Argument

                    Complainant filed BNA.

Decision with Reasons

We have carefully gone through the petition of complaint, documents filed by the complainant, affidavit in chief filed by the complainant and BNA filed by the complainant. We have carefully considered these documents.

Complainant alleged in the petition of complaint that OP issued some articles on 09.09.2019 in his favour through TCI Express valued at Rs.4,10,222/- including GST and complainant had received  the same on 19.09.2019.

He further stated in the affidavit in chief that after opening the boxes by which those articles were sent, he found that those articles were damaged and broken and near the date of expiry date. He immediately informed the matter to the OP but did not get any response. He by further two e-mails asked the OP to take back those articles on 18.12.2019 but did not get any response from the OP. On 29.12.2019 he also sent another e-mail to the OP but OP did not get any action. He further stated that on 03.10.2019, he also sent another e-mail to the OP but did not get any fruitful result.  He further stated that he sent a legal notice to the OP on 08.12.2021 through registered post but did not get any fruitful result.

On perusal of e-mail dated 03.10.2019, we find that complainant sent an e-mail to

at the time of hearing  that said e-mail  is the e-mail of the OP. Perused the e-mail dated 18.12.2019, 29.12.2019 and we find that said e-mail were sent  to the above addressed.

On perusal of legal notice dated 08.12.2021, we find that Ld. Adv. Mr. Debraj Das gave the said notice to the OP and another person. He filed Postal Track Report wherein it has mentioned that item delivered. Ld. Adv. for the complainant argued that this is the Postal Track Report in respect of service of notice upon the OP NO.1.

Ld. Adv. for the complainant argued at the time of hearing that complainant has established that aforesaid products were defective and he asked the OP to take back the same but OP did not take any steps.

  Now the question comes before this Commission that in such type of incident what procedure should be observed as per Consumer Protection Act, 2019.

 In this context, we have carefully gone through sectioin 38(2) (c) which reads as under:-

“If the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, obtain a sample of the goods from the complainant, seal it and authenticate  it in the manner as  may be prescribed and refer the sample so sealed to the appropriate laboratory along with  a direction that such laboratory to make an analysis or test, whichever may be necessary, with a view to finding out whether such laboratory to make an analysis  or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged  in the complaint or from any  other defect and to report its findings thereon  to the District Commission within a period  of forty-five days of the receipt of the reference  or within such extended period as may be granted by it;”

          As per said provision, if any person alleges for defect in the goods and such type of allegations cannot be determined without proper analysis or test of the goods.

          In such a situation  sample  of goods  be obtained  from the complainant  and thereafter,  it will be sealed  and authenticated as per  the manner prescribed  and thereafter sample should be  referred to  the appropriate laboratory  for analysis or testing whichever  necessary  with a view  to finding out whether such  goods  suffered from any defect  alleged  in the complaint.  

          In the present case complainant did not take any  such steps and he did not file any  prayer before this Commission for sending  the sample  before the 

appropriate  authority for analysis or test  for ascertaining  whether  any defects lying in the aforesaid products or  not.

As per the aforesaid provision this Commission cannot come to any decision relating to the aforesaid product whether these products are defective or not.

          Having regard to the aforesaid discussion, it is clear before us that complainant has failed to established his grievance by proper manner.

          In the result, present case fails.

          Hence,

                   It is

                                                          Ordered

                                                                             that the present case be and the same is dismissed  ex-parte against the OP  but without any order as to costs.

Dictated & corrected by me

 ............................................

                PRESIDENT

(Shri   DAMAN PROSAD BISWAS,)        ..................... ..........................................

                                                                                             PRESIDENT

                                                                        (Shri   DAMAN PROSAD BISWAS,)

I  concur,

   ........................................                                                 

          MEMBER  

 (NIROD  BARAN   ROY  CHOWDHURY)