An application has been filed by the complainant against the O.P Company alleging supplying of defective raw materials and paper cup machine for preparing paper cup. He placed an order of raw materials for preparing of paper cup amounting to Rs. 1,03,815/- and therefore, the complainant filed this petition praying for damage defective goods amounting of Rs. 1,00,000/- and  prays for Rs. 40,000/- for his mental agony and Rs. 30,000/- for his loss of business and Rs. 15,000/- for his litigation cost from the O.P Company.

            It is mentioned in the caption of the complainant that the instant case has been filed u/s. 12 of the Consumer Protection Act, 1986 but the said Act has been repealed and a new act on the subject namely the Consumer Protection Act, 2019 has came into force on 20/07/2020. It is gone through from the case record the instant case has filed on 13/01/2022 therefore, the case has been proceeded and could be decided as per the new Act.

            The brief fact of the case is that the complainant is a businessman having a business at making various paper item under the name and style “Ghosh Enterprise”. The complainant in the month of April, 2021 was negotiated with “BHARATH MACHINES’ office situates at Sodhpur, Kolkata for purchasing a paper cup making machine and in the same time the complainant was offered to purchase raw materials for making paper cup by some officials of the O.P Company at a low price having good quality. On 23/04/2021 the elder brother of the complainant Anshuman Ghosh went to Kolkata and purchased the same form the Bharath Machines and according to the verbal offer of that company one Raj took said that elder brother of the complainant at the office situates at Surendra Mohan Bose Road, panihati, Kolkata – 700114. The complainant with assurance from the O.P Company and paid in total Rs. 1,03,815/- in two different bank account, one lies with Axis Bank, Panihati Branch, another lies with ICICI Bank of Khardah Branch on 24/04/2021 from Alipurduar through net banking and RTGS.

            Though the raw materials supplied to the complainant from the O.P Company but due to delay in installation of the machine the production was started on long interval from the date of purchase. That the time of production the complainant observed that the raw materials supplied by the O.P Company were defective and also as poor quality, as those raw materials are of over sized for which no finishing was begotten on the product and the complainant had to stop the production. Complainant has incurred loss of Rs. 1,00,000/- due to the damage of raw materials and he has claimed amounting to Rs. 40,000/- compensation for his mental agony and sufferings and Rs. 30,000/- for  loss of his business and good will  and also Rs. 15,000/- for litigation cost;  total amounting to Rs. 1,85,000/-

The O.P Company appeared through his Ld. Advocate and submitted Vakalatnama after receiving the notice from this Commission. Thereafter, the O.P Company did not turn up to contest this case and hence, ex-parte.

Therefore, the complainant has filed the case for the following reliefs.

                                                        RELIEF SOUGHT FOR

1. Complainant prays for compensation of Rs. 1,00,000/- to get the damage raw materials.
2. Complainant prays for Rs. 40,000/- for his mental agony.
3. Complainant prays for compensation of Rs. 30,000/- for damages for loss of his business.
4. Complainant prays Rs. 15,000/- towards litigation costs from the O.P Company.

In order to prove this case the complainant filed the following documents by firisty:-

1. Annexure – A … (One Xerox copy of Trade License No. 50181 issued by Alipurduar Municipality in favour of Subham Ghosh and others).
2. Annexure – B …… (One Xerox copy of legal notice through Ld. Advocate to the Manager, Orister Technologies Pvt. Ltd.).
3. Annexure – C …. One postal receipt No. RW-9599178301N Dated – 18/11/2021.
4. Annexure – D … One Advocate notice (reply) by Ld. Advocate of the O.P Company to the Ld. Advocate of the complainant Dated – 16/12/2021.

During hearing the complainant filed in written evidence-in-chief on affidavit as well as written argument in this case. We have gone through the materials on record very carefully and also perused the documents which on lying on record and also heard argument from the Ld. Advocate of the complainant.

In this contest, the following issues are necessarily come up for the proper adjudication of this case.

POINTS FOR CONSIDERATION

1. Is the complainant a consumer u/s. 2(7)(ii) of Consumer Protection Act, 2019 ?
2. Has this Commission jurisdiction to try the instant case?
3. Where the good supplied to the complainant by the O.P Company was defective or the O.P Company is negligent in providing service?
4. Is the complainant entitled to get any relief/reliefs as prayed for?

    DECISION WITH REASONS

            Considering the nature and character of the case all points are interlinked to each other as such all such points are taken up together for consideration for the sake of brevity and convenience.

In the instant case notice was duly served upon the O.P Company and after receiving the notice O.P Company appeared before this Commission and prayed for time for filing written version but after that the O.P Company did not turn up to contest the case. Hence, this case has been proceeded ex-parte against the O.P Company.

It is proved from the unchallenged evidence of the complainant that the complainant is a business man and having a business of making paper cup under name and style of Ghosh Enterprise and this business is the only earning source of his livelihood. The complainant purchased one machine from Bharat Machine on 23/04/2021 and he also bought raw materials from the O.P company by paying of Rs. 1,03,815/- by way of net banking and RTGS and the said machine and raw materials have been delivered to the complainant by the O.P Company. It is also noticed from the evidence that the complainant is doing such business exclusively for the purpose of earning his livelihood by means of self employment. The complainant has also adduced Xerox copy of trade license of Alipurduar Municipality and one Ward Commissioner’s Certificate to that effect. It is found from the complaint copy and evidence that the complainant alleged defect of goods so purchased by him from the O.P Company.

Here in our view that the complainant is a consumer as per definition provided u/s. 2(7)(ii) of C.P. Act, 2019 and the explanation provided there under against the O.P Company. Further it is seen from this case record as well as the evidence of the complainant that the complainant resides within the territorial jurisdiction of this District Commission. Therefore, this Commission has territorial jurisdiction to try this case as per Section – 34(d) of the C.P. Act, 2019. Again it is also seen that the complainant purchased goods of Rs. 1,03,815/- from the O.P Company and he has paid such amount to the O.P Company therefore, this Commission has pecuniary jurisdiction to try this case as per Section – 34(i) of the Consumer Protection Act, 2019. Further it appears from the evidence of the complainant as the complainant purchased the goods from the O.P Company on 23/04/2021 and the case has been filed on 13/01/2022, therefore, the case has been filed within the period of limitation as provided u/s. 69 of the Consumer Protection Act, 2019.

Now, in order to ascertain whether the O.P Company was negligent and the raw materials supplied to the complainant by the O.P Company was defective or not, we have to consider and look into the unchallenged evidence of the complainant and on the materials on record once again very minutely.

We have gone through the evidence of this complainant and on the materials on record meticulously and seen that the complainant has purchased paper cup raw materials from the O.P Company of Rs. 1,03,815/- for making paper cup on 23/04/2021. It is also proved from the evidence that due to delay in installation of the machine the production was started on long interval from the date of purchased and the raw materials supplied by the O.P Company were defective and also poor quality and the raw materials were of over sized for which no finishing was begotten on the product and the complainant had to stop the production. Due to the defective goods willfully supplied by the O.P Company. The complainant has sustained a huge amount of pecuniary loss and this business is the only source of his livelihood.

It is also proved from the evidence that the complainant approached on several times verbally to the O.P Company and also requested to the O.P Company to replace those defective materials but the O.P Company though assured the complainant to replace the same but ultimately did nothing. Lastly, on 18/11/2021 the complainant sent a legal notice through his Ld. Advocate alleging defect of goods and seeking compensation amounting to Rs. 1,00,000/- from the O.P. Company. In reply Ld. Advocate for the O.P Company denies all such allegations but the Ld. Advocate did not attach any sufficient documents with the said reply letter but in that reply letter it appears that the O.P Company have admitted that the complainant had paid a sum of Rs. 1,03,815/- to the O.P Company to purchased the paper cup machine and raw materials. We find from the evidence-on-affidavit and documents that due to the damage raw materials the complainant did not produce the goods according to their specification and he incurred loss due to those damage raw materials and we also find that the complainant is suffer mental agony due to that loss of business and also his reputation.

In view of the above mentioned discussions it is clear that the complainant is the bona fide consumer and it can be stated as such that there is the negligence on the part of the O.P Company as well as the deficiency in service for supplying the damage raw materials and non-replacement of the said defective raw materials although the O.P Company has received the entire payment of raw materials from the complainant the tax invoice is the document proved the same. The complainant is entitled to get relief for his loss due to damage raw materials, mental agony and litigation costs.

 Thus all the points are disposed of accordingly.

             Hence, for ends of justice; it is;-

ORDERED

           that the instant case be and the same is allowed ex-parte with costs against the O.P Company. The complainant Sri. Subham Ghosh do get the award amounting to Rs. 50,000/- (Rupees Fifty Thousands) for the loss of business due to defective raw materials supplied by the O.P Company and he also do get a further award of Rs. 20,000/- (Rupees Twenty Thousands) for his mental agony, harassment and sufferings and also Rs. 5,000/- (Rupees Five Thousands) as litigation costs against the O.P Company; total decreetal amounting to Rs. 75,000/- (Rupees Seventy Five Thousands). The O.P Company (Oristar Technologies Pvt. Ltd.) is hereby directed to pay the total decreetal amount as stated above to the complainant. The O.P Company is directed to pay the said award to the complainant within 30 days from the day of receiving this order i.d. legal action will be taken against him.

Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.

Dictated & Corrected by me