FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the authorized person of the op called to the complainant and approached and offered the complainant to purchase educational kit like E-learning materials and kits and thereafter the complainant with view to purchase E-learning materials and kits for his niece contacted with the op and thereafter complainant paid total of Rs. 2,86,000/- for two CD worth Rs. 20,000/- each totaling to Rs. 40,000/-, one big laptop Rs. 1,20,000/-, I FHY Laptop Rs. 80,000/- and Tab Rs. 46,000/-. Thereafter op send 4 copy of the agreement to the complainant and then the op expressed that without signature of the said agreements the op is unable to send the said materials to the complainant and if the complainant is not interested then send his bank details then the op will refund the all amount to the complainant and the op also send a notice through his ld. Advocate dt. 21.3.2022 and the above complication which was not declared by the op then the complainant decided to refund his amount and send his bank details to the op. Thereafter after a few days the op called the complainant and stated that without signature of the said agreements it is not possible to refund the amount and insisted to the complainant to sign the said agreement and being an old aged person and on good faith complainant signed the said agreements and send to the op.
Thereafter the op delivered the said product to the premises of the complainant and after delivery of the said product complainant observed that the said product found defective and poor quality and also those material used by someone and there are no company box pack to both laptop and op forcefully attached sticker of laptop amount at the back side of the said laptop and there are no proper guarantee card provided with the laptop and after fining the said complainant immediately contacted with the op over telephone and after discussion the op assured to the complainant that he will provide good quality material and advised the complainant to return the said defective product and as per advise complainant returned the said materials to the op on 23.8.2022 which is received by the op on 25.8.2022 and thereafter complainant waited some time but the op did not deliver the material then complainant send a letter dt. 2.9.2022 for refund of money which is received by the op against the said material from the complainant but thereafter op further delivered the said defective material again to the complainant on 3.9.2022.
Thereafter finding no other alternative complainant further sends the said defective material to the op on 6.9.2022 and also sends a letter dt. 8.9.2022 but the op refused to take said products and thereafter on several occasion complainant called through telephone to the op and requested to refund the amount but all in vain. Thereafter suddenly the op to fulfill his lacuna send 4 back dated notice through his ld. Advocate and stated that if any defect/ problem is arise in connected products should primary complain before company. Thereafter finding no other alternative complainant sends a letter to the op on 21.9.2022 and also on 13.10.2022 with same request but due to typographical mistake the amount mentioned Rs. 2,66,000/- instead of Rs. 2,86,000/- and thereafter complainant waited for reply from the op but till now he did not get any fruitful result.
Complainant filed the complaint petition praying direction upon the opposite party to refund of Rs. 2,66,000/- and to take back the said defective produce from the complainant and to pay a sum of Rs. 2,00,000/- towards compensation for mental agony, anxiety and harassment and financial loss and to pay a sum of Rs. 10,000/- toward litigation cost.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
Argument highlighted by the ld. Lawyers of the parties
Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.
Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant has given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration are clubbed together and taken up for discussion jointly at first.
Regarding these three points of consideration it is very important to note that the opposite parties inspite of receiving notice have not filed any W/V and also have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. This District Commission after going through the materials of the case record finds that the complainant is a resident of Pandua, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. It has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus on close examination of the pleadings of the complainant it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.
All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.
The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.
For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the complainant and there is also necessity making scrutiny of the documents filed by the petitioner of this case.
For the purpose of arriving at just and proper decision in respect of points of consideration nos. 4 and 5 this District Commission finds that there is necessity of making scrutiny of the evidence given by the complainant. In this regard it is important to note that the ops have neither filed any W/V nor filed any evidence on affidavit to disprove the case of the complainant. On close examination of the evidence given by the complainant side it is revealed that the complainant has categorically described his case in the evidence and the evidence given by the complainant is also supported by documents. It is also revealed that the evidence (oral and documentary) which is given by the complainant side remains unchallenged and/ or uncontroverted as no cross examination has been highlighted in this case by the ops. After going through the materials of this case record this District Commission finds that there is reason to disbelieve the unchallenged and uncontroverted testimony of the complainant side. It is also transpires that the complainant has proved his case by way of adducing evidence in connection with the points of consideration nos. 4 and 5 which have been adopted in this case.
All the above noted factors are clearly reflecting that the complainant is entitled to get relief in this case which has been prayed by this District Commission.
In the result it is accordingly
ordered
that the complaint case being no. 97 of 2023 be and the same is allowed ex parte but in part.
Opposite party is directed to pay the said amount of Rs. 2,66,000/- to the complainant within 60 days from the date of this order otherwise complainant is given liberty to execute this order as per law. Op is given liberty to take back the product from complainant within 60 days from the date of this order.
In the event of nonpayment/ non compliance of the above noted direction the opposite party is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
