1.      Whether the petitioner will be termed as ‘consumer’ as per consumer protection Act 1986.

2.      Whether the service of the O.P. suffers from ‘deficiency’?

3.      Whether the petitioner is entitled to the reliefs as prayed for?

 

:DECISION WITH REASONS:

 

 

          According to section 2(1)(d) of the Act a person is said to be a ‘consumer’ who buys any goods, for a consideration paid or promised, partly paid or promised etc…………..’Service’ means service of any description which is made available to potential users.

 

          The petitioner has filed one challan in the name of the O.P. (M/s Roy Construction, Prop: Bablu Roy, Pakuahat, Malda) dated 08.06.2006 for 45 CD engine set for Rs.7500/- under signature of Bablu Roy dated 08.06.2007 marked Ext.1. Having regard to the facts and circumstances of the case, there can be no dispute that the petitioner has purchased the above pump set from the O.P. and he is a consumer within the meaning of the Act which disposes of the point No.1 in the affirmative.

 

 

          In order to substantiate his case the petitioner has examined himself as P.W. – 1 and has corroborated the petition of complaint. In cross examination he stated that he is a retired teacher of Nalagola High School and did not receive any pension for government, This landed property mostly purchased property, he visited to shop of O.P. on 01.06.2007 who deals in cement, corrugated tin sheets, iron rod and pump set to know the price of pump set which he come to know as Rs.8000/- and after bargaining he left the shop. On 08.06.2007 he visited the shop of the O.P. and purchased one CD pump set at Rs.7500/-.  He denied that O.P. issued any estimate of pump set in challan scribing price of CD pump set as Rs.7500/-. He also stated that he deposited the machine to the O.P. on 23.10.2007 and was not in a position to file document against such deposit of the machine for repair.

 

          P.W. – 1 produced his daily labour Saidul Sarkar who was examined as P.W. – 2. He stated that the pump set was deposited to the O.P., petitioner claimed replacement but the O.P. refused when the petitioner left the shop leaving the pump set there.

 

          In cross examination the P.W. – 2 admitted that he is illiterate and cannot identify the Ext.1 which was issued by the O.P. He stated that the O.P. deals in iron materials, tub well parts, pump set etc. He himself carried the defective pump set of the petitioner in a mechanically propelled rickshaw van (Bhut Bhuti) to the shop of O.P., the P.W. – 1 reached at the shop afterwards when reached earlier. He also stated the O.P. on hearing the complaint about the defect of the pump set who asked his employee to rum the machine but inspite of his attempt the machine could not be run. He further replied that the O.P. told that he would make necessary repair, but the repairing cost wouldbe borne by the P.W. – 1 then  petitioner disagrees. He also stated that the O.P. did not issue any receipt against the deposit of the pump set.

 

          The O.P. to substantiate his case as non supplier of the pump set in question has examined as P.W. –1 and stated that Ext.1 is the estimate which he used to issue on request of customer is challan and maintains cash memo book in the name of purchaser, subsequently, produced one used up (duplicate cash memo back No.0510 dated 02.04.2007 to Sl. No.600 dated 26.7.07.

 

          In cross examination he admitted that serial ‘No’ is not scribed in Ext.1 nor the work estimate/invoice has been scribed in Ext.1 and admitted that he deals in pump set alongwith building materials. The O.P. has produced one Sandip Ghosh, a customer of him who has been examined as O.P.W. – 2. He stated that he purchased rod, cement from the shop of O.P. against cash memo which he would be able to produce on subsequent date. Ld. advocate for the petitioner raised objection in accepting him as qualified witness as he admitted in the cross examination that he was present in the Forum on the dates of proceedings of this case. The O.P. has produced one trade license for running business of Builders issued by Pradhan Pakuahat on 18.2.2008 for the year 2007-2008, certificate of registration in Form No.3 of sales Tax Commissioner which is valid upto 19.02.007 for resale of cement, iron rod, hardware goods, water pump etc.

 

          Ld. advocate for the O.p. has filed cash memo No.566 dated 16.6.2007, no.574 dated 26.6.07 and no.592 dated 17.7.2007 issued by the O.p. in the name of O.P.W. – 2 for purchase of iron rod to substantiate his case that O.P. is in the habit of issuing cash memo to his customer. This Forum undertakes a scrutiny and examination of the above documents to ascertain as to whether these cash memos were actually the originals of the duplicate cash memo book (carbon copy book) no.0510 dated 02.04.2007 to no.0600 dated 26.07.2007 already produced by the O.P.

 

          On the face of the claimed original cash memos referred to hereinabove, it appears soiled due to twisting of papers as if, these were left in the waste paper basket and subsequently recovered for which these were torn hither & thither. The age of the papers appear fresh and not dirty. It clearly manifests in the naked eye when compared with the impression of handwriting in the carbon copies of the aforesaid duplicate memo book, it does not tally in the style of handwriting, posting of dates, in column showing manner of dealing – cash, item, quantity, rate, price and drawing of totals. Signatures of the O.P. also do not tally each other. Even the size and shape of the papers of the so-called original cash memos are not identical with that of the carbon book.

 

          From the above examination it can safely be concluded that the O.P. has made a frustrated attempt to establish that he is in the habit of issuing cash memo to his customer against the purchase of good from his shop and he issued cash memos to O.P.W. 2 while he purchased iron rod from his shop. The buyer’s signatures are not available in any of the cash memos including in the duplicate carbon copy of cash memo book. Therefore, this Forum is of the opinion that the O.P. is not in the habit of issuing cash memo to his customers and has manufactured the duplicate carbon copy cash memo book and the so called original cash memo numbers 566, 574 & 592 scribed in the name of the O.P.W. – 2 in order to mis-guide the Forum.

 

          The testimony of the P.W. – 2 seems to be voluntary when he gave replies during cross-examination. It appears from the pleading of the petitioner that he left the defective pump set in the shop of O.P. when he was asked to make payment for replacement of parts and was refused to replace the pump set.

 

          Having given our anxious consideration over the facts and circumstances referred to herein above we conclude that the O.P. has adopted unfair trade practices and his services suffers from deficiency.   Thus this point is disposed of in the affirmative.

 

Point No.3:

 

          In the process the case of the petitioner succeeds.

 

          Proper fees have been paid.

 

that Malda D.F. case No.15/2008 is decreed on contest. The following orders have been passed.

 

1.     The O.P. (Proprietor, M/S. Roy Construction, P.O. Pakuahat, P.S., Bamongola, Dist. Malda. W.B.) do replace the CD pump set or to return the price of Rs.7500/- to the petitioner within 30 days from date.

2.     The petitioner will get compensation of Rs.1000/- and the O.P. do pay the amount within 30 days from date.

 

Let copy of this order be given both the parties free of cost at once.