J U D G E M E N T

                        Brief facts which are necessary to dispose of this case are re-capitulated as under :- 

             In essence, the case of the Complaint, is that, the Complainant had purchased a E. Rickshaw popularly known as TOTO from the Opposite Party on 22.01.2015 for a consideration amount of Rs. 1,02,050/- only by issuing a ‘Money Receipt’ in favour of the Complainant including the battery of the said E. Rickshaw. The Opposite Party had assured the Complainant that the said battery would be covered 90 kms distances after one full charge but the said E. Rickshaw had actually covered only 26 kms after one charge. After purchasing the said E. Rickshaw the same was not running smoothly from the very beginning till to date and also has some balancing problem that the said E. Rickshaw has a tendency to incline on right side of the road which means that the said E. Rickshaw has some manufacturing defect for which the Complainant had to bear the loss of Rs. 1,000/- only per day.

              The Complainant severally requested the Opposite Party from 28.01.2015 but the Opposite Party never paid any heed to it.         Ultimately the Complainant sent a legal notice on 06.05.2015 to the Opposite Party for replacing the said E. Rickshaw which was duly received by the Opposite Party on 09.05.2015 but the Opposite Party did not take any step to replace the same, what amounts to negligence and deficiency in service on part of the Opposite Party and caused mental agony and harassment to the Complainant for which he had asked for compensation. Hence, this case is filed for seeking adequate redressal before this Forum. 

                Resisting the Complaint, the Opposite Party filed the Written Version for denying the contentions and all material allegations made by the Complainant in the Petition of Complaint and stating inter alia, that the Complainant has no cause of action to file the instant case, the case is bad for defect of parties and the case is not maintainable.

                The case, as a whole, stated by the Opposite Party in crisp, is that, the Opposite Party is not the proprietor of the said ‘Mondal Battery E. Rickshwa’ but the Opposite Party’s son named Suraj Mondal is the original proprietor of the said concern and the Complainant made a wrong person as an Opposite Party. This Opposite Party neither received any money from the Complainant nor had issued any ‘Money Receipt’ in favour of the Complainant as is the Opposite Party is an illiterate person and cannot sign his name. The legal notice was issued in the name of this Opposite Party who is not the original proprietor of the said concern and thus this Opposite Party did not response the same.

               The real fact is that after the few days of the purchase the said E. Rickshaw/ Toto dashed with a wall at the time of entering into a lane and for that handle hydraulic front guard, front sucker had been damaged seriously which was duly repaired by the Opposite Party without any charge and the Complainant before taking delivery of the said E. Rickshaw has tested and checked the same. At this time the Complainant never uttered any allegation regarding any defect about the said E. Rickshaw. This Opposite Party had told the Complainant that the battery of the Toto needs full charge as the same is a battery driven vehicle and the said battery should always be maintained but the Complainant did not pay any heed and used the Toto in a negligent manner. The Complainant also suppressed the material fact.  

               Thus, no question of deficiency of service does arise at all and this Opposite Party has denied any negligence or/ and deficiency in rendering service on his part and the Complainant is not entitled to get any relief as prayed for and the Opposite Party prayed for dismissal of the instant case.

                                           Points for Determination

               1.  Is the complaint maintainable under the C. P. Act ?

               2.  Was there any negligence or deficiency in service

                                      on the part of the O.Ps ?

               3.  Is the complainant entitled to get the relief as prayed for ?                             

                                                Decision with Reasons

                All the points are taken up together for consideration for the sake of convenience and brevity.

               The main dispute between the Complainant and the Opposite Party is that whether the Opposite Party is liable for not providing the proper service by replacing the battery of the said E. Rickshaw to the Complainant or not. 

               We have carefully considered and scrutinized the submission made before us by the Ld. Advocate for the Complainant and the Ld. Advocate for the Opposite Party and also critically perused all the material documents on record.   

                On overall evaluation of the argument advanced by the Ld. Advocates of the both Complainants and Opposite Party and on critical appreciation of the case record, it is clearly evident and admitted by the Opposite Party that the Complainant had purchased a E. Rickshaw popularly known as TOTO from the Opposite Party on 22.01.2015 by paying a sum of Rs. 1,02,050/- only as consideration money/cost price of the said E. Rickshaw and for which the Opposite Party had duly issued a ‘Money Receipt’ in favour of the Complainant which is evident from the photocopies of the document filed by the Complainant.

              The Complainant alleged that verbally the Opposite Party had assured the Complainant that the said battery of the said E. Rickshaw would be covered 90 kms distances after one full charge but the said E. Rickshaw had actually and/or practically covered only 26 kms after one charge regarding which the Opposite Party stated that the battery of the Toto needs full charge as the same is a battery driven vehicle and so the said battery should always be maintained the full charge. The Opposite Party never specifically denied the assurance he made to the Complainant.

               But the fact remains that none can maintain the full charge of battery always as because once the battery fully charged and started running thereafter that battery looses the charge during its running condition. Moreover, the assurance was the battery holds the charges upto 90 kms but the Complainant alleged that the said battery continues only upto 26 kms which is far lesser distance than assured 90 kms.

               The record reveals that the Complainant further alleged that after purchasing the said E. Rickshaw/Toto the same was not running smoothly from the very beginning till to date and also has some balancing problem that the said E. Rickshaw has a tendency to incline on right side of the road which means that the said E. Rickshaw has some manufacturing defect for which the Complainant had to bear the loss of Rs. 1,000/- only per day. In this regard the Opposite Party stated that the said E. Rickshaw/ Toto dashed with a wall at the time of entering into a lane and for that handle hydraulic front guard, front sucker had been damaged seriously which was duly repaired by the Opposite Party without any charge and the Complainant before taking delivery of the said E. Rickshaw has tested and checked the same. At this time the Complainant never uttered any allegation regarding any defect about the said E. Rickshaw. But the Opposite Party did not produce any relevant document and/or any scrap of paper to show the same that the Opposite Party ever repaired the said E. Rickshaw/ Toto after any accident and delivered it to the Complainant without charging any monitory amount.

              It is revealed from the documents filed by the Complainant that the Complainant sent a legal notice on 06.05.2015 to the Opposite Party for replacing the said E. Rickshaw which was duly received by the Opposite Party on 09.05.2015 and replied by denying all allegations but admitted the fact to purchase the said E. Rickshaw/ Toto by the Complainant by paying the aforesaid consideration amount for which the Complainant is the consumer under the Opposite Party and the said E. Rickshaw/ Toto is a defective one for which the Complainant claimed for replacement which the Opposite Party failed to do which is the negligence on part of the Opposite Party towards the Complainant.

               Moreover, the record reveals from the case record that the Opposite Party specifically stated in the Written Version that the Opposite Party is not the proprietor of the said ‘Mondal Battery E. Rickshwa’ wherefrom the Complainant had purchased the said disputed E. Rickshaw/Toto. But the Opposite Party’s son named Suraj Mondal is the original proprietor of the said concerned shop and the Complainant made a wrong person as an Opposite Party (the name of the Opposite Party Siraj Mondal instead of Suraj Mondal). This Opposite Party strictly denied to receive any money from the Complainant and to issue any ‘Money Receipt’ in favour of the Complainant as because the Opposite Party is an illiterate person and cannot sign his name in the said alleged ‘Money Receipt’.

               Now it is evident from the photocopies of the document (‘Money Receipt’) filed by the Complainant that on 22.01.2015 a blue coloured E. Rickshaw/Toto was actually purchased in the name of the Complainant wherein a signature of one Siraj Mondal is visible. The Opposite Party never challenged and/or denied and/or disputed the authenticity of the said ‘Money Receipt’ dated 22.01.2015 and/or never denied to issue the same in favour of the Complainant and moreover the Opposite Party never ever denied the fact of purchasing the said E. Rickshaw/Toto from his shop named ‘Mondal Battery E. Rickshwa’. It is also evident that the said ‘Money Receipt’ was issued in the name of the said ‘Mondal Battery E. Rickshwa’. When any consumer went to any shop for purchasing any product he/she never asked for the document of proprietorship of the said shop. So no consumer can determine or know the name of the actual proprietor of the any shop. The Consumer normally purchases the product by paying the consideration price and upon issuing the ‘Money Receipt’ in the name of the said shop and no consumer does inquire regarding the actual proprietor/owner of the shop. Thus in the instant case, though the Complainant may make the wrong person as an Opposite Party the ‘Mondal Battery E. Rickshwa’ is liable towards the Complainant.  

                 Furthermore, it is evident from the documents (BYABSA  KARIBAR  JONYO  SUPARISHPATRO and the Certificate of Enrolment) filed by the Opposite Party that the son of the Opposite Party named Suraj Mondal is engaged in a profession /trade calling known as ‘MONDAL E-AUTO’ , but the Complainant had purchased the disputed E. Rickshaw/ Toto from the shop named ‘Mondal Battery E. Rickshwa’ which is clearly evident from the ‘Money Receipt’ issued in favour of the Complainant by the Opposite Party which confirms that the said Suraj Mondal is not the proprietor of the alleged ‘Mondal Battery E. Rickshwa’ from which the Complainant had actually purchased the disputed E. Rickshaw/ Toto.

                So we are of the opinion that the Suraj Mondal may be the proprietor of any other shop named ‘MONDAL E-AUTO’ but the Opposite Party is the proprietor is the shop named ‘Mondal Battery E. Rickshwa’ wherefrom the Complainant had actually purchased the said disputed defective E. Rickshaw/ Toto as because the Opposite Party the Opposite Party failed to produce any relevant document and/or scrap of paper to show that the Opposite Party Siraj Mondal is not the actual proprietor of the ‘Mondal Battery E. Rickshwa’ and his son  Suraj Mondal is the actual proprietor of the ‘Mondal Battery E. Rickshwa’ instead of the Opposite Party Siraj Mondal.

                Manifestly the fact remains that the Complainant had purchased a E. Rickshaw/ Toto from the Opposite Party concern named ‘Mondal Battery E. Rickshwa’ by paying the total consideration amount to the Opposite Party and the said E. Rickshaw/ Toto did not run smoothly what it ought to be.

                Thus, the unanimous decision of the Forum is that the Opposite Party is liable to replace the said E. Rickshaw/ Toto with a new one with equivalent facilities and equivalent cost without making any extra payment by the Complainant or to refund the entire cost price in default to replace the same.

               Therefore, in light of the above analysis, we are inclined to hold that the Complainant has successfully proved his case and accordingly is entitled to get the relief as prayed for and consequently the points for determination are decided in affirmative.

              In short, the Complainant deserves success.

              In the result, we proceed to pass 

                                                                                                O R D E R 

             That the complaint be and the same is allowed on consent against the Opposite Party with cost of Rs. 3,000/- only payable by the Opposite party to the Complainant within one month from the date of this ‘Order’.

                That the Opposite Party id directed to replace the said E. Rickshaw/ Toto with a new one with equivalent facilities and equivalent cost without making any extra payment on satisfaction of the Complainant within one month from the date of this ‘Order’.

              That in default to replace the said E. Rickshaw/ Toto the Opposite Party is further directed to refund the entire consideration amount of Rs. 1,02,050/- only to the Complainant within one month from the date of this ‘Order’.

              That the Opposite Party is further directed to pay a sum of Rs. 3,000/- only to the Complainant, as compensation for mental agony and harassment within one month from the date of this ‘Order’. 

              In the event of non compliance of any portion of the order by any Opposite Party within a period of one month from the date of this order, the defaulted Opposite Party shall have to pay a sum of Rs. 100/- per day, from the date of this order till its realization, as punitive damages, which amount shall be deposited by the Opposite Party/s in the Consumer Legal Aid Fund.

              Let copies of the order be supplied to the parties free of cost when applied for.

             Written & Typed by me. Chandrima Chakraborty.