West Bengal

Paschim Midnapore

CC/16/2021

Md Anayet Ulla - Complainant(s)

Versus

Saha Tools/ Saha Stores - Opp.Party(s)

Debasis Mukherjee

27 Apr 2022

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

                                    PASCHIM MEDINIPUR.

 

                                       Sudeb Mitra , Ld. President

                                                       -and-

Angshumati Nanda,Ld.Member

                              -and-

Sadananda Sarkar,Ld.Member.

 

            Complaint Case No.CC/16/2021.

 

           

Md Anayet Ulla

S/O-Late Moulovi tamizuddin Ahmed

At- Bara Astana ,bankim pally

P.O-Midnapore,P.S-Kotwali,

Dist.-PaschimMedinipur.

Pin-721101, West Bengal

 

                                    ………………..….……Petitioner/Complainant.

                                           -Versus-

                                   

Saha Tools / Saha stores,

Nimtala Chak,

P.O.-Midnapore, P.S.-Kotwali,

Dist.-Paschim Medinipur.

Pin-721101.West Bengal,

                        Mob.No-9933457456

 

                                   .............................Opposite Parties.

 

 

                             PRESENT     :   LD.SUDEB MITRA

                     President.DCDRC,Paschim Medinipur.

                            

                                                       LD.ANGSHUMATI NANDA, Sr.Member.     

 

                                                       LD.SADANANDA SARKAR.Member.

Date of filing: -23.02.2021.

Date of disposal: -27.04.22.

                                                                                                                                                                                                                                   

                                                                                                                      Contd……2

              

  -2-

 

 

       Final Order/Judgement

 

Sudeb Mitra, Ld.President:-

 

The  complt’s case  as culled out form the available materials on record is that on 24.11.2020 the complt. went to the O.P’s  shop for purchasing ½ ”(inch) hammer  drill bit and this is the specific admission of the complt.that the complt had no specific knowledge as to that Drill Bit. The O.P.owner of the Saha Tools/Saha Stores ,having same address  and mobile  no 9933457456, sold him ½  inch masonry drill bit and on complt’s  producing the same to his masonry, the said mason  informed the complt that the said masonry Drill bit was not proper one. When the complt.went to the O.P’s shop for getting that  purchased material of masonry drill bit exchanged with what he had actually wanted i.e. ½ ”( inch) Hammer Drill Bit , the  O.P. refused to make such exchange, inspite of the complt’s  proposal for paying the excess amount to purchase ½ ” Hammer Drill bit.

It is the specific case of the complt. that his proposal for getting the masonry drill bit exchanged with the Hammer Drill Bit that  he had been actually wanting to purchase , the O.P. did not entertain his repeated requests/propositions and refused to give the ½ ” (inch) Hammer drill bit to the complt, to serve the purpose of the complt.

The petnr. has contended that at the time of purchasing the masonry  article as referred above , the O.P. cleverly gave the petnr. the receipt of Saha Stores .  it is the specific assertion  of the complt.that the  Mobile number (9933457456) and the shop owner  of Saha tools / Saha stores is same  and identical,having same address.

The petnr contends by filing the instant complaint that vide memo no-421/CA & FBP/MID dtd 30.12.2020, the complt. had referred the matter/complt to the Asstt. Director and date for mediation was fixed by the Asstt. Director, Consumer Affairs & FBP, PaschimMedinipur, by this order dtd-30.12.2020 and accordingly 14.01.2021 was fixed for mediation at 12.30 P.M before the concerned Asstt. Director, Consumer Affairs & FBP, PaschimMedinipur R.O. to solve the problem, but the O.P inspite of getting due notice refused to allow or appear before the Asstt. Director. As  a result the concerned authority made a certificate to the petitioner vide no 1920 dtd 14.01.2021 and advised the complt/petnr to move before the proper Forum/Commission over this matter since O.P. had refused the letter of mediation too.

There after the complt. had sent his lawyer’s notice dtd 25.01.2021 seeking redressal  of the matter  in issue but the O.P, refused to accept the said notice of the complt. lawyer and the same returned in torn condition.

                                                                                                                         Contd….3

                                                                   -3-

 

 

Therefore ,finding no other alternative the complt. filed this complaint  on 23.02.21 before this commission ,seeking  consequential reliefs as reflected in the  schedule of claim of this complaint.

The case record reveals that the O.P. was duly summoned to contest in this complaint case against the complt. but O.P. had not responded and the postal track consignment reflected that the O.P. side was given due intimation of the existence  of this complt. case ,before this commission, against the O.P. but the O.P. in this case had not turned up at all, inspite of being duly summoned , so this complaint case was taken up for exparte  hearing by this forum/ commission having due quorum .

 

On consideration of the available materials on record and ,hearing the submission of the complt. side, the following points / issues have been framed for determination of the real points of controversy.

 

Issues /points for consideration

1. Whether the complt. is consumer u/sec 2 of the  Consumer protection Act?
2. Whether this commission has jurisdiction to try this complaint?
3. Whether there was any deficiency in service on the part of the O.P. towards the complainant in this case?
4. Whether the complainant is entitled to get any relief as prayed for or is the complt. entailed  to any other reliefs ,if any, in this complt. Case?

 

Decisionwith reasons

Issues No. 1&2 :-

            Both the issues are taken up for consideration for the sake of convenience ,brevity and to avoid the risk of   repetition .

Having regard to the  materials on record ,ambit, extent and scope as amplified in sec 2 of the C.P Act. We  find that the complt. had been a consumer and in fact he had  wrongly bought ½ ”(Inch) masonry drill bit which  he had not actually wanted instead  of  purchasing ½ ”(Inch) Hammer Drill bit  that he had actually wanted and the available materials on record  show that he had so purchased the masonry drill bit  of same specification of  ½ ” inch erroneously  and in the presence of evidence on record , he had paid due consideration to the O.P. against his such purchase . There is no material evidence, coming from the O.P.to deny it ,in any way or manner, as per law .

Considering this  we find that the complt. was a  consumer as per scopes of sec 2(1)(d)(ii) of the C.P. Act.    

                                                                                                                          Contd…4

 

-4-

 

 

The case record reveals further that the O.P. and complt. had entered into a transaction, in between them, within the territorial jurisdiction of this DCDRC, situated within the District of Paschim Medinipur. The cause of action of this complaint case also arose here within the jurisdiction of this DCDRC of Paschim Medinipur. Accordingly we find that this DCDRC of Paschim Medinipur has jurisdiction to try this complaint  in its present form. Both these issues are decided in favour of the complaint and the same are  disposed of exparte.

 

Issue No-3&4

 

Now both these points are taken up for discussion for the  sake of  convenience  and brevity and to avoid the risk of unnecessary repetition.

This has come ,in the absence of any cogent evidence of the O.P to the contrary that the complt. had gone to the O.Ps shop to purchase  a specific item in the form of ½ ”(Inch) Hammer Drill bit and against his paying due consideration, as revealed from the Xeroxed challan , issued from the O.P. i.e. Saha stores, Nimtala Chowk ,Medinipur, he(complainant) was given ½ ”(inch) masonry drill bit from the O.Ps end and when the petner./ complt. could be enlightened that the said ½”masonry drill bit won’t serve his purpose or be the substitute of ½ ” Hammer drill bit,he (complt.) wanted to get the masonry drill bit exchanged with the ½ ”(inch) hammer drill bit that he was actually needing to serve his particulars purpose, but  his such endeavour or proposition  was not entertained by the O.P., inspite of the proposition of the complt. to pay up the residual excess amount, if any , for purchasing  the ½ ”(Inch) Hammer drill bit that he actually needed.

The case record reveals that at first the complt. moved before the Asstt Director, Consumer Affairs and Fair Business Practices , Paschim Medinipur Regional Office,and on the basis of his complaint ,Concerned Director had sent memo no.421/CA&FBP/MID dtd 30.12.20 and had sent notice to the O.P. fixing 14.01.2021 for mediation at 12.30 P.M of that date, before him. The O.P. was found, as the case record shows, non responsive and therefore mediation was not  possible . The complt. was suggested by the Asstt Director, concerned to move before the proper Forum. The document furnished from the end of the complt, on this score, in the absence of any cogent evidence of the O.P.,to the contrary, substantiates this claim of the complt.

Contd….5

 

                                                                                                            

-5-

 

 

 

 

The complt. furnished Ld lawyer’s letter dtd 25.1.21 addressed to O.P, over the matters in issue asking the O.P. for making the redressal of the disputes but the O.P, refused to pay any heed to it, since no documentary  or evidence of conclusive  form, came from the O.P. to vindicate that the O.P. had not received such letter of the complt’s lawyer’s dtd 25.1.21. Finally the complainant filed this complaint and the O.P, inspite of getting scopes, had not contested in this complaint case .The postal track report lent sufficient ground to hold that the O.P. was duly intimated about this complt case pending before this Commission, well in time but the O.P. had refused to receive the commission’s  notice served upon the O.P.

 

This is therefore forthcoming in the presence of the complt’s examination in chief  on affidavit that he had thoroughly supported the complaint case . He had furnished receipt of Rs.120/- , issued to the complt.by O.P. side. He had also furnished  the pertinent papers showing that concerned  authority had tried.to make amicable settlement of complaint to which the O.P. had not given any  positive response.The complt. also has filed his lawyer’s notice sent to the O.P. seeking relief from the O.P over the matter in issue  . In the absence of any evidence to the contrary  from the O.P. ,the O.P. could not reduce the complaint case as meritless.

In this backdrop, we find that there was specific deficiency from the end of the O.P. in  rendering service to the complainant and as a result of that the complt deserves to get relief to a considerable and reasonable extent in this complt case, in his favour.

It is however to be taken into consideration that in a dispute of defective goods , cost of such goods shall  be refunded  to end the dispute and replacement of goods is not the solution as such goods may not be up to the specific satisfaction of the consumer.

 Having  regards to this principle  the quantum  of relief in this complaint  case shall be  determined .

Having regards to the  quantum of claim, as reflected in the schedule of claim contained in this complt, we find that it is redundant to reflect anything about the determination of fees payable.

Contd……..6

 

 

 

                                                                                      

                                                -6-

 

 

 

                              Hence it is ,

ORDERED

 

That the complaint case be and the same is allowed exparte against the O.P. of this complaint case .It is declared on determination that the O.P. shall refund Rs. 120/-    ( Rs. One hundred and twenty only) towards the complainant of this claim case within six weeks from this order.

The O.P. shall pay Rs.5000/-(Five thousand only) towards the complainant for the causing of harassment and mental agony perpetrated to the complainant , from the end of the O.P.,within  six weeks from this order .

The O.P.shall also pay Rs.2000/-(two thousand only) as litigation cost of this complaint case towards the complainant within six weeks from this order .

For non-compliance of this order by the O.P ,the complainant shall be at liberty to take up the appropriate course of law for specific compliance of this order by the O.P., by moving before the appropriate Ld. Commission ,as per law.

           Let a copy of order be sent to the O.P. free of cost by Regd.post with A/D in his address as reflected in the Complaint.

            Let a copy of this order be supplied to the Complt.free of cost.

 

 

 

 

 

 

 

 

 

Member.                                        Member                                                       President

                                                                                                                 District Commission

                                                                                                                  Paschim Medinipur.