Tripura

StateCommission

A/15/2017

Shri. Dijendra Saha - Complainant(s)

Versus

Shri. Amalendu Das - Opp.Party(s)

Mr. Herojit Debbarma

22 Jun 2017

ORDER

State Consumer Disputes Redressal Commission, Tripura, Agartala.

 

Case No.A.15.2017

 

1. Sri Dijendra Saha,

S/o Late Narendra Saha,

Resident of Pratapgarh,

P.O. East Pratapgarh, P.S. East Agartala,

District - West Tripura-799004.

 

2. Sri Sudip Saha,

S/o Dijendra Saha,

Resident of Pratapgarh,

P.O. East Pratapgarh, P.S. East Agartala,

District - West Tripura-799004.

                                                            ….    ….    ….    ….    Appellant/Complainants.

                                                           

                   Vs

 

1. Sri Amalendu Das,

S/o Sri Dulal Das,

Proprietor of M/s Purnima Enterprise,

Pratapgarh Bazar, Agartala,

District - West Tripura-799004.

….    ….    ….    ….    Respondent/Opposite Party.

 

Present

 

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Sharma,

Member,

State Commission, Tripura.

 

For the Appellants:                                   Mr. Herojit Debbarma, Adv.

For the Respondent:                                  Mr. Prasenjit Saha, Adv.

Date of Hearing & Delivery of Judgment:   22.06.2017.

 

 

J U D G M E N T [O R A L]

 

 

U.B. Saha,J,

This instant appeal is filed under Section 15 of the Consumers Protection Act, 1986 by the appellants Sri Dijendra Saha and Sri Sudip Saha against the judgment dated 03.01.2017 passed by the Ld. District Consumers Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No. C.C. 37 of 2016 whereby and whereunder the Ld. District Forum dismissed the aforesaid complaint case. The appellants also filed an application for condoning the delay of 45 days in preferring the appeal.  The opposite party filed an objection petition against the prayer for condonation.

2. Heard Mr. Herojit Debbarma, Ld. Counsel appearing for the appellants (hereinafter referred to as complainants) on condonation petition as well as Mr. Prasenjit Saha, Ld. Counsel appearing for the respondent (hereinafter referred to as opposite party).
3. We have gone through the reasons for delay as explained in the condonation petition as well as the objection against the condonation petition. According to us, the reasons for delay have been properly explained and the same are satisfactory. Thus, the delay of 45 days in preferring the appeal is hereby condoned. The condonation petition is disposed of.
4. As agreed to by the Ld. Counsel appearing for the parties, the appeal is taken up for final disposal at this stage.
5. Brief facts of the case are as follows:-

The complainants, Sri Dijendra Saha and Sri Sudip Saha filed an application under Section 12 of the Consumers Protection Act before the Ld. District Forum alleging that on 23.02.2015, the complainant no.1 had purchased one battery operated electrical tricycle (Tuk Tuk-Passenger) for his son i.e. the complainant no.2 Sri Sudip Saha from the shop/showroom owned by the opposite party along with five sided hoods, an axel wheel and four batteries paying an amount of Rs.1,56,094/-. At the time of purchasing the aforesaid tricycle, the opposite party assured the complainant no.1 that the tricycle was brand new and it is able to run at least 8 hours. After purchase of the tricycle, the complainant no.2 registered the tricycle in the ‘Tripura Battery Operated Rickshaw Workers Union’ at Motor stand Branch and started plying the tricycle to Battala-Motor stand road, but it is found that the tricycle could not ply for more than 2 hours. Chassis of the tricycle did not bear any number. Complainants then informed the matter to the opposite party. The tricycle was then kept in the workshop of the opposite party for one month. Thereafter also, the tricycle was found defective. Complainants then asked the opposite party to replace the same, but the opposite party refused to do so.  Thereafter, the complainants filed the complaint petition before the District Forum for a direction to the opposite party to replace the tricycle (Tuk Tuk) or to refund the amount paid by the complainants towards purchase of the aforesaid tricycle i.e. Rs.1,56,094/-.

6. The opposite party appeared and filed written statement denying the claim of the complainants. It is stated in the written statement that the complainants earlier submitted complaint before the Officer-in-Charge, Maharaj Ganj Bazar TOP under East Agartala Police Station against the opposite party, but after enquiry, the then O/C of the said TOP did not find any materials in the complaint and no case was registered by the police. Rather the then the O/C of the said TOP called both the parties and requested the opposite party to change the battery and accordingly, the battery was changed. After the change of the battery, the tricycle was running satisfactorily. But again, the complainants filed petition before the Lok Adalat and the Lok Adalat after hearing both the parties disposed of the complaint of the complainants as the Lok Adalat did not find any allegation against the opposite party. It is also contended that the present complaint petition filed by the complainants only to harass the opposite party.  
7. The complainants produced photocopy of bill, warranty of the battery, legal notice, money receipt and also produced the statement on affidavit by examining themselves as P.W.1 and P.W.2.
8. On the other hand, the opposite party produced the money receipt of the seat cover and changed battery and also examined him as one of the witness.
9. Mr. Debbarma, Ld. Counsel appearing on behalf of the complainants while urging for setting aside the impugned judgment would contend that even after change of the battery, the tricycle could not ply for more than two hours. His main contention is that though the complainants asked to replace the tricycle, but the opposite party refused to do so.
10. On the other hand, Mr. Saha, Ld. Counsel appears for the respondent-opposite party while supporting the impugned judgment submits that the complainants filed the complaint petition before the Ld. District Forum only to harass the opposite party. The opposite party provided a new battery by changing the old one on the request of the Officer-in-Charge, Maharaj Ganj Bazar TOP and not only that, the complaint petition filed by the complainants before the Lok Adalat was also disposed of without any findings against the opposite party.
11.  The Ld. District Forum after going through the evidence on record in the impugned judgment noted, inter alia, that “In Para-5, petitioner stated that battery of the tricycle was defective and it was discharges within 2 hours. As a result of the defect of the battery the tricycle could not ran for more than 2 hours. So the battery was changed by the O.P. After change of battery whether any problem arose or not, not stated by the petitioner. Only it is stated that the electronic tricycle was defective. No mechanical report given to support that actually it was defective. The consumer is to prove that the item sold was defective and it was not giving proper service. Only change in colour which is not the subject matter of warranty will not support the claim and allegation of the petitioner. The colour of the Tuk Tuk may be changed after some period of warranty is silent on this point. The consumer failed to prove that the Tuk Tuk was older one. Above all the Tuk Tuk was purchased for commercial purpose. Nowhere it is stated that it was purchased for earning livelihood for self employment. In this case petitioner failed to prove that there was deficiency of service by the parties. As a result the claim of the petitioner failed. Both the points are decided against the petitioner.”
12. We have gone through the evidence on record from which it appears that before approaching the District Forum, the complainants approached the Maharaj Ganj Bazar TOP and on request of the O/C of Maharaj Ganj Bazar TOP, the battery was changed by the opposite party and not only that, even after change of battery, the complainants approached the Lok Adalat and the Lok Adalat disposed of the matter. It also appears that the tricycle (Tuk Tuk) was purchased by the complainant no.1 in the name of complainant no.2 for commercial purpose and the complainants failed to prove the alleged defect of the tricycle either by way of evidence of any mechanics or any mechanical report. In absence of any report regarding the defect of the tricycle in question, no Court can come to a conclusion that the tricycle has any defect. Therefore, according to us, the Ld. District Forum did not commit any wrong while dismissed the complaint petition. 

In the result, the appeal is dismissed being devoid of merit.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura