DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE No.33/2008.

 

 

 

 

 

 

For the Petitioner:         Tapan Kr. Roy, Krishnagopal Das & Uttam Chowdhury, Advocates.

 

For the O.Ps.:               For O.P. No.1 Sanjay Kr. Sharma, Authorized Agent.

For O.P. No.2 None appears.

 

 

The fact of the case in brief is that one Goutam Kumar Mandal of Manikpur, Fekan Mandal of Gyanpara, Nripen Majhi of Gyenpara and Ramani Mandal of Gyanpara all of Malda District, previously resident of Panchanandapur who after being homeless due to erosion of land by the water of river Ganges have settled in the above villages with their families. All the petitioner in order to construct pacca buildings at their existing places approached the O.Ps. who run brick field in the name and style S.K. Brick field at Bagbari P.S. English Bazar to purchase brick and ordered to supply of 30,000, 10,000, 7500 and 37500 quality brick. The petitioners also paid Rs.60,000/-, Rs.20,000/-, Rs.15,000/- and Rs.75000/- respectively to the O.Ps. individually on different dates during the period from 20.05.2007 to 21.12.2007 and collected receipts. It was agreed that the supply of brick would be made in the middle part of January 2008, at the addresses of the petitioner but in spite of repeated persuasions the O.Ps. did not supply brick to them. Finding no alternative the petitioners issued a legal notice through Ld. advocate on 30.04.2008. the service of legal notice could not be delivered to O.P. No.2 as he did not turn up to receive the same on intimation from the Postal Department and O.P. No.1 remains unperturbed inspite of receiving the said notice. This gives rise to instant proceedings for the reliefs as have been prayed in their petition of complaint.

 

O.P. No.1 (Sitaram Agarwala, Prop: S.K. Brick Field, Bagbari, P.S. English Bazar) has filed written objection denying all material allegations and straightway denied to have received any advance from the petitioners for supply of brick and has prayed for dismissal of the complaint, as there was no consumer's relation between him and the petitioners.

 

Notice upon O.P. No.2 (Sandip Agarwala, the son of O.P. No.1 could not be served owing to his long absence form the house and none of the family members could give his temporary address as appears from the report process server. Subsequently on the application of the petitioners~ the name of O.P. No.2 has been expunged from the case vide Order No.04 dated 08.07.2008.

 

On pleadings of both sides the following points are taken up for effective disposal of the case.

 

1. Whether the petitioners be termed as 'Consumer'?

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

3. Whether the petitioners are entitled to the reliefs as prayed for?

 

:DECISION WITH REASONS:

 

 

Section 2(1)(d)(ii) of Consumer Protection Act 1986 as amended up-to-date envisages that a person is said to be a consumer who buys any good for consideration, paid or promised, party paid or promised or hires any services of any description for a consideration paid or promised …………..

 

 

Point No. 2 & 3:

 

Both the points are taken together for discussion as they are in terrelated.

 

Petitioner Sl. No.1 Goutam Kumar Mandal has filed affidavit in chief and also has examined in the dock as P. W. - 1. The P. W. - 1 in his statement admitted that the O.P. No.2 is the son of O.P. No.1 who used to receive money in the brickfield and run the business of O.P. No.1 jointly. He further stated that on 15.6.2007 he handed over Rs.60,000/- for 30000 first class brick and collected money receipt with the understanding that the brick would be supplied in the middle of January 2008. P.W. - 1 has produced the original money receipt which has been marked Exbt.- 1 and produced the copy of lawyer's notice dated 26.04.2008 and the postal A/D which are marked as Exbt. - 2 and 3 respectively. In the cross examination P.W. - 1 stated that he paid cash Rs.60,000/- to O.P. No.2 in presence of O.P. No.1 and the Exbt. - 1 was issued by O.P. No.2 on receipt of the cash.

 

Petitioner Sl. No.2 Fekan Mandal has filed affidavit in chief and also has examined himself as P.W. - 2. P.W. - 2 has stated that he paid Rs.20,000/- for 10,000 first class brick from the brickfield of the O.Ps. on 21.12.2007 with the understanding to supply the same in the middle part of January 2008. P.W. - 2 also stated that he paid the full amount of Rs.20,000/- to O.P. No.2 in presence of O.P. No.1 and O.P. No.2 has issued the money receipt which produced in the Forum and is marked as Exbt. - 6.

 

In cross examination P.W. - 2 stated that he paid advance of Rs.20,000/- for 10,000 brick agreed to be supplied within 20/22 days and he visited many times at the brickfield but brick was not delivered. He also stated that the money receipt was issued by O.P. No.2 in presence of O.P. No.1 and other employees.

 

Petitioner S.L.. No.3 Nripen Majhi has filed affidavit in chief and also has examined himself as P.W. - 3. He stated that both O.P. no.1 and 2 run 8.K. Brickfield jointly and he visited the brickfield on 20.05.2007 and paid Rs.15,000/- for 7500 quality brick to O.P. No.2 in presence of O.P. No.1.

 

The money receipt was issued by O.P. no.2 as per direction of O.P. No.l. P.W. - 3 has filed the money receipt which has been marked as Exbt.9.

 

In cross examination he replied that he paid advance of Rs.15000/- on 20.5.2007 and the delivery date was fixed in January 2008, the money receipt was issued by D.P. No.2 in presence of O.P.No.1.

 

Petitioner Sl. No.4 Ramani Mandal has also filed affidavit in chief and also has examined himself as P.W. - 4. He stated that both O.P. No.1 & 2 run the brickfield in the name and style S.K. Brickfield, he ordered to purchase 37500 (thirty seven thousand five hundred) brick from S.K. Brickfield on 04.05.2007 and 20.12.2007 @30000 and 7500 brick respectively. P.W. - 4 has produced money receipt for full amount to the cost of 30000 brick on 04.05.2007 with delivery date in January 2nd week and paid Rs.15000/- for 7500 brick @Rs.2000/- per thousand first class brick on 20.12.2007, both the receipts have been marked Exbt.7 and 8. P.W. - 4 also stated in reply to the cross examination that the money receipt were issued by O.P. NO.2 in presence of O.P. No.1 and other employees of O.Ps.

 

O.P.W. - 1 has examined himself in the dock, he stated that he runs one brickfield in the name and style Srikrishna brickfield in short S.K. Brick field and also alone runs the business as owner. He has denied to receive any advance from customer to supply brick and also denied the receipts vide Ext. 1 ,6,7,8 and 9 alleged to have been issued from his brick field. He has produced one delivery order slip (blank) which is issued to customer of brick marked Exbt.A .. He stated that O.P. No.2 has long been detached from his family and for which he lodged a missing diary at EBPS and he has filed a xerox copy of intimation to I.C, E.B.P.S. GDE No.920 dated 14.07.2007 marked as Exbt.B.

 

O.P.W. - 1 admitted in his cross examination that he runs the business for more than 15 years and new brick comes out from filed in every year in January for sale. He has other business of fertilizer and his eldest son Sanjay assists him in dealing agency business. He also admitted that Exbt. 1,6,7,8 and 9 were issued by his son Sandip. Exbt.10 to 13 are the receipts of sale of brick from his brickfield also admitted and Exbt.A is the direction to his employee for delivery of brick to customer. He further admitted that after the missing diary against his son Sandip, he returned back to home but again he is missing for which he lodged GDE No.600108 dated 10.04.2008 at E8PS.

 

It is apparent from the above facts and circumstances that all the four petitioners made full payments to the O.P. in presence of his son Sandip on proper money receipts on the dates noted against each for delivery of brick to each individual consumer by the middle of January 2008 and it was admitted by the O.P. that the receipts in question were issued by his son Sandip. The P.Ws. have strongly established that each of them has advanced the full amount against their each requirement of brick, but did not receive any quantity of brick from the O.P. O.P.W. - 1 being the proprietor of the brickfield in question admitted in cross-examination that the money receipts (Exbt.1 ,6,7,8 and9) have been issued by his son Sandip. It appears from Exbt.4 being the AID and the legal notice (Exbt.2) that the O.P. Sri Sitaram Agarwala has received the Lawyer letter for the petitioners on 30.04.2008 under his signature but no action appears to have been taken by him. It further appears from Exbt.5 being. A/D alongwith undelivered lawyer's notice to Sandip Agarwala (Son of the O.P.) that inspite of repeated information he did not turn up to receive the same.

 

O.P.W - 1 in his pleadings, to substantiate his statement that he has got no connection with his son Sandip as he was missing from the family on 13.07.2007 for which he lodged G.D Entry at EBPS, vide Exbt. Band further he lodged missing diary against him vide EBPS GD Entry No.600108 dated 10.04.2008 actually do not have legs to stand on. It is found to be contradictory when he admitted that Exbt.1 ,6,7,8 and 9 being money receipts were issued by his son Sandip on 4.5.2007, 20.05.2007, 15.6.2007, 20.12.2007 and 21.12.2007 and P.W.s have stated that they paid amount to Sandip Agarwala in presence of the O.P. and under the direction of him the receipts were issued and therefore evidently established that Sandip Agarwala was not missing at the material points of time when the transactions for purchase of brick were made between the O.P. and the petitioners in question.

 

It also appears from the date of issue of money receipts to the PW.s referred to hereinabove that Sandip Agarwala is very much remain present in the brick field of O.P. to assist Him in running the business.

 

In view of the above facts and circumstances it can safely be said that the O.P. in spite of receipt of full payments against the supply of the quantity of bricks as noted in each of the money receipts in question did not deliver the goods and therefore the service of the O.P. suffers from deficiency. The acts of non-delivery of brick as per the money receipts to the petitioners resulted in serious mental agony and harassment of the petitioners and for which  the OP who claims to be the sole owner of the brickfield is liable to pay compensation in addition to refund the money collected against the supply of brick to each of the petitioners.

 

that Malda D.F. Case No.33 of 2008 is decreed on contest as against O.P. (Sri Sitaram Agarwala, Prop: of S.K. Brickfield at Bagbari, P.S. English Bazar, Dist. Malda). Each of the petitioners SL. No.1 (Sri Goutam Kumar Mandal, son of Late Tarapada Mandal of Manikpur, p.a. Madapur, P.S. English Bazar, Dist. Malda.) do get award of Rs.60000/- (rupees sixty thousand) only, petitioner Sl. No.2 (Sri Fekan Mandal (52), Son of Late Jagannath Mandal, Resident of Vill. Gyanpara) do get award of Rs.20,000/- (rupees twenty thousand) only, petitioner SL. No.3 (Sri Nripen Majhi (20), Son of Sri Biswanath Majhi, Resident of Vil1. Gyanpara) do get award of Rs.15,000/- (rupees fifteen thousand) only, and petitioner SL. No.4 (Sri Ramani Mandal (32), Son of Sri Khokaram Mandal) do get award of Rs. 75,000/- (rupees seventy five thousand) only. EaGh of the above petitioners do get interest @9% per annum against the amount each from the date of payments as per money receipts referred to in the discussion of above till its final realization. The O.P. do pay the aforesaid quantum of money along with interest to each of the petitioners as noted against their names within 30 days from date. The aforesaid petitioners also do get compensation towards harassment & mental agony @Rs.10000/- each. The O.P. do pay the aforesaid quantum of money to each of the above named petitioners within 30 days' from date. Each of the above named petitioners do get Rs.1000/- each as litigation cost. The O.P. do pay the aforesaid quantum of money to each of the petitioners within 30 days from date.

 

Failure to comply the above orders the petitioners also be at liberty to put the decree in execution.