The Complainant has filed this case alleging deficiency-in-service by the O.P, where O.P is Sk. Sahir, Proprietor of Nice Flower Shop, Artakabiraj Road, Motiganj, Balasore.

                    2. Bereft of unnecessary details briefly stated the case of the Complainant is that the Complainant had been to the O.P (Nice Flower Shop) on 16.04.2014 to purchase some stationary articles and while exhibiting by the O.P, one prism kept on extreme end of the show case on a weak stand without any strong side support in a careless manner was accidentally fell down on the floor of the shop causing a little damage to it. Thereafter, the O.P forcefully compelled this Complainant to purchase the said prism at the cost of Rs.16,000/- (Rupees Sixteen Thousand only). Thus, the Complainant was compelled to purchase the said damaged and sub-standard prism on payment of Rs.16,000/- (Rupees Sixteen Thousand only) without any money receipt, although demanded and in token of payment, this Complainant had to write one ‘Rafanama’ at the dictation of the O.P with a condition to return back the prism like condition, then Rs.16,000/- (Rupees Sixteen Thousand only) will be returned by the O.P, where both the Complainant and the O.P put their signatures on a Revenue Stamp affixed on the bottom of the said ‘Rafanama’. Such a conditional illegal and forceful sale of damaged and sub-standard prism by the O.P to the Complainant amounts to deficiency of service as per Section-2(1) (g) of the Consumer Protection Act. The prayer of the Complainant is for refund of Rs.16,000/- (Rupees Sixteen Thousand only) along with compensation for mental agony and litigation cost plus interest from the date of filing of this complaint.

                    3. Written version filed by the O.P through his Advocate, where he has denied about maintainability as well as its cause of action. He has further admitted that the Complainant came to the shop on 16.04.2014 and purchased the articles and repeatedly lifted the prism and handled the same in spite of O.P’s aware to the Complainant neither to touch the valuable prism not to lift the same. But, the Complainant knowingly push the prism to the down through his hand resulting the prism damaged, thereby the Complainant became worried as such all activities of the Complainant was looked in presence of the O.P by C.C Camera installed in the shop of O.P. Thus, the Complainant will fully agreed to take the prism on cost and within 10 days he will take back his cash of Rs.16,000/- (Rupees Sixteen Thousand only), provided he is able to return the prism to the O.P. And accordingly, the Complainant willfully without any hindrance made an undertaking in his handwriting and put his signature on the Revenue Stamp, and this O.P can prove the same by the electronics evidence as well as through Computer and Mobile etc. Hence, the O.P is no way responsible for that. Though the O.P appeared through his Advocate and filed written version in this case, but he has not taken part in hearing as his Advocate remained absent on the date of re-hearing. But the O.P has filed written argument after hearing of this case earlier, which is also available in the case record.

                    4. In view of the above averments of both the Parties, the points for determinations of this case are as follows:-

(i) Whether this Consumer case is maintainable as per Law.

(ii) Whether there is any cause of action to file this case.

(iii) Whether there is any deficiency of service on the part of O.Ps against the Complainant as alleged by the Complainant.

(iv) To what relief the Complainant is entitled for ? 

                    5. In order to substantiate their pleas, the Complainant has filed certain documents as per list like Rafanama and 6 sheets of photocopy of Crystal gemstone paperweight/Paperweight Diamond in his support, whereas the O.P has not filed any document in his support. Perused the documents filed. It has been argued on behalf of the Complainant that when the prism in the shop of O.P had been fallen accidentally, which was exhibited without fault of Complainant at the time of visiting his shop. Thereafter, O.P compelled to purchase the said damaged prism for Rs.16,000/- (Rupees Sixteen Thousand only) and the Complainant paid the said amount without any money receipt. However, he was compelled to settle the matter by executing a Rafanama forcibly, which is found in the case record, which discloses that by giving Rs.16,000/-(Rupees Sixteen Thousand only) he took the damaged prism with a condition to return the broken prism within 10 days, failing which he will not claim for the money given. Thereafter the Complainant has filled this case claiming for return of Rs.16,000/- (Rupees Sixteen Thousand only) with compensation and litigation cost for deficiency of service on the part of the O.P. On the other hand, from the pleadings and written argument filed by the O.P, it shows that the Complainant has knowingly broken the prism and voluntarily executed Rafanama and purchased the same prism worth of Rs.16,000/- (Rupees Sixteen Thousand only). So in this circumstances, there is no material in the case record that within 10 days the Complainant had approached the O.P or not and whether the Rafanama filed by the Complainant was executed forcibly by the O.P. So, no definite conclusion cannot be found for want of sufficient material in this regard. The Complainant has filed 6 sheets of photocopy of Crystal gemstone paperweight/Paperweight Diamond, which did not disclose how the printed photographs are related to the alleged damaged prism purchased by the Complainant. The said damaged prism though with the Complainant as revealed in the case record has not been produced in the Forum for the reason best known to the Complainant. According to the O.P, this case is not maintainable in this Forum under provisions of C.P Act, 1986 and there is no deficiency of service on the part of O.P. The Service has been defined in Section-2(o) and deficiency has been defined in Section-2(g) of C.P Act, 1986. Regarding unfair trade practice, the matter has been mentioned in C.P Act, 1986 under Section-2(r), where it has been mentioned that:-  In respect of goods where the practice of making any statement, whether orally or in writing or by visible representation which falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model. But, these facts are wanting in this case.

                    6. So, now on careful consideration of all the materials available in the case record and taking into consideration of provisions of C.P Act, 1986, this Forum come to the conclusion that the allegation of Complainant neither comes under deficiency of service nor in unfair trade practice. Furthermore, when there is an agreement between the Parties, this Forum has no jurisdiction to interfere in the matter and in our considered view, this case is not maintainable under C.P Act, 1986, for which this Consumer case is liable to be dismissed. Hence, Ordered:-

                                                     O R D E R

                         The Consumer case is dismissed on contest against the O.P, but in the peculiar circumstances without cost.

                         Pronounced in the open Forum on this day i.e. the 27th day of July, 2017 given under my Signature & Seal of the Forum.