FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay    President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act   1986 by the complainant stating that the complainant is  a patient  of knee swelling and pain   left shoulder joint pain   hip joint pain etcand being heard from different persons about the therapy centre of the OP   the complainant   during the month of February   2014   went to the centre of the Op and the OP authority informed the complainant including other patients present thereon that they had to render free service to the society people by therapy M.C without distinguishing them by casts or creed and also without distinguishing the pecuniary status and for such reason they expected huge persons for providing their free service.  It was also declared by the OP initially that it was not their motive for sales promotion of therapy M/C but they only used to sell any therapy M/C to the person who had satisfactory presence with the centre and at the time of introduction   a brochure also given to the complainant and other patients by the OP from which the complainant came to know that a long research was continued by the manufacturer with proper guidance of NASA and the success achieved that the therapy MC would be able to cure any disease.

Although the OP expressed their view to provide free service to the society but in reality in each and every seating they used to motivate the patients by saying that if they purchase the machine then they could have the therapy M/C by their own for 3-4 times in a day and at their own residence and the cost of the machine i.e. R.L-1 M/C is Rs.2  35  000/- only and being allured with the propaganda of the OP the complainant purchased one Automatic Massager CGMV3 on 19.03.2014 and he paid a sum of Rs. 2  35  000/- by cash and cheques and the OP stated that machine will perform long without showing any defect   but within two years from the delivery of the machine   it started irregular functioning and ultimately after having a problem   the complainant went to the office of the OP for several times  and asked for replacing of the said machine but op did not pay any heed to the same and the technicians of the op are not at all efficient and they explained new reason for the non functioning of the machine on each and every time and when the complainant asked the cause of the non-functioning of the machine and the reason for such huge amount of bill for replacing parts of the machine and also asked the Op to hand over the old parts   hearing such   the OP and his men became furious and abused the complainant with harsh words and said that they are not answerable to the complainant and ousted him from their centre and the OP has been doing unfair trade practicing by selling the said product at a consideration value of Rs.2  35  000/- but the value of such type of machine is of Rs.89  000/- in the market and by such conduct the OP has gained a much than to its actual value and caused unfair trade practice with the complainant and the OP has no skilled trainer for giving message to the patients through the machine and who attended the complainant   none had any technical expertise and inspite of that the complainant attended several therapy programme of the OP but got no result   even the cost which was paid by the petitioner   for relief of his pain has gone to ashtray as the physical condition of the petitioner even deteriorated that at present he practically is unable work for a while even by using the said machine rather the said situation was aggravate and being annoyed with the deficiency in service on the part of the OP the complainant sent a letter dated 10.09.2016 to the OP asking him to return the M/C but inspite of receiving the said letter   the OP did not pay any heed to the same.  Finding no other alternative   the complainant again made a complaint before the Assistant Director   Consumer Affairs and Fair Business Practices Hooghly Regional Office on 03.10.2016 but the OP did not turn up and as such finding no other alternative   the complainant has been compelled to file the instant case for redress.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 2  35  000/- alongwith interest @ 9% p.a and to take back the defective machine and to pay sum of Rs. 1  00  000/- compensation for mental pain   agony   anxiety and harassment and to pay sum of Rs.20000/- for litigation cost.

Defense Case:-The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and the OP has opened centre for the purpose free demonstration facility of massager machines and other products of Ceragem.  Anybody takes interest such products and desires to own the same for his domestic use   sale of such machines are processed through the OP.  Thus   the OP sells its product by giving full trial to the customers to their satisfaction that is too free of cost.  Further it is specifically submitted that the OP does not represent the massager machines as a medical device and / or cure of any disease.  The OP is running its demonstration centre at 138   Survey View Park P.O.- Bandel   District-Hooghly and the present complaint is based on false story and is devoid of any merit and substance in it as the complainant has failed to raise any deficiency in goods or services of the answering OP and the present complaint is maliciously filed to harass and malign the reputation of OP and is abuse of process of law and the complainant has not come before the forum with clean hands and has suppressed the material facts and the complaint is hopelessly time barred as admittedly the complainant had purchased the machine on 19.03.2014 and the complainant has preferred to file and complaint lapse of 2 years which is beyond the period of limitation and the present complaint is not maintainable and is liable to be dismissed with exemplary cost as per provisions of section 26 of The Consumer Protection Act   against the complainant and in favour of OP on all or any one of the preliminary objections and the complainant is not entitled to get any relief as prayed for.

Issues/points for consideration

On the basis of the pleading of the parties   the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction   cause of action and whether complainant is a consumer in the eye of law   are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version   have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point   jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the op has it  s place of business at Bandel   Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover   this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus   the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover   u/s 11 of the Consumer Protection Act   1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act   1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act   1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act   1986. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the any authority or Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon  ble State Commission   Delhi and it is reported in 2022 (2) CPR 13 (Del).

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus   the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions   there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute: 

1. It is admitted fact that complainant is a patient of knee swelling and pain   joint pain   hip joint pain etc.
2. It is also admitted fact that the complainant after getting information from different sources went to the therapy centre of op.
3. There is no controversy over the issue that the complainant had come across with the op in the month of February 2014.
4. There is no dispute over the issue that the op informed the complainant that they had to render service to the society people by therapy M.C. without distinguishing them by cast and creet.
5. It is admitted fact that the op initially expressed that it is not their motive for sells promotion of therapy M.C.
6. It is also admitted fact that the op only used to sell therapy M.C. to those persons who had satisfactory presence with the centre.
7. There is no controversy over the issue that as per case of the complainant the op expressed their view to provide free service to the society people but in reality in each and every sitting they used to motivate the patients by saying that if they purchased machinethen they could have get the therapy M.C. by their own for 3 to 4 times in a day at their own residence.           
8. It is admitted fact that the complainant being allured with the propaganda of the op purchased one R.L.-1 M.C. from op.
9. It is also admitted fact that the cost of the said machine was Rs. 2  35  000/- and complainant purchased the same on 19.3.2014 by making payment of the above noted amount by cash and cheque.
10. There is no controversy over the issue that as per case of the complainant the op at the time of selling of the said machine assured that the machine will perform long time without causing any defect or disturbance.
11. There is no dispute over the issue that within 2 years from the date of delivery of the said machine   it  s started irregular functioning and creating problem.
12. It is admitted fact that the complainant thereafter went to the office of the op and after testing the op had taken money from the complainant and the complainant as a whole had to a huge amount of money to the op.
13. It is also admitted fact that as per case of the complainant side the actual cost of the machine is Rs. 89  000/-.
14. There is no controversy over the issue that the complainant thereafter claimed the refund of money from the op but they refused to do so.
15. There is no dispute over the issue that the complainant filed a complaint before the Assistant Director   Consumer Affairs and Fair Business Practices   Hooghly Regional Office on 3.10.2016 but op did not turn up and thereafter the complainant had filed this case.    

              Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

               On the background of the above noted admitted facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant is adopting the plea that actual cost of the machine is Rs. 89  000/- but the op Centre has taken Rs. 2  35  000/- from the complainant which is clearly indicating that the op has committed unfair trade practice and deficiency of service. But on the other hand the defence alibi taken by the op is that this case is not maintainable as the complainant has failed to prove the deficiency in goods and service and this complaint case is not maintainable as it is barred by limitation.

For the purpose of arriving at the just and proper decision in respect of the above noted points of differences and apple of discords this District Commission after going through the materials of this case record has already observed that this case is maintainable and this District Forum/ Commission has territorial and pecuniary jurisdiction and this case is maintainable as there is continuing cause of action and this case is barred by limitation. Thus   the defence alibi which is noted above cannot be accepted. On close scrutiny of the evidence given by both sides it appears that the complainant purchased the R.L-1 M/C at the cost of Rs.2  35  000/-   the op authority is duty bound to comply the contractual obligation but in this instant case the op has failed to discharge the contractual obligation which indicates that there is deficiency of service on the part of the op.

Thus   the points of consideration nos. 4 and 5 which have been adopted in this case are also decided in favour of the complainant. As the complainant has proved his case in respect of all the points of consideration   this District Commission is of the view that he is entitled to get relief in this case.

In the result it is accordingly

ordered

that the complaint case being no. 218 of 2016 be and the same is allowed on contest but in part.

            It is held that the complainant is entitled to get refund of the amount of the above noted price of the machine of Rs. 2  35  000/- from the op. As this case has been delayed in many on occasion due to the fault of the complainant no order of the interest and compensation is passed. It is also held that the complainant is also entitled to get litigation cost of Rs. 5000/- from the op.

Opposite party is directed to pay the said amount of Rs. 2  40  000/- to the complainant within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C.   Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.