Date of Filing: 30-08-2016 Date of Final Order: 21-06-2017
Sri Gurupada Mondal, President.
This is a case u/s 12 of CP Act filed by one Suman Dutta against Jhulan Saha praying for compensation of Rs.10,000/-for mental pain and agony, Replacement of Electrical Tricycle or refund of Rs.61,000/- and Rs.8,500/- for deficiency in service and unfair Trade Practice.
The case of the Complainant in short is that the Complainant wanted to purchase one Electrical Tricycle (Toto) and lured by an Advertisement by Bharat Cellular and purchased an Toto Rickshaw at a consideration price of Rs.83,500/-for earning his livelihood by means of self employment in the year 2016. After receiving the said amount, the OP did not issue Tax Invoice of the said Electrical Tricycle (Toto) and the OP promised to render service to the Complainant.
It is alleged that after 8/10 days of such purchase, the Complainant faced various problem in the said Toto Rickshaw, such as the electric motor was burnt, front shocker and window shield were broken and the charger was not working properly. Then the Complainant went to the show room of the OP and narrated the problem and he demanded Rs.2,500/- to solve the problem. But the OP neither changed nor repaired the same. The Complainant visited the show room of the OP for getting Redressal but the OP refunded Rs.22,500/- on 12.05.16 to the Complainant and issued a Tax Invoice of Rs.46,200/- in lieu of 83,500/-. It is further alleged by the Complainant that the OP delivered the defective Electrical Tricycle to him and for that reason, the said Toto could not ply. The Complainant sustained irreparable loss and injury and he had to bear the burden of loan. The Complainant has been suffering with mental pain and agony due to pecuniary loss. As such, the Complainant has filed this case for proper relief as mentioned in the complaint petition.
The OP has filed w/v denying all material allegations, contending inter-alia that the instant petition is not maintainable and the allegations brought against him are all false and fabricated.
Specific case of the OP is that the OP is neither a seller of Electrical Tricycle nor he has any show room. He is mere a seller of spare-parts and the Complainant is not a consumer. It is further alleged that the Tax Invoice issued by the OP is for selling of spare-parts of Electrical Tricycle and not for Electric Tricycle.
Further case of the OP is that the Complainant did not mention the date of purchase of the alleged Electrical Tricycle. The entire allegations are baseless and fabricated one and on the basis of the aforesaid facts, the OP prays for dismissal of this case with costs.
In the light of the contention of both the parties, the following points necessarily come up for consideration to reach a just decision.
POINTS FOR CONSIDERATION
1. Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
2. Has this Forum jurisdiction to entertain the instant complaint?
3. Has the O.P any deficiency in service as alleged by the Complainant and is he liable in any way?
4. Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.
Point No.1.
The Complainant purchased a Toto Rickshaw from the OP as per complaint story. On the other hand, the OP alleges that the Complainant purchased Electrical Tricycle spare-parts from him. The relation in between the Complainant and the OP is buyer and seller. Therefore, as per definition of Section 2(1) (d) of CPC Act, the Complainant is a consumer. It is not necessary to discuss what article he had purchased from the OP. This point is decided in favour of the Complainant.
Point No.2.
The Complainant and the OP are the residents of Cooch Behar and the Bharat Cellular (The business of the OP) is also situated at Cooch Behar. As such, this Forum has territorial jurisdiction to try this case.
The pecuniary jurisdiction of this Forum is of Rs.20,00,000/- but the claim of the Complainant is much less. Accordingly, we hold that this Forum has territorial jurisdiction to try this case.
Point No.3 & 4.
Both the points are taken up together for consideration of discussion as well as the points are related with each other.
The Complainant has filed one Tax Invoice issued by the OP and the picture of Electrical Tricycle. From the Tax Invoice, it is evident to us that the OP sold Electrical Tricycle all spare-parts to the Complainant. On the other hand, the Complainant’s case is that he purchased an Electrical Tricycle (Toto) from the OP at a consideration price of Rs.83,500/- for earning his livelihood by means of self-employment in the month of May, 2016, but the OP did not issue the Tax Invoice of the said Toto Rickshaw. After purchasing of 8/10 days, the Toto Rickshaw started troubling like Motor burnt, front socker and window shield broken, and the Battery and the charger were not working properly. The matter was informed to the OP, who demanded Rs.2,500/- for repairing.
From the documents filed by the Complainant, it is evident to us that the OP sold all spare-parts to the Complainant at a consideration price of Rs.46,200/-. We have failed to understand as to why the Complainant purchased all spare-parts from the OP. If for the sake of argument, we consider that the Complainant had a Toto Rickshaw of his own and that Toto was in defective condition and the Complainant had to purchase all spare-parts of Toto Rickshaw. It is no bodies case that the Complainant had an old Toto and the said old Toto was not in workable condition and for that reason, the Complainant purchased all spare-parts of Toto. As per Tax Invoice, the OP No.1 sold Electrical Tricycle all spare-parts. There is no explanation either in the complaint or in the w/v as to why all spare-parts of Electrical Tricycle (Toto) are sold to the Complainant. As per Complainant’s case, he purchased an Electrical Tricycle from the OP but the OP did not issue him a money receipt. It was found defective after the use of 8/10 days and then he (Complainant) went to the OP and narrated the problem, who assured to solve the problem if he paid Rs.2,500/-. But the OP did not change the Electrical Tricycle (Toto). But the OP after much persuasion returned Rs.22,500/- on 12.05.16 and issued a Tax Invoice amounting of Rs.46,200/- instead of Rs.83,500/-.
In our view, all spare-parts of an Electrical Tricycle are not required at a time. If all spare-parts of an Electrical Tricycle are being sold at a time to a person, then we can presume that the whole Electrical Tricycle is being sold to a person. Considering the contents of the Complainant and the manner of issuing Tax Invoice, we hold that the intention of the OP was not at all good. Thus, considering the above made discussion, we hold that the OP sold all spare-parts of an Electrical Tricycle, which amounts to sale of Electrical Tricycle to the Complainant. As per evidence on record, it is evident to us that the said Electrical Tricycle of the Complainant was found defective within a very short period and the OP did not respond about the problem raised by the Complainant. As such, the Complainant suffered mental pain, agony and unnecessary harassment, which amounts to deficiency of service. The conditions given in the Tax Invoice are all unilateral term and the said terms and conditions are all unfair Trade Practice. The OP cannot impose such terms and conditions.
We have observed that the Complainant purchased all spear parts of an Electrical Tricycle (Toto) which amounts to purchase of Toto. The Complainant purchased all spear parts from the O.P, which amounts to purchase of Toto and as such we can hold that the said Toto has been lying with the Complainant, it may be of defective condition or in well condition. If a direction be given to the O.P to refund money, the O.P is at the same time entitled to get return of the Toto or all spear parts. He, who seeks equity, must do equity. Though, the O.P has no prayer of return all spear parts, but this Forum can do equity for the ends of justice.
Both the points are disposed off in favour of the Complainant.
Hence,
Ordered,
That the present complaint be and the same is allowed on contest with cost of Rs.1000/- payable to the Complainant by the OP.
The OP is hereby directed to replace the Electrical Tricycle (Toto) to the Complainant or to refund Rs.46,200/- to the Complainant. The OP is further directed to pay compensation of Rs.5,000/- to the Complainant for causing mental pain, agony and harassment. The Complainant is hereby directed to return all the spear parts to the O.P on his making payment.
The above amount shall be paid by the OP within 45 days from the date i/d the entire amount shall carry interest @8% per annum till full realization.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
Dictated and corrected by me.
