In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/45/2019.
Date of filing: 04/04/2019. Date of Final Order: 06/11/2023.
Sri Shankar Chandra Talapatra,
Smt. Prajna Talapatra,
A-9/4/1, Satyen Park, P.S. Joka,
P.O. Haridevpur, PIN. 700104. …..complainant
-vs
Sri Kamal Saha,
C/o. Founder & CEO of Eurofresh India,
3 no. Krishnapur, G.T. Road, (opposite to Settlement Office),
P.S. Chinsurah, Dist. Hooghly, PIN. 712103, W.B.
…….opposite party.
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
Member, Babita Chaudhuri.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the op visited with petitioner to check kutchna chimney and declared that the kutchna chimney has already been damaged and the op advised the complainant to purchase new chimney set and the complainant gave Rs. 15,000/- vide SBI cheque no. 562523 amounting to Rs. 14,000/- and Rs. 1000/- by cash for purchasing new chimney and the op delivered the Urofresh Chimney and provided bill dt. 24.1.2018. But after observing the doubtful activities of the op the complainant called a skilled person from local shop of Kutchna and the said skilled person observed that the Kutchna service is not damaged and then the complainant again called the op to observe the system of kutchna and after observation the op said that the kutchna system is in good position and the op assured the complainant that he will withdraw the urofresh chimney and will return the total received amount within 2 days but all in vain. After that the complainant informed the matter in Haridevpur police station on 2.3.2018 and he tried to contact with op through letters dt. 7.5.2048 and 23.5.2018 but there were no response from the op. After that the complainant applied to the Assistant Director, CA&FBP, South 24 Pargana Regional office and they forwarded this matter to Hooghly Regional office for solution vide memo no. 157/En/CASR dt. 31.1.2019 and Hooghly Regional office send a letter to the op and complainant to appear on 20.3.2019 but on that very date op was absent.
Complainant filed the complaint petition praying direction upon the opposite party to refund the sum of Rs. 15,000/- and to pay a sum of Rs. 1,00,000/- for mental torture, harassment, loss of time.
Defense Case:- The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and prayed for dismissal of this case.
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:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- 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
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 agent of the opposite party heard in full. In course of argument ld. Lawyer of op has 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 nonmaitainability 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 but in this regard this District Commission passed the order of hearing this maintainability issue alongwith the trial. 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 O.P has it’s office at Chinsurah, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 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 34 of the Consumer Protection Act, 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 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 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) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.
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 close scrutiny of the evidence on affidavit filed by the complainant and the OP and also after close examination of the documents filed by the complainant and OP, the District Commission finds that in this case the complainant side has time and again alleged that the kitchen chimney which was purchased from OP was damaged. But fact remains that in order to prove this fact of damage of the kitchen chimney of complainant, the petitioner side has neither prayed for any expert commission for getting expert opinion and no such expert has been examined as witness for the complainant side to show that the kitchen chimney was in damaged condition. In the regard it is also important to note that the complainant has adopted the plea that he had taken steps for examination of the said kitchen chimney by a skilled technician but fact remains that the complainant has neither submitted any report of that skilled technician nor examined that skilled technician as witness of this case.
All the above noted factors those to show that the complainant has failed to prove his case as a whole and so this District Commission has no other alternative but to dismiss this case.
In the result, it is accordingly,
Ordered
That this complaint case no. 45/2019 be and the same is dismissed on contest.
No order is passed as to cost.
Let a plain copy of this judgment be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement.
Let this final order be uploaded in the official website of this District Commission.
