Date of Filing: 02.08.2013. Date of Final Order: 30.12.2013
Fact of the Case in brief is that the Complainant Sri Sadananda Barman was proposed by the Opposite Party No. 1 Sri Nityaranjan Barman, as Agent of Opposite Party No. 2 i.e. M/S Das Enterprise, to purchase a Pump Machine (Submersible pump) for installation in his agricultural land. It was purchased by him on 08-06-2012 on production of all ancillary parts with Submersible pumps along with relevant papers on payment of Rs. 49,680/-. On 14-06-2012 the Opposite Party No. 1 tried to install the pump machine in his said land with the help of labour and stated that it cannot be installed for some unknown reasons. The Opposite Party No. 1 took all the accessories with pump machine back with assurance of payment of the purchase price and gave Mobile No. 9933474153 to contact him (Complainant).
Inspite of his efforts to contact with Opposite Party No. 1 he could not get back his said money and later he lodged a General Diary vide No. 693/13 dated 14-05-2013 at P.S. but in vain.
For such illegal and unfair behavior of the Opposite Party No. 1 he suffered financially and mentally and as such he has filed the instant complaint in Bengali before this Forum as a Consumer for protection of his rights. The transaction of the Machine and Payment fall within the territorial jurisdiction of this District Consumer Disputes Redressal Forum and hence he enclosing Xeroxed copies of his documents filed this complaint on 02-08-2013 through his Ld. Advocate Mr. Pradip Kumar Sarkar of Cooch Behar Bar Association, as Agent, on affidavit dated 31-07-2013. He claimed Rs. 64,680/-. CF Rs. 100/- paid by I.P.O.
District Consumer Disputes Redressal Forum Case vide DF – 86/13 has been registered. After admission hearing Notice upon the Opposite Party were issued fixing 26-08-2013 for S/R and appearance.
No S/R of Notice received by this Forum but on 26-08-2013 for the Opposite Party No. 2 Sri Sushil Das entered appearance by filing his written version on affidavit and copy of which was served upon the Ld. Advocate Mrs. Tapati Chanda for the complainant on 04-10-2013 through his Ld. Advocate Mr. Sanjoy Kumar Pandey.
On 07-10-2013 the Complainant appeared but the Opposite Party No. 1 despite receipt of Notice did not turn up and hence the case was taken up for hearing Ex-Parte against the Opposite Party No. 1 and though none appeared and no step was taken for the Opposite Party No. 1, fixing 31-10-2013 for evidence of both sides.
On 31-10-2013 the evidence of the Complainant was filed on affidavit; but the Opposite Party No. 2 neither turned up nor filed his evidence on affidavit and 19-11-2013 was fixed for Evidence of Opposite Party No. 2. On that date also the Opposite Party No. 2 neither appeared nor had taken any step. Besides, the President and the Male Member were at W.B.N.U.J.S. Kolkata in C/W Training from 18-11-2013 to 22-11-2013 and the only Lady Member fixed 26-11-2013 for evidence of the Opposite Party No. 2, in default argument.
On 26-11-2013 both the Ld. Advocate for the Complainant and the Complainant himself appeared but the Ld. Advocate prayed for time to argue the case which was allowed fixing 17-12-2013 for argument.
On that date while the Ld. Advocate for the Complainant argued at length and the Forum asked about the originals of the enclosed Xerox copies the Complainant replied that all the documents he had brought with him.
The Forum finds it expedient to get those documents adduced in this case as exhibits and hence on further examination of the Complainant these 4 documents were marked exhibits 1 to 4.
It appears that though the Complainant stated in his complaint (vide DF – Case No. 86/13) dated 02-08-2013 that he purchased those Submersible pump from the shop of the Opposite Party No. 2 on 08-06-2012 at the instance and assurance of help by Opposite Party No. 1 i.e. Sri Nityaranjan Barman, on payment of Rs. 49,680/- against Bills and work order vide Exhibit 1 & 2 and further the Opposite Party No. 1 went to the Complainant agricultural land on 14-06-2012 with some labour & machine etc. whereas in his evidence (in Bengali) he stated that on 08-06-2016 above proprietor of M/S Das enterprise (Opposite Party No. 2) along with his (Opposite Party No. 2’s) friend Opposite Party No. 1 Nityaranjan barman in connivance went to the house for the purpose of sale of a pump set and took Rs. 49,680/-. And at Para (3) he stated that on that date on payment of Rs. 49,680/- he purchased the pump set and took it to his house further at Para (4) he stated that the Opposite Party No. 2 Proprietor and his friend Came to his house with 7/8 pump machine but being failure to install they took the pump set back. And at Para (5) he stated that these persons i.e. Opposite Party No. 1 & 2 have not paid the money back till date (02-08-2013). Here, he has not mentioned any date that the date of taking of the pump set by Opposite Party No. 1 was stated as 14-06-2012.
Now, on scrutiny of the exhibits 2 it is transparent that in the letter head pad of M/S Das Enterprise the proprietor under signature and seal has given the address of the Complainant Road Challan of 4 Articles etc. and exhibit 3 shows “Challan in Voice” in the letter head pad of M/S Das Enterprise dated 08-06-2012 with signature of proprietor and Seal of Proprietor of M/S Das Enterprise. Though handwriting in this two exhibits are of different persons but two signature are identical. Exhibit-4 G.D.E. No. 693/13 dated 14-05-2013 speaks that he has lodged complaint at Mathabhanga P.S. against Nityaranjan Barman who was known to him and Nityaranjan Barman advised him to install the pump set and went to his house at Tapan and stayed there for 4/5 days and on 08-06-2012 from Nityaranjan Barman’s known persons shop M/S Das Enterprise he purchased the pump set with accessories brought to his house (complainant’s house) thereafter said Nityaranjan Barman with 7/8 mechanic tried to install the pump set at his house but being failure took this pump set with them. He lodged the G.D. enclosing the Xerox of exhibit 1 & 2. Exhibit-5 speaks of deposit of Rs. 1,000/- in TR-7 by the Complainant with Geologist, Geological Sub-Division No. (IV-B) state under Invoice Date Dated 26-04-2012. Opposite Party No. 1 deals in Money Marketing and hence he was known to the Complainant, he added.
On perusal of the written version of the Opposite Party No. 2 it appears that he denied all the allegations against him and admitted that the Opposite Party No. 1 is previously known to Complainant and both went to his shop on 08-06-2012 purchased the pump machine with accessories on cash payment against which he issued the Bill / Cash Memo. He claimed that he does not hawk this and he has got no such hawking time. He is the Proprietor of the shop and under Cash Memo he have to sale goods. So the allegation against him is baseless and motivated.
From the discussion herein above it is transparent that the Complainant had purchased the said Submersible pump from the shop of the Opposite Party No. 2 i.e. M/S Das Enterprise on 08-06-2012, but there after whatever have been stated on affidavit are questionable and obviously matter of proof, if compared with the contents of the General Diary, which speaks that the Opposite Party No. 1 was known to the Complainant as being his involve in different money market and he only advised to install modern “Submersible Pump” for his agricultural use. He also stated that for unknown reason the pump set could not be installed. He also stated that the Opposite Party No. 1 with his men had taken away all the purchased articles i.e. accessories including the pump set with the help of 7/8 persons mechanic / labour whatsoever and whoever they be and there is no iota of allegation against the Opposite Party No. 2 i.e. M/S Das Enterprise.
Further, from the materials on record it appears that the Notice of the Ld. Advocate dated 18-05-2013 was sent to the Opposite Party No. 1 vide Postal Speed Post receipt dated 20-05-2013 and though copy of the Notice to the Opposite Party No. 2 is found on record there appears no such Postal receipt so the denial of the Opposite Party No. 2 in his written version may be deemed true so also that he is not involved in respect of removal of these articles from his house back. It has been stated in the Notice to the Opposite Party No. 2 that the Opposite Party No. 1 & 2 in connivance had been to the house of the Complainant and took Rs. 49,680/- from him on 08-06-2012. After a few days the Opposite Party No. 1 and Opposite Party No. 2 with 7/8 mechanic had taken away the pump set on being failure to install the same.
From the materials on record it is transparent that the “unknown reason” as to whether there was any defect of the machine and / or the accessories has not been claimed. Further, from the exhibit-5 it appears that the Complainant had deposited Rs. 1,000/- on 26-04-2012 with the Geologist, SWID, Member Secretary, District Level Authority Cooch Behar reasonably for soil test and finding out the water level to install such pump set for cultivation purpose. It is also not brought on record as to whether the Complainant got Clearance Certificate from the concerned authority to install such pump set or not.
Thus, reasonably and based on materials on record we may come to the conclusion that though the Opposite Party Nos. 1 & 2 are resident of Dakshin Dinajpur District i.e. beyond jurisdiction of this Forum, the residence of the Complainant being within the District of Cooch Behar might to install the said pump set within this district and it were delivered within the district of Cooch Behar as per exhibit-2 (Road Challan). It is also confusing whether there was any effort to install the pipes and P.V.C. Filters in the said house of the Complainant and / or the pump set also was installed. Further, whether there was installation problem by digging and / or defect in the pump set or it was due to non-receipt of Clearance Certificate to install for the concerned authority remained screened.
Therefore, we can reasonably conclude that the allegation against Opposite Party No. 2 is baseless and motivated. There is no evidence on record except the allegation in complaint and evidence of the complainant on affidavit that the Opposite Party No. 1 was involved as a service provider of the pump set to prove deficiency in service and that the Opposite Party No. 1 delivered defective goods i.e. the pump set and accessories to the Complainant. He stated in his evidence para-1 that he is a customer of Opposite Party No. 2 in the complaint he has not claimed that he was a customer and / or a Consumer of the Opposite Party No. 2 M/S Das Enterprise. May whatever it be we may accept, in the perview of the C.P. Act, 1986 that the customer is also a Consumer and part of cause of action took place within the District of Cooch Behar though both the Opposite Parties being resident of Dakshin Dinajpur District had delivered the goods (pump set with accessories) and though there is no evidence that the Opposite Party Nos. 1 & 2 have got their residence and / or carry on their business etc. within the District of Cooch Behar, even then the mechanic and / or contractor for job of installing the pump set usually to carry on their profession of installation at different places / beyond district also. Hence, both the territorial jurisdiction and pecuniary jurisdiction come on record and this Forum can decide the case on merit in absence of the Opposite Parties i.e. in Ex-Parte hearing.
POINTS FOR CONSIDERATION
- Whether the Complainant is a “Consumer”.
- Whether the Opposite Party No. 2 delivered “defective goods”.
- Whether the Opposite Party No. 1 was “deficient in service”.
- Whether the complaint is entitled to get any relief as prayed for and in terms of the C.P. Act.
- Whether the complaint is liable u/s 26 & 27 of the Act.
DECISION WITH REASONS
There is no iota of allegation against the Opposite Party No. 1 that has taken any consideration of money against his performance / job as an installs of the pump machine and / or otherwise.
It is also fact that the Complainant has put his signature in English on the documents / papers written in Bengali and none of the writings is of his own.
Point No.1
In view of the discussion made here in before on the point of Jurisdiction as to whether the Complainant is a consumer, it is transparent that partial cause of action arose within the jurisdiction of Cooch Behar district in respect of delivery of the submersible pump with accessories in the address of the complainant within Cooch Behar district on 08.06.2012. As the Opposite Party No. 2 sold the submersible pump with accessories with receipt and Delivery Chalan by the delivery man of the Opposite Party No. 2 in respect of failure to install the submersible pump even if there is no such specific allegation as to defects of goods i.e. the submersible pump and accessories.
Point No. 2
There is no iota of allegation and of evidence that the opposite party No. 2 i.e. M/S Das Enterprise has sold and delivered defective goods but from exhibit No. 2 & 3 i.e. Road Chalan and Cash Memo/Cash Invoice dated 08-06-2012 and from exhibit No. 4 i.e. G.D. entry with Mathabhanga P.S dated 14.05.2013 it is transparent that the goods are delivered and it was taken away by the Opposite Parties i.e. Opposite Party No. 1 and or Opposite Party No. 2 can reasonably be believed.
Point No. 3
There appears no deficiency in service as per the W/V and evidence on record by the Opposite Party No. 2 i.e. M/S Das Enterprise. Whereas there appears deficiency in service against Opposite Party No. 1, Nityaranjan Barman he undertaken the work/job of the complainant in respect of installation of the said pump but from exhibit No. 2 which bears signature with proprietor, Opposite Party No. 2 but surprisingly there appears no mark of identification of signature on agreement in respect of Opposite Party No. 1. It is fact that in the complaint the complainant has alleged against the Opposite Party No. 1 where as in his evidence he alleged against both the Opposite Party No. 1 and 2 stating that they are friends but nothing has come out a evidence except the complaint or deposition on affidavit of the complainant.
Furthermore, the exhibits (V) i.e. as to deposit of Rs. 1000/- to Geologist on 26/04/2012 without any consequential effect of this deposit in respect of soil test/permission of Geologist, nothing appears on record.
Moreover, the advocate notice dated 18.05.2012 addressed to the Opposite Party No. 1 & 2 alleging against them by the complainant if taken together in consideration on scrutiny it is crystal clear that the complainant has not came before this Forum in clean hands rather he has not only deviated but changed his statement almost in all the places to make out a case within the jurisdiction of this Forum and thus the complaint is found to be frivolous/vexatious and thus the complaint deserved to be dismissed with imposing reasonable cost to refrained such consumers misusing the alternative consumer friendly remedies by adopting unscrupulous efforts.
Therefore, it is Ordered that the complaint be and the same is dismissed U/S 26 of the Consumer Protection Act, 1986 and we considering all aspects impose cost of Rs.5000/- payable to the State Consumer Welfare Fund within 45 days of this order, in default the complainant have to pay Rs, 100/- for each day’s delay and the amount to be accumulated, if any, shall be deposited also in the said fund.
A plain copy of this order be made available and be sent to each of the parties free of cost by registered post with A/D forthwith as per rules.
Dictated and corrected by me.
President, President
District Consumer Disputes District Consume Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar.
Member, Member,
District Consumer Disputes District Consume Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar.
