Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 30.11.2016
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite party to replace the aforesaid machine/equipment or return the price of the said machine.
- To direct the opposite party to pay the amount of Rs. 19,15,100/- ( Rs. Nineteen Lakh Fifteen thousand One Hundred only ) including compensation and litigation costs.
- The facts of this case lies in a narrow compass which is as follows:-
The complainant has asserted that for better result and service in contract work he purchased a Drum Mixture along with tough Rider 2 JON amounting to Rs. 10,76,000/- vide annexure – 1. After delivery of the aforesaid machine/ equipment, when it was put to work it began to give trouble due to manufacturing defect about which opposite party was informed several times. It is further case of the complainant that on the assurance of replacement the aforesaid machine was received by opposite party on 06.06.2012, 13.06.2012, 07.07.2012 and 07.08.2012 vide annexure – 2 series. Thereafter, vide annexure – 3, the opposite party requested the complainant with apology that the same machine will be delivered to him on Dushara Puja 2013 and agreement will be made to resale the machine as will appear from annexure – 3. When the aforesaid promise was not fulfilled by opposite party then the complainant sent legal notice as will appear from annexure – 4 and 5.
The grievance of the complainant is that in absence of aforesaid machine the complainant is facing loss due to stoppage of road construction work. Thus the complainant has been put to loss and mental agony due to conduct of opposite party.
From record it transpires that this case was admitted on 29.01.2015 and notices were sent to opposite party through registered cover on 02.02.2015. when the aforesaid registered letter did not returned unserved even after 4 months then Tamila was declared valid vide order dated 09.06.2015. thereafter several adjournments were given to the opposite party for appearing and contesting this complaint by filing written statement and other cogent evidence in support of their claim.
It further transpires that despite several adjournments when the opposite party did not appeared then this case was heard ex – parte on 22.09.2016 and this order is being passed.
It is needless to say that the complainant has asserted that he has purchased the aforesaid machine vide annexure – 1 which has been received by opposite party vide annexure – 2 series on the assurance to replace or resale the same vide annexure – 3 as the machine was suffering from manufacturing defect but the opposite party has not redressed the grievance of the complainant despite legal notice (annexure – 4) by the complainant.
It goes without saying that as the aforesaid fact of the complainant has been asserted on affidavit which has not been controverted by opposite party hence we have no option but to rely on the fact asserted in the complaint petition by complainant.
The aforesaid conduct of the opposite party definitely constitute deficiency on the part of opposite party. Hence we direct the opposite party to return or replace Reversible Drum Mixure 10503 JOE along with tough Rider 2 JON amounting to Rs. 10,76,000/- ( Rs. Ten Lakh Seventy Six Thousand only ) within the period of two months from the date of receipt of this order or certified copy of this order failing which the opposite party will have to pay an interest @ 10% on the aforesaid amount of Rs. 10,76,000/- ( Rs. Ten Lakh Seventy Six Thousand only ) till its final payment.
Opposite party is further directed to pay Rs. 1,00,000/- ( Rs. One Lakh only ) to the complainant by way of compensation and litigation costs within the period of two months.
Accordingly this complaint petition stands allowed to the extent referred above.
Member President
