Tripura

StateCommission

A/8/2015

Sri. Abhijit Datta Bhowmik - Complainant(s)

Versus

Sri. Digendra Debbarma - Opp.Party(s)

Mr. Debesh.ch.Roy, Mrs. S.Datta Bhowmik

01 Jul 2015

ORDER

 

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

APPEAL CASE No.A-08/2015

 

Sri Abhijit Datta Bhowmik,

Prop: Santanil Systems,

3/A Battala Govt. Super Market,

Agartala, 799001, West Tripura.

                  ….    ….    ….    ….    Appellant.

                   Vs

Sri Digendra Debbarma,

S/O Late Magray Debbarma,

Village-Rambabupara, North Taidu,

P.O. & P.S-Taidu, District-Gomati,

Tripura, Pin-799101.

             ….    ….    ….    ….    Respondent.

 

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

 

                 MR. NARAYAN CH. SHARMA,

              MEMBER,

               STATE COMMISSION.

                                     

 

For the Appellant      :      Mr.D.C.Roy,Adv. & Mrs.S.Datta Bhowmik,Adv.

          For the respondent   :      Mr. S.Saha ,Adv. & Mr.S.Banik,Adv.

                                            

Date of Hearing         :     01.07.2015.

Date of delivery of Judgment  :

             

J U D G M E N T

 

S.Baidya,J,

            This appeal filed on 26.03.2015 under Section 15 of the Consumer Protection Act, 1986 by the appellant-Abhijit Datta Bhowmik, Prop: Santanil Systems is directed against the judgment dated 30.01.2015 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), Gomati, Udaipur in case No.C.C-17 of 2014 whereby the Ld. District Forum allowed the complaint and directed the opposite party, the appellant herein to pay compensation amounting to Rs.25,000/- to the petitioner for deficiency in service and also to repair the machine free of cost within two months without fail.     

2. The case of the appellant as narrated in the memo of appeal, in brief, is that the respondent-Digendra Debbarma purchased a colour Xerox machine from the appellant valued at Rs.3,02,999/- and paid the said amount by cheque drawn on Tripura Gramin Bank in favour of the appellant who received the order from the respondent on 18.10.2013 with the assurance that the machine would be supplied within November, 2013. It has also been alleged in the memo of appeal that the Xerox-cum- printer machine was delivered on 18.12.2013 to the respondent who being satisfied with the machine received it in good condition and thereafter, the respondent started to do the business for a considerable period beyond the warranty period of six months without any complaint.                                                 
3. It has also been alleged that the respondent long after the expiry of the warranty period lodged a complaint on 13.11.2014 stating that the photocopy-cum-printer machine started disturbance and on receipt of the said complaint, the appellant sent Engineer to remove the defect, but the defect was not removed and then the appellant asked the respondent to send the machine to Agartala, so that, the company Engineer can examine it, but the respondent denied to bring the machine to Agartala.
4. It has also been alleged that the appellant as O.P. appeared in the District Forum and submitted reply stating that the machine in question was supplied in good condition as per order of the respondent and there was no deficiency in service within the warranty period of six months and also alleging that the machine was mishandled by the respondent at his own risk for which the appellant cannot be held responsible, but the Ld. District Forum considering the cases of the parties and evidences passed the impugned judgment holding the appellant responsible for deficiency in service and thereby being aggrieved and dissatisfied with the impugned judgment, the appellant has preferred the instant appeal on the grounds that after the expiry of warranty period, the service charges and the cost of replacement of parts in the machine, if necessary, require to be borne by the respondent, but the Ld. District Forum, being failed to understand the scope of facility available within the warranty period, directed the present appellant to repair the machine of the complainant-respondent free of cost within two months even long after the expiry of the warranty period of six months which is not sustainable in the eye of law, that the machine was brought from a long distance and due to transportation problem, it took some more period beyond the expected date of delivery, but that cannot be termed as deficiency in service, that in spite of that, the Ld. District Forum failed to understand this circumstance and erroneously awarded compensation by the impugned judgment which not being proper and legal, should be set aside and hence, the appellant has filed the instant appeal praying for setting aside the impugned judgment.           

Points for consideration.

5.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in awarding the compensation by the impugned judgment and (2) whether the judgment under appeal should be set aside as prayed for.    

                         Decision with Reasons.

6.  Both the points are taken up together for the sake of convenience and brevity.
7. The learned counsel for the appellant-O.P. submitted that as per supply order, the appellant delivered colour Xerox-cum-printer machine for an amount of Rs.3,02,999/- to the respondent on 18.12.2013, although as per stipulation, the appellant ought to deliver the said machine within November, 2013. He also submitted that this delay of 18 days was caused due to transportation problem for bringing the machine to Agartala from a long distance. He also submitted that although some days’ delay was caused in delivering the said machine, but the respondent received the said machine and got it installed in his place of business with the assistance of the expert of the appellant and also accepted that service in full satisfaction. He also submitted that as the respondent was fully satisfied regarding the delivery of the machine and also its installation matter, the said some days’ delay so caused in delivering the machine should be accepted and treated as condoned.  
8. The learned counsel for the appellant also submitted that the respondent started in doing the business with the said machine, not only for the warranty period of six months, but also after the expiry of the said warranty period. He also submitted that there was no trouble in operating the machine within the warranty period of six months from the date of its installation. He also submitted that long after the expiry of the warranty period the machine of the respondent started creating trouble in its operation. He also submitted that on call by the respondent, the appellant sent his service engineer to remove the defect, but failed and then the appellant asked the respondent to bring the said machine to Agartala, so that, the expert Engineer of the company can examine the machine for removal of the defect, but the respondent did not bring the said machine to Agartala, rather he approached the Ld. District Forum with the complaint alleging deficiency in service on the part of the appellant and also raising some other allegations.  
9. The learned counsel for the appellant also submitted that the Ld. District Forum failed to appreciate that with the acceptance of the machine in question by the respondent on 18.12.2013, the delay of some days in delivering the machine has been condoned, but in spite of that, the Ld. District Forum awarded compensation erroneously on the ground of deficiency in service, although there occurred no deficiency in service on the part of the appellant. He also submitted that the warranty period provides a facility to get the service free of cost within the warranty period and beyond that, the holder or purchaser of the machine has to bear the cost of service charges from his own pocket. He also submitted that the facility of service free of cost within the warranty period does not cover the cost to be incurred, if any parts or component of the machine requires to be replaced. He also submitted that the cost of replacement of the parts or the component of the machine even during the warranty period or after the expiry of the warranty period is to be borne by the owner of the machine. He also submitted that no question arises for service free of cost beyond the warranty period, but the Ld. District Forum even after the expiry of the warranty period of six months whimsically and arbitrarily directed the present appellant to repair the machine in question of the respondent free of cost within two months without fail which has rendered the impugned judgment unsustainable in law.  
10. The learned counsel for the appellant finally submitted that the appellant is still agreeable to do the repair-work concerning the machine in question at the cost of the respondent, if the respondent brings that machine to Agartala in the place of business of the appellant.
11. The learned counsel for the respondent submitted that the respondent with an intention to purchase colour xerox machine with Pinter gave a cheque to the appellant for an amount of Rs.3,02,999/- vide cheque drawn on Tripura Gramin Bank which was received by the appellant on 09.10.2013 and the talk was also held to deliver the said machine to the respondent by the appellant within one week from the date of receipt of the payment. He also submitted that as per supply order, the appellant would supply four wheels colour Xerox machine, Model No.TASKALFA 2550ci consisting of four drawers (tray of paper) with printer machine, but the appellant supplied the machine consisting of two drawers without wheel. He also submitted that this act of the appellant was nothing, but an act of unfair trade practice. He also submitted that there was no stipulation to supply the machine in question within November, 2013 as submitted by the learned counsel for the appellant. He also submitted that as the appellant failed to supply the machine in question within the stipulated period, the Ld. District Forum rightly held that the appellant was deficient in service.   
12. The learned counsel for the respondent also submitted that after long lapse of the stipulated period to supply the machine in question, the respondent had to suffer mental agony and harassment in the meantime as the respondent paid the purchased money by cheque for the said machine on 09.10.2013 after taking a huge amount of loan from Tripura Gramin Bank. He also submitted that when the appellant delivered the said machine on 18.12.2013 after more than two months of the stipulated period, the respondent being a poor borrower had to receive the machine in question so supplied under compelling circumstance and got the same installed without any further delay as the respondent for obtaining such an amount of loan was under obligation to pay day to day interest to Tripura Gramin Bank by way of earning from the said business. He also submitted that the appellant as O.P. produced a photocopy of a letter dated 18.10.2013 showing that it was stipulated that the machine in question would be delivered within November, 2013, but that letter dated 18.10.2013 does not indicate in any manner that the said letter was received by the respondent or the said letter was delivered to the respondent indicating to deliver the machine in question within November, 2013. He also submitted that said letter is nothing, but a trick of the appellant to save his skin from liability, being failed to deliver the machine in question within stipulated period of one week from the date of payment by cheque on 09.10.2013. He also submitted that the said letter dated 18.10.2013 does not come in any way in aid to the appellant for getting exemption from his liability, being failed to deliver the machine in question within stipulated period.  
13. The learned counsel for the respondent also submitted that although the Model Number of the Xerox machine as per quotation and the Model Number of the Xerox machine as supplied by the appellant are the same, but by way of supplying Xerox machine with two drawers without wheel, instead of Xerox machine with four drawers and four wheels as agreed upon, the appellant cheated the respondent-complainant. He also submitted that the appellant wanted to wash his hands from his liability for delay in supplying the machine and also for cheating the respondent by way of not supplying the exact quotationed machine only on taking a plea that the respondent received the delivery of the machine in question and got it installed in full satisfaction. He also submitted that the submission made by the learned counsel for the appellant regarding the acceptance of the machine in full satisfaction is found not true from the e-mail message dated 19.12.2013 sent by the respondent to the company “KYOCERA Documents Solutions”. He also submitted that the said e-mail message dated 19.12.2013 makes it clear that the respondent did not accept the delivery of the machine in question in full satisfaction, otherwise he would not send the said e-mail message to the company immediately on the next day of installation of the machine in question on 18.12.2013.
14. He also submitted referring to the e-mail message dated 09.12.2013 received by the respondent from the company of the dealer, the appellant herein that even till 09.12.2013 the appellant did not make full payment in respect of the machine in question to the company, although the dealer received the cheque for full amount on 09.10.2013. He also submitted that the delay in supply of the machine was due to the negligence and deficiency in service on the part of the appellant in not remitting the price of the machine in question to the company as soon as he received the payment by cheque on 09.10.2013.
15. The learned counsel for the respondent also submitted that the appellant is a man of Agartala whereas the respondent is a man of rural area and as such he could not understand the trick played by the appellant and thereby the respondent was cheated at the instance of the appellant who adopted the means of unfair trade practice to cheat the respondent. He also submitted that the Ld. District Forum considering all aspects of the case passed the impugned judgment directing to pay the compensation amount of Rs.25,000/- to the respondent-complainant on the ground of deficiency in service with a further direction to the appellant to do the repair-work to the machine in question with free of cost within two months from the date of judgment which, being proper and justified, should be upheld and the appeal should be dismissed.
16. We have gone through the complaint petition, the written objection, the oral and documentary evidences, the impugned judgment, the memo of appeal and also the submissions made by the learned counsels of both sides in details. At the outset, it is to be mentioned that in the District Forum both the complainant-respondent and the appellant-O.P. contested the claim case in person. Admittedly, the respondent-complainant did not prefer any counter appeal against the impugned judgment. It means that the respondent is supporting the judgment passed by the Ld. District Forum. Admittedly, the appellant received the banker’s cheque for an amount of Rs.3,02,999/- drawn on Tripura Gramin Bank, Taidu Branch on 09.10.2013. It is also admitted fact that the appellant received the supply order for supplying the machine in question. The letter dated 18.10.2013 signed by the appellant discloses that the appellant received the supply order, but it does not disclose the date on which he received the supply order from the complainant. There is a statement in the said letter to the effect that the machine would be supplied within November, 2013, but there is no whisper in four corners of that letter, if the said letter was prepared for supplying it to the complainant or to any other persons. Having no such reference, we are of the view that the submission of the learned counsel for the respondent-complainant to the effect that the said letter dated 18.10.2013 has been manufactured by the appellant himself for his own purpose to save his skin from liability and the said letter is not binding upon the respondent, is believable and acceptable.
17. It is the case of the respondent-complainant that there was a stipulation to deliver the Xerox machine having four drawers (Tray) and four wheels with colour Multi Functional Printer, but the respondent-O.P. delivered Xerox machine with two drawers and printer without any wheel. Going through the quotation dated 06.09.2013, we find that the same does not disclose about four drawers and four wheels. It is also the case of the complainant that Xerox machine so supplied bears the same model number as mentioned in the quotation, but the O.P. supplied Xerox machine with two drawers and without any wheel. Without any material for establishing that the appellant was asked to deliver Xerox machine with four drawers and four wheels, it is not at all believable that there was such agreement by and between the parties. Furthermore, even the complainant did not file any copy of the supply order in the District Forum showing that the supply order contains the particulars of the machine with four drawers and four wheels requires to be supplied. It is true that the complainant as P.W.1 stated about the supply of alleged machine with four drawers and wheels in his deposition, but the oral deposition does not prove it, because the same requires to be proved by documentary evidence. Going through the impugned judgment, we find that the Ld. District Forum also did not believe this story of the complainant having no believable material in this regard.
18. Admittedly, no warranty card has been produced in the District Forum. The learned counsel for the respondent submitted before us that the appellant did not give the warranty card to the complainant at the time of delivery of the machine. He also submitted that this is also another trick of the appellant to cheat the respondent-complainant limiting period of warranty only for six months by way of writing in the bill dated 18.12.2013. Going through the said bill, we find that the period of warranty is half year as per company criteria as noted therein. However, we are of the view that it was the fault on the part of the complainant for his failure to receive warranty card from the O.P.-appellant at the time of taking delivery of the machine. Be that as it may, relying on the bill dated 18.12.2013, we are inclined to hold that the warranty period is actually half year i.e. six month. We, therefore, find nothing to accept the submission of the learned counsel for the respondent concerning alleged warranty period.
19. It is also the case of the complainant that when the appellant delivered Xerox machine with two drawers, being failed to deliver the machine with four drawers and wheels, at that time, the appellant promised him to refund Rs.1,00,000/- and also promised to make payment of Rs.25,000/- for delay in delivering the machine. It is also the case of the complainant that the respondent as promised did nothing in this regard. Going through the materials on record, we find nothing to hold that any such agreement to refund Rs.1,00,000/- was ever made. So, in the absence of any cogent and reliable evidence or in other words, in the absence of any document in this regard, it is not at all believable to place any reliance on the alleged case of the complainant.
20. Going through the last para at page-3 of the impugned judgment, we find that in one breathe, the Ld. District Forum held that as the warranty period is over, the repair cannot be done freely (free of cost), but in the next breathe, the Ld. District Forum directed the O.P.-appellant to do the repair-work of the machine of the complainant free of cost and in para-6 of the impugned judgment, it is also directed to do the said repair-work within two months without fail. From the above, it is evident that this finding of the Ld. District Forum is found self- contradictory. Admittedly, the warranty period was for six months. As the warranty period was over, the direction given by the Ld. District Forum to do the repair-work of the machine in question free of cost cannot be sustained in the eye of law and therefore, the impugned judgment concerning this direction to repair free of cost is liable to be modified.
21. Although, the complainant in the written complaint has alleged that he has been cheated by the company, but the complainant as P.W.1 uttered not a single word in his deposition regarding the alleged cheating made by the company, if any. Moreover, the company has not been made a party to this complaint case. The complainant lodged the complaint against the present appellant who is the dealer of the company. The complainant also made out no case in the complaint making any allegation that the appellant adopted any means of unfair trade practice upon the complainant. So, the submission of the learned counsel for the respondent concerning the alleged allegation of unfair trade practice is not tenable at all. The complainant has made out no specific case in the complaint to the effect that the appellant cheated him in any manner. That being the position, we also find nothing to consider the submission of the learned counsel for the respondent regarding the alleged allegation of cheating.
22. Admittedly, the appellant received the cheque on 09.10.2013. It is also admitted fact that the Xerox machine with printer was supplied on 18.12.2013 and on the same day it was also installed in the place of the business of the respondent. The complainant in para-2 of his complaint stated about the delivery of the machine within due date, but the complaint is completely silent as to what was the said due date. The complainant as P.W.1 in his deposition has confined the alleged due date within one week from the date of payment. This confining of due date within one week is found an embellishment over the case of the complainant as made out in the complaint. Naturally, this period of one week as deposed by P.W.1 cannot be believed. But the fact remains that the appellant received the banker’s cheque for an amount of Rs.3,02,999/- on 09.10.2013. The e-mail dated 09.12.2013 sent by the company to the complainant makes it clear that even on that date also the appellant did not make full payment to the company for supply of the machine in question to the complainant through the appellant. Admittedly, the complainant made payment of the said amount by way of taking loan from Tripura Gramin Bank and the said loan amount is subject to realization of interest from the complainant. So, it is found that the delay in supplying the machine to the complainant after lapse of more than two months due to the fault of the O.P.-appellant and for no fault on the part of the complainant has compelled him to pay the interest over the said huge loan amount.
23. It is the submission of the learned counsel for the appellant that the complainant received the delivery of the machine and got it installed in his full satisfaction and accordingly, the complainant put his signature on the installation report. But this submission of the learned counsel for the appellant is not acceptable in view of the e-mail dated 19.12.2013 sent by the respondent to the company regarding his dissatisfaction which was made on the very next day of installation of the machine in question.
24. Be that as it may, it is palpable that the appellant-O.P. even on receipt of the banker’s cheque on 09.10.2013 for an amount of Rs.3,02,999/- as the full-price of the machine in question is found negligent and deficient in providing service by way of not delivering the machine in question to the complainant within a reasonable time. It is needless to say that ‘a reasonable time’ does not mean that it is extended up to a period of more than two months. Obviously, we are in agreement with the finding of the Ld. District Forum to the effect that the appellant-O.P. was negligent and deficient in providing service to the complainant in the matter of supplying the machine in question within a reasonable time. That being the position, we are of the view that the awarding of a compensation on the ground of deficiency in service on the part of the appellant-O.P. for an amount of Rs.25,000/- is found not unreasonable and unjustifiable one and as such the impugned judgment awarding the compensation of Rs.25,000/- to be paid by O.P. to the complainant within two months on the ground of deficiency in service is liable to be affirmed, but the impugned judgment directing to do the repair-work concerning the machine of the complainant by the appellant free of cost within two months is liable to be modified.
25. At the time of hearing of appeal, the learned counsel for the appellant submitted before us that the appellant is still willing to do the repair-work in respect of the Xerox machine of the complainant, if the said machine is brought by the complainant to the office of the appellant for repairing purpose and if the complainant is agreeable to bear the cost of repairing including the cost of replacement of the component, if necessary. In view of the above submission, it is open to the complainant to get his machine repaired at his own cost by way of bringing his inoperative machine in question to the office of the appellant for the said repairing purpose.                          
26. In the result, the appeal is allowed in part with cost. The impugned judgment passed by the Ld. District Forum,Gomati, Udaipur dated 30.01.2015 directing the O.P.-appellant to pay Rs.25,000/- as compensation on the ground of deficiency in service to the complainant within two months is hereby affirmed. The impugned judgment directing the appellant-O.P. to do the repair-work concerning Xerox machine of the complainant within two months free of cost is set aside. The impugned judgment passed by the Ld. District Forum is modified, accordingly.
27. The appellant is directed to deposit an amount of Rs.5,000/- by way of Demand Draft in the Legal Aid Account of this Commission within 30 days from the date of delivery of the judgment, failing which the said amount shall carry interest @ 9% p.a. after the expiry of 30 days till the payment is made.

 

          

            MEMBER                             MEMBER                          PRESIDENT

                 State Commission                   State Commission               State Commission

                         Tripura                                    Tripura                                Tripura