Tripura

StateCommission

A/35/2017

Sri. Shankar Banik - Complainant(s)

Versus

Sri. Krishna Keshab roy - Opp.Party(s)

Mr. P.K Ghosh, Mr. R. Chandra Deb

28 Dec 2017

ORDER

 

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.35.2017

 

 

1. Sri Shankar Banik,
   S/o Late Panchanan Banik,
   Proprietor of 'Biswanath Stores',
   58/2, Central Road, 
   Agartala, West Tripura.

… … … … Appellant/Opposite Party.

 

 

 

1. Sri Krishna Keshab Roy,
   S/o Late Hiralal Roy,
   'Sri Ram Kutir',
   Hospital Road Extension, Near Gandhi Ghat,
   Agartala, West Tripura.

… … … … Respondent/Complainant.

 

 

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Sharma,

Member,

State Commission, Tripura.

 

 

 

 

For the Appellant:                                         Mr. Prabal Kumar Ghosh, Adv.

For the Respondent:                                      Respondent in person.

Date of Hearing:                                            18.11.2017

Date of Delivery of Judgment:                    28.12.2017.

 

 

J U D G M E N T

 

U.B. Saha, J,

This appeal is filed by the appellant, Sri Shankar Banik, proprietor of Adi Biswanath Stores, 58/2 Central Road, Agartala, West Tripura against the judgment dated 30.05.2017 passed by the learned District Consumers Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum), in Case No. C.C. 104 of 2016 whereby and whereunder the Ld. District Forum directed the appellant (hereinafter referred to as opposite party) to refund the amount of Rs.2,689/- taken as the price of door lock item after taking back those unused items and also to pay the petitioner Rs.10,000/- as compensation for deficiency of service and unfair trade practice. The opposite party was also directed to pay Rs.5,000/- as cost of litigation, in total Rs.17,689/- to be paid to the petitioner within one month from the date of judgment, if not paid, it will carry interest @9% per annum. 

2. Heard Mr. Prabal Kumar Ghosh, Ld. Counsel appeared on behalf of the appellant-opposite party as well as Mr. Krishna Keshab Roy, the respondent-complainant (hereinafter referred to as complainant) appeared in person.
3. Brief facts needed to be discussed are as follows:-

The complainant purchased some hardware items, namely, one set door lock and two numbers brass made handle for fixing 3 mm size door board as per requisition of his carpenter from one Sri Shankar Banik, proprietor of Biswanath Stores, 58/2 Central Road, Agartala, West Tripura paying an amount of Rs.2,689/- for which a kutcha slip was given by the shopkeeper, but after returning home, the door lock including brass handle could not be fixed as the size was not proper. In spite of his best effort, the carpenter failed to fix the same. Complainant then informed to the opposite party owner of the ‘Biswanath Stores’ that as the proper size door lock and brass handle for 3 mm size shutter was not delivered as per his requisition, the carpenter could not fix it in his door. Opposite party then showed him new items, but those were also not of proper size. So he told him to wait for 4 to 5 days. Complainant then went to the shop of opposite party on 20.01.2015, but the opposite party did not recognize him. He misbehaved with him. Complainant then told him to refund the amount but the opposite party refused. The complainant was humiliated by the misbehavior of the opposite party on 20.01.15. Due to unfair trade practice, the complainant suffered. So he claimed refund of the amount and Rs.3 lacs as compensation for humiliation by filing a complaint petition before the learned District Forum.

4. Appellant-opposite party appeared and filed his written statement denying the claim of the complainant. It is stated that though his name is Shankar Banik, but he is not the proprietor of 'Biswanath Stores', but the proprietor of 'Adi Biswanath Stores' and the complainant never visited his shop. It is also stated that the answering O.P. is not the O.P. as per the complaint of the complainant and as such, the answering O.P. prayed before the learned District Forum for striking out his name from the aforesaid complaint case and to release him from the case. It is also stated that the complainant submitted one kutcha voucher which did not show any date, on which date the complainant purchased the alleged materials and in absence of any date of purchasing the materials, the cause of action shown by the complainant is not correct and thus the complaint is liable to be rejected at the threshold. Further case of the appellant-opposite party is that the appellant-opposite party pays VAT and is a registered dealer of Sale Tax Department and hence, the answering O.P. does not sale the goods without cash memo. He has finally contended that the story narrated in the complaint is a false and fabricated one as the complainant did not purchase any article from his shop. Thus, there is no question of unfair trade practice on his part.
5. The learned District Forum on the basis of the pleadings by the parties framed the following points for deciding the complaint case:-

1. Whether the O.P. misbehaved with the petitioner and did not refund the price of the defective goods sold by him?
2. Whether the petitioner is entitled to get compensation for deficiency of service and unfair trade practice by the O.P.?

6. Complainant produced the undated kutcha voucher (Exhibit-1) and his affidavit-in-chief as P.W.1 and also submitted affidavit-in-chief of one Bhabatosh Debnath and another Amlan Das as P.W.2 and P.W.3 respectively.
7. Answering   O.P. on the other hand produced his affidavit-in-chief as O.P.W.1 and also produced one bill/tax invoice of ‘Adi Biswanath Stores’ to prove that whenever he had sold the articles, he issued the bill/tax invoice.
8. P.W.1 complainant and P.W.2 Bhabatosh Debnath appeared before the District Forum and they were cross-examined by the opposite party, but the P.W.3 Amlan Das did not appear before the learned District Forum either for his statement on oath or his cross-examination though filed his affidavit-in-chief.
9. Appellant-opposite party appeared before the learned District Forum and produced the blank cash memo (tax invoice) and also denied the contention of the complainant that kutcha voucher was written by him.
10. The learned District Forum in its findings specifically stated that the complainant, P.W.1 stated in his evidence that he personally visited the shop of the opposite party ‘Adi Biswanath Stores’ on 20.11.2014 for purchasing the hardware items when the shop owner opposite party was present at the counter and he asked the opposite party whether door lock for fixing in 3 mm size shutter was available. Accordingly the opposite party arranged all items and one kutcha voucher was handed over to him. As the carpenter reported that size was not proper, so he wanted to change the lock. According to the complainant, opposite party firstly agreed to change the lock and was waiting for new goods which was supposed to come from outside.  But later, he misbehaved and did not agree to change the door lock and other items. At the time of purchase, witness Amlan Das was also present when the complainant went to the 'Adi Biswanath Stores'.
11. The opposite party in his evidence specifically stated that the item was not purchased from his shop and he is the owner of the 'Adi Biswanath Stores', but the complaint was filed against the proprietor of 'Biswanath Stores'. It is also stated that he is not the owner of 'Biswanath Stores' but 'Adi Biswanath Stores'.

The learned District Forum in its findings has stated, inter alia, that “It is true that in the complaint petition petitioner wrote 'Biswanath Stores'. That mistake was amended and in the evidence it is clearly stated that item was purchased from 'Adi Biswanath Stores' not from the 'Biswanath Stores'. O.P. failed to prove that some other shop namely 'Biswanath Stores' was located in the same location and the items was purchased from 'Biswanath Stores' not from his shop” and finally decided the complaint case as stated (supra).

12. Mr. Ghosh, Ld. Counsel appeared for the appellant-opposite party has taken us to Annexure-A, a undated kutcha slip, produced by the complainant to show that in that kutcha slip neither the name of 'Adi Biswanath Stores' nor the name of 'Biswanath Stores' was mentioned and also the date when the kutcha slip was issued was not mentioned. In the overleaf of the kutcha slip (Annexure-A1) it is specifically mentioned that on “22/12/2014 Goods recd. Link Mortice Lock-1 set, Brass Handle-2 Pc”. Therefore, the contention of the complainant that the alleged articles were not received by the seller is not correct. He has further taken us to the order sheet of the learned District Forum to show that though the petitioner filed one amendment petition on 21.03.2017, but in the order sheet dated 21.03.2017 there is nothing as to whether the learned District Forum allowed the amendment petition or rejected the same, but in the findings of the learned District Forum it is stated that the complainant went to the 'Adi Biswanath Stores' and purchased the alleged articles from the said shop of the appellant though in the complaint petition there is nothing regarding the 'Adi Biswanath Stores'. Thus, the findings of the learned District Forum that the complainant purchased the alleged articles from the 'Adi Biswanath Stores', the proprietor of which is the appellant-opposite party and that there was deficiency of service on the part of the appellant-opposite party is not only bad on record, but also unfair on the part of the District Forum. Mr. Ghosh placed two photographs to show that at 58/2, Central Road, Agartala there are two shops side by side one is, namely, 'Adi Biswanath Stores' proprietor of which is the appellant and another is ‘Biswanath Traders’. Therefore, unless the undated kutcha slip written by whom is determine, it is very difficult to decide the case, but the learned District Forum without deciding that issue fastened the appellant and passed the impugned judgment.
13. Per contra, Mr. Roy complainant appeared in person and stated that the learned District Forum rightly decided the case though admittedly the amendment petition was neither allowed nor rejected. He has also submitted that due to bona fide inadvertent minor mistake, the word ‘Adi’ got omitted before the words ‘Biswanath Stores’ in the cause-title. He has also submitted that there is no dispute having regard to the identity of the appellant and his father’s name and address and during cross-examination, he has identified the appellant. He has also contended that he has made a prayer before the learned District Forum for sending kutcha slip to the handwriting expert to brush aside any doubt regarding the kutcha voucher, but learned District Forum did not refer the same for expert opinion since the learned District Forum has become satisfied about the manner of deception and illegal trade practice considering all documentary and oral evidences. He has further contended that he has paid Rs.2,689/- in cash to the appellant, but at the bottom of his complaint that is the relief portion, he mentioned Rs.1,820/-. He has placed one photograph to convince this Commission that there are two shops at 58/2, Central Road, Agartala, namely, one 'Adi Biswanath Stores' and another is ‘Biswanath Traders’ and the appellant mentioned the 'Adi’ before the name of ‘Biswanath Stores’ in such a manner which he could not identify initially as 'Adi Biswanath Stores' and thus the name of the shop of the appellant was mentioned as ‘Biswanath Stores’ in the cause-title. He has finally contended that it would be proper for the Commission to uphold the judgment of learned District Forum.
14. We have considered the submission of the Ld. Counsel for the appellant and the submission of the complainant who appeared in person and also gone through the impugned judgment as well as the orders passed by the learned District Forum. It appears from the findings of the learned District Forum that Krishna Keshab Roy, P.W.1 stated that he personally visited the shop of the O.P. 'Adi Biswanath Stores' on 20.12.2014 for purchasing hardware items. It is also stated that the complainant affirmed that the items were purchased from the 'Adi Biswanath Stores' and another witness Amlan Das was also present when the petitioner went to the 'Adi Biswanath Stores', but the facts remain that in the complaint petition there is no mention of 'Adi Biswanath Stores' and the witness Amlan Das though filed his affidavit-in-chief, but not appeared before the learned District Forum for his statement on oath as well as his cross-examination. It is also admitted position that though the complainant filed amendment petition, but the same was neither allowed nor rejected, but the learned District Forum in its judgment, particularly in Paragraph-8, stated that “It is true that in the complaint petition petitioner wrote 'Biswanath Stores'. That mistake was amended and in the evidence it is clearly stated that item was purchased from 'Adi Biswanath Stores' not from the 'Biswanath Stores'” which is contrary to the records, as nowhere in the order sheet, it is mentioned that the amendment petition was allowed. It is further stated that “O.P. failed to prove that some other shop namely 'Biswanath Stores' was located in the same location and the items was purchased from 'Biswanath Stores' not from his shop.” According to us, it is the complainant who has to prove his case not the opposite party. However, we are not expressing any opinion regarding such findings of the learned District Forum, as we are not entering to the merits of the case. As asked by this Commission both the Ld. Counsel for the appellant and the complainant submitted photographs of the shops at 58/2, Central Road, Agartala from which it appears that there are two shops, namely, 'Adi Biswanath Stores' and ‘Biswanath Traders’. There may not be any shop, namely, ‘Biswanath Stores’, but in the same location another shop is there, namely, Biswanath Traders. Therefore, unless the person who has written the kutcha slip is proved, it is very difficult to come to a conclusion that the appellant is the person who issued the kutcha slip as alleged by the complainant.
15. Under the facts and circumstances, according to us, the undated kutcha slip should have been sent to an expert by the District Forum to find out as to whether the appellant was the writer of the said kutcha slip or not. More so, when the complainant in the cause-title of the complaint petition mentioned the name of the shop as ‘Biswanath Stores’, in his evidence he has mentioned the name of the shop as 'Adi Biswanath Stores' without amendment of the complaint petition. When an application is filed by a party, it is the duty of the Court either to allow the said application or to reject the same, but in the instant case, the learned District Forum admittedly, neither allowed the amendment petition nor rejected the same, but came to a finding that the complainant purchased the alleged articles from 'Adi Biswanath Stores'.

In view of the above, the impugned judgment is set aside and the matter is remanded back to the learned District Forum to decide the case afresh after disposing of the application for amendment of the complainant filed before it and also to provide an opportunity to the opposite party no.1, the appellant herein, to file objection to the amendment petition and also to cross-examine the handwriting expert, if any examined by the District Forum.

In the result, appeal is partly allowed. No order as to costs.

Office is directed to release the statutory deposit as deposited by the appellant opposite party no.1 on submission of proper application.              

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura