Tripura

StateCommission

A/39/2019

Dr. Moumita Roy Chowdhury - Complainant(s)

Versus

Sri. Saumen Ghosh - Opp.Party(s)

Mr. A. L. Saha, Mr. Kajal Nandi

12 Feb 2020

ORDER

APPEAL CASE No.A.39.2019

 

 

 

  1. Dr. Moumita Roy Chowdhury,

W/o Sri Debabrata Sikdar,

M/s Chowdhury & Co. Masjid Road, Agartala,

P.O. Agartala, P.S. East Agartala, District - West Tripura,

Pin: 799001.        

                                                          ….    ….    ….    Appellant/Complainant.

                                                         

        Vs

 

 

 

  1. Mr. Soumen Ghosh,

37/1 Thakur Palli Road,

Near Skylark Club, Krishnanagar,

P.O. Agartala, District - West Tripura,

Pin: 799001.

 

  1. Medicare Surgicals,

37/1 Thakurpalli Road, Near Skylark Club, 

Krishnanagar, P.O. Agartala, District - West Tripura,

Pin: 799001.

 

  1. Modular Dental Equipments,

No.47/21, 6th Main, Sri Gandhada Kaval,

Sunkadakatte, Vishwaneedam Post, Magadi Main Road,

           Bengaluru 560079, Karnataka.

 

….    ….    ….    Respondents/Opposite Party No.1, 2 & 3.

 

 

 

 

For the Appellant:                                        Mr. Kajal Nandi, Adv.

For the Respondent No.1 and 2:                 Mr. Kishore Kr. Pal, Adv.

For the Respondent No.3:                           Absent.

             Date of Hearing & Delivery of Judgment: 12.02.2020.

 

 

 

 

 

 

 

 

J U D G M E N T [O R A L]

 

 

U.B. Saha,J,

These appeals are directed against the judgment dated 16.09.2019 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No. C.C.47 of 2018 whereby and whereunder the learned District Forum allowed the complaint petition to the extent that the opposite party no.1 and 2, i.e. the appellant no.1 and 2 in Appeal Case No.A/33/2019 and the respondent no.1 and 2 in Appeal Case No.A/39/2018 shall pay an amount of Rs.73,945/- to the complainant, i.e. the respondent no.1 in Appeal Case No.A/33/2019 and the appellant in Appeal Case No.A/39/2018 within a period of two months from the date of judgment, failing which, the amount shall carry interest @9% per annum till the payment is made in full. The learned District Forum also directed that the complainant shall return the Dental Chair to the opposite party no.1 and 2 as and when the opposite party no.1 and 2 pay her the aforesaid amount of Rs.73,945/- in terms of the direction of the learned District Forum.

As the facts involved in both the appeals are similar and the same judgment is under challenge as well as the questions of law involved are also same, both the appeals are taken up together for disposal by this common judgment.

  1. Heard Mr. Kishore Kr. Pal, Ld. Counsel appearing for Mr. Soumen Ghosh and Medicare Surgicals, who are the appellants in Appeal Case No.A/33/2019 and the respondent no.1 and 2 in Appeal Case No.A/39/2019 (hereinafter referred to as opposite party no.1 and 2) as well as Mr. Kajal Nandi, Ld. Counsel appearing on behalf of Dr. Moumita Roy Chowdhury who is the respondent no.1 in Appeal Case No.A/33/2019 and also the appellant in Appeal Case No. A/39/2019 (hereinafter referred to as complainant). None appears on behalf of the Modular Dental Equipments, the respondent no.2 in Appeal Case No.A/33/2019 and the respondent no.3 in Appeal Case No.A/39/2019 (hereinafter referred to as opposite party no.3).
  2. Brief facts needed to be discussed are as follows:-

The complainant, Dr. Moumita Roy Chowdhury is a qualified Dental Surgeon. The complainant in order to purchase a dental chair and also one compressor for her chamber contacted with the opposite party no.1, who according to her deals in such items at Agartala. The price of the compressor was settled at Rs.20,000/- and that of the dental chair at Rs.92,000/-. She accordingly paid Rs.1,12,000/- in total to the opposite party no.1 in installments. After making full payment of the amount, the opposite party no.1 did not give her any cash memo and warranty card against the compressor and the chair though the opposite parties before being paid the amount in full had promised her to supply cash memo and warranty card. It is alleged in the complaint petition that the dental chair which was supplied to her was defective and causing discomfort from the very beginning. The matter was duly intimated to the opposite party no.1. She also made a complaint to the opposite party no.1 alleging that though she had ordered for supplying her Alpha Model dental chair, but such branded chair was not supplied and installed in her chamber. According to the complainant, the chair which was supplied did not match exactly with the picture of the Alpha Model chair which was shown to her. Though she approached to the opposite party no.1 a number of times and conveyed him about the defects in the chair, but the opposite party no.1 even after inspecting the chair in her chamber has not entertained  the allegations of the complainant that defective dental chair was supplied to her. It is also stated in the complaint petition that as per advice of the opposite party no.1, she contacted with the opposite party no.3, the Manufacturer of the chair and registered a complaint with the opposite party no.3 about the defects in the chair. Though the opposite party no.3 agreed to replace the chair, but did not replace the same till filing of her complaint petition before the learned District Forum by the opposite parties.

Prior to filing of the complaint petition before the learned District Forum, the complainant served Legal Notices dated 25.04.2018 upon the opposite parties. As the complainant did not get any satisfactory reply to the legal notice, she filed the complaint petition before the learned District Forum claiming refund of the amount of Rs.92,000/- being the cost of the dental chair, Rs.2,00,000/- as compensation and Rs.20,000/- as litigation expenses from the opposite parties.

  1.  After filing of the complaint petition by the complainant, notices were issued and accordingly served to the opposite parties and upon receipt of the notice, the opposite party no.1 and 2 appeared before the learned District Forum through their Ld. Counsel and filed their written objection jointly.
  2. On the other hand, the opposite party no.3 though received the notice from the learned District Forum, but did not appear before the learned District Forum to contest the case. Thus, the case was proceeded ex parte against the opposite party no.3  as per order dated 20.12.2018 passed by the learned District Forum.
  3. In the written objection, the opposite party no.1 and 2 while denying the claims and allegations of the complainant raised the question of maintainability of the complaint petition. According to them, the complainant does not come under the purview of the definition of ‘consumer’ under the Consumer Protection Act, 1986. They have also denied any kind of financial transaction with the complainant regarding purchase of dental chair and a compressor. It is further stated in their written objection that opposite party no.1 is a medical representative and that he used to visit to the chamber of the complainant for promoting and sale of the medicines of the company, namely, ICPA Health Products Ltd. and that the opposite party no.2, Medical Surgical shop belongs to his wife. According to the opposite party no.1 and 2, the complainant used to purchase medical equipments like Seizure, Cotton, Gloves, Bandage, Apron and Musk from the opposite party no.2 and that the opposite party no.1 used to collect the amount of those articles from the complainant on behalf of his wife. The opposite party no.1 and 2 strongly asserted that they were in no way connected with the manufacturing, selling and supplying of the dental chair and also the compressor as alleged by the complainant. They also refuted the allegations of the complainant that they were engaged in unfair trade practice with the complainant as they never sold dental chair and compressor to the complainant and thus, prayed for dismissal of the compliant petition with costs.
  4. The complainant examined herself as P.W.1 and also examined her chamber assistant, namely, Smt. Bela Roy as P.W.2. She produced five documents comprising 11 sheets viz. copy of Advocate's Notice dated 25.04.2018 in favour of the opposite party no.1, Sri Soumen Ghosh, copy of Advocate's Notice dated 25.04.2018 to the opposite party no.3, Modular Dental Equipments, Xerox Copy of Postal receipt dated 25.04.2018, Reply dated 09.05.2018 to the Advocate's notice dated 25.04.2018 given by the opposite party no.1, Sri Soumen Ghosh and copies of track consignment reports of the India Post regarding the notices sent by post to the opposite party no.1 and 3. The documents on identification by the complainant were marked as Exhibit-I series.
  5. The opposite party no.1 examined himself as DW for himself and on behalf of his wife who is the opposite party no.2. He produced two documents, namely, Reply of Legal Notice dated 25.04.2018 issued to him by the complainant and Postal receipt under speed post dated 10.05.2018. The documents were marked as Exhibit-A series.
  6. The learned District Forum considering the pleadings of the parties as well as the evidence on record framed the following points for deciding the case:-
  1. Whether the O.P. Nos. 1 & 2 had sold a defective Dental Chair to the complainant?
  2. Whether the O.P. Nos.1 & 2 have indulged in unfair trade practice with the complainant?
  3. Whether the Complainant is entitled to get compensation/relief?
  1.  The learned District Forum after hearing the parties and considering the evidence on record passed the impugned judgment.
  2. Aggrieved by and dissatisfied with the impugned judgment, both the complainant and the opposite party no.1 and 2 have preferred these instant appeals.
  3. Mr. Pal, Ld. Counsel appearing on behalf of Sri Soumen Ghosh, the opposite party no.1 and Smt. Rupali Ghosh, the proprietor of Medicare Surgicals, the opposite party no.2 while urging for setting aside the impugned judgment would contend that the learned District Forum failed to consider the evidence on record, particularly, when the opposite party no.1 and 2 denied the selling and supplying of the dental chair and that the learned District Forum should not have awarded any amount on that count. He also submits that the complainant failed to prove her case though he/she admitted that the opposite party no.1 received some amount putting his signature in the diary produced by the complainant (Exhibit-1 series). He further contended that opposite party no.2 sold some medical equipment like, seizure, cotton, gloves, bandage, apron and musk, but not the dental chair.  
  4. On the other hand, Mr. Nandi, Ld. Counsel appearing for the complainant while urging for enhancement of the awarded amount would contend that it is evident from the records that the opposite party no.1 received an amount of Rs.43,945/- by putting his signature in the diary produced by the complainant and not only that, he also received more money than the money for which he put his signature in the diary, but for those money he did not produce any documents like, cash memo or voucher. He has further contended that the opposite party no.1 admitted that an amount of Rs.43,945/-was received by him and he also admitted that his wife is the proprietor of Medical Surgicals, the opposite party no.2. He has finally contended that the amount of compensation which was awarded by the learned District Forum is lesser in side, thus the same may be enhanced for which the complainant has filed the instant appeal being Appeal No.A.39 of 2019.
  5. We have gone through the decisions and reasons given by the learned District Forum in the impugned judgment which are reproduce hereunder:-

“ 5. We have heard arguments advanced by Learned Advocates for the complainant and the O.P. Nos.1 & 2.

We have also gone through the complaint, the evidence adduced by the Complainant, her witness, the documentary evidence produced by the Complainant. We have also perused the evidence adduced by the O.P. No.1 and documentary evidence produced by him. 

It is evident from the complaint and the Evidence adduced by the Complainant that she being a Dental Surgeon contracted the O.P. No.1 Sri Soumen Ghosh for purchasing  a dental chair for Rs.92,000/- and a Compressor price of which was Rs.20,000/-. The Complainant in her evidence-in-Chief stated that up to June, 2017 she paid Rs.43,055/- to the O.P. Sri Soumen Ghosh and thereafter she has paid Rs.68,945/- in various installments from 05/07/2017 to 30/10/2017. The Complainant has alleged that the O.P. No.1 having been paid the full amount of Rs.1,12,000/- did not furnish cash memo & warranty card against the Dental Chair. She further alleged that though she had asked the O.P. No.1 to supply her ALPHA MODEL Dental Chair being manufactured by the O.P. No.3, the O.P. No.1 actually supplied her a different model one and that the chair which was supplied did not match exactly with the picture of the Dental Chair which was shown to her before the purchase. The complainant further alleged that the dental chair which was supplied to her was defective and causing discomfort after 3 months of its using. The Dental Chair was not replaced by the O.P. Nos.1 &2 even though the Complainant served legal notice dated 25/-04/2018 upon the O.P. Nos.1 & 3. The Complainant thereafter filed the consumer complaint against the O.Ps.

The O.P. Nos.1 & 2 in their W.O. have denied any sort of financial transaction held between them and the Complainant regarding the alleged Dental Chair. In this case the O.P. No.2 being the Proprietor of Medicare Surgicals has not come forward to lead evidence but on her behalf the O.P. No.1 Sri Soumen Ghosh who is her Husband deposed before this Forum as Defense Witness.  The O.P. No.1 in his Examination-in-Chief has completely denied selling and supplying of Dental Chair to the Complainant. But he has admitted that he being a medical representative used to visit to the Chamber of the Complainant for promoting and sale of the medicines of the company namely ICPA Health Products Ltd. where he was engaged as a Medical Representative and also that the Complainant used to purchase medical equipments like Seizure, Cotton, Gloves, Bandage, Apron & Musk from the O.P. No.2 who is his wife and also that he used to collect amount against those articles from the Complainant on behalf of his wife.

The assertion of the O.P. No.1 that he had not received any amount from the Complainant against selling of Dental Chair    does not appear to us trustworthy in view of the accounts maintained by the complainant in her Diary No.1 which was produced by the Complainant as evidence under Exhibit-I series before the Forum wherein we find that the Complainant had paid Rs.43,945/- to the O.P. No.1 on different dates from 12/08/2017 to 30/10/2017. The complainant in her evidence has emphatically stated that she had paid the amount to the O.P. No.1 for the Dental Chair and the O.P. No.1 has also acknowledged receipt of the amount by putting his signatures against each of the amount paid to him. The entries made in the Diary No.1 of the Complainant, is admissible in evidence U/S 34 of Indian Evidence Act, 1872. We find that regarding payment of this amount made by the Complainant for the Dental Chair to the O.P. No.1 has also been corroborated by the evidence of PW-2 Smt. Bela Roy who worked as a Chamber Assistant of the Complainant.

We further find that the O.P. No.1 in his cross examination as DW-1 has admitted the signatures appearing in the Diary No.1 are of him and the signatures are accordingly marked Exhibit-I/1 series. The O.P. Nos.1 & 2 have not adduced documentary evidence to controvert the evidence produced by the Complainant on this count. The assertion of the O.P. No.1 that he used to collect cost of medical equipments such as Seizure, Cotton, Gloves, Bandage, Apron & Musk from the Complainant on behalf of his wife and that he did never collect price of the alleged Dental Chair from the Complainant, has not been proved by any cogent evidence from the side of the O.P. Nos.1 & 2.

That the O.P. No.2 deals in Dental Chair, Dental materials, Instruments and Surgical items under the name and style of Medicare Surgicals finds support from the cash memo dated 15/06/2017 issued by the Proprietor of Medicare Surgicals Smt. Rupali Ghosh, the wife of the O.P. No.1. On behalf of the the Complainant copy of the said cash memo dated 15/06/2017 was filed before the Forum on 02/09/2019. As this document was filed at belated stage (at the stage of final argument of this case) we were not inclined to accept the document then. But for fair ends of justice and for arriving at a just decision of this case we find it necessary and proper to take judicial notice of the cash memo dated 15/06/2017 by invoking the provisions laid down U/S 13(4)(ii) of Consumer Protection Act, 1986 read with Section 57 of the Indian Evidence Act,1872. From the copy of the cash memo dated 15/06/2017 it reveals that the O.P. No.2 had sold out one ALPHA DENTAL CHAIR along with other accessories to one Dr. Nabanita Ghosh. So it is abundantly proved that the O.P. No.2 sells ALPHA DENTAL CHAIR from her Medicare Surgicals shop.

As regards payment of Rs.43,055/- to the O.P. No.1 in two installments by the Complainant has not been proved as we find that the Complainant has failed to produce cogent evidence in support such claim.

The allegations of the Complainant that the Dental Chair supplied to her by the O.P. Nos.1 & 2 is defective is found to have been supported by the evidence of PW-2. The PW-2 Smt. Bela Roy in her evidence stated that the Dental Chair suffers from various defects and that in her presence the Complainant had shown the defects of the Chair to the O.P. Sri Soumen Ghosh when Sri Ghosh visited to the Chamber of the Complainant.

As there is no tangible evidence on record against the O.P. No.3 we are not O.P. No.3 we are not inclined to fix any liability on the said O.P.

In view of the above discussion we are convinced that the O.P. Nos.1 l& 2 had sold out a Dental Chair to the Complainant. We are also convinced from the evidence of the Complainant that the O.P. Nos. 1 & 2 had not supplied  the Complainant cash memo and warranty card of the Dental Chair to the Complainant in spite of repeated requests made by the Complainant to the O.P. No.1 for those two documents.”

We have also gone through the exhibited documents and the deposition on oath as well as the pleadings of the parties from which it appears that the complainant though claimed that she had paid Rs.1,12,000/- to the opposite parties, but the learned District Forum rightly did not believe the said contention except the amount of Rs.43,945/- which the opposite party no.1 received after putting his signature on the diary maintained and produced by the complainant before the learned District Forum. According to us, the learned District Forum rightly held that the dental chair supplied to the complainant by the opposite party no.1 and 2 is defective which is found to have been supported by the evidence of P.W.2, Smt. Bela Roy, the chamber assistant of the complainant.  

We are unable to accept the contention of Mr. Pal as he failed to answer as to why the opposite party no.1 and 2 did not supply the cash memo for the items sold by them as alleged and/or for the dental chair.

In view of the above, we are of the view that the learned District Forum rightly observed that the opposite party no.1 and 2 had sold out a dental chair to the complainant and the opposite party no.1 and 2 did not supply any cash memo and warranty card so far the dental chair is concerned to the complainant in spite of her repeated requests to the opposite party no.1 for those two documents. We are also of the view that that the learned District Forum rightly directed the opposite party no.1 and 2 to return Rs.43,945/- to the complainant for the cost of dental chair which was found defective after three months from the date of purchase and also to pay Rs.25,000/- for harassment  and mental agony as well as Rs.5,000/- as cost of litigation, in total Rs.73,945/- and the complainant shall return the dental chair to the opposite party no.1 and 2 as and when the opposite party no.1 and 2 shall pay her the aforesaid amount of Rs.73,945/- in terms of the direction of the learned District Forum. According to us, the learned District Forum did not commit any error while passing the impugned judgment. Hence, no interference is called for. 

In the result, both the appeals are dismissed being devoid of merit.

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

Consumer Court Lawyer

Best Law Firm for all your Consumer Court related cases.

Bhanu Pratap

Featured Recomended
Highly recommended!
5.0 (615)

Bhanu Pratap

Featured Recomended
Highly recommended!

Experties

Consumer Court | Cheque Bounce | Civil Cases | Criminal Cases | Matrimonial Disputes

Phone Number

7982270319

Dedicated team of best lawyers for all your legal queries. Our lawyers can help you for you Consumer Court related cases at very affordable fee.