DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 PARGANAS, AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 144
C.C. CASE NO. 97 OF 2018
DATE OF FILING : 30.08.2018 DATE OF JUDGEMENT: 08.05.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : Debasis Das (aged 50 years)
Modon Mohon Das, Vill. – New Town,
P.O. + P.S. – Diamond Harbour, Dist. – South 24
Parganas.
O.P/O.Ps : 1) Sukanta Dutta (Sales Executive of “Khosla Electronics
and Pvt. Ltd.”),
2) Branch Manager, “Khosla Electronics and Pvt. Ltd.”
Vill. – Amtola, Diamond Harbour, Dist. – South 24
Parganas, P.S. – Bishnupur, Pin – 743398.
_______________ ___________________________________________________
J U D G M E N T
Sri Ananta Kumar Kapri, President
Facts leading to the filing of the instant case may be set forth as follows.
Complainant decided to purchase a new freeze and therefore, he approached “Khosla Electronics and Pvt. Ltd.”, the shop of O.P. no. 1 and 2. He saw the catalogue and placed an order on 19.09.2017 before O.P. nos. 1 and 2 for purchasing a silver/grey colored freeze of Samsung Company of 340 liter capacity. The O.P.s delivered the said freeze at the house of the complainant and the complainant also paid the consideration price of Rs. 26,000/- to O.P. no. 1. But, to his utter surprise, the complainant came to see, when the freeze was opened from the cover pack, that the freeze of his choice has not been delivered by the O.P.s and therefore, he i.e. the complainant kept the said freeze in unused condition in his house. He made contact with O.P. no. 1 and O.P. no. 1 assured him that they would deliver the freeze of his choice on payment of additional amount of Rs. 8,000/- by the complainant. Complainant agreed to make such additional payment and he has not even used the former freeze supplied to him. But, the former freeze of the complainant has not yet been replaced by the O.P.s; constant persuasions by the complainant have proved to be futile and the complainant has therefore filed the instant case praying for either replacement of his former freeze by a new one of his choice or for refund of the consideration price with 12% interest p.a. and for compensation etc.
Hence, this case.
Both the O.P.s have jointly filed a written statement wherein it is contended inter-alia that this is not a case of mistaken delivery of the freeze as alleged by the complainant. The O.P.s agreed to deliver the freeze of complainant’s choice on receipt of the additional amount of cost. The new freeze was also dispatched to the house of the complainant for delivery. But the complainant has not accepted the delivery of the said new freeze having returned the former one. There is no deficiency in service on the part of the O.P.s and therefore, the case should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is there any deficiency in service on the part of the O.P.s as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for?
EVIDENCE OF THE PARTIES
On behalf of the complainant, two witnesses i.e. PW-1 and PW-2 have led evidences on affidavit. So also by O.P. no. 1. BNAs filed by the parties are also kept in the record.
DECISION WITH REASONS
Point no.1 & 2 :
Sale of the freeze to the complainant by O.P.s no. 1 on 19.09.2017 has remained undisputed. Also undisputed is the fact that the complainant has paid an amount of Rs. 26,000/- as consideration price of the freeze to the O.P. no. 1. What is disputed is that the O.P. no. 1 has not delivered the freeze which was selected by the complainant having seen catalogue of O.P. no. 1. It has transpired in the evidence of the complainant (PW-1) that he came to find that the freeze of his choice was not supplied to him, when the cover pack of the freeze was opened. It also transpires in his evidence that there was a talk between him and O.P. no 1 and O.P. no. 1 agreed to replace the former freeze by a big one selected by the complainant according to his choice. The complainant also agreed to make payment of additional amount of Rs. 8,000/- to O.P. no. 1. It is also stated by the complainant in his evidence that since then he has pursued the matter with O.P. no. 1 several times, but O.P. no. 1 has paid no heed to his grievance. According to the complainant, the freeze which was delivered to him by O.P. no. 1 has still been kept in unused condition. PW-2 has completely supported the version of the complainant. On the other hand, it is the case of the O.P. no. 1 that the freeze of complainant’s choice was dispatched to the house of the complainant but the complainant did not accept the same and did not deliver the former freeze which was supplied to him. To substantiate his case, O.P. no. 1 has not produced any documents before the forum. No specific date for delivery of the new freeze has been divulged by O.P. no. 1. He could have produced the cash memo for the new freeze which was despatched for delivery to the complainant. But, no such cash memo has been produced before the forum by O.P. no. 1. To establish his version, the complainant has filed a copy of letter dated 08.05.2018, whereby he requested O.P. no. 1 for delivery of the new freeze on receipt of additional payment. Thereafter legal notice dated 28.06.2018 was also served by the complainant upon O.P. no. 1. But, all these steps on the part of the complainant have failed to awake O.P. no. 1 from his somnolence. It now stands established that O.P. no. 1 has deliberately made delay in delivery of the new freeze of complainant’s choice to the complainant on receipt of additional payment of Rs 8,000/- from the complainant. Complainant has been kept deprived of the service of the freeze since 19.09.2017 till date. This is imperfection in discharge of service by the O.P.s and therefore, this is deficiency in service on their part. Long unexplained delay in doing a thing what is necessarily required to do promptly is obviously a deficiency in service on the part of that person. The O.P.s are found to be guilty of such deficiency in service for keeping the complainant deliberately on tenterhooks for such a long period. The complainant is entitled to compensation for harassment and mental agony undergone by him due to deficiency in service on the part of the O.P.s.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against O.P.s with cost of Rs.5,000/-.
The O.P.s are directed to deliver the new freeze as selected by the complainant, to him, having taken back the former freeze from him, within a month of this order and in that case the complainant will have to pay the additional amount of cost, if any, as is required for purchase of such a new freeze of his choice. The complainant must also return the former freeze to O.P. no. 1 when the new freeze of his choice is delivered to him by O.P. no. 1. If O.P. no. 1 fails to deliver the said new freeze of complainant’s choice to the complainant within the aforesaid period, they i.e. the O.P.s will have to return the entire consideration price i.e. Rs. 26,000/- to the complainant with interest at the rate of 8% p.a. from the date of receipt i.e. 19.01.2017 till full realization thereof.
The O.P.s are also directed to pay a sum of Rs. 5,000/- as compensation for harassment and mental agony caused to the complainant by them within a month of this order failing which the compensation amount and the cost amount will bear interest at the rate of 10% p.a. till full realization thereof.
Registrar-In-Charge of this Forum is directed to deliver a copy of the judgment free of cost to the parties concerned.
President
I / We agree
Member
Dictated and corrected by me
President
