Tripura

StateCommission

A/44/2016

Jiban Kumar Dasgupta - Complainant(s)

Versus

Tata Steel & Style - Opp.Party(s)

27 Feb 2017

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.44.2016

 

1.Jiban Kumar Dasgupta,

S/o Lt. Mono Ranjan Dasgupta,

Joynagar (A.K. Road), Agartala,

P.S. West Agartala, District – West Tripura,

Pin:799001. 

… … … … Appellant/Complainant

 

 

1.Tata Steel & Style,

Royal View building, B.K. Kakati Road,

Ulubari, Near DGP Office, Guwahati,

Assam – 781001.

 

2.Debnath Electronics,

Santirbazar, South Tripura - 799144,

(Proprietor – Shri Dulal Debnath)

… … … … … Respondents/Opposite Parties

 

Present

 

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Ch. Sharma,

Member,

State Commission, Tripura.

 

 

 

For the Appellant:                       In person.

For the Respondent No.1:                  Absent.

For the Respondent No.2:                  Mr. Sovan Mahajan, Adv.

Date of Hearing and Delivery of Judgment: 27.02.2017.

 

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

 

 

U.B. Saha,J,

The instant appeal is filed under section 15 of the Consumer Protection Act, 1986 by the appellant, Jiban Kumar Dasgupta, who was the complainant before the Ld. District Consumers Disputes Redressal Forum, Gomati District, Udaipur (hereinafter referred to as District Forum) against the Judgment dated 22.09.2016 passed by the District Forum in Case No.CC-11 of 2015 whereby and whereunder the Ld. District Forum ordered that the opposite party no.2 would pay Rs.3,000/- to the complainant as compensation for not furnishing the cash memo to him for purchase of almirah and apart therefrom, further Rs.2,000/- was granted as costs of litigation. There is in total Rs.5,000/- which is to pay within 30 days from the date of judgment and in default to make such payment, the opposite party no.2 will be liable to pay interest @7% per annum upon the said amount from the date of passing of the judgment till realization.

2. Heard the appellant, Mr. Jiban Kumar Dasgupta in person as well as Mr. Sovan Mahajan, Ld. Counsel appearing for the respondent no.2 (hereinafter referred to as opposite party no.2). None appears on behalf of the respondent no.1 (hereinafter referred to as opposite party no.1).
3. The facts of the case are as follows:-

The appellant (hereinafter referred to as complainant/petitioner) purchased one steel almirah comprising of three doors from the shop of the opposite party no.2 on 25.05.2014, which was delivered to his address in the evening of that day when load shedding was going on. Thereafter, the almirah was found defective, smudged painting, packing spots etc., the opposite party no.2 was duly informed to remove the defects, but he being un-responded. Thereafter, the complainant informed the matter to the opposite party no.1, Tata Steel & Style who was the manufacturer of the almirah. Another grievance is that no tax invoice (cash memo) was issued by the opposite party no.2 to him despite payment of consideration money of Rs.26,500/-, rather one bill/challan was issued in his name. The product was under warrantee coverage of one year. Getting no response from the opposite parties, the complainant ultimately filed the complaint before the Ld. District Forum.

4. Initially, despite receipt of notice, the opposite parties did not appear and as such, the case proceeded ex parte against them. Later on, the opposite party no.2 submitted written objection, which was accepted by the Ld. District Forum.

From the record, it reveals that the Ld. District Forum tried to amicably settle-up the matter and the opposite party no.2 agreed to replace the almirah, but thereafter, it was reported by the opposite party no.2 that they had placed new almirah, but the complainant refused to accept the same. According to the complainant, another almirah of smaller size and of different model was tried to be replaced, so he did not accept the same. Therefore, process of conciliation failed. The opposite party no.1 did not contest the case before the District Forum. So, the case proceeded ex parte against them. The opposite party no.2 placed his defense that on 25.05.2014 at about 10.00-10.30 a.m., the complainant came to his shop and selected one almirah for Rs.26,500/-. He asked the opposite party no.2 to deliver the same in his house and accordingly, on that day, the almirah was delivered at 03.00 p.m. The complainant made payment of the price at 07.00 p.m. on the same day as per the bill. Thereafter, his one employee handed over the cash memo to the complainant vide No.1752 dated 25.05.2014. According to the opposite party no.2, after 3-4 months therefrom, again the complainant came to his shop and informed him that the wife of the complainant had returned from Agartala to his house at Santirbazar and she did not choose the colour of the almirah. Thereafter, as per request of the complainant, the opposite party no.2 agreed to such proposal and informed him that the same will be changed after new almirah of the choice of the wife of complainant came from the supplier, but hearing the same, the complainant became violent and used abusive languages and also gave threat to him with dire consequences. He denied any sort of harassment of deficiency in service or any sort of misbehavior by him towards the complainant.

5. During hearing, the complainant examined himself as P.W.1 and submitted his Examination-in-Chief on affidavit and proved two documents such as one bill/challan issued by the opposite party no.2 and one warranty card, which were marked as Exhibit-1 and Exhibit-2 respectively.
6. On behalf of the opposite party no.2, Sri Dulal Debnath was examined as O.P.W.1 and he proved photocopy trade licence (compared with the original), photocopy of cash memo dated 25.05.2014 (compared with the counter foil). Those were marked as Exhibit-A and Exhibit-B respectively. He also proved photocopy of Form No.18, Form No.38 and Form No.37 under TVAT Act (three sheets) and on comparison with the original, the same were marked as Exhibit-C series. He further examined two employees of his shop namely, Sri Paresh Debnath and Sri Shyamal Nath as O.P.W.2 and O.P.W.3 respectively. More so, the complainant had also filed one written argument, which was taken into consideration by the District Forum.
7. Both the parties were heard by the Ld. District Forum. After considering the pleadings as well as evidence of the parties, the Ld. District Forum had taken up the following points for deciding the case.

1. Whether the defective almirah was sold by the opposite party no.2 to the complainant.
2. Whether proper cash memo was issued to the complainant by the opposite party no.2.
3. Whether there was any deficiency in service on the part of the opposite parties.

8. Considering the evidence on record, the Ld. District Forum has decided the Point No.1 against the complainant as the complainant failed to prove his allegations. The next points were taken-up together and the District Forum ultimately decided the Point No.2 & 3 in favour of the complainant and against the opposite party no.2 and passed the order as stated (supra).
9. Mr. Dasgupta, the complainant in person has filed so many documents by way of Firisti before this Commission which were not filed before the Ld. District Forum and on the basis of those documents he tried to criticize the impugned judgment. More so, he has produced some documents regarding Sagar Steels and Indiamart. Though, the said Sagar Steels and Indiamart were not the party before the District Forum. He ultimately submits the documents, according to him, those were collected by him after the decision of the District Forum.
10. On the other hand, Mr. Mahajan, Ld. Counsel while supporting the impugned judgment submits that in the written argument, the complainant made allegations against Mr. Kishore Acharjee, the Registrar of the District Forum alleging that at the District Forum, no acknowledgement/receipt of the letters and documents was given to him. Such an allegation cannot be decided in the appeal as the same can be only answered by the Ld. District Forum. He further submits that the complainant again made allegation against the District Forum for granting so many adjournments though against those orders of adjournment, the complainant did not move the Higher Fora. The Hon’ble Apex Court as well as the Guwahati High Court in number of cases has observed that the allegations which was not made before the original Court cannot be raised in the Appellate Forum as the Appellate Forum is not aware about those facts, only the original Court can say whether those allegations were made before that Court or not.
11. We have gone through the documents as submitted before us as well as the written argument from which it appears that the complainant has produced some new documents here issued by the Sagar Steels and Indiamart. Though the said Sagar Steels and Indiamart were not the party before the District Forum and in absence of them, it is very difficult on our part to decide the appeal.

At this stage, Mr. Dasgupta submits that the matter may be remanded to the Ld. District Forum for deciding the case afresh allowing the complainant to produce further evidence, which he has collected after passing the impugned judgment.

12. Mr. Mahajan, Ld. Counsel has seriously objected to the said prayer, as according to him, the Ld. District Forum decided almost all the points and thereafter, passed the impugned judgment. Basically, the allegation is against the Registrar of the District Fora.

We are of the considered opinion that the matter has to be remanded to the Ld. District Forum. We make it clear that we are not expressing any opinion regarding the merit of the impugned judgment and we are also not directing the Ld. District Forum as we set aside the impugned judgment and remand the case mainly regarding the allegation of the complainant against the Registrar of the District Forum and some new documents placed by the complainant before this Appellate Court, which were not the part of the evidence before the Ld. District Forum.

Accordingly, the impugned judgment is set aside and the matter is remanded to the Ld. District Forum to decide the matter afresh. The complainant is at liberty to file appropriate application for adducing further evidence and adding Sagar Steels and Indiamart as party, if so advised and the Ld. District Forum shall consider the application of the complainant, if any filed, in accordance with law. Appeal is accordingly disposed of.  

Send down the records to the Ld. District Forum, Gomati District, Udaipur.

 

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