In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/120/2021.
Date of filing: 14/09/2021. Date of Final Order: 23/02/2024.
Saptarshi Sinha,
s/o Late Sukumar Sinha,
r/o at 42, B.N. Road, P.O. & P.S. Uttarpara,
Dist. Hooghly, PIN. 712258. …….complainant
-vs
- The Branch Manager,
Great Eastern Retail Pvt. Ltd., Uttarpara Branch,
2/17/1 G.T. Road (Kheya Ghat), P.O. & P.S. Uttarpara,
Dist. Hooghly, PIN. 712258.
- The Product Manager,
Great Eastern Retail Pvt. Ltd., Techno City,
15B Sarat Bose Road, Kolkata 700020.
- M/S Great Eastern Hire Purchase Pvt. Ltd.
A Pvt. Ltd. Company,
Represented by Board of Directors,
Having its registered office at 20 Old, Court House St.
P.S. Hare St. Kolkata 700001.……oppositeparties
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
Member, Babita Chaudhuri.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainant once purchased a television set as mentioned in the schedule mentioned below from the OP-1 in lieu of consideration money amounting of Rs.11000/- for his personal use on 20.09.2020. It is to be noted that the said television set was covered with one year warranty period. Since purchasing the schedule mentioned television set, started to create problem, i.e. to say that when the complainant started the T.V set it wants upgradation which is not taking by default and inspite of clicking the upgrade button the T.V set was not being up graded. The complainant on number of occasions visited the office of both the OP-1&2 and made request for several times to settle and remove his above stated problem in respect of the schedule mentioned T.V set. But all of his said efforts were in vain. Subsequently on 6th March, 2021 the Op-1 replaced a new television set of same nature as stated in the schedule below in place of the defective one. But unfortunately the complainant had failed to enjoy the new television set as replaced by the OPs, as the new one also had same problem as stated earlier in the instant petition and finding no other alternatives the complainant again knocked the door of both OP-1&2 in various time and in various way, but both the OP-1&2 neither pay any attention to the problem of the complainant nor took any positive step to settle the issue properly. The complainant through an e-mail dated 02.04.2021 narrated the entire facts to the OP-2 and asked for proper relief but till date there is no response either from the OP-1 or from OP-2. Lastly the complainant through this advocate sent a notice dated.10.07.2021 and asked the Op-1&2 for return back of consideration money along with payment of compensation against supply of defective goods and deficiency in service. The aforementioned advocate’s notice dated.10.07.2021 were duly served upon both the OP-1&2 but both of them did not pay any importance on the contention of the said notice.
Complainant filed the complaint petition praying direction upon the opposite parties to return back the schedule mentioned T.V set i.e. to pay a sum of Rs. 11000/- and to pay a sum of Rs.20000/- for harassment, trouble, mental pain and agony.
Defense Case:- The opposite party Nos. 1 & 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that suppressing all the material facts and concealing the truth and making a total departure from the truth and distorting the facts, the complainant projected the instant complaint with the sole object of causing harassment and hardship to the OPs. The instant complaint is not maintainable as the complainant did not furnish any expert opinion to substantiate the complaint and therefore is liable to be rejected in limini. The answering OPs is a dealer not the manufacturer and submits that the complainant purchased one television from the OP-1 on 20.09.2020. The said television has been delivered to the residence of the complainant. It is to be mentioned that at the time of purchase and delivery the OP-1, the complainant paid total Rs.11000/-. It is pertinent to b e mentioned that the complainant purchased one television, and the OP-1 issued cash memo and one year warranty card to the complainant as provided by the manufacturer.
The answering OP-1 submits that the complainant purchased one television and make full payment of Rs.11000/- on 20.09.2020 and delivery has to the complainant house with good condition. The complainant was satisfied with the same. The complainant was fully satisfied with the demonstration as it is the utmost duty of the OP-1 to sale any electronic product after demonstration and after satisfaction of the customer. The complainant was fully satisfied and agreed to purchase the television set. The OPs further submits that it is a dealer and not the manufacturer, and as per the warranty terms duty caste upon the manufacture to keep the television defect free within warranty period dealer has no role regarding repairing or replacement of the said television. The OPs further submits that they are under any circumstances is not liable for any alleged defects or fault of the television and only the manufacturer is liable and responsible for any defects as alleged by the complainant. The OP submits that they have received sealed products from the manufacturer and delivered the same to it’s customer in sealed condition and therefore it is not possible any solve of the any problems. Only the manufacturer is liable and responsible for any defects if found in sealed pack. In between complainant and the manufacturer OP-1 acted only as communicator between the complainant and except this the OP-1 has no role to play. The OP -1 submits that the allegations labeled by the complainant are all baseless and therefore is liable to be dismissed with cost.
The opposite party No. 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that OP-3 has no nexus and interest in the business of the OP-1 and OP-2 and has any profit sharing from the sale-purchase made by the OP-1 and OP-2. It is stated and submitted that liability for any of the products sold by the OP -1&2 its customers solely lies upon the OP-1&2 and the concerned manufacturing company, who is to act as per their warranty terms and conditions. It is surprising to note that instead of adding the concerned manufacturing company in the array of the OP to the instant proceeding, the complainant has added OP-3 in the instant proceeding, who has otherwise no accountability in the entire transaction between the complainant and the OP-1 or OP-2 and all communications and/ or raising of grievances and/ or attending of grievances until the filing of the instant compliant proceeding have been made by and between the complainant and op no. 1/ op no. 2 only and the op no. 3 is a completely district entity compared to the op no. 1/ op no. 2 and as such cannot be even made vicariously liable for the act and/ or omission on the part of the op nos. 1 and 2 and the entire sale purchase transaction has occasioned between the complainant and op no. 1/ op no. 2 and the op no. 3 has not been monetarily gained from the entire transaction. So, the instant case should be dismissed.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
All the above noted points of considerations are involved with the questions which are interlinked and / or inter-connected with one another. For that reason and also for the interest of convenience of discussion, all the above noted points of considerations are clubbed together and taken up for discussion jointly.
For the purpose of arriving at just and proper decision in connection with above noted points of considerations and also for the interest of arriving at just and proper decision in this case, there is necessity of making scrutiny of the material of this case record and also for scanning the evidence on record.
After going through the material of this case record this District Commission finds that the complainant has impleaded the shop owners wherefrom he purchased the television set which has been described in the schedule of the complaint petition. It is also revealed that the complainant has not denied the fact that the OP-1 changed the schedule mentioned television set after delivery of the same to the complainant. It is very important to note that the OP-1&2 are not manufacturer of the television set which has been described in the schedule of the complaint petition. As per case of the complainant side the television set had in born manufacturing defect and so the television set is required to be replaced with same kind and nature of television set. Over this issue it is very crucial to note that the manufacturing company of the said television set has not at all been impleaded as a party of this case although the complainant has knowledge of this fact. So it is crystal clear that this case is bad for non-joinder of parties and so this case is not maintainable in its present form, fact and in the eye of law. Moreover, the complainant inspite of adopting the defence alibi that the schedule mentioned television set which has been supplied to him by OP-1&2 being manufacturing defect but it is very vital to note that the complainant has not taken any step for appointment of the electronic expert for examination of said television set and also has not prayed for getting report of the expert. This matter is clearly highlighting that the complainant has failed to establish his case beyond any shadow of doubt.
A cumulative of consideration of the above noted discussion goes to show that the complaint case is not maintainable as it is bad for non-joinder of parties and the complainant has failed to establish his case beyond any shadow of doubt. So this District Commission has no other alternative but to dismiss this case on contest.
In the result it is accordingly
ordered
that this complaint case being no. 120 of 2021 be and the same is dismissed on contest.
No order is passed as to cost.
Let a plain copy of this final order be supplied at free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement.
This Final Order is to be uploaded in the official website of DCDRC, Hooghly.
