In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/162/2021.
Date of filing: 15/12/2021. Date of Final Order: 06/10/2023.
Brindaban Das,
s/o Late Bireswar Das,
of “Ramalaya”, Narua Akunji Bagan Lane,
P.O. & P.S. Chandannagore,
Dist. Hooghly- 712136. ……complainant
-vs -
- The Chairman,
Berger Paints India Ltd.
Berger House, 129 Park Street, Kolkata- 700017, W.B.
- The Managing Director & Chief Executive Officer,’
Berger Paints India Ltd.
Shriram Warehousing Pvt. Ltd.
Chamrail, NH-6, Bombay Road,
Howrah-711114, W.B.
- The Proprietor,
Kolor-n-Style,
Authorized Dealer of- Berger Paints India Ltd.
Palpara, Chandannagore, P.O. & P.S. Chandannagore,
Dist. Hooghly- 712136.…….opposite parties
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
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 complainant had done colouring on outside all for his residential house, situated at the case title mentioned address of Chandannagar, Hooghly-712136 using weather coat by the op-1&2 company through their Authorized dealer of palpara, Chandannagar, Hooghly known as Kolor-in-style on contractual basis for a long life – 7 years, started on 29.11.2020 vide sl. No.95654, completed on 16.12.2020 and for which complainant paid Rs.65,000/- from his hand earned money and save and except it inside wall colouring was also done on a daily payment basis from outside labour, which is within the jurisdiction of the commission. Colour of some of the few portions of the outside wall in eastern side at ground floor of complainant’s residential house was faded within seven months, reported repeatedly to the op-3 at Chandannagar, Palpara, Hooghly-712136. Thereafter complainant made correspondence to the concerned authorities of the OPs company over email times and again, but the deaf ears of the ops of the instant case remain unturned, and in other hand, theop-3 already started to threaten complainant saying that if complainant doesn’t withdraw his allegations of poor quality control which he brings against the ops as well as ops company i.e. Berger Paints India Ltd, they will not colour again in the damaged portions of his house and he is requested the concerned authorities of the ops company to solve this problem repeatedly but in reply ops especially the op-3 refused complainant flatly.
Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs.65000/- for the value of service alongwith uptodate accrued interest and to pay a sum of Rs.35000/- for worried and anxiety.
Defense Case:- The opposite party Nos. 1 to 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the complaint is baseless and a flagrant abuse of the process of law and has been filed with a mala-fide intention to cause harassment and prejudice to the ops. The present complaint is mala fide and motivated and has been filed with the sole view to make, if possible, illegal gains. All allegations and claim made by the complainant are denied and not admitted unless specifically admitted as such and it is further most respectfully submitted that the allegations made in the complaint are defamatory and malicious in nature and the answering ops reserves its right to seek remedy before the competent courts of law for raising such baseless allegations and malicious prosecution. The ops craves leave of the ld. Forum to add, amend and vary its reply and to further produce any oral or documentary evidence which the ops may come across during the pendency of this claim petition with the permission of the ld. Forum. So, the complaint case should be dismissed against all the ops.
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 parties 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 filed written notes of argument. As per BNA the evidence on affidavit of both sides and written notes of argumentof complainant are to be taken into consideration for passing final order.
Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant has given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration are clubbed together and taken up for discussion jointly at first.
Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chandannagar, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.
The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.
For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.
On close examination of the evidence on affidavit filed by the complainant and also by the OP and its interrogatories and their reply, this District Commission finds that the complainant has adopted the plea that after making colour of the outside wall of his house in the eastern side at the ground floor was found faded. Over this issue, the complainant side has also pointed out that the colour supplied by the OPs were not genuine and it is instance of an unfair trade practice and deficiency of service on the part of the OPs. But fact remains that in order to prove the matter the complainant has not come forward before this District Commission with the prayer for local inspection commission for getting a proper report. Similarly, the complainant has also not filed any prayer for expert examination of the colour supplied by OPs. In the absence of expert opinion and local inspection commission report there is no scope before this District Commission to arrive at the decision that the colour supplied by the OPs was not genuine and the practice adopted by the OPs is unfair trade practice and deficiency of service. In this regard, it is important to note that it is the duty of the complainant to prove his case beyond any doubt. In other words, it can be said that the burden of proof is upon the complainant. But fact remains that the complainant has miserably failed to discharge his burden of proof. It is crystal clear that the complainant has failed to prove his case in this case and so this district commission has no other way but to dismiss this case.
In the result, it is accordingly,
ordered
that this complaint case No.162/2021 be and the same is dismissed on contest. No order is passed as to cost.
Let a free copy of this judgment be supplied to the parties and their agents as early as possible.
Let this judgment be uploaded in the official website of DCDRC, Hooghly.
