Ld. Advocate(s)
For Complainant: Samir Saha
For OP/OPs : None
Date of filing of the case :16.09.2022
Date of Disposal of the case :04.05.2023
(2)
Final Order / Judgment dtd.04.05.2023
Complainant above named filed the present case against the aforesaid opposite party u/s 34 & 35 of Consumer Protection Act, 2019 praying for direction to the OP to refund Rs.8,69,824/-, Rs.50,000/- as litigation cost and Rs.5,00,000/- as compensation.
He alleged in the petition of complaint that he purchased one machine from the OP and he paid Rs.9,85,000/- on several days as a price of the aforesaid machine. OP delivered of the said machine on 23.03.2021 along with Tax Invoice dated 16.03.2021 amounting to Rs.9,22,576/-. OP took the consideration price including the price of raw materials that is paper cup blanks and paper cup bottom. Complainant purchased the said fully automatic India made paper cup making machine. Said machine was installed at the house of the complainant on 15.04.2021 by the representative of the OP. After starting of the said machine complainant noticed the leakage of gear oil from the said machine. OP promised that he will repair the defect of machine within few days. Complainant also noticed that OP did not provide all parts of said machine as per written brochure. OP also declared to refund of Rs.65,000/- for non-delivery of raw materials as per Tax Invoice. After several requests OP refunded Rs.60,000/- in favour of the complainant. OP also assured to refund the excess amount of Rs.67,424/-. But till date OP did not pay the same. On 05.07.2021 said machine was broken down. Complainant tried to contact with the OP but they did not receive the phone call of the complainant. Complainant sent a registered letter on 18.04.2022 to the OP. Complainant also sent another letter on 04.05.2022 to the OP. On 06.06.2022 complainant sent a letter to the OP and requested to arrange the raw materials of paper cup. But did not get any reply from the OP. Hence he filed this case.
On perusal of order dated 04.01.2023, we find that in spite of receipt of notice of this Commission on 08.10.2022 OP did not turn up to the Commission nor filed W/V. Case is running ex-parte against OP vide order no.5 dated 04.01.2023.
Trial
During trial complainant filed affidavit in chief. He also filed certain documents.
Documents
Following documents have been produced on behalf of the complainant viz :
- Xerox copy of Deposited cheque A/C No.10170001717176 of Bandhan Bank........(One sheet)........(Annex-A)
- Xerox coy of Statement of Account dtd. 30.09.2020........(One sheet)..........(Annex-B)
- Xerox copy of Quotation dtd. 02.10.2020.......(One sheet)..........(Annex-C)
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- Xerox copy of document of Hindmade.......(five sheets).........(Annex-D)
- Xerox copy of Declaration issued by Hindmade.......(One sheet).......(Annex-E)
- Xerox copy of Payment Receipt issued by Hindmade dtd.30.01.2021....(One sheet).......(Annex-F)
- Xerox copy of document of bank statement....(One sheet)........(Annex-G)
- Xerox copy of payment,s Receipt againts Booking dtd.18.02.2021....(One sheet)..........(H)
- Xerox copy of document of Bank statement dtd.19.12.2022.......(One sheet).....(Annex-I)
10)Xerox copy of document of Bank statement dtd 04.05.2021.......(One sheet)......(Annex-J)
11)Xerox copy of Tax Invoice of Hindmade Machinery industries Pvt. Ltd. dtd.16.03.2021..........(One sheet)...........(Annex-K)
12)Xerox copy of Bank statement dtd. 02.08.2022.......(Three sheets).....(Annex-L)
13)Xerox copy of Certificate of Enlistment issued by Santipur Municipality dtd.01.06.2020.........(One sheet)...........(Annex-M)
14)Photo of damage machine dtd.05.07.2021.........(Two sheets)..........(Annex-N)
15)Net copy of e-mail dtd.11.02.2022...........(One sheet)..........(Annex-O)
16)Original copy of letter issued by complainant to OP dtd. 18.04.2022........(Two sheets)......(Annex-P)
17) Xerox copy of Postal Receipt...........(One sheet)
18)Original copy of letter issued by complainant to OP dtd.08.05.2022..........(Two sheets)........(Annex-Q)
19)Xerox copy of Postal Receipt and Track Report.......(Three sheets)
20)Net copy of e-mail dtd.10.05.2022........(One sheet)........(Annex-R)
21)Net copy of e-mail dtd.20.05.2022........(One sheet)
22)Net copy of e-mail dtd.21.05.2022........(One sheet)
23)Net copy of e-mail dtd.26.05.2022........(One sheet)
24)Net copy of e-mail dtd.06.06.2022........(One sheet)
25) Photo of Damage machine..........(Two sheets)
(4)
Brief Notes of argument.
Complainant filed BNA on 24.03.2023.
Decision with Reasons
We have carefully gone through the petition of complaint, affidavit in chief of the complainant, documents on record and brief notes of argument submitted by the complainant. We have carefully considered those documents.
On perusal of Invoice dated 16.03.2021, we find that complainant purchased one paper cup manufacturing machine. Value of the said machine, value of paper cup blanks (raw materials) and paper cup bottom were in total Rs.9,22,576. As per the said document complainant paid the said amount.
Complainant subsequently, admitted in the petition of complaint that complainant refunded Rs.60,000/- as value of the raw materials because OP not yet supplied the same in favour of the complainant. Complainant purchased the said machine on 16.03.2021. On perusal of letter dated 18.04.2022 we find that said machine was stopped it’s functioning immediately after the installation of said machine on 15.04.2021. By the said letter complainant requested the OP to repair the said machine within 15 days or refund the value of the machine. OP refused the said letter. We also find from the letter dated 04.05.2022, that complainant sent another letter to the OP and requested him to repair the said machine or refund the value of the machine. On 10.05.2022 OP gave a reply to the complainant by e-mail. He stated in the said e-mail that he requested several times for servicing of the machine but they did not get any positive response. On 20.05.2022 one Rahul Shaw sent another e-mail and replied to the complainant. In the said e-mail he stated that he is not getting any confirmation from the complainant.
Complainant on 21.05.2022 by a e-mail stated that he requested the OP to supply 100kg raw materials and to sent technician. On 26.05.2022 Rahul Shaw on behalf of OP stated that they would not get any raw materials. On 06.06.2022 complainant stated to OP through e-mail that he already arranged raw materials, he requested the OP to sent technician.
It is the allegation of the complainant that in spite of his repeated request OP did not take any positive steps. They were avoiding the complainant that without raw materials it is not possible for them to repair the machine. Even they could not supply the raw materials. Lastly complainant arranged the raw materials and requested the OP to repair the
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aforesaid paper cup manufacturing machine but as per the allegation of the complainant OP did not take any steps for repairing of the said machine. He did not send any technician for repairing of the said machine.
Complainant could not produce any warranty book of the said machine but we find from the petition of complaint and affidavit in chief of the complainant that said machine was not functioning. After installation of the same complainant noticed the defect of the machine within a month from the date of installation and thereafter, he started to contract with the OP but they did not make any response even they did not sent any technician.
From the reply of OP to the complainant through e-mail, we find that OP is ready to repair the said machine so it is clear before us that repairing of the said machine was within the warranty period.
OP asked the complainant to arrange raw materials and complaint arranged the same. Thereafter, complainant asked the OP to sent the technician for repairing of the said machine but OP did not send the same.
We failed to understand as to why the OP did not send any technician for repairing of the said machine.
From the aforesaid discussion it is clear before us that the aforesaid conduct of the OP is nothing but amounts to deficiency in service.
From the documents on record it is clear before us that complainant is a consumer and OP is a service provider.
Having regard to the aforesaid discussion we are of the firmed view that OP is bound repair the aforesaid machine.
In the result present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed ex-parte against the OP with cost of Rs.5,000/- (Rupees five thousand) to be paid by the OP in favour of the complainant.
OP is directed to repair the aforesaid paper cup manufacturing machine within one month from this day to the satisfaction of complainant or to refund the price of the machine amounting to Rs.8,69,824/- (Rupees eight lakh sixty nine thousand eight hundred twenty four) in favour of the
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Complainant within 2 months from this day after taking back the aforesaid machine failing which complainant shall have liberty to put this order into execution.
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) .................................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
