IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.

CASE No.  EA 29 /2015(out of CC/84/2013).

 Date of Filing:    26.08.2015.                                          Date of Final Order: 29.06.2016.

Complainant/D.hr       :Ahibhusan Dutta, S/O Sri Sudhir Kumar Dutta, Vill. Kandi,Radhabazar(Rajbati) P.O.&P.S. Kandi, Dist. Murshidabad.

-Vs-

Opposite Party/J.dr     : The Manager/Proprietor, Taraknath Enterprise, Kandi,

                                    Arunahal Road, P.O.& P.S. Kandi, Dist. Murshidabad. Pin -742137

                       Present:  Sri Anupam Bhattacharyya   ………………….President.                                 

                                         Sri Samaresh Kumar Mitra ……………………..Member.           

                                                Smt. Pranati Ali ……….……………….……………. Member

FINAL ORDER

Sri Anupam Bhattacharyya, Presiding Member.

The instant execution case is praying for replacement of new battery for the inactive battery and for realization of find of Rs.10,140/- and cost of Rs.1,000/-.

The D.hr’s case, in brief, is that the D.hr. –complainant got final order on 23.12.2013 in his favour for repair or replace with new battery but the said order has not been complied with.

On the other hand, the W/O filed by the J.dr-OP , in brief, is that the order 23.12.2013 by the Ld. Forum with the direction to the complainant to  place the battery within 45 days from the date of order and the OP will do the needful within 15 days from the date of receiving the  battery. But the complainant never took the initiative to place the battery to this OP within stipulated period. So, this OP is unable to do his duties. The order was passed on 23.12.2013 within two years the battery positively became damaged as it was in idle condition and for that at present it is not possible for this OP to repair the same.  

                                                           Decision with Reasons.

The instant execution case is for compliance of final order passed on 23.12.2013 in CC/84/2013 directing the complainant-D.hr to place the battery within 45 days from the date of passing the order i.e 23.12.13 and the OP No.1 is to do the needful within 15 days from the date of receiving the same as per terms and conditions of the Warranty Card.

In this regard the J.dr’s case is that after passing the final order the D.hr-complainant has not handed over the battery to the J.dr-OP no.2.

The complainant-D.hr has denied the same and his Ld. Lawyer has advanced argument referring the documents that the complainant handed over the battery to the J.dr. but the complainant has not received back the battery from the J.dr.

In this regard the D.hr-complainant has filed Annexure-B by firisti which is a letter-head of J.dr-OP dt. 17.04.10 which   is the date of purchase of the battery. On the top of this document at the left side there is signature of the D.hr in Bengali and beneath his signature there is one word written in English as “Recivd”  and at the bottom at the left one date “01.04.13”  without any whisper as to what for that date is written or in other words what indicates by that date “01.04.13”.

If  the said date “01.04.13” indicates for receiving the battery by the D.hr or handing over the Battery by the D.hr to the J.dr, that is before passing the final order.

This is not the case of the D.hr-complainant or the J.dr.-OP that the complainant received the battery before filing this case after purchase of the battery.

The Ld. lawyer for the D.hr –complainant had advanced argument that the J.dr is to show that battery was returned to the D.hr-complainant.

Also, he has advanced argument that battery was lying before hand and that is the complainqnt’s  case and there is no denial of the same in the written version filed by the J.dr-OP.

On the other hand the Ld. Lawyer for the J.dr-OP has advanced argument that there is no signature of the J.dr-OP on the document relied upon by the complainant to show that the battery was received by the J.dr-OP and for that the onus is upon the complainant

He has also advanced argument that the executing court cannot go beyond decree.

From the above discussions as well as considering the document filed by the D.hr-complainant it is clear that there is no document showing that the battery in question was handed over to the J.dr. –OP within 45 days after passing final order on 23.12.13

From the said document Annexure B , it appears that the complainant received with the remarks received but without mentioning specific date beneath the word “received” but in that document there are two dates  one  is 17.4.10 , admittedly the date of purchase and another date if 01.04.13 two months before filing the original case. There is no date showing any date after passing the final order on 23.12.13.

At the same time there is also no document as well as any cogent document filed by the J.dr-OP to show that the OP-J.dr handed over the battery to the D.hr. complainant before or after passing final order.

Considering the above discussions as a whole we have no scope to conclude that the battery in question was handed over to the J.dr-OP after passing final order or the battery was lying with the J.dr.-OP and as such there is no scope to pass any order in favour of the D.hr.-complainant and as such we have no other alternative but to dismiss the execution case.

Hence,

                                            Ordered

that the Execution Application No. 29/2015 be and the same is hereby dismissed on contest. There will be no order as to cost.

Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post  to the concerned parties as per rules, for information and necessary action.