Smt. Sangita Paul, Member
This is a case was filed by Shri Hemanta Mondal S/o. Late Iswar Mondal of Village Purba Noapara, P.O. & P.S. – Sonarpur, Pin 700 150 against the owner Apan John & Co. and the Manager, Apan John & Co. with a prayer for a direction upon the OPs to refund Rs.98,750/- along with interest @ 18% p.a. the price of the machine along with Rs.1,350/- borne by the complainant as transport charge, to pay compensation to the tune of Rs.3,00,000/- to the complainant for deficiency in service causing his worries, harassment, trouble and pain, to pay cost of litigation.
OP No.1 is the owner, Apan John & Co. The address is 33/1, N. S. Road, Marshall House, Ground Floor, Kolkata-700 001.
The complainant, by filing this case states that he is a street hawker. He sells ‘Phuchka’ (water balls) at a road-side counter near Sonarpur Railway Station.
The complainant purchased a “panipuri, papad, samosa” making machine from the company of the OP. He purchased the machine on 21.04.2021 at Rs.98,750/-. The complainant had also to bear Rs.1,300/- as transport cost.
On 22.04.2021 he went for setting the machine. The complainant called the OPs, but the phone calls remained unattended. On 27.04.2021, the complainant got a reply from the OPs that they were unable to attend. The OPs shook off their responsibility as service provider.
The complainant sent legal notice to the owner & the manager of the OPs on 06.05.2021, because the OPs did not send technical staff from their company to set the machine in order and to demonstrate the style of operation, so the machine is kept idle. So the complainant wanted to refund the machine. The complainant failed to earn a farthing. The complainant fell in problem, but the problem was not solved. Hence the complainant prays for directing the OPs to refund Rs.98,750/- along with 18% simple interest p.a. and carrying cost of Rs.1,300/- to pay compensation to the tune of Rs.3,00,000/- for deficiency in service, worries, harassment, trouble, pain, physical and mental agony.
The OPs in the written version states that the petition is not maintainable in present form and in law.
The cause of action does not arise as against the OPs. That the petition is harassing, speculative, vexatious and made with intent for illegal gain. The complainant has suppressed material facts.
The OPs deny each and every allegation. The OPs state that the complainant is not a consumer under the C P Act. Because the complainant had purchased the machine to run his business. So the complainant is not a consumer as per definition of consumer under the C P Act. So the complaint is not liable to get any relief. The OPs state that the complainant did not pay the transport cost to the OPs.
The OPs also state that there is no defect in the said machine. The complainant is not able to run the machine properly due to his lack of knowledge and experience. At the time of installation, the OPs duly demonstrated the said machine. The running of machine depends on how the machine is being operated by the complainant and which machines are used to make water balls (phuchka).
That the complainant did not make party to the manufacturer. The manufacturer is a necessary party in the instant case.
The OPs state that in the invoice it is mentioned that “Goods once sold cannot be taken back”. So the question of taking back the said machine does not arise. The OPs are neither manufacturer nor the seller; he is only the agent of the manufacturer company. There is no deficiency o the part of the OPs. The OPs are not in any way responsible. The agent has no power to return the machine. The complainant fails to bring any credible evidence against the OPs. Hence, the OPs pray for dismissal of the case.
That the case filed on 23.07.2021. The case was admitted on 10.08.2021. On 08.03.2022 representative of the complainant is present. He files track report. Track Report shows that the notices are not served upon the OPs. The complainant is directed to take fresh steps for sending the notices. On 06.04.2022 the complainant was directed to issue fresh notice through courier. On 15.05.2022 OPs. 1 & 2 appeared by filing Vakalatnama and written version. On 16.06.2022 the complainant files evidence on affidavit. Copy served. On 18.08.2022 OP files questionnaire. Copy served. On 23.09.2022 complainant files reply. Copy served. OPs gave to Rs.200/- to the complainant as adjournment cost. Ld. Lawyer of the complainant files money receipt of Rs.200/-. On 09.12.2022 OPs file evidence on affidavit. Copy served. Complainant, by filing a petition, states that he does not want to file questionnaire any more. On 21.02.2023 the case is taken up for hearing of argument. On 22.02.2023 Op files BNA. Accordingly, we proceeded for giving judgement.
Points for consideration :-
- Is the complainant, a consumer?
- Are the OPs guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get relief as prayed for?
Decision with reasons :-
Point No.1:-
On perusal of documents and records, it appears that the complainant purchased a machine for preparing water balls (phuchka), samosa, papad. The complainant paid Rs.98,750/- for the machine. The complainant purchased the machine for earning his livelihood, through self-employment. Hence he is a consumer u/s 2(7) of the Consumer Protection Act, 2019. Hence the 1st point is decided in favour of the complainant.
Point No:2 :
The complainant purchased the machine on 21.04.2021. But the complainant failed to get any benefit from the machine. The machine was purchased on 21.04.2021. The complainant spent Rs.1,300/- for bringing the machine from the OPs place. The complainant is a street vendor. He sells phuchka (panipuri). He bought the machine with a hope of earning his livelihood through self-employment. He would prepare phuchka (panipuri) with the help of the machine. He purchased the machine for Rs.98,750/-. It is evident from the bill. The complainant wanted that the OPs would demonstrate machine in front of the complainant. It is not possible to prepare panipuri (water balls) in large scale without the help of the machine. The complainant called the OPs, but they did not attend phone. Neither the OPs responded, nor did they come to help the complainant. The complainant already paid the amount. It is nothing but unfair trade practice and deficiency in service adopted by the OPs. The machine is of no use to the complainant because he does not know how to operate the machine. The complainant is not entitled to return the machine to the OPs. Despite several requests, the attitude of the OP is very much disappointing to the complainant. He could not earn his livelihood by using the machine. Hence, the 2nd point is decided in favour of the complainant and against the OPs.
Point No.03 :-
The complainant, being a consumer can expect co-operation and service from the OPs but the OPs behaved in a peculiar fashion. That is why the complaint faced huge monetary loss. The machine remained unusable. The OPs did not give any demonstration. The complainant’s hard-earned-money was not utilized. The machine remained inoperative. This leads to mental agony of the complainant. Because the complainant was not prepared for this awkward situation. Hence he is entitled to get relief as prayed for. So the third point is decided in favour of the complainant and against the OPs.
In the result, the complaint case succeeds.
Fees paid is correct.
Hence, it is,
ORDERED
That the complaint case be and the same is allowed on contest against the OPs with cost of Rs.10,000/- (Rupees ten thousand).
That the OPs jointly and / or severally are directed to refund Rs.98,750/- along with 9% interest w.e.f. 21.04.2021 till realization within 45 days from the date of this order.
That the OPs jointly and / or severally are directed to refund the carrying cost of Rs.1,300/- with 9% interest p.a. w.e.f. 21.04.2021 till realization within 45 days from the date of this order.
That the OPs jointly and / or severally are directed to pay compensation to the tune of Rs.45,000/- within 45 days from the date of this order.
That the litigation cost of Rs.10,000/- is to be paid by the OPs jointly and/ or severally within 45 days from the date of this order.
That the complainant is at liberty to put the order into execution if the orders are not complied with within 45 days from the date of this order.
Ld. Member Sri Partha Kumar Basu joined on 11.04.2023 and he did not take part in hearing the argument of the case. As such he did not sign the judgement and order passed on this day.
Let a copy of this order be supplied to the parties concerned free of cost.
That the final order will be available in the following website: www.confonet.nic.in.
Dictated and corrected by me.
Sangita Paul
Member
