Hon’ble Mr. Haradhan Mukhopadhyay, President.
The basic fact of the case of the Complainant in a few words is that the Complainant Maniruj Jaman is a Cultivator. For the purpose of cultivation the Complainant purchased Potato Seeds from the OP being the Proprietor of Joy Tara Maa Trading, New market, Alipurduar. After payment the OP issued bill vide SL. No.3277 dated 03.12.21 for 12 packets PF A1 Potatoes seed 3000 x 12=36,000/- @ Rs.3,000/- per packet. The Complainant purchased it for his self employment and livelihood. After opening the packets the Complainant saw that the total potato seeds are damaged. Thereafter the Complainant handed over the total seeds to the OP and after verification the OP received the said potato seeds of 12 packets and delivered new potato seeds against the same on 08.12.21 for 9 packets only at a new rate of Rs.4,000/- per packet i.e. 4,000/- x 9= 36,000/- in exchange of 12 packets vide second bill No.3735 dated 08.12.21. The OP illegally and intentionally changed the rate at an extra sum of Rs.1000/- per packet. The Complainant at the time of said exchange raised objection highly and requested to the OP to deliver the remaining three packets potato or refund Rs.9,000/- but the OP did not refund any money. Due to the aforesaid activities of the OP the Complainant could not cultivate 1½ bigha of land due to shortage of 3 packets potato seeds, for which the Complainant had been deprived of earning additional Rs.1,15,000/- by the said cultivation. Due to such acts of the OP the Complainant sent legal notice on 16.12.21 to the OP but the OP did not refund the said money of Rs.9,000/- till today. The said misdeeds of the OP amounts to deficiency in service for which the Complainant sustained financial loss. The cause of action arose on 03.18.21, 08.12.21 and 16.12.12 which is still continuing. The Complainant therefore prayed for an award directing the OP to return Rs.9,000/- to the Complainant, Rs.1,15,000/- for loss of cultivation, Rs.30,000/- for deficiency in service and Rs.10,000/- towards litigation cost.
The OP contested the case by filing written version wherein the OP denied each and every allegation against them. The positive defence case in a nutshell is that the OP is a partnership firm which is running since long at new market Alipurduar. Nobody raised any kind of allegation at any point of time against the OP. The OP cannot recollect as to whether the Complainant at all purchased any such goods. There are so many customers of the OP, so it is not possible by the OP to recognize any particular customer. The OP firm uses to sale different qualities of potato seeds of different prices of Rs.1100 to Rs.6500/-. Several customers purchased different goods. So any kind of discrepancies raised by any customers are usually changed on the basis of the bill. But it is very much surprising the Complainant filed two separate purchase bill and claimed the second purchase bill dated 08.12.21 as the exchange of seeds and the first bill dated 03.12.21 which is next to impossible because there was any discrepancies regarding damage condition of potato seeds allegedly purchased dated 03.12.21 then certainly there would have been a specific note on the purchase bill dated 03.12.21. Regarding the exchanged of seeds or if fresh purchase bill was issued by the firm after exchange of seeds on 08.12.21, then certainly the first bill dated 03.12.21 would have been taken back by the OP from the Complainant. Therefore the allegations are false, fabricated, vague and far from being true. The Complainant tried to take illegal benefit of the consumer law. It is highly suspicious that whether the Complainant is a genuine purchaser and collected two bills from any other customers. It is evidently claimed that the sold product for the two bills are of different kinds of packets of different prices. The Complainant is not a bonafide customer. The OP claimed that the complaint is liable to be dismissed with cost.
The allegation of double standard by the Complainant against the OP and the defence case made out in the written version let this Commission ascertain the following points in dispute.
Points for determinations
- Whether the Complainant is a consumer or not?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
The Complainant categorically stated that he purchased Potato seeds from the OP but after opening the same he found that it was damage. So he returned back it to the OP against which the OP charged extra price of Rs.1000/- per bag and delivered 3 packets shortage at the time of exchange of the potatoes. In Para-11 of the written version the OP could not deny it and just made a statement that the OP has nothing to say against it.
Thus from the specific averment of both the parties it stand well established that the Complainant purchased potato from the OP for his self-employment which the OP sold in exchange of money. Accordingly, the relation between Complainant and the OP is customer and seller which is well within the perview of CP Act.
Accordingly Point No.1 is answered in affirmative and decided in favour of the Complainant.
Point Nos. 2 & 3.
These points relates to ascertainment as to whether the Complainant is entitled to get the relief prayed for and whether he is entitled to get any other relief or not.
Previously I have found that the OP did not deny that the Complainant purchased 12 packets of potato seeds at a price of Rs.3,000/- per packet for a total sum of Rs.36,000/-. In addition to the said averment the Complainant proved the original cash memo for the said purchase vide cash memo Sl. No.3277 dated 03.12.21 wherein a sum of Rs.36,000/- was charged as price towards 12 packets potato seeds of PF A1 quality @ Rs.3,000/- per packets. The price for the said potato was paid as per the said receipt in which there was specific signature of the seller in the said cash memo receipt/ bill dated 03.12.21.
Now let us scrutiny as to the allegation labelled by the Complainant against the OP. It is the specific allegation of the Complainant that after opening the packets of potato seeds he found that the said goods were damaged. So he handed over the total seeds to the OP which the latter received. In exchange of said 12 packets of damage potato the OP delivered new potato seeds on 08.12.21 only 9 packets at new rate of Rs.4,000/- per packets vide second bill 3735.
The further allegation of the Complainant is that the OP unfairly and illegally charged Rs. 1000/- per packet and delivered only 9 packets instead of 12 packets. Thus the OP took an extra amount of money for Rs. 1000/- X 9= 9,000/-. The Complainant adduced evidence to establish the said allegation by means of evidence on affidavit. The entire allegation in the form of evidence on affidavit could not be discarded since the OP did not prefer to cross-examine the Complainant.
In addition to oral evidence by means of affidavit the Complainant also produced the original second bill No.3735 dated 08.12.21 wherein it is written that 9 packets of potato of same quality was sold for Rs.4000/- per packet at a price of Rs.36,000/-.
Therefore the Complainant seems to have discharged his onus about the allegation that the OP charged extra money of Rs.1000/- per packet for 9 packets.
The OP took the defence plea that the Complainant might have managed the said bill from somebody. Actually this defence plea put huge burden upon the OP to establish the said defence case. So far as the evidence is concerned, to onus to prove the fact is shifted from time to time. Since the OP took the defence plea that the Complainant might have obtain the second bill from a third party so onus is shifted upon them to establish it. Therefore it was the bounden duty of the OP to produce the best document like the register or cash memo book wherein the carbon copy of the original is supposed to be within the custody of the OP. Since the OP took the plea that it is highly suspicious that the Complainant might have collected the concerned two bills from any other customer. It means that bill No. 3277 and 3735 were issued to a third person. So the carbon copy of those bill are supposed to be in the custody of the OP which they could have easily produced and established that it were sold to other customer than the Complainant. But the OP failed to prove any cash memo bearing No.3277 dated 03.12.21 and 3735 dated 08.12.21 in the name of any other customer than the Complainant.
Moreover circumstantial evidence shows that first bill dated 03.12.21 was bearing No.3277 and after 5 days thereof i.e. on 08.12.21 the bill was bearing No.3735. It means that in between the period there were certain sell of goods from the OP and as such the SL. number after 5 days was changed in a reasonable extent.
Ld. Defence Counsel argued that the conventional rule of preparing duplicate bill is that the carbon paper should be placed on the reverse side of the original bill so that the reverse side of the original bill is also written in the carbon paper form.
In fact the said argument was advanced just to call spade-a-spade because the onus was shifted upon the OP to produce the bill book before the Commission. But the OP could not produce any Bill Book or Stock Register to show as to whom the said disputed 12 packets of potato were sold and what was the actual position of the stock after sale of those 12 packets of potatoes.
In fact the OP failed to produce any scrap of paper to establish the defence plea.
We should not be unmindful of the legal position and as such regard being had to the provision of the Evidence Act wherein it is clearly enshrined that a document which is supposed to be in the custody of a person or authority, if he fails to produce that document then adverse permission would be drawn that if said document is produced it would go against him.
Therefore, the said argument does not hold good.
Ld. Defence Counsel also argued that the rate of the potatoes was enhanced at the time of exchange and as such the rate was charged excess.
This is like blowing hot and cold at the same breath. It means that the defence plea is not stable.
Even for the sake of argument if the point of argument of the defence side is considered then it was the burden of the OP to produce the rate chart of the potatoes at the relevant point of time. But the OP kept the Commission in dark as to what was the rate at the two dates of the disputed sale and exchange.
Having assessed the entire evidence on record vis-à-vis the observation made herein above the Commission comes to the finding that the case of the Complainant stands well proved. The misdeeds on the part of the OP in the aforesaid transaction amounted to unfair trade practice for which the Complainant sustained loss which demands for compensation.
Point No. 2 & 3 are therefore decided in favour of the Complainant.
Hence, it is
Ordered
That the case No. CC/1/2022 be and the same is allowed on contest with cost.
The Complainant do get an award for a sum of Rs.1 Lakh for loss of cultivation, Rs.9,000/- towards refund of excess price of potatoes, Rs.10,000/- towards deficiency in service and Rs.10,000/- towards litigation cost.
The OP is directed to pay a sum of Rs.1,29,000/- (Rupees One Lakh twenty nine thousand) only to the Complainant within 30 (thirty) days from the date of passing the award failing which the OP shall be liable to pay interest @ of 6% per annum from the date of passing the order till the date of realization thereof.
Let a plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
