Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 52/2022

The complainant  by filing an application u/s 35 of the Consumer Protection Act, 2019 against the OPs  has prayed before this District Commission for passing an order  in the matter of investigation / enquiry  of all products / appliances  sold  by the OPs and determination  of the standard  of quality of goods  kitchen equipments  etc.  sold  by Kitchen Gallery  and whether those products are as per ISI / ISO / BIS, fraudulent game is being played her lives of customer  or not and also for passing an order for restoration of the amount deducted  in the name of the users charge from the  OPs and for awarding compensation  to the tune of Rs. 4,00,000/- and for payment of litigation cost of Rs. 40,000/- .

Fact of this case

Case of the complainant -  According to the case of the complainant he is a resident of 10, Kishan Lal  Burman Road, P.O. Salkia, P.S. Golabari, Dist. Howrah, W.B.  The complainant also owns  a flat at 7, Eliza, 4^th Floor, Room No. 402, B.B.D. Road, Hindmotor, Dist. Hooghly where the complainant  lives  with her family members  and on 19.09.2021 one Rupa Aich  OP No. 3 representative   of Kitchen Gallery having office at  75/1/5, Haran Chandra Banerjee Lane, Subham Building,  Ground Floor, Dist. Hooghly approached  to the complainant  and proposed  for selling water purifier  for a consolidated  amount of Rs. 27,000/-  and the complainant  made a payment  through cheques being No. 000013 & 000014 drawn on UCO Bank and balance amount was made through  electronic mode of payment.  It is also the case of the complainant  that on 20.09. 2021 said Rupa Aich  approached to the complainant  with a lucrative  offer  and sold one home appliances  Gas Stove ( Three burner Cook Tap) under the name and style  ‘Kitchen Fresh’ and to take back old Gas Stove from the complainant  and then on 22.09.2021 said OP No. 3 approached to the complainant  with further lucrative offer  and sold one home appliances ( Gas Stove) and the complainant  accepted  the offer and in furtherance  made payment of Rs. 7,500/- through  electronic mode of payment  and that new Gas Stove  was installed   in the Kitchen of the complainant  and a warranty card was handed over the complainant  in respect of the said stove.  It is alleged that within a fortnight the said Gas Stove developed a snag and as a result of which the internal piping caught fire and the life of the complainant was saved which should have been resulted in a great disaster.  It is submitted that on 22.10.2021 the complainant lodged a complaint with Kitchen Gallery  and reported the matter and thereafter on 26.10.2021  a technician  namely Totan Bhuia  had given a visit and without any  repair assured the complainant  that there was no problem in this stove  and everything was perfectly  alright.   It is pointed out  that on 26.10.2021  the Gas Stove  once again  cause problem and got fire at the  knob  alongwith internal  piping  and the complainant was somehow  escaped and thereafter  on 29.11.2021 after a gap of 3 (three) days,  the OP No. 3 came to the house of the complainant  and took away the Gas Stove alongwith  warranty card  and returned old Gas Stove to the complainant and  the said stove will be sent to factory  for repairing  the fault and thereafter the  OP No. 3 made payment  of Rs. 3,750/-  and thereafter  when the complainant  wanted to know  about the reasoned  of refunding  the amount  of Rs. 3,750/-  but OP No. 3  explained   to the complainant that balance amount of Rs. 3,750/-  has been adjusted as the said Gas Stove was used by the complainant  for a period of one month.  It is contended by the complainant side that thereafter the complainant  had made several attempts  and approached  with requests  and asked for returning the newly purchased  Gas Stove but the said request of the complainant  was turned down.  It has further been alleged that on 23.12.2021 the complainant  engaged  an Advocate who on 24.12.2021  had sent a legal notice on behalf of the complainant  with a request to return the newly purchased  Gas Stove to the complainant  and to take back  the refunded amount.  It has also been highlighted by the complainant side that more than 2 (two) months has been lapsed and no step has yet been taken on behalf of the OPs in the matter of returning the newly purchased Gas Stove.  As per case of the complainant side the cause of action arose on 13.01.2022 and the said cause of action is still continuing.  For all these reasons the complainant has instituted this complaint case with the prayer described in the petition of complaint.

Defense Case

The OPs in spite of receiving notice have neither appeared nor filed any W/V.  As a result of which this District Commission vide Order No. 7 dt. 14.10.2022 has passed  the order for ex-parte hearing  of this case against the OPs.

Points of consideration

On the basis of the pleadings  of the parties  this District Commission for the interest of proper  and complete  adjudication  of this case  and for arriving at just and proper decision in this case is going to adopt  the following points of consideration:-

1. Is this case maintainable in its present form and in the eye of law?
2. Whether this complainant is a consumer under the OPs or not?
3. Whether the complainant has cause of action for filing this case?
4. Whether  the complainant is entitled to get the order for passing direction to the OPs to return  the Gas Stove and to pay compensation and litigation cost or not?
5.     To what other relief or reliefs the complainant is entitled to get in this case?

Evidence on record

The complainant in order to prove his case has filed evidence on affidavit  and as the OPs have not contested this case even at this stage  of recording evidence  no interrogatories have been filed by the OPs and the OPs also have not filed any evidence on affidavit to disprove  the case of the complainant.

Argument highlighted by the parties

The complainant at the time of argument has filed hand written Brief Notes of Argument and also highlighted their verbal submission in support of his case.  Surprisingly, the OP No. 1 at the time of argument has filed the BNA and also highlighted argument over the issue of maintainability, jurisdiction etc.

Decision with reason

The point of consideration No. 1 is related with the question of maintainability, the point of consideration No.2  is in respect of jurisdiction, the point of consideration No. 3  has been framed on the question whether the complainant is a consumer under the OPs or not and whether the complainant  has cause of action for filing this case or not?

For the purpose of arriving at just and proper decision in respect of the above noted issue there is necessity of making scrutiny of the evidence  on record.  After going through the evidence on affidavit as well as material of this case record this District Commission finds  that the complainant  purchased  the Gas Stove  from  Kitchen Fresh Company but the manufacturer  of the said Gas Stove  has not been made a party  of this case.  So, it is crystal clear  that this case is non-joinder  of parties .  Moreover, the OP No. 1 is  a dealer  of kitchen appliances of various companies and the complainant  has no connection  with the OP No. 1 and in spite of that the complainant has instituted  this case  against OP No. 1 and this matter is clearly reflecting  that the complainant  has filed this case against the OP No. 1 who is not a necessary party in this case and so this case is defective for mis-joinder of parties.

Thus, it is crystal clear that this complaint case is not maintainable in the eye of law .  Similarly,  it is also revealed  the complainant is not a consumer  under  the OP No. 1.  So, this complaint case is also found defective from this angle.  Moreover, it is found from the case record that the OP No. 3 has refunded Rs. 3750/- to the complainant and complainant received the said amount and it would be evident from Paragraph – 12 of the compliant petition.  In spite of taking back Rs. 3750/-  the complainant has filed this case against the OPs.  When the complainant has taken the 50% of the refunded amount, he cannot raise  any further allegation against the OPs as the complainant is stopped from doing so as per provisions of Section 115 of Evidence Act.  Considering  this aspect  this District Commission  is also of the view that  this case is not maintainable as this case is not maintainable   this District Commission has no  jurisdiction to try this case and there is no cause of action of the complainant to file this case.  Thus the above noted 4 (four) points of consideration  are decided against the complainant’s side.

The point of consideration No. 4 is related with the question whether the  complainant  is entitled to get back the purchased Gas Stove or not and whether the complainant is entitled to get any other relief in this case or not?

For the purpose of arriving at just and proper  decision in respect of above noted 2 (two) points of consideration this District Commission after making scrutiny  of the evidence on affidavit  and materials of this case record finds that the complainant side  has not taken any steps for appointment  of Expert Commission  to prove the fact that the Gas Stove  which has been purchased  by the complainant  from the OPs has been suffering  from manufacturing  defect.  In the absence  of any expert opinion  over the issue of manufacturing  defect the case of the complainant  has not been proved.  Moreover, in this case the complainant  has adopted the plea that the OPs has practice fraud but fact remains that the issue of fraud  is required to be established by the complainant side.  In this regard  it is important to note that this District Commission has been adopted the summary trial procedure  in respect of conducting  trial of a complaint case and so the fact of proving fraud  is totally lies  under the jurisdiction of the Criminal Court.  Over this matter this District Commission shall not be out of mind  that the  complainant  has neither approached  before Police Station  nor proceeded  to Criminal Court to initiate  any Criminal  Proceedings  against the  OPs.  Considering this aspect it is crystal clear that the complainant has also failed to establish this plea of practicing fraud by the OPs against the complainant.

A cumulative consideration of the above noted discussion goes to show that the complainant has failed to prove his case in respect of all the issues and /or points of consideration adopted in this case.  So, this District Commission has no other alternative but to dismiss this case on contest.

In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 52/2022 be and the same is dismissed on contest.  No order is passed as to cost.

The parties of this case are entitled to get a free copy of this final order as early as possible

Let this final order be uploaded in the official website  of this District Commission

Dictated & corrected by me

President