DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE No.24/2008. Date of filing of the Case: 26.03.2008 Complainant | Opposite Parties | Jagadish Prasad Bhagat, S/o.Late Banawarilal Bhagat Vill. Barduary, Post. Barduary, P.S. Harishchandrapur, Dist. Malda. | 1. | The Proprietor Magnum Computer Shoppe, No.1 Government Colony, Post. Malda, P.S. Englishbazar, Malda. | 2. | Magnum Computer Shoppe, No.1 Government Colony, Malda, (represented by its proprietor) |
Present: | 1. | Smt. Sumana Das, Member | 2. | Dr. Soumen Sikder, Member | | |
For the Petitioner : Nabin Ch. Das, Sanjoy Pathak, Advocates. For the O.Ps. : Joynarayan Chowdhury, Advocate. Order No. 16 Dt. 23.09.2008 The fact of the case, in brief, is that the complainant purchased one printer cartridge and ribbon from O.P. on 18.12.2007 on payment of Rs. 160/- ( Rs. 135/- for printer cartridge and Rs. 25/- for ribbon) and received the material with cash credit memo duly signed by the O.P. But the complainant found on the packet of printer cartridge that the actual price of the cartridge was Rs. 95 inclusive of all taxes. The complainant made several request to O.P. to return back the extra amount, but in vain. On 19.12.2007 the complainant again visited the office of O.P. with a complaint of break down of his printer viz. TVS MSP-250 Champion being Serial No. 44983 and deposited the same receiving the repair / replacement challan bearing No. 0126 which was in the warranty period. The complainant made several request to the O.P. to return back the printer, but they did not pay any heed. Hence this case praying reliefs as per plaint. The O.P. Nos. 1 & 2 contest the case by filing a joint written version denying therein material allegations contending inter-alia that the case is not maintainable in law, bad for non-joinder and mis-joinder of party and further that the DMP cartridge of TVS printer was supplied to the complainant on demand whose actual price was Rs.140/- with a surprise gift of cello tape amounting Rs.5/-. The complainant asked to reduce the price of cello-tape and accordingly cash memo was issued. It is further alleged that O.P. sent the printer to the authorized service provider of TVS, Kolkata on 19.12.2007 without making delay but on 22.1.2008 one Sneha Bhagat approached the O.P. that the complainant or she would collect the same from Kolkata. Complainant’s allegation of unfair trade practice / deficiency in service is ridiculous as having no foundation and in such circumstances the prayer is for dismissal of the case. On pleadings of both parties the following points have immerged for disposal: 1. Whether the petitioner is a consumer? 2. Whether the complainant purchased the cartridge for commercial purpose? 3. Whether the service of the O.P. suffers from any deficiency? 4. Whether the petitioner is entitled to get any relief as prayed for? : DECISION WITH REASONS: Point No.1: A consumer is a person who buys any goods or hires services for a consideration. In the instant case the complainant has purchased the DMP printer cartridge and DMP ribbon from the O.P. which is evident from Ext.1 and deposited the TVS – 250 champion printer to O.P. for repair, which is evident from Ext.2 and having regard to the facts and circumstance of the case the complainant appears to hire services of the O.P. for consideration. Thus the complainant comes within the purview of Sec.2(1)(d) of the Consumer Protection Act. Point No.2. Ld. lawyer for the O.P. has urged that the complainant cannot be treated as consumer as he had purchased the cartridge for commercial purpose which has seriously been challenged by the ld. Advocate on behalf of the petitioner on the ground that this cartridge is exclusively used for his business purpose through which he earned his livelihood. Hd. ld. advocate on behalf of both the parties at length. Accordingly, this Forum is to consider whether there is any substance in the argument advanced on behalf of the O.P. In this connection this Forum is inclined to take assistance of the explanation appearing in Sec.2(1)(d)(i) where it has been stated which may be coated below – “ Consumer – means any person who, - buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who contains such goods for resale or for any commercial purpose;” In this connection the relevant portion of the evidence of the complaint appears to be worth mentioning wherein he has stated “ I am the proprietor of Tirupati Weigh bridge and I have got no other business except this weigh – bridge. Daily earning from this business is approximately Rs.500/- to Rs.600/-. This is the only source of earning of my family.” It may further be stated in this connection that this part of statement of P.W. – 1 who is noneelse but the complainant himself, has not been challenged nor the same has been rebutted by any evidence on behalf of O.P. and in that view of the matter this Forum is inclined to hold that the submission of ld. advocate on behalf of O.P. in this regard does not appear to be sustainable and as such, it can safely be held that the cartridge, in question, is exclusively used for running ‘livelihood’ of the petitioner. This point is thus disposed of in the affirmative. Point No.3 Much has been argued on behalf of the petitioner that the printer though handed over to the O.P. for repairing has not been returned to him which has been challenged by the O.P. in support of which the O.P. has filed original Ext.B. This factum of receipt by one Sneha Bhagat has been seriously challenged by the petitioner by stating in evidence that this Sneha Bhagat is not known to him nor to any members of his four brothers. That apart it may be mentioned that prayer portion is conspicuously absent with regard to get return of the printer machine and hence it seems needless to discuss this matter in detail nor the question of fraud thus arise in the instant proceeding in view of the averments made in the petition coupled with the evidence and the argument advanced on behalf of both the parties. Let us now discuss about the main point of dispute as to whether the O.P. has charged excess amount of Rs.135 – Rs.95 = Rs.40 for supply of new printer cartridge on 18.12.2007. The petitioner has submitted the sealed packet in Forum (which is marked Ext.4) wherefrom it appears that the price of the same has been scribed as Rs.95/- inclusive of all taxes. The petitioner has also filed Ext.1 which manifests the price of Rs.135/-. As Ext.4 comes from the custody of the petitioner and the receipt (Ext.1) also comes from the self-same person and as there is no whisper on the part of the O.P. on this point except showing of one TVS cartridge packet ( Ext.A) filed in Forum, there appears from the receipt Ext.1 which does not disclose the specification of the article sold thereby, the Forum can safely be held that the statement of the petitioner is true and submission of the ld. advocate on behalf of the O.P. in this regard is of no assistance to him. This receipt discloses apparent on the fact of it that the cartridge is valued at Rs.135/- and this Ext.1 has been issued for purchase of the packet (Ext.4). These two clearly and unambiguously show that higher price has been charged for purchase of the cartridge, in question. On consideration of the above facts and circumstances this Forum finds no reason but to conclude that the service of the O.P. apart from deficiency. This point is thus disposed of in favour of the petitioner. Point No.4 In the result the application succeeds in part. Proper fees have been paid. Hence, ordered, that Malda D.F. Case No.24/2008 succeeds in part on contest. The petitioner do get return of Rs.45/- (rupees forty five) only in cash and do get litigation cost of Rs.500/- (rupees five hundred) only. The O.P. do pay the quantum of amount Rs.500/- + Rs.45/- = Rs.545/- (rupees five hundred forty five) only within 30 days from date i/d the petitioner be at liberty to take recourse to law. Let a copy of this order be given to both parties free of cost at once. Sd/- Sd/- Dr. Soumen Sikder Sumana Das Member Member D.C.D.R.F., Malda D.C.D.R.F., Malda | 
