Smt. Shampa Ghosh, Hon’ble Member:-

The fact of the case in brief is that the complainant Ayatulla Kazi  S/o. Habibulla Kazi of Village – Hasnecha, Dist. - South 24 Parganas purchased one Kurkure Packaging Machine @ Rs.1,65,000/-, one Nitrogen Set-up @ Rs.32,000/- and one compressor @ Rs.8,000/-. Total invoice value is Rs.2,23,000/- including GST on 30.01.2023.  The complainant booked the said machine by paying advance amount of Rs.23,000/- on 30.01.2023 and rest amount of Rs.2,00,000/- paid to the OP on 03.04.2023.  Thus the complainant paid full consideration amount to the OP (Cash Memo no.471 attached Annexure-A). OP delivered the said machine on 07.04.2023 without motor, tools, kits and compressors with the said machine.  OP No.1 delivered the machine with broken parts.  After several calls the OP No.1 took the compressor with capacity of 50 litres after 10 days.  It was very less than  was what promised by the OP No.1.  The machine was not running.  After that the complainant called several times to the OP No.1 and also visited the office of the OP but the OP started misbehaving and asked to pay Rs.4,000/- for replacement of the broken parts to this new machine, which had 1 year warranty.  Finding no other way, the complainant paid Rs.2,000/- as advance on 03.05.2023 and the rest will be paid during fitting of these parts.  After 6 days one technician of the OP No.1 came to the complainant’s house to take the said part (broken parts) and promised to send back within 6 days.  But no one came even after a month.  Thereafter the complainant called several times to the OPs.  On 11.05.2023 Mr. Sohan Gayen (Manager & Technician) came to the complainant’s house to solve the problem of the said machine.  During that time he took the rest of Rs.2,000/- for replacement of broken parts and fixed it up and took whole night to solve the problem of the said machine.  After that the technician (OP No.2) said that machine is O.K. and he left.  But the machine was not working.  OP No.2 came again on 23.07.2023 but he failed to solve the problem, OP No.2 called upon OP No.1, (Owner) and informed about the defective machine.  On 26.07.2023 OP NO.2 given written statement that within 1 month they will solve the problem.  But till today nobody came even after so money calls by the complainant.  Complainant stated that the OPs sold a defective machine and now it is totally out of order.  The complainant purchased the machine to maintain his livelihood for self employment.  As the machine is not functioning, complainant purchased raw materials of Rs.60,000/- which was also damaged.  Complainant faced huge lose and suffered mental pain and agony.  Complainant filed the complaint before Consumer Affairs but available settlement was failed.  Finding no other alternative complainant filed the instant complaint case for deficiency in service and unfair trade practice before the Commission seeking reliefs as dewscribed for in the petition of complaint. 

The OP 1 & 2 did not come forward to contest this case by filing W/V.  As such, the Order No.4 dated 22.01.2024 the instant complaint case was declared to be proceeded ex-parte against OP No.1 and by Order No.5 dated 04.03.2024 against OP No.2.

Points for consideration :-

1. Is the complainant a consumer?
2. Are the OPs guilty of deficiency in service and unfair trade practice?
3. Is the complainant entitled to get relief as prayed for?

Decisions with reasons :-

Points No.1 :-

On perusal of the case record along with the copies of documents, it appears that the complainant purchased one Kurkure Packaging Machine, one Nitrogen Set-up, and one compressor total invoice value is Rs.2,23,000/- including GST on 30.01.2023.  And the OP acknowledged the same by issuing money receipt.  Therefore, the complainant is a consumer U/S 2(7) of the Consumer Protection Act, 2019.

As such, the 1^st point is decided in favour of the complainant and against the OPs.

Points No.2 & 3 :-

Both the points are taken up together for the sake of convenience and as they are interlinked.

The complainant purchased one Kurkure Machine with tools.  Total Invoice value is Rs.2,23,000/-.  The complainant paid the full consideration amount to the OP on 30.01.2023.  OP delivered the machine on 07.04.2023.  After delivery the complainant found that one part namely shoot was broken and the compressor is also defective.  And the compressor was not at all fit for the machine.  And the machine was not running.  After several calls the Manager and Technician (OP No.2) came to the complainant’s house and tried to solve the problem of the said machine but ultimately failed.  He also called the OP No.1 (the Owner) and informed about the defective machine. Thereafter, the OP No.2 assured the complainant that within 1 month he will solve the problem.  But till today nobody came. The machine is not functioning.  Complainant purchased raw materials of Rs.60,000/- was also damaged.  It is clear from the averments that there is deficiency in service and unfair trade practice by the OPs.  So the complainant is entitled to get relief as prayed for.

Therefore, Point Nos.2 & 3 are decided in favour of the complainant and against  OPs. 

In the result, the complaint case succeeds.

Fees paid is correct.

Hence, it is,

                                                                                              ORDERED

that the instant complaint case be and the same is hereby allowed ex-parte as against the OPs with cost of Rs.20,000/- (Rupees Twenty Thousand) only .

The OPs are jointly and severally are liable and directed to refund the entire paid amount of Rs.2,23,000/- (Rupees Two Lakhs and Twenty Three Thousand) to the complainant with @ Rs.9% per annum simple interest w.e.f 31.01.2023. (date of purchase of the said machine) till the date of final realization within 45 days from the date of passing this order and the complainant shall render the defective machine to the OPs.

OPs are jointly and severally liable and are also directed to pay compensation of Rs.20,000/- (Rupees Twenty Thousand) for mental pain and agony suffered by the complainant within 45 days from the date of passing this order.

OPs are jointly and severally liable and are directed to pay litigation cost of Rs.20,000/-(Rupees Twenty Thousand) to the complainant within 45 days from the date of passing this order.

The complainant is at liberty to put the order into execution after the expiry of 45 days in the case of the orders are not complied with by the OPs within 45 days from the date of passing this order.

Let a copy of this order be supplied free of cost to the parties concerned.

That the final order will be available in the following website:www.confonet.nic.in.

Dictated and corrected by me.

            Shampa Ghosh

                  Member