Hon’ble Mr. Subhas Ch. Guin, Member.
The brief fact of the case is that the Complainant Jahirul Islam is a agriculturist and he is maintaining his livelihood by cultivation of his own land he purchased one power weeder bearing model No.SHB1352 on 07.11.2022 amounting to Rs.1,50,000/- and after receiving the amount OP issued E-way bill No.861264825929 dated 07.11.2022 ( Copy of delivery of challan being Annexure-1). Being purchased from the OP, the machine was not properly worked within 15 days. The power weeder is within warranty period Complainant several times requested the OP for providing proper service but still today OP did not send any mechanic or engineer for cure the power weeder machine and not to provide any free service (Annexure-2 being the copy of service book). Due to non-functioning of the machine Complainant did not cultivate his own land. Accordingly, Complainant suffered financial loss due to negligent activity of OP. Finding no other alternative Complainant sent a legal notice through his Ld. Advocate on 16.01.23 and accordingly on 24.01.23 OP sent reply to same (Annexure-3 being the copy of notice dated 16.01.23). The cause of action of the present case arose on 07.11.2022 when the Complainant purchased power weeder and on 16.01.23 when Complainant sent legal notice through his Ld. Advocate and still it is continuing. The Complainant therefore prayed for an order before this Commission and directed to change the power weeder or refund the purchased amount of Rs.1,50,000/- and to direct the OP for proper service and to pay Rs.2 Lakhs for deficiency in service as well as mental pain and agony and to pay Rs.1 Lakh as loss of cultivation and Rs.10,000/- for cost of proceedings.
Summon was served upon the OP. The OP contested the case by filing written version, evidence on affidavit, written argument and some documents. The defence plea of the OP is that the complaint petition is bad for non-joinder and mis- joinder of parties as the manufacturer of the power weeder should have made one of the parties to this case. At the time of filing this case, the Complainant did not mention his occupation with an affidavit. The Complainant’s allegation of non reply of lawyer’s notice was denied by the OP because the reply to same notice was given on 24-01-23. The OP further submitted that there was no cause of action for filing this instant case. So, the relief sought for in consumer’s complaint are unsustainable in the eye of law and hence the same are liable to be rejected.
Ld. Advocate for the OP referred a case law of First Appeal No. FA/295/2013 of Hon'ble State Consumer Dispute Redressal Commission, Kolkata wherein the instant appeal was allowed and Judgment/ Final Order of the District Commission Cooch Behar was set aside and the complaint was dismissed on the basis of averment made by the Complainant in the complaint petition to the effect that the vehicle in question was meant for earning livelihood by means of self employment as required under explanation appended to section 2 (1) (d) of the C.P. Act, 1986 for allowing the claim of a Complainant as consumer, rather the fact contrary to the purpose of self employment was indicated in the petition accompanying the petition of complaint affirming the occupation of the Complainant as private service indicating thereby that the Complainant is not a self employed person.
The specific allegation and denial thereof by the parties to this case demands for adjudication of the following points.
Points for Determination
- Whether the activities of the OP amounts to deficiency in service?
- Whether the Complainant is entitled to get relief as prayed for?
Decision with reasons
Point Nos.1 & 2.
The Complainant, Mr. Jahirul Islam purchased power weeder having Model No. SHB 1352 on 07.11.2022 worth Rs.1,50,000/- and the OP issued E-way bill No.861264825929 dated 07.11.2022 (Annexure-1). The said machine was not working properly within 15 days of purchase for which the cultivation of the Complainant was totally stopped. Thereafter the Complainant requested the OP several times to provide service so that the power weeder machine functioned properly as per terms and conditions, the OP should provide free service to the power weeder (Annexure-2). Despite repeated request by the Complainant, the OP did not provide service. Thus, the OP violated the terms and conditions of the power weeder. As a result, the Complainant could not cultivate his own land and suffered financial loss due to negligent activity of the OP. In reply to Lawyer’s notice, the Ld. Advocate of the OP stated that there was no warranty period against the said power weeder machine and no terms and conditions for the same. In the service book it is written there that the product should be serviced periodically and the first three services are free. One condition of sales is that free service period in effective up to 250 hrs or six months whichever is earlier from the date of delivery of any machine. The said machine was not functioning properly within 15 days from the date of delivery which was intimated to the OP. Therefore, the said machine was within warranty period which should have serviced by the OP. The OP also raised issue regarding occupation of the Complainant alleging that the Complainant did not mention in the complaint petition rendering him not a consumer under C.P. Act, 2019. This issue not being a consumer is not tenable as the Complainant boldly declared that he is an agriculturist and purchases the weeder machine for his own use and for livelihood by means of self employment. Therefore, the referred case law of Hon’ble State Commission, Kolkata by the OP does not hold good here. Therefore, the Commission comes to a conclusion that there is deficiency in service on the part of the OP as such the Complainant is entitled to get relief for the same.
So, the both points are answered in positive.
Therefore, the instant case succeeds on contest.
Hence, it is
Ordered
That the instant case be and the same is allowed on contest with cost.
The OP is directed to give service to the Power Weeder Machine so that it works properly or refund the purchased amount Rs.1,50,000/-. The OP is further directed to pay Rs.50,000/- for deficiency in service, Rs.50,000/- as compensation for loss in cultivation and Rs.10,000/- for litigation cost in favour of the Complainant within 30 (thirty) days from the date of passing the Final Order failing which the entire awarded sum shall carry an interest @ 6% per annum to be borne by the OP.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
