Case No. CC/119/2022
COMPLAINANT :1. Arabinda Sarkar(50),
S/O. Biswanath Sarkar,
C/O. Kalipada Dey,
of Nandipara (Palta Ghat Road),
P.O. & P.S. Nabadwip,
Dist. Nadia, Pin-741302, W.B.
V-E-R-S-U-S
OPPOSITE PARTIES / 1.Biswajit Pramanick,
Prop. Durga Engineering,
of J 34 Koikhali Mondal Ganthi Road,
Kolkata – 700052, W.B.
2.Debasish Roy,
Production Manager,
of M/S Durga Engineering
of J 34 Koikhali Mondal Ganthi Road
Kolkata – 700052, W.B.
Ld. Advocate(s)
For Complainant: Subhasish Roy
For OP/OPs : None.
Date of filing of the case :13.12.2022
Date of Disposal of the case :01.09.2023
(2)
Final Order / Judgment dtd.01.09.2023
Complainant above named filed this complaint against the aforesaid opposite party u/s 35 of the Consumer Protection Act, 2019 praying for direction to the OPs to pay a sum of Rs.1,80,000/-, interest over aforesaid amount, compensation amounting to Rs.3,00,000/- and cost of the case amounting to Rs.20,000/-.
He alleged that he had purchased one incense making machine and paid Rs.1,40,000/-. He also purchased raw materials from the OP No.1 & 2 and paid Rs.40,000/-. On 21.01.2021 one agreement was executed in between complainant and OP No.2. Said machine was not functioning properly complainant lodged complaint. But OP No.1 & 2 did not take any response. Hence the complainant filed this case.
On perusal of record , we find that case is running ex-parte against OP No.1 & 2 vide order no.11 dated 29.05.2023.
Trial
During trial complainant filed affidavit in chief.
Documents
Complainant filed the following documents.
- Original copy of Tax Invoice dated 21.01.2021........(One sheet)
- Original copy of Raw Materials Bill amounting to Rs.40,000/- dated 21.01.2021...........(One sheet)
- Original copy of agreement paper dated 21.01.2021............(Two sheets)
- Original copy of Guarantee Paper issued by Durga Engineering .........(One sheet)
Brief Notes of Argument
Complainant filed BNA.
Decision with Reasons
On perusal of petition of complaint, affidavit in chief of the complainant and original Tax invoice dated 21.01.2021, we find that complainant purchased one machine from Durga Engineering. OP No.1 is the proprietor of Durga Engineering.
On perusal of another document dated 21.01.2021, we find that complainant purchased raw materials valued at Rs.40,000/-.
(3)
On perusal of agreement dated 21.01.2021, we find that OP NO.2 being a production manager put his signature over the said agreement. Complainant also put his signature over the said document.
On perusal of catalogue of aforesaid machine, we find that OP NO.2 disclosed that aforesaid machine will give production 1,45,000 pieces per hour that is 7-8 kg. Said machine will function in two shift that is for 16 hours . We find from the affidavit in chief of the complainant that after installation of the said machine, he found that the disputed machine neither had the capacity to produce 7-8 kg of finished goods as per assurance of the OPs nor it can be run 16 hours at a time as affirmed by the OPs.
Moreover, in terms of the agreement dated 21.01.2021 OPs did not purchase the finished product even after repeated request from the complainant’s end.
He further stated that by this way OPs cheated the complainant and he adopted the unfair trade practice.
Affidavit in chief of the complainant is nothing but unchallenged testimony and we do not find any reason to disbelieve the same.
Placing reliance upon the aforesaid affidavit in chief of the complainant, we are of the firmed view that the complainant has established his grievance and he is entitled to relief as per his prayer.
On perusal of record, we find that complainant is the consumer and OPs are the service provider.
Having regard to the aforesaid discussion, we are of the firmed view that the aforesaid act on the part of the OPs are nothing but deficiency in service.
In the result, present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed ex-parte against OP NO.1 & 2 with cost of Rs.5,000/- (Rupees five thousand) to be paid by OP NO.1 & 2 in favour of the complainant.
OP No.1 & 2 jointly or severally are directed to take necessary steps so that aforesaid machine can start functioning as per the agreement dated 21.01.2021 within 45 days from this day or OP No.1 & 2 are directed to refund Rs.1,40,000/- (Rupees one lakh forty thousand) in favour of the complainant after taking back the said machine failing which complainant shall have liberty to put this order into execution.
(4)
OP No.1 & 2 jointly or severally are directed to pay compensation amounting to Rs.10,000/-(Rupees ten thousand) in favour of the complainant within 45 days from this day for the harassment, mental pain and agony of the complainant failing which complainant shall have liberty to put this order into execution.
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
............................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
We concur,
........................................ .........................................
MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
