IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
MURSHIDABAD , AT BERHAMPORE.
CASE No. CC No. 44/2015.
Date of Filing: Date of Admission : Date of Disposal:
24.03.2016 01.06.2016 15.09.2017
Dinanath Sharma,
S/o Kishan Sharma,
Proprietor of New Coffee House,
Residing at Ayodhanagar,
P.O. & P.S. Berhampore,
Dt. Murshidabad. …………… Complainant.
-vs-
- O S A Vendita Pvt. Ltd.,
16 Southern Avenue, Kolkata: 700 026.
- Fresh & Honest Care Ltd.,
(A Lavarza Company)
No.7, Abdul RasulAnenue,
Gorund Floor, Kolkata: 700 026. ....... Opposite Parties.
Sri Surajit Banerjee, Advocate ……… for Complainant
Sri Debraj Mukherjee, Advocate ……… for Opposite Party No.1
Sri Siddhartha Gupta, Advocate ……… for Opposite Party No.2
Cont. ……….…. 2
= 2 =
Present : Sri Anupam Bhattacharyya ………… President.
Smt. Chandrima Chakraborty …. .…. Member.
Sri Manas Kumar mukherjee .…. ….. Member.
J U D G M E N T
Chandrima Chakraborty, Member.
Brief facts which are necessary to dispose of this case are re-capitulated as under :-
In succinct, the fact stated in the complaint, is that, the Complainant had purchased a Coffee/Tea Machine for maintaining his livelihood from the Opposite Party No. 1 by paying the consideration amount of Rs. 97,325/- only on 10.02.2014 with one year warranty from the date of purchase and with the assurance that the said Coffee Machine would chatter 100 cups coffee per day. Accordingly the said Coffee Machine was duly delivered by the Opposite Party No. 1 to the Coffee Shop of the Complainant on 13.02.2014.
But after starting the functioning the said Coffee Machine had failed to produce the assured 100 cups coffee which is the manufacturing defect of the said Machine. Moreover, after some days from purchasing the said Machine was out of order for twice and in both occasion the Opposite Party No. 1 sent the mechanic at the Coffee Shop of the Complainant for repairing the same.
Cont. ……….…. 3
= 3 =
But at third time when the said Machine was stopped functioning the Opposite Party No. 1 asked the Complainant to bring the said Coffee Machine at their Service Centre at Kolkata and had repaired the same for cost of Rs. 2,400/- only and the Complainant had to pay the cost to the Opposite Party No. 1 within the warranty period.
Thereafter the said Coffee Machine again became out of order on 08.12.2014 and the Complainant requested the Opposite Parties for repairing but the Opposite Parties paid no heed to it for which the Complainant sent a legal notice on 17.01.2015 towards the Opposite Parties which was duly received and replied by the Opposite Party No. 1 that due to rats in the Coffee Shop had eaten the wires of the Coffee machine the same stopped functioning and also stated that the said Coffee Machine did not produce more that 35 cups of coffee per day what amounts to negligence and deficiency in rendering service by the Opposite Parties towards the Complainant for which being victimized and harassed the Complainant has to file the instant case seeking adequate redressal against the Opposite Parties.
Resisting the complaint, the Opposite Party No. 1 & 2 filed the Written Version denying the contentions and all material allegations made by the Complainant in the petition of complaint and stating inter alia, that the complainant has no cause of action to file the case and the same is not maintainable.
The specific case of the Opposite Party No. 1 in crisp, is that, the said transaction was held at Kolkata and the Complainant has purchased the said Coffee machine from the Kolkata which is specifically out of the territorial jurisdiction of this Forum.
Cont. ……….…. 4
= 4 =
The Opposite Party No. 1 specifically stated that this Opposite Party had sold the Coffee making machine to the Complainant for domestic purpose. Being a distributor of the said Machine this Opposite Party can only sale the product but all after sale services are to provide by the manufacturer and accordingly the Opposite Party No. 2 had provided all kind of service support to the Complainant. This Opposite Party never received any complaint about the said machine prior to the legal notice dated 17.01.2015 and accordingly requested the Complainant to contacted with the Opposite Party No. 2 for all kind of services. Moreover at the time of purchasing the said Machine this Opposite Party categorically informed the Complainant that this Coffee Machine in question can only cater 30 to 35 cups of coffee per day but the Complainant had over used the said Machine beyond its capacity. s
Thus, theses Opposite Party No. 1 strictly denied any negligence or/ and deficiency on their part in rendering service towards the Complainant and prayed for dismissal of this case.
The specific case of the Opposite Party No. 2 in gist, is that, the Opposite Party No. 2 is the manufacturer of the said product the Coffee Machine in question and being the distributor of this Opposite Party No. 2, the Opposite Party No. 1 sold the said Coffee machine to the Complainant on 10.02.2014 for cost of Rs. 97,325/- only. After purchasing the said machine the same got faulty on four occasions and was replaced/repaired accordingly and requested the Complainant not to overuse the said machine and suggested to purchase another machine to share the load. It is views from all the ‘Service Call Sheet’ that the said Coffee Machine was overused by the Complainant and not properly maintained and the Complainant did not follow the instruction of the users and service guideline of the Opposite Party No. 2.
Cont. ……….…. 5
= 5 =
On 14.01.2015 the Opposite Party No. 2 intimated the Complainant by phone to seek convenient time for servicing and also assured to replace the gear without any cost but the Complainant did not respond to this Opposite party.
Thus, theses Opposite Party No. 2 denied any negligence or/ and deficiency in rendering service towards the Complainant and prayed for dismissal of the instant case.
Point for Consideration
1. Is the complaint maintainable under the C. P. Act ?
2. Was there any negligence or deficiency in service
on the part of the O.Ps ?
3. Is the complainant entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for consideration for the sake of convenience and brevity.
The main dispute what is to be decided by the Forum is that, whether the Opposite Parties are liable for deficiency and/or negligence towards the Complainant in rendering service or not.
Cont. ……….…. 6
= 6 =
On overall evaluation of the argument by the Ld. Advocate of the Complainant and the Ld. Advocate for both the Opposite Parties it is evident that admittedly the Complainant had purchased a Coffee/Tea Machine with one year warranty from the date of purchase and with the assurance that the said Coffee Machine would chatter 100 cups coffee per day, for maintaining his livelihood from the Opposite Party No. 1 by paying the consideration amount of Rs. 97,325/- only on 10.02.2014.
Perusing the entire Case Record it is visibly revealed from the ‘Cause Title’ of the ‘Complaint’ that both the Opposite Party No. 1 (the Distributor) and the Opposite Party No. 2 (the manufacturer) were/are reside in Kolkata (PIN code–700026) which is out of the territorial jurisdiction of this Consumer Forum.
Moreover, the Complainant specifically stated that he had purchased the said Coffee/Tea Machine in issue from the Opposite Party No. 1 situated in Kolkata who supplied the same to the Coffee Shop of the Complainant.
So it is clearly and evidently viewed that both the Opposite Parties (Distributor and Manufacturer) reside at Kolkata which is out of the territorial jurisdiction of this Forum and carry on their business also out of the territorial jurisdiction of this Consumer Forum and no Opposite Parties had/has any branch office within the territorial jurisdiction of this Forum (i.e. within the District of Murshidabad).
Moreover, the cause of action from where the Complainant had purchased the said Coffee Machine in question has also situated in Kolkata which is not within the territorial jurisdiction of this Forum.
Cont. ……….…. 7
= 7 =
Thus the unanimous decision of the Forum is that this ‘Complaint Case’ is not adjudicable by this Forum due to lack of territorial jurisdiction. But the Complainant has liberty to file the same before the appropriate Forum within 90 days from the date of this ‘Order’.
Therefore, in the light of the above discussion it is finally and commonly decided by the Forum that the Complainant has filed that case beyond the territorial jurisdiction of this Forum and is not entitled to get relief as prayed for from this Forum.
In short, the Complaint Case fails.
In the result, we proceed to pass
O R D E R
That the case be and same is rejected on contest against the Opposite Party No. 1 & 2 without any cost with liberty to Complainant to file the same case before the appropriate Forum within 90 days from the date of this ‘Order’.
Let a plain copy of the ‘Order’ be available and be supplied to all the parties or to their ld. Advocates or authorized representatives free of cost under proper acknowledgement for information and necessary action.
