Hon’ble Mrs. Rumpa Mandal, Member.
The brief fact of the case is that the Complainant Sri Goutam Roy purchased an Aqua Fresh Water Purified on 21.12.2022 amounting to Rs.8,000/- trough online (Annexure-1 Copy of cash Memo No.665 dated 21.12.2022). The Op did not provide any free service. OP did not supply warranty card as well as GST bill at the time of purchase. After purchased within 7 (Seven) days water purified machine was not functioning properly and the Complainant did not get pure/ proper water. The machine was creating noise when the machine was running. The wife of the Complainant called the OP for proper service but OP misbehaved with the wife of the Complainant at the time of telephone conversation. Lastly on 07.06.23 Complainant bound to send written complaint before the OP through registered post dated 08.06.23 and on 12.06.23 OP received the complaint but still OP did not refund the purchased amount. On 17.06.23 OP sent reply and expressed his willingness. The above activities of the OP is clearly deficiency in service as well as unfair trade practice. Due to non proper service by the OP, Complainant suffered mental pain and agony. The cause of action arose on 21.12.2022 and on 07.06.2023 when the Complainant send written complaint and still it is continuing. The Complainant therefore prayed for an award from the OP to refund of Rs.8,000/- and pay sum of Rs.40,000/- as deficiency in service as well as mental pain and agony and pay a sum of Rs.10,000/- for harassment and Rs.10,000/- cost of proceeding in favour of him.
The OP contested the case by filing written version denying all the allegations against him. The positive defence case is that the Complaint petition is not maintainable in its present form and context. The Complainant has no locus standi to file the case against these answering OP. On 21.12.2022 Complainant purchased one assembled water purified machine namely “Aqua Fresh Water Purifier” on a tune of Rs.8,000/- from the OP and accordingly OP installed the machine at the house of the Complainant. The OP issued a cash memo on 21.12.2022 and accordingly, Complainant also paid the said amount. Few days after installation of the machine the wife of the Complainant communicated with the OP over the phone and told him that the machine does not work proper as it make so much noise. The OP went to the house of Complainant and checked the machine thoroughly in presence of the Complainant and thereafter Complainant be satisfied for machine works properly and it was in good condition. In the month of June of 2023 wife of the Complainant called the OP and told him she is not satisfied with the water purified machine and asking to take back the machine and refund the money. The OP conveyed his willingness to take back the machine and refund the money to the Complainant. On 07.06.2023 Complainant issued a letter to the OP and asked him to take back the machine and also refund the money. After getting the letter OP on 17.06.2023 gave reply and expressed his willingness to take back the machine and refund the money which was duly acknowledged by the Complainant. It is further to be mentioned it here that the Complainant avoiding the OP and he is very reluctant to return back the machine. The Complainant very cunning and whimsically lodges the complaint before this Commission for wrongful gain of the Complainant and wrongful loss to the OP and till the date Complainant is using the machine. So, the Complainant has intentionally made assertions claiming compensation on the ground of mental pain and agony. The claim which are not specifically admitted by the OP is deemed to have been specifically denied by the OP. The claim which was prayed by the Complainant is illegal, arbitrary and excessive and the Complainant is not entitled to get any relief as prayed for. So, the instant case is liable to be dismissed in limini.
Perused the case record and documents filed by both the parties. Heard, the argument advanced by the Ld. Advocates for both parties at length. The following points need to be discussed for adjudicating the case.
Points for Determination
- Is the case maintainable in its present form and prayer?
- Is there any deficiency in service on the part of the O.Ps?
- Is Complainant is entitled to get any relief?
Decision with reasons
Point No.1.
The pleading of the parties disclosed that the Complainant purchased one “Aqua Fresh Water Purifier” on 21.12.2022 amounting to Rs.8,000/- and amount was paid by the Complainant through online and accordingly, OP issued a cash memo being No.665 dated 21.12.2022. Accordingly, the Complainant is a consumer under the C.P. Act, 2019.
It is also important to consider that the OP never filed any petition for challenging the maintainability of the case. The OP have just evasively denied the case of the Complainant. There is no legal bar to hold that the Complainant is not a consumer. Thus, having perused the pleadings and the evidence on record this Commission is of the view that the case is maintainable in its present form and prayer under the C.P. Act.
Point No.1 is accordingly answered in favour of the Complainant.
Point Nos.2 & 3.
Both the points are taken up together for brevity and convenience of discussion.
It is admitted fact that the Complainant purchased the Aqua Fresh Water purifier on 21.12.2022 from the OP. After purchasing the machine was creating heavy noise and did not get purified water. The OP admitted that the machine was repaired. It means that the machine has some defect. The Complainant stated in evidence that despite repairing, it was not functioning properly. The OP could not discard the said evidence. There is no cross-examination to that effect. So, the machine remains defective till the filing of the case. That is why the OP wanted to take back the defective machine and to repay the money.
But the Complainant claimed that OP did not refund the money till now. This part of evidence also remains un-discarded.
Accordingly, the Complainant due to prove the case against the OP. However, the Complainant should return the defective machine to the OP. The OP has admitted it in written version.
The Complainant proved the following documents in course of trial.
- Copy of cash Memo No. 665 dated 21.12.2022 Annexure-1.
- Copy of written complaint along with postal receipt dated 08.06.2023 Annexure 2 & 3.
The OP could not discard those documents.
Thus having assessed the entire evidence and observation made hare in above the Commission comes to the findings that the Complainant is duly proved the case against the OP.
Accordingly, Point Nos.2 & 3 are decided in favour of the Complainant.
In the result the instant case succeeds on contest.
Hence, it is
Ordered
That the Complaint case No CC/44/2023 be and the same is allowed on contest with cost.
The OP is directed to refund of Rs.8,000/- to the Complainant. Due to deficiency in service he suffered mental pain and agony. So, OP is directed to pay Rs.10,000/- towards deficiency in service and Rs.5,000/- towards cost of proceeding to the Complainant within 30 (thirty) days for the passing of this Order failing which the total sum of Rs.23,000/- (Rupees Twenty Three Thousand) only will carry an interest @ 6% per annum till its realisation.
The Complainant is directed to return the said Water Purified Machine to OP at the time of getting the award money.
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.
