IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.
CONSUMER CASE NO. : 80/S/2010. DATED : 25.03.2011.
BEFORE PRESIDENT : SMT. ANITA DEBNATH,
Ex-Member of W.B. Higher Judicial Services and
Addl. Dist. & Session Judge,
President, D.C.D.R.F., Siliguri.
MEMBERS : SMT. PRATITI BHATTACHARJEE
&
SRI ASIT RANJAN DAS.
COMPLAINANT : SMT. NAMITA GHOSH,
W/O Sri Subodh Ghosh,
of Buribalason, Collegepara,
P.O. & P.S.- Bagdogra,
Dist.- Darjeeling.
O.Ps. 1) : SRI PARIMAL SARKAR,
Milan Mechanized,
Laundry, Hygiene Care,
Nivedita Road, P.O. & P.S.- Pradhan Nagar,
Dist.- Darjeeling.
2) : SRI ARUP MAJUMDAR,
Hygiene Care Laundry,
Hyderpara Main Road,
Dist.- Jalpaiguri.
FOR THE COMPLAINANT : Sri Kamal Dey, Advocate.
FOR THE OPs : Sri Tanay Chakraborty, Advocate.
J U D G E M E N T
The case of the complainant in brief is that the OP has a business under the name and style of Sarkar Mechanized Laundry, Hygiene Care. The petitioner had given one Silk saree, two Jorjate sarees and three pieces of blouse for washing to the said shop on 09.09.2009 against a bill dated 09.09.09 delivery date of which was 14.09.09.
The complainant paid a sum of Rs.340/- as per bill towards washing charges on 09.09.09. But at the time of delivery one orange colour Jorjate saree was found misplaced for which she was requested to come afterwards for delivery of the said saree in question. The complainant then again visited to the said shop room on 25.09.09. But the
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said saree was not handed over to the complainant disclosing about the missing of the said saree with a request to wait for a few days so as to enable the OP to trace it out. Since then in spite of repeated request the said saree was not handed over. As a result of which the complainant sustained a loss of Rs.6,000/- towards the cost of the said saree. Hence, this case for proper relief supported by affidavit.
Subsequently, the complainant by way of amendment of complaint incorporated Sarkar mechanized Laundry, Hygiene Care, C/O. Sarkar Sports Agency as party to the OP.
The OP contested the case by putting Written Version supported by affidavit denying each and every allegation as made therein with a defence that OP No.1 was appointed by the OP No.2 as a franchise under the certain terms and condition to expand the partnership business. The OP No.2 is one of the partners of absolute hygiene care. It is further alleged that the complainant came to take all those materials under the bill dated 14.09.09 only on 27.02.10 after lapse of 5 months and also paid the amount of Rs.340/-. In the bill there is specifically mentioned to take delivery within 30 days of the date of delivery. It is further alleged that one orange colour Jorjate saree was not at all misplaced and several requests were made to the complainant for taking back the orange colour saree in question. But the complainant with ulterior motive for making illegal gain did not accept the said saree in question. The complainant is to prove her case in accordance with law. As there is no latches or negligence on their part and there is no deficiency of service on the part of the OPs and as such the case is liable to be dismissed with cost.
Upon consideration of pleadings of the respective parties the following issues are framed for adjudication :-
1) Is the case maintainable ?
2) Has the Forum got jurisdiction to entertain and try the instant case ?
3) Is there any deficiency of service on the part of the OP ?
4) Is the complainant entitled to get award as prayed for ?
5) To what other relief/reliefs as prayed for?
Point No.1 & 2.
In order to attract the provision under the Consumer Protection Act, 1986 the complainant is to first prove that she is a consumer and service was taken on consideration.
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‘Consumer’ as defined under Section 2(1)(d)(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.
‘Service’ as defined under Section 2(1)(o) means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board of lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge of under a contract of personal service.
In support of the case of the complainant a Xerox copy of the laundry clean bill dated 14.09.09 issued by Sarkar Mechanized Laundry, C/O. Absolute Hygiene Care has been filed from which it reveals that the complainant gave three items including two Jorjate saree for the purpose of cleaning those articles at a cost of Rs.340/-. The said document further speaks that a sum of Rs.340/- was paid on 27.02.010. There is no denial on the part of the OPs. So, it is evident that service towards cleaning purpose of the dress materials were given against consideration and such service was taken against consideration. If that be so, when service was taken on consideration from the complainant she is a consumer as provided under Section 2(1)(d) of the C.P. Act, 1986.
More so, when the claim of the complainant is that one of the Jorjate saree was not received or delivered to him on the plea of missing the same and when according to the complainant service was not rendered properly it also comes within the purview of 2(1)(d) of the C.P. Act, 1986. Therefore, the case is quite maintainable.
More so, the shop rooms of the OPs are situated within the jurisdiction of this Forum at Hill Cart Road, Siliguri. Therefore, we are of the view that this Forum has got territorial jurisdiction to entertain and try the instant case.
Thus the issues are decided in favour of the complainant.
Point No.1 & 2.
The sole contention of the complainant is that one of the Jorjate saree had handed over for cleaning purpose was not delivered to her on the plea of missing.
The complainant in support of her case led evidence as PW No.1 with a specific
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statement for delivery of the orange colour Jorjate saree. As it was misplaced she sought for the cost of the saree of Rs.6,000/-. She was thoroughly cross-examined by way of questionnaire as well as reply thereof. The complainant was asked specifically about the preservation of the said Jorjate saree with their shop room. But in spite of repeated request she did not turn up to take the said saree in question. The complainant by way of reply denied the same with a specific statement that she had been to the shop of the OP No.1 on several occasions but the OP No.1 denied the same to deliver the saree in question. So, one’s assertion is denied by the other.
The OP led evidence as OPW No.1 with a specific statement that the saree in question was delivered to the complainant but she left the said orange colour Jorjate saree in their shop room. She was requested to take the said Jorjate saree bag she did not accept the same.
The OPs have filed original receipt being No.641 dated 14.09.09.
Admittedly, the complainant had given a saree as described under the receipt No.641 dated 14.09.09 to the OP for the purpose of cleaning.
Admittedly, the charge was paid by the complainant at the time of taking delivery of those items from the OP on 27.02.10.
Here in the controversy is that the complainant through mistake one Jorjate saree was not taken from the shop room of the OP. Where as the complainant’s sole case is that one of the saree was not delivered to her as it was then disclosed about missing. The OP buy specific defence stated that the said saree was lying with their shop room and in spite of repeated request the complainant denied to accept it. The said Written Version was filed before this Forum on 10.11.10. Pertinent to mention here that complainant has not come up with a prayer to produce the said saree before this Forum for her inspection as well as to deny the defence case of the OP. Although the OPs also did not furnish the said saree before this Forum for inspection on the part of the complainant about the verification of the said saree actually it was deposited their shop room for the purpose of cleaning. So, on the basis of the defence necessary direction was given to the OP for production of the said saree. During hearing the complainant categorically stated through her Ld. Advocate denying the said saree is of her. According to her one ‘Jardousi Saree’ was given for cleaning purpose.
It is a settled principle of law that the complainant is to prove its case by cogent, oral and documentary evidence. The complainant claimed the said saree as ‘Jardousi’. But in her complaint it is specifically mentioned that one orange colour Jorjate saree was
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found misplaced. Receipt original as well as Xerox copy thereof clearly speaks that two Jorjate Saree were given to the OPs for the purpose of cleaning. Now at this moment on seeing the saree in question declared that one Jardousi saree was given for cleaning purpose. Mere oral assertion before this Forum on quarry is not sufficient to come to a conclusion that Jardousi saree was given for the purpose of washing and/or cleaning purpose. If at all there be Jardousi saree it should be mentioned initially in the said complaint which is contrary to the submission as made by the complainant through her Ld. Advocate. Even documentary evidence also supports that Jorjate saree was given for washing purpose. More so, according to the complainant orange colour Jorjate saree was found misplaced whereas one orange colour Jorjate saree has been deposited before this Forum to show that the said saree was given for the washing purpose. There is a reference in the said saree by putting the bill number and particulars as described in the said bill which is matching with the particulars as described in the original receipts. When the complainant has not come before this Forum with sufficient materials to prove that the saree in question as deposited is not of her saree. The complainant has also not furnished any scrap of paper or document to show the particulars of the saree in question was actually given to the OP. Even no cash receipt was furnished to show the price of the saree in question was about Rs.6,000/-. Mere claim of cost price of the said saree is also not sufficient to hold that saree worth Rs.6,000/- was given to the shop in question for the purpose of washing and/or cleaning purpose.
Considering all the facts and circumstances, this Forum is of the view that the complainant has not able to prove that the saree as lying with the OP and placed before this Forum for consideration is not of her saree.
From the receipt there is no notings about the misplace of the said saree in question. The complainant is to take care of by noting the same in the said receipt through the OP about the alleged misplacement. However, when the saree in question was lying with the OP and when the complainant did not furnish any materials about the description of the saree in question as well as price of the said saree we are of the view that the complainant has failed to establish her case of missing the saree in question from the custody of the OP. It may be due to some other reason the saree as given for washing purpose may be misplaced from the shop room of the OP but it is not the case of the complainant that the OP tried to defeat the case of the complainant has brought another saree by way of purchasing. But in that occasion there must be specific pleadings in four corners of the complaint. But when there is no specific case about presentation of the saree in question by way of purchase or replacement, this Forum is of the view that the complainant should take the saree as deposited by the OP before this Forum.
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Under this facts and circumstances, we are of the view that the complainant has failed to prove the actual price of the saree in question and the saree as placed by the OP before this Forum is not of the same and identical saree as given for washing purpose and thereby the case of deficiency of service fails.
Therefore, the case of the complainant does not stand but liberty is given to the complainant to take back the saree as lying with this Forum due to deposit of the same by the OP on proper receipt.
Hence, it is,
O R D E R E D
that the Consumer Case No.80/S/2010 is dismissed on contest but without cost.
Let a copy of this Judgement and Order be supplied to the parties free of cost.
-Member- -Member- -President-