DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA,
MALDA D.F.ORIGINAL CASE No.56/2009.
Date of filing of the Case: 23.12.2009
Complainant |
Opposite Parties |
|
| Sri Subhransu Adhikary
S/o. Ramchandra Adhikary Resident of S.M. Pally (South), 1st Lane, P.S. English Bazar, P.O. & Dist. Malda ( W.B.), PIN – 732 101 Mobile No. 9614903588 |
1) | O.P./Respondent
Sri Tathagata Sen-sharma Proprietor of “Electro Neural” S/o. Lt. Ashoke Sen-sharma resident of “ Gitanjali House”, 7/8, Kalitala 1st. Lane, P.S. English Bazar, P.O. & Dist. Malda PIN – 732101 (W.B.) Land phone – 03512 645466 Mobile – 9733176675 E.Mail- electro neural@yahoo.co.in (sales) |
| 2) | Pro forma O.P. / Respondent
The Manager Indian Overseas Bank, Malda Branch, P.S. English Bazar, P.O. & Dist. Malda |
|
| Present | 1. | Sri Arjun Prasad Gupta, President |
| 2 | Smt. Sumana Das, Member | |
| 3. | Sri Krishna Prasad Chatterjee, Member |
For the Complainant: Sri Prasanta Kundu, Advocate
For the Opposite Party No.1: Sri Surajit Dutta, Advocate
For the Opposite Party No.2: None appeared
Order No.25 Dt. 17.03.2011
Complainant’s case is that he applied for Bangla Swanirvar Karmasansthan Prakalpa (BSKP) loan under Govt. of West Bengal and Rs. 98,000/- was sanctioned through Indian Overseas Bank. Out of which, a demand draft of Rs.60,000/-was issued by Indian Overseas Bank, Malda Branch(hereinafter called Pro O.P. No.2) on 20.05.2009, which he made over to O.P. No.1 for purchasing computer and accessories as per the quotation of Tathagata Sen Sharma, Proprietor of Electro Neural (hereinafter called O.P. No.1). Complainant’s grievance is that O.P. No. 1 did not supply the goods in full and as per the quotation. As a result, the computer could not be run. He
requested the O.P. No. 1 to take back the goods supplied by him but he
Contd….P/2…
P-2
remained indifferent. The complainant has been paying interest to Pro O.P. No.2 since the day of issue of demand draft. Negligence of the O.P.No.1 resulted in non-functioning of the computer and loss in his business. Hence this case, for reliefs as per the complaint petition.
O.P. No.1 has contested the case by fling a written version. Challenging the maintainability of the case on a number of technical grounds and denying the material allegations of the complainant, O.P. No. 1 contended, inter alia, that the quotation was valid for 15 days, from 02.05.2009. The complainant came to purchase the materials after expiry of the period of validity. All the materials mentioned in the quotation, being not available in the market, O.P. No.1 expressed his inability to supply the same to the complainant and as per the request and choice of the complainant, O.P. No.1 supplied one assembled desktop, one scanner HP 2410, one printer HP Deskjet D730, one UPS 600 Va Intex Sensation and one HP Laserjet P 2014 valuing Rs. 60,000/- on 19.05.2009. After submission of the report of satisfaction and the consent letter of the complainant, Pro O.P. No. 2 issued a demand draft of Rs. 60,000/- in favour of O.P. No.1. Goods supplied by him are of good quality and were within the period of warranty. Denying the allegation of non-supply of materials, dismissal of the case has been prayed for.
Pro O.P. No. 2 submitted a written version confirming payment of Rs. 60,000/- by draft and added that the dispute is between complainant and O.P. No.1 and no relief has been sought against Pro O.P. No.2. Pro O.P. -2 disappeared before trial.
Complainant Subhransu Adhikary submitted affidavits-in-chief for self as P.W.-1, Rajesh Nandan as P.W.-2, Jahangir Mustafa as PW-3, Manas Pandey as PW-4 and Sunishit Chakraborty as PW-5.
O.P. No.1, Tathagata Sen Sharma has submitted affidavits-in-chief for self as O.P.W.-1, Ujjal Majumder as O.P.W.-2, Sidharta Sarkar as O.P.W.-3 and Pradip Kr. Majumder as O.P.W.-4.
Documents proved by the complainant have been marked Exhibits 1 to 5.
O.P. No.1 abstained from submitting any document. Contd….P/3…
P-3
Written arguments were submitted by both the parties
Following issues are framed on the basis of the pleadings of the parties:
1) Is the case maintainable?
2) Has there been any deficiency in service of O.P. No.1 as alleged?
3) Is the complainant entitled to get the relief / reliefs as prayed for?
::DECISION WITH REASONS::
Issue No. 1
Ld advocate for O.P. No. 1 argued that the case is not maintainable because the goods were purchased by the complainant for business and not for his personal use. So, he is not a ‘Consumer’ in terms of Sec 2 (1) (d) (i) of the Act.
This argument does not stand to reason. The complainant is a small entrepreneur. The business was to be started by him on financial assistance under B.S.K.P Scheme. That itself is enough to show that his unit is not for high profit generation but a small one. For self-employment, the Act has accorded exemption for running a business under its proviso.
We do not find any adverse material to the maintainability of the case.
Issue is answered in the affirmative.
Issue No. 2
Admittedly, O.P. No.1 received the draft of Rs.60,000/- for the purpose of supplying the goods to the complainant as per the quotation ( Exbt.-5 ).
Complainant’s grievance, as reflected from his complaint and his affidavit-in-chief, is two fold.
First, the supply was not as per the specification of the quotation submitted by O.P. No.1.
Contd….P/4…
P-4
Secondly, the O.P. No.1 remained indifferent to his request for taking back the delivered unwanted materials and to supply the materials necessary for operation of the computer.
Evidence of the complainant regarding the articles delivered to him beyond quotation by O.P. No.1 is consistent. P.W.-1 has specified that he was supplied incomplete assembled desktop, one H.P. Scan Jet G 2410, one H.P. Inkjet Printer D 730 and one Inkjet Printer D 2568 total amount of the aforesaid items is Rs.33,500/- His cross-examination is spontaneous and unshaken. On the other hand, cross-examination of O.P.W-1 is an exposure of his struggle to find his feet. His statement that some of the items as supplied by him are not as per quotation is vague. The statement of O.P. No.1, in his affidavit-in-chief, that the complainant purchased the items mentioned at page no.-2 as per his choice sounds absurd. It is unlikely that a person desirous of commencing a business will purchase such items which will not be useful to run his computer. Had the complainant consented or selected the items beyond the quotation, it is unlikely that he would have raised objection against supply of the same later. There is no explanation from O.P. No.1 as to what prevented him from taking a written approval from the complainant before supplying him the articles beyond the quotation.
Exbt.-5 is the quotation submitted by O.P. No.1. Exbt. – 3, a letter addressed to Pro O.P. No. 2, bears anguish of the complainant for non-starting of his business due to non-supply of the materials by O.P. No.1. Though indirect, it is a vital support to the complainant’s case on the point that he was unable to start his business due to the failure of O.P. No.1 in supplying the materials as per the quotation. O.P. No.1 has examined his employee and associates to strengthen his cause but they failed miserably to oblige him.
On consideration of oral evidence of both sides, documents exhibited by the complainant and the written arguments of both sides we find that the O.P. No. 1 failed miserably to render the service of supplying the materials as per the quotation which he undertook by accepting the payment of Rs.60,000/- from Pro O.P. No.2 on account of the complainant.
The contention of O.P. No.1 that the complainant accepted the goods
without any objection sound jarring
Contd….P/5…
P-5
It is a clear case of deficiency of service on the part of the O.P. No. 1 and he is bound to indemnify the complainant for the loss suffered by him due to his negligence and disservice.
Issue is answered in the affirmative.
Issue No. 3
O.P. No.1 being the author of the crisis faced by the complainant, he is to shoulder the liability for the complainant’s failure in commencement of the business in time. Complainant had to pay interest for Rs. 60,000/-.
Complainant is entitled to be indemnified for the principal of Rs. 60,000/- and interest thereon from the day of receipt of the payment by O.P. No.1.
Complainant is also entitled to receive compensation from the opposite party for mental agony and harassment occasioned due to O.P’s repulsion in taking back the unwanted goods.
The complainant is also entitled to litigation cost as he was forced to institute this complaint.
In our view, the complainant deserves an award of repayment of Rs. 60,000/- towards the value of the goods.
Complainant cannot be forced to accept piecemeal components even though some of them are as per the quotation as that will not help the complainant to run his business. Therefore, opposite party shall take back all the goods from him.
The complainant is entitled to receive interest @ 12% p.a. from the O.P. No.1 from the date of receipt of the draft.
Complainant is entitled to receive Rs.12,000/-from O.P.No.1 on account of mental agony and harassment.
Complainant is further entitled to receive Rs. 4,000/- from O.P. No.1 towards litigation cost.
Contd….P/6…
P-6
Issue No.3 is answered in the affirmative.
Proper fee paid.
Complaint succeeds in part.
Hence, ordered
that the Malda D.F. Case No. 56/2009 is allowed in part on contest with cost against O.P. No.1.
Complainant do get an award of Rs.60,000/-(Rupees Sixty Thousand Only),interest @ 12% p.a., from the date of receipt of the payment, compensation of Rs.12,000/- (Rupees Twelve Thousand Only) on account of mental agony and harassment and litigation cost of Rs.4,000/-(Rupees Four Thousand Only).
O.P. No.1, Sri Tathagata Sen Sharma, Proprietor of M/s. Electro Neural is directed to pay the aforesaid amount to the complainant, Sri Subhransu Adhikary in the manner stated hereinabove in Issue No. 3 within 30 days from the date hereof.
O.P. No.1 is further directed to take back all the items from the complainant within the specified time limit. In case of default in payment of the aforesaid awards, the complainant shall be entitled to receive interest at the statutory rate till realization.
A copy of this order be supplied to each of the parties free of cost.
Sd/- Sd/- Sd/-
Krishna Prasad Chatterjee Sumana Das Arjun Prasad Gupta
Member,17.03.2011 Member,17.03.2011 President,17.03.2011
D.C.D.R.F., Malda. D.C.D.R.F., Malda D.C.D.R.F., Malda