State Consumer Disputes Redressal Commission
Indrajit Roy & Ors. vs Tarun Mondal on 8 October, 2013
D R A F T
State Consumer Disputes Redressal
Commission
West Bengal
BHABANI BHAVAN (GROUND
FLOOR)
31, BELVEDERE ROAD, ALIPORE
KOLKATA 700 027
S.C. CASE NO.
: FA/866/2013
(Arising out
of order dated 27.06.2013 in Case No. EA/8/2013 of D.C.D.R.F., Birbhum)
Date of Filing : 07.08.2013 Date of Final Order : 08.10.2013
APPELLANTS/COMPLAINANTS :
1. Indrajit Roy
2. Biswajit Roy
1 & 2 are the sons of Late Braja
Mohan Roy.
3. Smt. Latika Roy
Wife of Late Braja Mohan Roy
1 to 3 are residing at Village
Tailapara, P.O. Barla, P.S.
Nalhati, District Birbhum,
Pin Code No. 731 220.
RESPONDENTS/O.P.S :
1. Tarun Mondal
Son of Late Ramnarayan Mondal
C/o. Mondal Enterprise,
Dumka Road,
Rampurhat (Super
High Road) Sanghatapara,
District Birbhum,
PIN No. 731224.
BEFORE : HONBLE JUSTICE : Sri Kalidas
Mukherjee,
President.
MEMBER : Sri S. Coari.
MEMBER : Smt. Mridula Roy.
FOR THE PETITIONER /
APPELLANT : Mr. Madhusudan Roy,
Ld. Advocate.
FOR THE RESPONDENT / O.P.S. : Mr. Barun Prasad,
Ld. Advocate.
: O R D E R :
S. COARI, MEMBER.
The present appeal has been directed against the order No. 4 dated 27.06.2013 passed by Ld. District Forum, Birbhum in Execution Case No. 8/2013 wherein Ld. District Forum disposed of the execution case with a direction upon the O.P. to pay Rs.71,908/- by cheque to the Petitioner on 03.07.13 and the petitioner shall return the machine to the O.P. The case of the Appellant Complainant/Decree Holder before the Ld. District Forum, in brief, was that the Complainant as an agriculturalist purchased submersible pump set from the O.P. No. 1 after taking financial assistance from Bank. According to Complainant, after purchase it was found that the pump set was defective from the very beginning. In spite of spending considerable amount of money for effecting repair of the machine, the machine was not working properly. The O.P. No. 1 was requested to take proper care in this respect but no response came from the O.P. No. 1. Hence, the consumer complaint was preferred with a prayer returning the money or in the alternative to replace the machine. Initially the consumer complaint was allowed in favour of the Complainant. On appeal the case was sent back on remand with a directed to implead manufacturer in the consumer proceeding and also to have the machine examined by an expert for the purpose of ascertaining the defect in the machine and finally the case was disposed of in favour of the Complainant thereby directing the O.P. No. 1 and O.P. No. 3 to be severally and jointly responsible for supply of the defective machine to the Complainant along with a further direction to repair the machine to the satisfaction of the Complainant and if repair was not possible the machine should be replaced by another one or in the alternative to pay back the amount so received from the Complainant along with 10% interest.
At the execution stage the impugned order was passed. Being aggrieved and dissatisfied with the said order the present appeal has been preferred.
The only moot question that revolves round in the present appeal is as to whether the Ld. District Forum was justified in disposing of the petition of complaint in the manner discussed.
DECISION WITH REASONS :
At the time of hearing it is submitted by Ld. Advocate for the Complainant/Decree Holder Appellant to the effect that the Ld. District Forum having failed to appreciate the actual state of affairs has passed the impugned order which is not at all sustainable under the law. According to Ld. Advocate, it is an admitted position that as per final order of the complaint case the O.P. was to pay back the amount so received from the Complainant along with interest @ 10%. But in spite of that without any rhyme and reason the Ld. District Forum has recorded the amount to be Rs.71,908/- which is extremely detrimental to the interest of the Complainant Decree Holder and that the impugned order does not reflect the actual state of affairs and conduct of the parties. While elaborating on this point the Appellant never consented/agreed that the Complainant will accept Rs. 71,908/-/- towards final settlement of the dues and there is no basis of the impugned order wherein the amount has been depicted as Rs. 71,908/-/- and on this score alone the impugned order is liable to be set aside. According to Ld. Advocate for the Appellant the Ld. District Forum having failed to appreciate the cases of respective parties has passed the impugned order which is liable to be set aside.
We have duly considered the submission so put forward on behalf of the Complainant/Decree Holder Appellant and have also gone through the materials on record including the impugned order and find that in this case the Complainant filed the consumer complaint against the dealer of submersible pump set (O.P. No. 1) thereby alleging deficiency in service in respect of the pump set which was not working properly from the very beginning of purchase of the same. Initially, the consumer complaint was allowed in favour of the Complainant.
Subsequently, on appeal the case was sent back on remand with the direction to implead the manufacturer of the pump set and also to dispose of the consumer complaint after getting the pump examined by a technical expert and the consumer complaint was thereafter disposed of with a direction to effect repair and if repair was not possible to replace the machine by a new one or in the alternative to refund the amount so received from the Complainant. At the time of execution proceeding it has been recorded by the Ld. District Forum that as the parties agreed to the effect that O.Ps shall pay Rs. 71,908/-/- by cheque or in cash to the Complainant and the Complainant shall handover the machine to the O.P. immediately at a place/date fixed by the executing court and accordingly disposed of the execution case.
On careful perusal of the impugned order we find that Ld. District Forum has really appreciated its mind to the nitty-gritty of the respective cases of the parties. In this connection we find much substance so put forward by the Ld. Advocate for the Respondent, according to whom, the present appeal is not at all maintainable on the ground that the manufacturer Sriram Diesel India has not been impleaded in the present appeal. Besides that, we also take note of the fact of the decision of the Honble National Commission in connection with the present matter where the Honble Commission has observed that the Complainant Decree Holder shall not be granted double benefit when the impugned order has been passed the Ld. District Forum taking into the account the nitty-gritty of the respective parties cases. We are not inclined to interfere with the finding of the Ld. District Forum, which, in our opinion, should be confirmed. Having considered the present appeal in the light of above discussion we find no merit in the present appeal, which, in our opinion, should be dismissed.
In the result, the appeal fails.
Hence, ordered that the appeal stands dismissed on contest without any order as to cost. The impugned judgement stands confirmed.
MEMBER MEMBER PRESIDENT