State Consumer Disputes Redressal Commission
Dhritiman Datta vs Dilip Kumar Mitra on 29 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/80/2015 (Arisen out of Order Dated 22/12/2014 in Case No. Complaint Case No. CC/316/2014 of District North 24 Parganas) 1. Dhritiman Datta Marine Word, 70, Bhattacharya Para Road, near Balaram Hospital, P.S. Khardah, Kolkata -700 116. ...........Appellant(s) Versus 1. Dilip Kumar Mitra S/o Late Bibhuti Kumar Mitra, Flat no.2402, Tower-4, Heights, Unitech Uniworld City, New Town, P.S. New Town, kolkata-700 156. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Avijit Gope, Advocate For the Respondent: In-Person., Advocate Dated : 29 Mar 2017 Final Order / Judgement Sri Utpal Kumar Bhattacharya, Member
Instant Appeal u/s 15 of the Consumer Protection Act, 1986 is directed against the Judgment and Order dated 22-12-2014 passed by the Ld. District Forum, 24 Parganas (North) in Complaint Case No. 316/2014 allowing the complaint on contest against the OP with the directions as under:-
"OP is directed to refund complainant Rs. 52400/- within one month from the date of this order, failing which 12% interest per annum will run till the final payment.
OP is further directed to pay complainant Rs. 10,000/- as compensation and Rs. 3,000/- as litigation cost to the complainant within one month from the date of this order, failing which OPs shall have to pay sum of Rs. 100/- per dasy from the date of this order till it realization, as punitive damages, which shall be deposited by the OPs in this State Consumer Welfare Fund."
The facts of the case, in brief, are that the Appellant/OP had taken a contract from the Respondent/Complainant for complete supply, installation and commissioning of a Marine Aquarium products at the residence of the Respondent/Complainant along with services.
Based on the Quotation dated 27-07-2013 of the Appellant/OP, the Respondent/Complainant paid a total consideration of Rs. 52,400/- in three cheques on an oral commitment of the Appellant/OP towards the steps of action to be taken by the Appellant/OP as indicated hereunder:-
That the Appellant OP would replace the defective parts of the supplied Aquarium that would become faulty within six months.
That the weekly maintenance services should be made available on monthly payment of maintenance charges as mutually agreed upon.
That full and final Invoice would mention warranty and other terms and conditions as agreed upon.
Immediately after installation of the Marine Aquarium in early August, 2013, the digitized Auto Timers developed certain faults. Having failed to initiate any action by the Appellant/OP towards repair or replacement of the defective Timers on prolonged persuasion, the matter was brought to the notice of the Consumer Affairs department, Govt. of West Bengal by the Respondent/Complainant. With the intervention of the Consumer Affairs Department, the Appellant/OP received back the Auto Timers for replacing them. The Auto Timers, however, have neither been returned to the Respondent/Complainant, nor were those replaced by other ones.
In September, 2013, the Wave Maker also went out of order. But the said Wave Maker has not been replaced in spite of requests made to the Appellant/OP by the Respondent/Complainant several times.
The Appellant/OP did not supply the Respondent/Complainant the Sales Tax Invoice along with Warranty and other terms and conditions rendering the Respondent/Complainant unable to seek Police help against alleged unfair trade practices of the Appellant/OP.
The deficiencies in service as pointed out above on the part of the Appellant/OP caused death of the valuable marine fish and the very purpose of installation of the Marine Aquarium turned futile due to non-replacement of the faulty equipments and non-rendering of maintenance services by the Appellant/OP in spite of repeated communications through telephonic calls/emails and SMSs seeking help from the Appellant/OP towards the replacement of the faulty equipments and offering maintenance services made by the Respondent/Complainant.
The aggrieved Respondent/Complainant then filed the complaint case claiming refund of the cost of the Aquarium together with compensation of Rs. 50,000/- and cost as deemed fit by the Ld. District Forum. Instant Appeal targets the impugned Judgment and Order arising out of the said complaint case.
Heard the Ld. Advocates appearing on behalf of both sides.
The Ld. Advocate appearing on behalf of the Appellant/OP submitted that the Respondent/Complainant purchased the subject Marine Aquarium, admittedly, on payment of Rs. 52,400/-. Drawing notice of the Bench to paragraph 4 and paragraph 6 of running pages 23 and 24 respectively, the Ld. Advocate submitted that in absence of the digitized Auto Timers, marine fishes do not die as alleged in the complaint.
There was no complaint against other electronic items save and except the Auto Timers which only serve the purpose of lighting and do not have any role to play in connection with the health of the fishes.
The Respondent/Complainant, as the Ld. Advocate continued, was not careful about his pets, which actually caused in the death of the fishes.
Refering to the points of the Preventive Maintenance mentioned at a to e of page no. 4 in the impugned Judgment/Order, the Ld. Advocate submitted that the findings of the Ld. District Forum are not in sync with the reality. As submitted, the question of maintenance of the Aquarium did not arise as there was no AMC of the Aquarium.
The Ld. Advocate drew the notice of the Bench further to the effect that the Respondent/Complainant filed a petition addressed to the Sales Tax Department, Govt. of West Bengal against the Appellant/OP alleging the Appellant/OP therein of different unlawful trade practices. The Ld. Advocate continued that the Respondent/Complainant should have concentrated more on taking care of his pets instead of bringing vague and frivolous charges against the Appellant/OP in the Sales Tax Department.
With the above submission, the Ld. Advocate prayed for the Appeal to be allowed setting aside the impugned Judgment and Order.
The Ld. Advocate appearing on behalf of the Respondent/Complainant, on the contrary, submitted that the Appellant/OP did not hand over any bill or invoice in respect of the purchase, nor did he handover any paper showing warranty of the article purchased as per commitment.
The Ld. Advocate maintained that the digitized Auto Timers developed defects immediately after its installation. The Wave Maker also went out of order thereafter. The equipments could not be repaired since the Appellant/OP, on repeated attempts, could not be contacted by the Respondent/Complainant over telephone, nor any effective result could be derived sending SMSs or e-mails to him stating therein the said machinic disorders that had put the lives of the fishes in jeopardy.
The Appellant/OP, in an across the table discussion, arranged by the Consumer Affairs Department, acknowledged the machinic disorder of the digitized Auto Timers and received back the machines for repairing and re-installation of the same. He, however, refrained from returning the Auto Timers till date.
As submitted, such utter deficiencies in service and also unlawful trade practices on the part of the Appellant/OP not only destroyed the valuable fishes of the Respondent/Complainant, but also made the Respondent/Complainant shelve or discard his longly cherished dream of a Marine Aquarium.
As submitted, the Appellant/OP was supposed to enter into an AMC with the Respondent/Complainant but, he withdrew from entering into AMC in apprehension of the consequences that he might have to face in view of his supply of defective equipments and ceased to keep contact with the Respondent/Complainant.
With the above submission, the Ld. Advocate prayed for the Appeal to be dismissed affirming the impugned Judgment and Order.
Perused the papers on record. Admittedly, there was a supply and installation of the Marine Aquarium on payment of full consideration.
The records as well as the uncontroverted submission of the Respondent/Complainant lead us to believe that the digitized Auto Timers and the Wave Makers of the subject Aquarium developed defects and ceased to function within a very short period since installation of the subject Aquarium.
The Respondent/Complainant repeatedly submitted that his repeated requests to the Appellant/OP for supplying the requisite papers, bills etc. showing therein the warranty, had fallen on deaf ears.
It is not unlikely that the Respondent/Complainant incurred displeasure of the Appellant/OP for the Respondent/Complainant's communication to the Sales Tax Department alleging the Appellant/OP of unfair trade practices.
However, with the intervention of the Consumer Affairs Department, as argued by the Ld. Advocate for the Respondent/Complainant, the Appellant/OP, in acknowledging the facts of the equipments' defects, received back the defective Auto Timers for repairing. Those Auto Timers, however, have not been sent back to the Respondent/Complainant as yet.
It is fairly understandable that the subject Aquarium with its electronic equipments and accessories should definitely have a reasonable period of warranty. The defects of the Auto Timers, since developed immediately after the installation, should have been taken care of by the Appellant/OP which he had not done and thereby caused deficiency in rendering services to the Respondent/Complainant.
Moreover, the Respondent/Complainant's submission to the effect that the equipments, received back by the Appellant/OP, have not been returned so far. Said allegation since remained uncontroverted by the Appellant/OP, leads us to conclude about the causing of an even graver deficiency in service by the Appellant/OP.
Keeping in view the facts and circumstances narrated above, we are of the considered view that the Appellant/OP had deficiencies in service and, therefore, the Appeal appears to be bereft of any merit to be favourably considered. We, however, are of the views that the cost and compensation awarded to the Respondent/Complainant are in the higher side and accordingly, those are to be reasonably reduced.
Hence, O R D E R E D that the Appeal is allowed in part.
The Appellant/OP is hereby directed to refund to the Respondent/ Complainant an amount of Rs. 52,400/- receiving back the subject equipment or any part thereof still in possession of the Respondent/Complainant within 45 days from the date of the instant order.
The Appellant/OP is further directed to pay to the Respondent/Complainant a compensation of Rs. 5,000/- and a litigation cost of Rs. 2,000/- within the same period of 45 days from this order, failing which, the Appellant/OP shall pay simple interest @ 9% p.a. on the total amount of Rs. 59,400/- from the date of default till the amount is fully realized.
The impugned order stands modified accordingly.
Let a copy of this Order be sent to the Ld. District Forum together with the LCR forthwith. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER