State Consumer Disputes Redressal Commission
BHABANI BHAVAN (GROUND FLOOR)
31,
KOLKATA – 700 027
SC.CASE NO.FA/256/ 2011
(Arisen out of judgement dt. 15.3.11 in C.C.Case No. 308/2010 of DCDRF, North 24 Parganas)
DATE OF FILING : 01.06.2011 DATE OF FINAL ORDER: 07.09.2012
APPELLANT
Mr. Biswajit Adhikary @ Bapi
Proprietor of M/s. Anima Marketing Corporation
¾,
Post Office-Barisha
Kolkata-700 008.
RESPONDENTS
1. Mr. Sashim Karmakar
residing at Premises No. 53/5, Bidyatan Sarani
Post Office-Alambazar, P.S. Barahanagar
Near Tanti Para More
Kolkata-700 035.
2. Mrs. Aparna Karmakar
Wife of Mr. Sashim Karmakar
residing at Premises No. 53/5, Bidyatan Sarani
Post Office-Alambazar, P.S. Barahanagar
Near Tanti Para More
Kolkata-700 035.
BEFORE : MEMBER : MR. D.BHATTACHARYA
MEMBER : MR. J.BAG
FOR THE APPELLANT : Mr. Alok Kumar Singh and Sanjida Quader,
Ld. Advocates
FOR THE RESPONDENT / O.P.S.: Mr. S.Mali, Ld. Advocate
: O R D E R :
Mr. J.Bag, Member
The present Appeal is directed against the judgment dated 15.03.2011 of the Ld. District Consumer Disputes Redressal Forum , North 24-Parganas at Barasat in CC Case No. 308/2010 in the matter of Shri Sashim Karmakar and another –vs- Shri Biswajit Adhikary .
The facts of the case ,in brief ,are as follows :
The Complainants / Respondents , both are doctors by profession, while running a nursing home , on or about 24.08.2008 , ‘purchased one Medical Instrument namely ENDOCAMERA with accessories from M/S. Anima Marketing Corporation, represented by Sri Biswajit Adhikary @ Bapi’ the OP/ Respondent at a consideration of Rs. 119988/- (Rupees one lakh nineteen thousand nine hundred and eighty eight) only. The instrument was, however, found to have not been functioning properly after 6/7 months which caused professional loss to the Complainants/ Respondents. After several requests for repairing of the instrument the OP/ Appellant went to the nursing home of the Complainant/ Respondent and collected the instrument in September, 2009 for repair. Nothing was heard from the OP/ Appellant for about 8/9 months and the Complainant / Respondent kept on knocking and / or communicating over telephone with the OP/ Appellant. Sending a messenger to the OP/ Appellant’s place also did not yield a desired result. A written complaint was lodged with the OC, Baranagar Police station on 11.06.2011 vide GDE No. 699/ 10 dtd. 11.06.2011. Subsequent to that an Advocate’s letter was sent on 10.08.11 asking the OP/ Appellant to return the Medical Instrument after its proper repairing. The OP/ Appellant did neither receive the letter nor sent any information. As such, the Complainant / Respondent filed a petition of complaint before the Ld. District Forum below praying for directions upon the OP/ Appellant to refund the consideration money amounting to Rs. 119988/ - paid for the alleged purchase of the medical instrument along interest from 11.06.10, compensation of Rs. 30000/- and cost of litigation. The Op / Appellant neither appeared nor contested the case by filing Written Objections, despite service of notice. The case was heard ex parte by the Ld. District Forum and after consideration of all relevant points involved in the complaint the same was decided to the effect that the OP/ Appellant should refund the consideration amount paid for the alleged purchase of the medical instrument and should pay interest @8% p. a. accrued thereupon from 16.06.10 till realization thereof, apart from payment of Rs. 2000/- towards the cost of litigation.
The OP/ Appellant being aggrieved by and dissatisfied with the order of the Ld. District Forum filed the present Appeal Case No. FA/256/2011 on the grounds, inter alia, that though the Complainant / Respondent filed the consumer dispute case being No. 308 0f 2010 on the allegation of deficiency in services, he did not get any opportunity to appear in the case; that he rather repaired some Medical goods apparatus of the Respondents/ Complainants, as described under Invoice No. 005 dated 24-08- 2008 , but ‘did never’ sell any medical goods or apparatus to the Respondents / Complainants and that he did not give any guarantee/ warranty in respect of his repairing services. Thus he challenged the very core issue of the complaint denying any sale of the medical instrument with accessories as alleged by the Complainants/ Respondents in their original complaint.
We have gone through the Appeal petition along with the enclosures thereto, perused the impugned judgment, BNA filed by the Complainants/Respondents and heard Ld Advocates of both parties arguing for and against the instant Appeal. On the request of the Ld. Advocate for the OP/ Appellant the relevant case records were called for and the same have been consulted.
The Appellant’s averment that the Complainants/ Respondents did not purchase the article as named in their complaint appears to be a fact in so far as the original invoice No. 005 dated 24.08.08 shows that out of 4 items as noted in the invoice 2 were repairing works, 1 CCD Camera had replacement of ‘Coupler ordinary’ and another 1 for Accessories, total payment being for Rs. 119700/-. The complaint as stated with facts by the Complainants/ Respondents is not exactly what has surfaced through contest before this Commission. Defects in the goods purchased or deficiency in service on the part of the Appellant, so far as the contents of the invoice No. 005 dated 24.08.08 referred to in the original complaint are concerned, not being proved satisfactorily we are not agreed with the Ld. District Forum below and hold that the Appeal succeeds.
Hence it is ORDERED that the Appeal stands allowed on contest. The impugned judgment is set aside. There shall be no order as to cost.
MEMBER MEMBER
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