Format Appeal to the state Consumer Commission

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL FORUM
APPEAL CASE NO…………..OF 2014

CONSUMER CASE NO. CC/ 03 of 2006.

IN THE MATTER OF
An Impugned order dated 03.05.2017 passed the Ld. Forum in Complaint Case No. CDF 03/2016 (Dilip Dutta ~vs- Proprietor, Crockery Centre and Anr.)
-And-

IN THE MATTER OF:
An Application under section 15 of The Consumer Protection Act, 1986.

-And-

IN THE MATTER OF:

XXXX, son of Late XXXX Nath Dutta residing at 44/23, Naskarpara Lane, P.O.: B. Garden, P.S.: formerly Shibpur at present: A. J. C. Bose Botanic Garden, District: Howrah, Pin Code No. 711 103.
……………..Appellant/Complainant

-Versus-

1) PROPRIETOR, xxxxxxx ENTRE, 36A, Chandney Chowk Street, Police Station: Bowbazar, Kolkata: 700072

2) xxxxxxxxx PVT. LDT. Bajoria Tower, Chinar Park, 3RD Floor, Rajarhat, Police Station: Baguihati Gopalpur, Kolkata:700157
…….Respondents/Opposite Parties.

The Humble petition on behalf of the appellant above named, Most Respectfully

BRIEF FACTS:

On 13.01.2015 your appellant/complainant purchased one Kitchen Chimney from the Ops vide Tax Invoice No.12382 dated 13.01.2015. That on 20.01.2015 the said machine was installed by the Ops. From the next day of installation, the said machine began to malfunctioning. Immediately on 21.01.2015 your appellant/complainant contacted with the Ops over the phone and requested them for taking immediate corrective measures. From the other side of the phone one Rakhi Panday after listening assured your appellant/complainant that they will take necessary action immediately. Despite repeated requests, nobody from the Ops pay any heed to the request of your appellant nor they sends any person for servicing. Finding no other alternative your appellant/complainant served notice by speed post upon the OPs on dated 26.11.2015 and the same was duly acknowledge and received by them, but the OP failed to reply it. The appellant constrained to file the Consumer case before the Ld. Forum Kolkata-I (North) on dated 07.01.2016 for relief, which was disposed of by the impugned order dated 03.05.2017.

SHEWETH :
1. That the Opposite Party No.2 was successful in obtaining the Final order dated 03.05.2017 in his favour by misleading and misrepresenting the Ld. Forum whereby the opposite party No.2 was directed to only repair the machine in question within 30 days from the date of Order/Judgment without any charges.

2. That the certified copy of the judgment dated 03.05.2017 was issued from the Learned Forum on 11.05.2017

3. That the order dated 03.05.2017 is erroneous on facts and law and hence appealed against for grounds of appeal.

4. At trial the appellant/complainant stated and submitted as follows:

I. That appellant/complainant on 13.01.2015 purchased one Kitchen Chimney of Kutichina brand Model No. STANZASS from the defendant No.1 CROCKERY CENTRE, 36A, Chandney Chowk Street, Police Station: Bowbazar, Kolkata: 700 072 vide Memo No.12382 dated 13.01.2015.

II. That on 20.01.2015 the said machine was installed by the authorized representative and/or agent of defendant No.2 Bajoria Appliances Pvt. Ldt., Bajoria Tower, Chinar Park, 3RD Floor, Rajarhat, Gopalpur, Kolkata:700157.

III. That from the next day after installation of said machine began to malfunction. Immediately on 21.01.2015 appellant/ complainant contacted with the defendant No.2 Bajoria Appliances Pvt. Ltd. over the phone as mentioned in the Service Coupon/ Warranty booklet and delineated the problem and requested for immediate action. From the other side of the phone who received the said phone/complaint one Rakhi Panday after listening assured appellant/ complainant that they will take necessary action with immediately. But in spite of repeated request, nobody from the part of the authority concerned pay any heed to the request of appellant/complainant nor they send any person for taking proper action.

IV. That the said machine is a by default manufacturing and/or assembled defective machine. The defendant no.2 supplied the said defective machine and the defendant no.1 sold the said defective machine to me for fulfills their vested interest best known to them.

V. That finding no other alternative appellant/complainant serve notice upon the Respondents/Opposite Parties on 26.11.2015 and the same was duly acknowledge and received by the appropriate authorities concerned.

VI. That neither any representative contacted with the appellant/ complainant for repair or replacement of the said defective machine nor give any reply to the notice dated 26.11.2015.

VII. That from the date of lodging the complainant/request dated 21.01.2015 and up to the date of notice of your appellant/complainant dated 26.11.2015 no one contacted with the appellant/ complainant nor any service engineer/representative come to his residence for servicing and/or replacement of the said defective machine or taking any suitable action from the part of opposite parties. Again they failed to reply the letter dated 26. 11.2015.

VIII. That according to terms of Warranty-cum-Service Book provided/supplied with the said machine the Opposite party No.2 is bound to provide proper service of the said machine thrice in a year.

IX. Opposite Party No.1 dragged your appellant/complainant into the trap of the Opposite Party No.2/ Company /Importer to fulfill his personal vested interest best known to him.

5. That the opposite party No. 2 concluded as follows:

(I) That the present complaint against the Op No- 2 is baseless and not maintainable in the eye of law

(II) That the Complainant above named, having filed the above case on Diverse, Frivolous and Motivated before this Forum, as your petitioner /Op. No.2 herein while denying the said allegations crave leave to the O.P. the same in the manner hereinafter appearing.

(III) That the Op. No.2 BAJORIA APPLIANCES PVT LTD., is the manufacturer having office at Bah aria Tower, Chinar Park, 3rd floor, Rajarhat, P.S. Baguihati, Gapalpur, Kolkata – 700 0157.

(IV) That the complaint against Op. No. 2 is completely baseless as there is no grievance or allegation against the goods which was purchased from Op.No.1 on 13-01-2015.

(V) That from the very beginning to the end of the inst complaint petition there is no whispering against manufacturing defect and there is no demand of rendering service upon O.P. No.2 So, no question arise in respect of service on the part of the O.P. No.2.

(VI) That the goods purchased on 13.01.2015 and the complainant first sent a letter through the Ld. Advocate on 26.11.2015 with a complaint of malfunction¬ing the machine and demanded 3 free services for the said machine. It is very clear that the complainant availed and enjoyed the machine since the purchasing the goods till 26.11.2015 and during this period no complaint was raised and accordingly there is no question of rendering service on the part of the Ops. Secondly, no question or demand can be done for extension of warranty period/ extra 3 Free Services as the goods which were purchased with a warranty period and as there is no allegation or demand for service on the part of the complainant, so the complaint against Op. No.2 is baseless and there is no negligence or deficiency in service in rendering of service. This complaint is totally motivated and an intensive to harass the Op.No.2 for asking extra Free services.

(VII) That there is no mechanical expert report of the defective goods or machine was not functioning and as per Section 13 of C.P. Act, 1986 for any defective or malfunctioning expert mechanical report should be submitted to the Forum through complaint herein this case. There is no evidence or any supporting document of malfunctioning the machine. Only there is own writing in the complaint, that can never establish the truth against their allegation.

(VIII) That the complaint filed by the complainant is absolutely baseless as there is no evidence in support of the allegation or deficiency in service.

(IX) That the OP. No.2 also asked and requested the complainant to allow him and to check the machine but the complainant did not allow the OP. No2 for doing service inspire of taking permission and request through the Phone No. of the complainant having No. 9831523537 Vide Docket No.KM/142/1215.

6. That the Learned Forum below did not take cognizance of section 13 of Consumer Protection Act, 1986 which clearly prescribes that any expert opinion/report is mandatory in case of rendering service from the service provider/ manufacturer. any defective

7. That the Learned Forum below wrongly concluded without any authentic evidence that the appellant had certainly not contacted with the Ops before 21.11.205 for the service request.

8. The learned Forum below overlooked the fact that the Ops had failed to serve their valued customer and denied to provide proper service which is an act of disservice on the part of Ops.

9. The learned Forum below overlooked to mention the fact that the appellant/complainant before sending a letter dated 26.11.2017 contacted with the O.P. No.2 over the phone on 21.01.2017 at 12 Noon and one Ms. Rakhi Panday received the said phone call.

10. That the Learned Forum below failed to appreciate that the appellant/complainant sent notice on 26.11.2017 to the Ops requesting for repairing/replacement of the said defected machine. But the Ops did not take any action or give any reply to the notice dated 26.11.2017.

11. The learned Forum below overlooked the responsibility of the Ops wherein after intimation 21.01.2017 over phone and 26.11.2017 in writing the O.P. No.2 did not contact with the appellant/complainant for repairing/replacement of the defective machine or give any reply to his letter dated 26.11.2017.

12. That this petition is made bonafide and in the ends of justice

Under the circumstances as in above it is therefore prayed:

1. Admit and allow this Appeal.

2. Set aside the Impugned order dated 03.05.2017 passed by the Ld Dist Forum in No.CC/03/2016 (CDF 03/2016) and allow the Complaint.

3. Recall the Records lying with the Ld Kolkata Forum.
4. Issue Notice to the Respondents/ Opposite Parties.

5. Any other Order or Orders as The Learned Bench deem fit and proper.

And for such Kindness, your petitioner as in duty bound shall ever pray.

A F F I D A V I T

I XXXXX aged about 60 years, son of Late XXXXX Dutta by faith- Hindu, By occupation legal practitioner, residing at 44/23, xxxxxxx Lane, P.S: A. J. C Bose Botanic Garden, P.O: B. Garden, District- Howrah, Pin Code No. : 711 103 do hereby solemnly affirm and state as follows:-

1. That I am the Appellant above named and I am well conversant with the facts and circumstances of the case.

2. That the statements made in foregoing paragraphs of this affidavit are true to my knowledge and believe and derived from records which I believe to be true and correct.

I sign this affidavit on this day of May, 2017 at Howrah.

______________________
Deponent
IDENTIFIED BY ME Signed in my presence

Advocate
XXXXX Bhattacharyya
Advocate
18/6/1, D. S. Lane, Howrah:711109

MEMORANDUM OF APPEAL

Being aggrieved by and dissatisfied with the impugned order dated 03.05.2017 passed by The Forum in Complaint Case No. CDF 03/2016 (Dilip Dutta ~vs- Proprietor, Crockery Centre, 36A, Chandney Chowk Street, Police Station: Bowbazar, Kolkata: 700072 and Anr.) the appellant above named beg to prefer the instant Appeal on the above stated facts and circumstances in favour of the appellant and against the Respondents and against the finding of the Ld Forum.

GROUNDS

I. For that the Learned District Forum failed to do justice by merely directing the respondent/opposite party No.2 Bajoria Appliances Pvt. Ldt., to repair the Kutichina Chimney without any charges within 30 days from the date of communication of the order, without entering into the facts and appreciating the actual grievance as canvassed through the Complaint.

II. For that The Learned District Forum in its Judgment failed to go through the complaint/petition of the Appellant/ Complainant and erroneously observed that………….
“the complainant contacted the O.P. No.1 and requested for immediate action. The O.P. No.l informed the complainant that they will take necessary action, but no action was taken”[ para -1 page 1].

Whereas the Appellant/ Complainant in his complaint/petition clearly described the facts as below:-

“Immediately on 21.01.2015 your humble petitioner contacted with the appropriate authority over the phone as mentioned in the Service Coupon/ Warranty booklet and delineated the problem and requested for immediate action. From the other side of the phone who received my phone/complaint one RAKHI PANDAY after listening, assured me that they will take necessary action with immediately. But in spite of repeated request, nobody from the part of the authority concerned pay any heed to the request of your petitioner nor they send any person for taking proper action.[para-5]”

III. For that The Learned District Forum passed its Judgment without going through the complaint/petition of the Appellant/ Complainant. The Learned District Forum in its Decision with reason as observed that……..

“The Appellant/ Complainant in his complaint/ petition stated that it was purchased on 21.01.2015 and lodged the complainant on 26.11.2015”. …… Which is factually incorrect and beyond the pleading[page no 3 top] .

On the contrary the complaint case was in fact, as clearly stated that it was purchased on 13.01.2015, installed on 20.01.2015 and the first complaint was lodged on 21.01.2015 and finally a written notice was served on 26.11.2015 (page no. 2 Para no. 3, 4, 5 & 7), which was remained non- replied.

IV. For that the Learned District Forum erred for not considering the pleaded facts; that on 13.01.2015 the appellant purchased the said machine in question from the defendant No.1 , vide Memo No.12382 dated 13.01.2015 and on 20.01.2015 the said machine was installed by the defendant No.2. From the very next day after installation the chimney stopped working is the actual complain. The appellant promptly over telephone canvassed the grievance to the Ops. The Ops neither attended the faults for repair or servicing the defected Chimney or even send any Mobile SMS or any kind of communication to the appellant thereafter. The appellant called them again and again and Ops only took the note over phone and promised to send service man , but actually they never send anyone for servicing.

Finding no other alternative your petitioner serve a notice by speed post on the defendants on 26.11.2015( within the warranty period) and the same was duly acknowledge and received but Ops never replied the same.

V. For the Learned District Forum failed to appreciate the fact that the machine was covered under warranty up to 19.01.2016 and notice was served within the warranty period. Again the Appellant/Complainant on 21.01.2015 over telephone lodged 1st complainant and finally in writing on 26.11.2015. In the transition period the appellant and his family suffered irreparable mental agony and pain. The complainant successfully proved the facts by supporting documents, where as the O.P. No. 2 failed to discharge the burden that due care has been taken on their parts. Their only defence was that the appellant made a fault by not appointing any Expert for assessing the damages, and the Ld forum took this line of argument without applying judicial mind, which is illegal and incorrect. The appellant humbly submitting that such practice was not required by law.

VI. For that The Learned District Forum has erroneously held that there exists lacuna on part of the complainant for not appointing expert to identify the defect if any and therefore the complainant is not competent for relief , which is against the express provision of law and warranty as stated above .

VII. For that The Learned District Forum failed to ascertained/identify that there is clear instruction/notice in the Warranty Booklet of the Respondent/Opposite Party No.2 for three mandatory free service of the machine within the warranty period of one year and for that three separate Service coupon has been supplied with the Warranty Booklet of the Respondent/Opposite Party No.2. The entire service coupon is still pending as the Respondent/Opposite Party No.2 failed to provide any service for the machine in question in spite of repeated request and serving written notice. The Ops are bound by warranties.

VIII. That again the Ld trial Judge arbitrarily took the assertion of the OP no 2 that they sent a Representative for inspection and the appellant intentionally disallowed him, which is completely wrong and lame excuse on part of the OP no 2 and the same is not supported by any document/s such as peon book, service entry book, Service centre`s service memo or inspection memo etc. Even they failed to produce any Book showing the date and time for their inspection and rejection report, which is normal corporate practice.

IX. The Learned District Forum erroneously held in its decision with reason that “Such fact clearly established that the complainant in order to get the advantage from this Forum manufactured this case by making false allegation against O.P. No.2 that the machine was not functioning properly.” The appellant by his respectful submission would say that such observation is out of place and unwarranted.

I certify that in my opinion the above are good grounds for appeal and the appellant is competent to ask for the prayers as mentioned without any delay.

Memo Drawn By
ADVOCATE ON RECORD Advocate.
FOR THE APPELLANT :

XXX Bhattacharyya,
Advocate.
1, D. S. Lane, Howrah: 711109

Enclosed:
1. Impugned Order Dated 03.05.2017 in Original.
2. Copy of the Complaint
3. Copy of documents relied upon.
4. Copy of the Written Objection.
5. Copy of the Affidavit-in-Chief by the Complainant

DATE:
PLACE: