Before the District Consumer Dispute Redressal Commission, Central District,                                   ISBT Building,  5th Floor,  Kashmere Gate, Delhi.

Complaint Case  No. 222/2019

                                                Versus

Aero Club (Shoe House)

2168 Basement Opposite Post Office

Gurudwaa Road, Karol Bagh,  New Delhi.                  ...Opposite Party                            

Coram: Shri Inder Jeet Singh, President

            Ms. Shahina, Member (Female)

                                                          ORDER-

Inder Jeet Singh, President

1.1  (Introduction to case of parties ) - The complaint is of allegation of defect in a pair of shoes the  complainant had bought from OP and also in deficiency in its service. Complaint was filed u/s 12 of the Consumer Protection Act 1986 and complainant seeks direction to OP  (i) either to change his pair of shoes or to return its price of Rs.1000/- apart from (ii)  compensation of Rs. 50,000/- alongwith interest @ 18% pa on account of physical and mental harassment suffered by him. Whereas, OP opposed the claim on the ground that shoes was purchased by complainant from factory outlet at heavy discount throughout the year as they are old stocks,  it was also mentioned on the invoice bill 'no exchange, no claim, no refund'.  After a few days the complainant came alleging sole cracking problem, it was got repaired despite no obligation but  showing customer friendly goodwill gesture, and during that phase, he came again alleging cut on upper of shoe.  The OP's representative explained that the cut was egregious misuse and it was found to be beyond repairs, which was not manufacturing defect.

1.2   After filing of complaint and its initial stage of proceedings, which was prior to leading evidence by affidavit,  there was an option by the OP for new pairs of shoe, in lieu of subject pairs of shoe, but subject to visit of complainant  at shop of OP to select a pairs, however, despite giving the time, the complainant had not visited the shop, he requested that he does not want pairs of shoe but seeks return his amount.

2.1 (Complainant’s case)-  Briefly, on 14.05.2019, the complainant bought a pair of shoes from OP for Rs.1000/- against retail invoice bill no.201907D109C00548 (i.e. annexed as page 8 to the complaint). He found the shoes very comfortable after its wearing but he saw its sole was cracked, immediately he rushed back to shop of OP, it was shown to them.  His shoe was kept by them, he was assured that company will either exchange it or repair it and he was asked to come after 3 or 4 days.  After 4 days, complaint went to shop; he was given a box containing a pairs of shoes that Company had given it in exchanged of earlier pairs but when complainant opened the box, he found that shoe was changed but its upper of shoe was having a cut, which was also shown to shop-keeper, who responded that his shoe is fully changed by the company.  The complainant was advised  to send shoe to customer care centre of Company.

2.2    On 19.5.2019, the complainant took his shoe pairs to customer care centre and also visit there many times but it was stated that shoe will not be repaired. Lastly on 09.06.2019, complainant was given his shoe with return memo 'cut on my shoe in your factory or company please change my shoe - pair not repaired' (i.e. memo is annexed as page 9 to the complaint). Then complainant came to the shop of OP for exchange the pairs of his shoe but it was denied. That is why pairs of shoe was kept by him at his home and then complaint was filed.

3.    (Case of OP)-  OP had filed its reply that Complainant had purchased shoes on 14.5.2019 but the complaint is mala-fide. OP opposed the claim on the ground that shoes was purchased by complainant from factory outlet at heavy discount throughout the year as it was from old stocks,  it was also mentioned on the invoice bill 'no exchange, no claim, no refund'.  A few days later,  the complainant came alleging sole cracking problem in a shoe, it was got repaired despite no obligation, since OP is very particular of its Goodwill and also showed customer friendly gesture to customer. After some days, the complainant again came (during earlier repairs) alleging cut on upper of shoes, which was not manufacturing defect.  The OP's representative explained that the cut was egregious misuse, the leather cut is practically not  possible unless shoe is subjected to a very torturous treatment like if used by hitting some object or persistently rubbed against hard object. The complainant had requested OP's representative  for repair of a shoe, if possible, however, it was found to be beyond repairs.  The shoe was repaired at first instance but on second occasion, there was no case of manufacture defect. The complaint does not establish either of deficiency of services or of other claim, it is liable to be dismissed out-rightly.

4. (Replication of complainant)- The complainant filed rejoinder to the reply of OP,  the reply was opposed while reaffirming the his case. It is supplemented that a pair of shoes was of brand Woodland bought from shop of OP against price of Rs.952.38p+GST Rs.47.62=Rs.1000/- and it was never disclosed that the same is being sold from old stocks.

5. (Evidence of the parties)- The complainant filed his sole affidavit of evidence, while referring and relying upon the documents annexed with the complaint.  Whereas on the other side, OP's legal Executive Shri Satish Singh Yadav tendered evidence for OP, since there was authority letter in his favour. The evidence of both the side is replica of their respective pleadings.

6.1   (Submissions/arguments of the Parties)-  Both the complainant and the OP filed their respective written arguments, which are just repetition of their pleading/evidence, but the complainant supplemented that he had objected and asked OP to remove stamped of 'no Exchange, no claim' from face of the invoice,  at the time of buying the shoe, then the complainant was assured that stamps are in routine manner and there is guarantee of one year.  The complainant was sold the goods forcefully and to cheat the complainant to make illegal gains by the OP.

6.2    Ms Gurpreet Kaur, Advocate (Legal Aid) also made final oral submission on behalf of complainant assisted by complainant. There was earlier other legal aid counsel, who filed the complaint.  The submissions were as such filed in writing. However, it is also submitted that the complainant is physically challenged person from his fingers of hand, he was daily earner and he had visited the shop three times.  Then on enquiry, he explained that his daily earning is about Rs.500/- per day. It is also submitted that OP had not produced the shoe during evidence, had the original shoe been produced there would be clear demonstration of faults and defects in the shoes. Lastly, there was no notice or display at the counter of sale, that the goods were being sold under ''no exchange, no claim, no refund'. The complainant is entitled the relief claimed.

6.3       Shri Ankit Chaubey, Advocate for OP made submission during the presence of OP's AR/witness Shri Satish Yadav.  The claim of complainant and supplementary submission of complainant are opposed that they are contradictory, inconsistent and beyond record. The complainant is improving and changing his case at different points of time. The goods were sold under factory out-let at heavy discount, there was clear display at counter and on the same basis invoice was stamped. The complainant and the OP are bound by the contract.  The shoe was repaired at first instance as customer friendly gesture, although it was not contractual obligation and complainant was satisfied with the repairs.  There was no manufacturing defect in the product. There was no deficiency in services, reliance is placed on Ranveet Singh Bagga Vs KLM Royal 2001 (1) SCC 66 that in the absence of deficiency of services, then remedy may be of ordinary common law and bona-fide action by staff cannot be held to be deficiency of services.                                                                                                                 

7.1   (Findings)- We have considered the case of the parties as well as their written and oral contentions.  By considering evidence of parties (oral & documentary)  the following conclusion are drawn-

(i) it was 14.5.2019 when the complainant purchased a pair of shoes from OP against invoice bill no.201907D109C00548,

(ii) there was problem/issue of sole of shoe immediately after its purchase by the complainant and he took it to the shop of OP,

(iii) as per complaint (para no.7 ) and affidavit of evidence (para no.7), the said shoe is with the complainant himself.  Thus, the final oral submission of complaint that shoe is with the OP or it failed to produce it during evidence, is contrary to his own written record,

(iv) since shoes was with the complaint himself, he failed to produce it during evidence,

(v) the invoice reflects rubber stamp ' 'no exchange, no claim, no refund'.  The complainant in his written submission also contends that at the time of buying shoes, he had asked OP to delete such stamp impressions from the invoice but it was told/assured that the same were in routine.  It establishes, it was in the notice of the complainant at the time of buying the shoes,  thus plea in  his rejoinder is contrary to facts mentioned in final submission. Otherwise, it was never the case of complainant or of the OP in their respective complainant or reply or evidence about 'want of display notice at counter of sale- 'no exchange, no claim, no refund'.

7.2   Now the points of controversy left to be decided are in respect of whether there was defect in shoe or deficiency in services of OP, despite odds of some inconsistent plea by the Complainant, apart from entitlement of compensation.

         The complainant has pleaded his case in the form of complaint and he had also led the evidence coupled with documents. Whereas on the other side the OP had opposed plea and claims of complainant by its oral evidence but it had not opposed invoice or endorsement on invoice or repair slip no.69 of 9.6.2019 of customer care, which are vital document for the purposes of deciding the controversy. This needs discussion.

        On the face of invoice (a document at page 8 to the complaint), there is endorsement 'repair' but nature of repair is not mentioned.  Thus, at the inception there was defect in the shoe, which both sides confirmed of sole of shoe was repaired. The repair slip no.69 reflects that article was within warranty and there was complaint recorded of 'fabric cut' by the Manager and summary of complaint was " cut on my shoe in your factory, Please change my shoe pair, not repairs". Although there are rival claims about cause of  cut on shoe, as complaint claims it happened in precinct of OP but OP claims that it was due to egregious misuse by the complaint.  There is just oral plea of one side against the oral plea of other side. There is no further correspondence in writing by either side after repair slip no. 69 (at page no.9 to the complaint) nor any remarks by H.O. of OP, in corresponding column of summary of complaint. All it happened from date of purchase on 14.5.2019 to 9.6.019,  within span of 25 days and it was within warranty period.  Otherwise, there is general opinion of OP of egregious misuse by the complainant  but no proof vis a vis complainant had not produced the subject shoe during evidence. The condition of the shoe was also poor as per repair slip no.69. Since, the shoe was not wearable that too even after short period of purchase because of those conditions vis a vis  it was within warranty period. However, the shoe was beyond repairs as per case of OP.  Thus, complainant is held entitled for first relief claimed.

7.3   The complaint had sought relief of change of shoe or its price of Rs.1000/, ,however, during pending of complaint, the complainant was given opportunity by OP to visit the shop and have new pair of shoes of his own choice in lieu of previous pair of shoes, however,  he neglected and failed to visit the shop of OP to have new pair of shoes in lieu of subject shoes. The complainant changed his mind to have new pairs of shoes in place of shoes bought by him, which he maintained till final hearing of this complaint,  whereas in prayer clause of complaint one of reliefs claimed was of exchange of pair of shoes.  Therefore,  complaint is allowed for return of price of pair of shoes of Rs.1000/-, which is also appropriate, in favour of complainant and against the OP.

7.4     So far compensation component is concerned, the complainant had visited the shop three times and it was explained that he was earning Rs.500/-per day, thus taking stock of all these circumstances, a lump-sum damages of Rs.2500/- in favour of complainant and against the OP, will meet both ends of justice so far second relief is concerned.

7.5 The complainant has claimed interest @ 18% pa on compensation amount,  however, there is no supporting evidence or other circumstances to justify claim of interest @ 18% pa. Thus, keeping in view the prevailing circumstances in the period of 2019, it appears appropriate to us and in order  to  meet both ends of justice, to award simple interest @ 6% pa. from 02.12.2019 [being the date  when complaint refused to have exchanged pair of shoes ] till the realization of the amount  in favour of complainant and against OP.

7.6  Accordingly,  complainant's complaint is disposed off while holding  and allowing claim of Rs.3,500/- [i.e. price of pairs of shoes of Rs.1000/- plus damages of Rs.2500/-] alongwith simple interest @ 6%pa (from 02.12.2019 being date of neglect/failure of complainant to exchange pair of shoes till payment is made) in favour of complainant and against OP. The amount will be paid by the OP to the complainant within 30 days.

8. The copy of this order be sent to the parties as per rules and parties may collect extra set of complaints, if filed.

 Announced on this 26th day of  December 2022.