Haryana

Panchkula

CC/179/2022

MRS.NEELAM . - Complainant(s)

Versus

BHARATSTHALI SAREES EMPORIUM. - Opp.Party(s)

VIREN KALERA & SANKALP GEHLAWAT

04 Oct 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

 

Consumer Complaint No	:	179 of 2022
Date of Institution	:	24.05.2022
Date of Decision	:	04.10.2023

 

 

Mrs. Neelam w/o Mr. Rajender Kumar, r/o P-4, Police Officers Colony, Sector-2, Panchkula, Haryana-134109

                                                                         ….Complainant

 

Versus

BharatSthali Sarees Emporium through its proprietor, SCO No.842, NAC Manimajra Chandigarh, Near HDFC Bank, Chandigarh-160101.

….Opposite Party

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member

Dr. Barhm Parkash Yadav, Member

 

 

For the Parties:   Sh.Sankalp Gehlawat,  Advocate for the complainant.  

                        Sh.Ram Prakash Saini, Advocate alongwith Sh. Om                          Parkash Proprietor/OP.  

ORDER

(Satpal, President)

1. The brief facts, as alleged in the present complaint, are that the complainant visited the Opposite Party(hereinafter referred to as OP), who deals in the sale of Ethnic clothing for women i.e. sarees on 25.10.2021 and browsed different sarees to purchase the same for personal  use. It is stated that, while the complainant was making the purchase of sarees, she had requested the OP to permit her to inspect the sarees properly so as to enable her to make an informed decision but her request was declined by the OP, who have boasted about the quality to their goods stating that the sarees had been thoroughly inspected and she(complainant) will be provided the “silk mark” with all the sarees. It is stated that based on the oral representation and assurance made by the OP and trusting him, she had finalized six sarees(hereinafter referred to as ‘product’) and purchased the same for personal use. The seller instructed   the complainant to take the product on 02.11.2021 after the stitching of ‘Fall’ on the same. The complainant had sent a representative to take the delivery of the product on 02.11.2021 with the instructions to check the product thoroughly but the representative was also not allowed to check the product thoroughly and again, the OP boasted about the quality & standard stating that the product was thoroughly checked while stitching the Fall. It is stated that the complainant received the product on 02.11.2021 and upon checking, it was found that one saree was defective. The complainant returned the defective sarees along with one more saree, which was of the same fabric to avoid any issue in future. The representative of the complainant went to exchange the said sarees and made the seller talk to the complainant over the mobile phone. The seller accepted one saree to be defective and agreed to exchange both the sarees over the phone. The seller asked the complainant to come soon and get the sarees exchanged. It is stated that the complainant had prior engagements in connection with the celebration of Diwali, which was on 04.11.2021 and thus, asked the seller that she would come for exchange the product as soon as possible. The OP had agreed to the same and kept both the sarees. On 12.11.2021, the complainant went to the seller to exchange the two sarees as agreed upon earlier on 02.11.2021 but the OP failed to honor his word. When the complainant insisted and stated about the prior intimation, one employee of the seller, who was sitting on the counter refused to exchange the sarees. The said employee started shouting on the complainant in a derogatory and threatening manner and thereafter, the complainant left the OP’s store. Thereafter, the complainant got issued a legal notice through her legal representative on 07.12.2021 seeking the refund of the amount as paid by her. The OP replied the notice dated 11.12.2021 and asked the complainant to send the copy of the invoice and photos of the defective sarees, which were sent on 22.12.2021 requesting for having a virtual meeting. The virtual meeting was held on 05.01.2022, wherein the OP did not agree to the genuine request of the complainant. On 06.01.2022, the OP sent a reply mentioning therein the terms and conditions of the invoice as under:-

“If you find any damage in product kindly respond within 1 day to the retail store after that product will be treated as used products and their exchange or return request will not considered”.

However, the offer for exchange of two sarees within 10 days was also made in the said reply. On 08.01.2022, the legal representative of the seller contacted the legal representative of the complainant over a phone call and presented a counter offer for exchange of two sarees with higher priced sarees. It is stated that one more saree was also found defective. Due to the act and conduct of OP, the complainant has suffered a great deal of financial loss, mental agony and harassment; hence, the present complaint.

2.Upon notice, the OP appeared through counsel and filed written statement, mentioning therein that the complainant had visited on 25.10.2021 and purchased the sarees. It is denied that she was not permitted to inspect and check the sarees properly. It is submitted that the sales person of the OP never refused to exhibit the sarees and never boasted about the quality of their items as they are aware that they sell good quality of articles and have received no complaint from any corner. It is stated that the OP never pressurized the complainant to purchase the sarees; rather; it was the complainant herself who had approached the OP for the purchase of sarees and also requested the OP to a fix the fall only on one saree without any cost. It is stated that the representative  of the complainant  has received  the delivery of the saree on 2^nd November 2021 without any complaint  as at the time of delivery of the same, the OP as well as the representative of the complaint had thoroughly checked the saree. It is stated that the OP had received only one saree through his representative. The representative asked the OP to change the defected saree but not brought the saree with him. It is stated that the complainant had sent his representative for the exchange of two sarees. The OP requested the representative of the complainant to bring the said two sarees to the store and show them to get it exchanged. It is denied that any such incident had ever happened at the shop of the OP. The complainant is concocting a false story in order to gain the sympathy. It is admitted that the complainant had sent a legal notice, which was duly replied by the OP. It is submitted that the complainant had thoroughly checked the sarees before taking the delivery of the purchase the same and therefore, cannot take a contradictory plea that she had not checked the sarees at the time of taking the delivery or that the OP did not allow her to check the sarees at the time of delivery. It is submitted that the complainant was provided one silk mark. Rest of the allegations alleged by the complainant have been denied and it has been prayed that there is no deficiency in service on the part of the OP and as such, the complaint is liable to be dismissed.

                 

3.The learned counsel for the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-10 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP tendered affidavit Annexure R-A  and closed the evidence.

4.We have heard the learned counsels for the parties and gone through the entire record available on the file including the written arguments filed by the learned counsel for complainant, minutely and carefully.

5.The learned counsel for the complainant reiterated the averments as made in the complaint as also in affidavit(Annexure C-A) and contended that the OP had assured  the complainant on 25.10.2021, while she was making  the purchase of sarees in question that the sarees were of superior quality, having  no defects  therein. It is contended that two sarees out of six purchased sarees, contrary to the assurances given by the OP, were found defective but the OP neither exchanged the defective sarees nor refunded the amount to the complainant as paid by her to the OP and thus, the OP was deficient, while rendering services to the complainant and as such, the complaint is liable to be accepted by granting the relief as claimed for in the complaint.

6.On the other hand, the learned counsel on behalf of the OP refuted the contentions as raised by the learned counsel for the complainant and reiterated the averments as made in the written statement as also in affidavit(Annexure R-A) and contended that the complainant had purchased the sarees after thoroughly inspecting the same. It is contended that she was not denied to inspect the sarees at the time of making the purchase by her on 25.10.2021 as alleged. It is further contended that only one saree was reported to the OP to be defective whereas the complainant, later on, had claimed that the two sarees were defective. The learned counsel contended that the OP had offered to exchange the two sarees but it was the complainant, who had failed to bring the defective sarees for exchange and thus, no deficiency can be attributed on the part of OP. Concluding the arguments, the learned counsel has prayed for dismissal of the present complaint being frivolous,  baseless and meritless.

7.The sole issue, to be decided in this complaint, is, whether the complainant is entitled to the refund of amount of Rs.92050/- as paid by her in lieu of purchase of six sarees from the OP on 25.10.2021.

                As per complainant, she was assured by the OP about the good and superior quality of the sarees at the time of purchase of the same on 25.10.2021 and in this regard, the learned counsel for the complainant has invited our attention towards the logo of silk mark appended on the invoice(Annexure C-1) and silk mark bearing no.-E05028790 (Annexure C-10), vide which assurance of purity of the product was given. The complainant in order to prove her contentions has placed on record the photocopy of defective sarees in the shape of Annexure C-2 and Annexure C-2(colly) and Annexure C-8 and C-8(colly), wherein the defects are apparent.

8.On the other hand, the OP has placed no documentary evidence on record except the affidavit(Annexure R-A) in order to disprove or falsify the contentions of the complainant qua the defects in the sarees. Rather, the OP in para no.4(v) of its reply has been found to have made contradictory averments. It has been found that the OP, in the initial part of para no.4(v) of its reply, has admitted that it had received one saree whereas in the end of the same para i.e. para no.4(v), it has averred that the representative of the complainant had not brought the saree. In the next para i.e. para no.4(vi), the OP has admitted that the complainant had sent her representative for the exchange of two sarees. Thus, the plea taken by the OP in its reply are found contradictory and inconsistent.

9.Further, it has been found that the OP had sought the copy of invoice along with photos of the product from the complainant vide its reply dated 11.12.2021 (Annexure C-4), in response to legal notice dated 07.12.2021(Annexure C-3) receive from the complainant through her counsel.  The complainant had sent the invoice as well as photos of the defective sarees to OP as desired and a virtual meeting was held on 05.01.2022 but the same did not bring any fruitful results. Further, the OP, vide its reply dated 06.01.2022(Annexure C-7) as sent by it to the counsel for the complainant, has been found to have averred that the defect or damage, if any, in the product as per terms and conditions of invoice(Annexure C-1), was to be reported within one day.

10.Pertinently, the said averments made by the Op in its reply dated 06.01.2022(Annexure C-7)qua the lodging of the claim by the complainant within one day of the purchase was totally incorrect,  baseless and contrary to the actual facts as the saree was delivered to the complainant on 02.11.2021 after stitching of the ‘Fall’ on the same. In this regard, the OP had itself given the date as 02.11.2021 qua the stitching of fall on the invoice dated 25.10.2021(Annexure C-1).

11.Though, the OP vide said reply dated 06.01.2022(Annexure C-7) had shown its willingness to exchange the sarees within 10 days but no such efforts has ever been made by the OP to settle the dispute with the complainant, which had forced her to institute the present complaint on 24.05.2022, after waiting for a period of about more than 4 months. Even during the hearing of the present complaint, no serious efforts have been found to have been made by the OP to settle the genuine grievances of the complainant. Rather, the OP has been found to have adopted a callous, indifferent and apathetical attitude towards the grievances of the complainant and thus, it was deficient while rendering services to the complainant, for which, she is entitled to relief.

12.In relief, the complainant has claimed the refund of Rs.92,050/- along with compensation of Rs.1,00,000/- on account of mental agony and harassment and Rs.50,000/- on account of litigation charges.

13.The learned counsel for the complainant has shown the four sarees, which are lying with the complainant, and the same have been found by us as unused and unstitched. Two sarees out of the four purchase sarees by the complainant are, undoubtedly, lying with the OP.

14.Keeping in view the aforementioned facts  and circumstances of the present case, we deem it proper, fair and justified to direct the OP to refund  the purchase price i.e. Rs.92,050/- of the sarees  in question to the complainant and accordingly, the present complaint is partly allowed with the directions to the OP to refund the amount of Rs.92,050/- to the complainant along with interest @9%(simple interest) w.e.f. the date of purchase of the sarees vide invoice dated 25.10.2021(Annexure C-1 & C-1(colly)) till its actual realization subject to the return of the four sarees by the complainant to the OP. The OP is further directed to receive the four sarees from the complainant or her representative against proper receipt/acknowledgment. The OP is further directed to pay a sum of Rs.10,000/- to the complainant on account of mental agony and harassment and Rs.7,500/- as litigation charges.

15.The OP shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:04.10.2023

 

 

 

Dr. Barhm Parkash Yadav      Dr.Sushma Garg          Satpal       

                     Member                              Member                       President

 

Note: Each and every page of this order has been duly signed by me.

 

                                          Satpal                              

President