The instant case was instituted on the basis of a petition of complaint filed by one Babu Das S/o. Sankar Das of Vill. Sahishtuli Lane, P.O. Malda, Dist. Malda filed u/s 12 of the Consumer Protection Act, 1986 and the said petition was registered before this Forum now renamed as Commission as Complaint Case No. 63/2017.

The fact of the case as revealed from the petition of complaint as well as from the evidence is that the O.P. has a shop viz. N.C. Utsab Nandi’s Collection a house of garments situated at 11/11, B.S. Road, P.S. English Bazar, P.O. & District – Malda. The complainant on 25/07/2017 went to the said shop of the O.P. with an intention to purchse rain suits as gift towards his friends. The complainant purchased two number of rain suits amounting to Rs. 1,500/- (Rupees One Thousand Five Hundred Only) each and another rain suit amounting to Rs. 1,000/- (Rupees One Thousand Only) totaling cost of three numbers of rain suits was Rs. 4,000/- (Rupees Four Thousand Only)and the complainant paid the same amount and after receipt of payment the O.P. issued a valid money receipt to that effect.

It has been further stated that at the time of purchase those rain suits the O.P. did not check or open properly the said rain suits from the rain suits packets and on being asked the O.P. gave an assurance to the complainant to change the same if there is any manufacturing defect or any other defect is found. After getting such assurance from the end of the O.P. the complainant took the rain suits and return back to his house. Thereafter, the complainant presented the said rain suits to his friends and relatives as a gift but after opening the same from the each bags it is found that the back portion of these three numbers of rain suits were totally damaged and found defective and it was a very prestigious matter to the complainant. Thereafter, the complainant went to the shop of the O.Ps after taking those rain suits on the same date and requested the O.P. to replace the same or change the same. At that time the O.P. assured him that he will rapidly change the same but ultimately the O.P. did not pay any heed to his request and the intention of the O.P. is to harass the complainant as a result of which the complainant through his lawyer served a legal notice to change the same within seven days from the date of receipt of the said notice but in spite of receiving such notice the O.P. did not return the same as a result of which the complainant has come to this Forum to get his relief. So he has come to this Forum now Commission and filed a case to get relief as prayed for. 

The petition has been contested by the O.P. by filing written version denying all the material allegations as levelled against them contending inter alia that the instant case is not maintainablein its present form, the case is frivolous, harassing, misconceived and motivated. The case has been filed by suppressing the material fact as such the case is liable to be rejected.

The definite defense case is that the O.P. instituted a case bearing No. 18 of 2017 against Indraprastha Developer for damage of wall of his flat and the complainant is the well-wisher associates having fiduciary relationship with the said promoter Indrapratha Developer and the complainant has been influenced by the said developers and in order to create pressure upon the O.P. such false case has been filed by the complainant Babu Das.

The further defense case is that the case has been filed in order to loss the reputation and prestige of the O.P. as the O.P. is running the business with his honesty and sincerity.

The further defense case is that the rain suits were manufactured by a branded company by the name Duckback and the Duckback Company is a necessary parties in this case. There was no unfair trade practice and deficiency of service towards the complainant. So considering such facts and circumstances the instant case is liable to be dismissed with cost.

In this case it is to be mentioned that the O.P. filed a counter claim of Rs. 5,00,000/- (Rupees Five Lakhs Only) as the complainant has harassed and lost reputation of O.P. and prestige in a society as a whole.

In order to prove the case the complainant Babu Das was examined as P.W.-1 and cross-examined. During trial he has proved and marked document exhibits as per exhibit list. One Dipayan Bhattacharya was examined as P.W.-2  and cross-examined and one Arijit Kundu was examined as P.W-3 and cross-examined.

On the other hand Biswajit Nandy was examined as O.P.W-1 and cross-examined.

Now the point for determination:-    Whether the complainant is entitled to get any relief as prayed for?

                             ::DECISION WITH REASONS::

It is no doubt that the complainant purchased three rain suits at a consideration of Rs.4,000/- (Rupees Four Thousand Only) and there is no dispute that the O.P. received the said amount.

Now the main question comes whether the rain suit after purchase was found defective or not ? In this regard the Ld.Lawyer of the complainant argued that after purchase it was found defective on the back side of the each rain suits and the complainant wanted to gift those rain suits to his friends and relatives. When he went to the house of his friends and relatives and after opening the pack it was found defective. After noticing that the complainant came back with those packets and requested the O.P. to return the same. The O.P. assured him that he will return the same. But the O.P. did not return the same for which he has to serve lawyer’s notice upon the O.P. Even after receiving the lawyer’s notice the O.P. did not return the same.

Now the main point is to be considered that at the time of purchase a customer should be cautious as to the condition of the goods but at that time the O.P. assured him that after opening the packet if the complainant found any defect so he will return the same but ultimately the O.P. did not return the same.

The Ld.Lawyer of the O.P. argued that the O.P. filed a case against the Indraprastha Developer in which the O.P. purchased flats from the Indraprastha Developer and one of the wall became damage for which he filed a case.

The main defense case is that in order to create pressure upon the O.P. such case has been filed but no convincing evidence has come to the Forum that Babu Das has any relation with the Indraprastha Developer. So the defense and argument raised by the Ld.Lawyer of the O.P. that the false case has been filed in order to create pressure by the complainant being the henchman of the Indraprastha Developer is not tenable.

Next point argued by the Ld.Lawyer of the O.P. is that in order to loss the reputation of the O.P. such false case has been filed. But in this regard no evidence has been adduced. Moreover, this Consumer Forum is not Competent Court to adjudicate about the matter of loss of reputation.

The proper Forum lies to the Civil Court and the O.P. may approach if he desires to do so to file a defamation case against the complainant.

The Ld.Lawyer of the O.P. further argued that the O.P. is willing to replace the rain coats even he agrees to return the moneys but the complainant is not agreeable to accept such proposal. According to the argument as advanced by the Ld.Lawyer of the O.P. is that such attitude indicates that the instant case has been filed with a mala fide motive. It is not understood why the O.P. did not return the amount after hearing that the rain suits became damage after purchase. Even after receiving the Lawyer’s notice the O.P. did not return the rain suits why the complainant will agree with such proposal after a long lapse. The rain coats have been marked material exhibits (MAT Exhibits) and on perusal of rain coats it is found that there was defect in the said rain coats. It is not understood why a customer will purchase defective rain coats.

The Ld.Lawyer of the O.P. further argued that the Duckback is a necessary party in this case but the Duckback has not been made party. In the opinion of this Forum the complainant paid money to the O.P. for purchasing the rain coats but not to the Duckback Company. So in this case the Duckback Company is not required to be made party at all.

So considering the facts and circumstances the complainant has been able to prove the case and the counter claim of the O.P. is required to be rejected as the O.P. has failed to prove that the complainant has lost the prestige and reputation of O.P.

C.F. paid is correct.

Hence, ordered that

 the case be and the same is allowed on contest against the O.Ps with  cost.

The complainant gets an order of refund of amount of Rs. 4,000/- (Rupees Four Thousand Only) from the O.P. as soon as the money is deposited to the Forum now Commission. Rain coats will be handed over to the O.P.

Besides that the complainant gets Rs.20,000/-(Rupees Twenty Thousand Only) for harassment and mental agony and Rs.10,000/- (Rupees Ten Thousand Only) for deficiency of service and Rs.5,000/- (Rupees Five Thousand Only) for litigation cost totaling Rs. 35,000/-( Rupees Thirty Five Thousand Only). The entire amount so awarded will be handed over by the O.P. within 45 (Forty Five) days failing which it will carry interest @ 5% (five per cent) p.a. till the date of recovery from the date of filing of this case and the complainant will be at liberty to put the decree in execution.             

Let a copy of the order be given to the parties free of cost on proper application.