Order-11.

Date-16/06/2015.

Complainant Soumen Kumar Basuby filing this complaint submitted or alleged that complainant purchased one sweater from Gajkumar Brothers op on 30.11.2013 on payment of full price of Rs. 1,530/- and tax invoice was duly issued vide No. 000025 acknowledging the payment of the said amount.

In respect of purchased article after wearing during winter season2013-14 complainant washed the said woolen garments by washing liquidEzee and kept it for the next winter.But during the month of December 2014 complainant again washed the said sweater byEzee for using the same in winter but at the time of washing complainant was shocked to notice that the said sweater is tearing out from several portions in both front and back side and it became completely unusable when complainant reported the matter to the shop room of the Gajkumar Brothers on 01.01.2015 and complainant asked the concerned person of Gajkumar Brothers to replace the same by a new one.But op flatly denied to replace the same.

Again complainant on 08.01.2015 visited the showroom of Gajkumar Brothers along with the sweater and requested to replace or refund the said amount, but op refused to pay the price of sweater or replace the same and finding no other alternative, complainant sent a legal notice on 16.01.2015 to the op; and op received it but did not take any step and did not render any redressal and in the above circumstances for selling such sort of damaged sweater and also for harassing the complainant, complainant has filed this complaint for redressal.

On the other hand op admitted the fact of purchase of the said sweater but denied all allegations and they have also submitted that only for grabbing some money, this false case is filed and it is specifically mentioned that the complainant misused the sweater and washed it by a substandard detergent. So it was damaged.So, the present complaint must be dismissed.

Decision with reasons

On an in depth study of the complaint, written version and also considering the receipt etc. it is found that complainant purchased the said sweater on 30.11.2013 at a price of Rs. 1,530/-.

Truth is that the said sweater is produced before this Forum at the time of hearing of the argument and it is found that practically the said sweater which was sold by the op was in damaged condition for which the lower portion of back and front of the sweater is completely tearing out and wools are found became dust when it is pressurized with two hands.

Now the question is whether op sold away any old stock or not.Most peculiar factor is that the article was sold on 30.11.2013 but in the sticker it was noted that Gajkumar Brothers RP – 1,530/- November – 2012.So, considering that fact, it is clear that old stock of sweater was sold after lapse of one year from Nov. 2012 to 30.11.2013 that means the said sweater is a old stock of Gajkumar Brothers and knowing fully well that for one year the said woolen sweater was kept in the godown and invariably for keeping it for one year, it became damaged and thereafter complainant after lapse of one year in the year 2013 that 30.11.2013 sold away the same and this factor has not been challenged by the op and customer the present complainant on good faith purchased the same from renowned shoproom of Gajkumar Brothers and Gajkumar Brothers is well known in the West Bengal Market.But practically it was purchased at a cost of Rs. 1,530/-

But Gajkumar Brothers must not have to sell such an old stock item to the customer like the complainant in the year 2013 and such sort of practice on the part of the Gajkumar Brothers is no doubt an unfair trade practice.

After handling the said sweater which is produced by the complainant, it is found that the entire sweater was damaged that means quality of the said woolen article was completely lost for keeping it godown for one year since Nov. 2012 and from the sticker of Gajkumar Brothers it is found that it is specifically noted “Gajkumar Brothers ® Rs. 1,530/- - Nov. 2012.

So, it is clear that the present op sold away a damaged sweater and old stock of the year 2012 and when it was washed by Ezee, automatically damaged wool sweater was torn from different portions and nitted sweater is found loosen.So, it is clear that a damage article was sold by Gajkumar Brothers for which after only two wash it was torn from different portions and it is a black sweater and complainant purchased it from a renowned shoproom of Gajkumar Brothers but he was decided by the sellers.

Gajkumar Brothers is a well known shop of Kolkata.But complainant failed to realize that Gajkumar Brotherswas selling old stock in such a manner, but it is to be mentioned in this regard that if any woolen article (new articles)are kept for one year in the godown, invariably it shall be damaged and only to clear up the damaged stock, Gajkumar Brothers took such sort of immoral path to sell it and in fact in the present complainant was deceived by the op and op sold away damaged article which is proved.

Considering the item handled by the Forum at the time of argument and after considering the position and condition of the said sweater, op’s Ld. Lawyer failed to give any satisfactory answer because generally woolen articles is not damaged and if it is new or if it is used by the customer and even if it is washed for many times because the strength of wool is more than any thread made articles.

After proper consideration of the entire materials, it is found that no doubt op sold away damaged articles which cannot be ascertained without washing and after wash the condition of the sweater was ventilated.When complainant went to the op, no doubt it was placed after one year.But fact remains that it is used only for one time in winter season and on the next winter that is in between 2014-15, it was found not usable, it was completely torn from different portions of the said sweater.

Ld. Lawyer for the op tried to convince that if there is any manufacturing defect, manufacturer must be a party.But in the sweater there is no such engross who is manufacturer.But we have found that it is a false defence as taken by the op because op sold woolen garment articles and there is no warranty, then it is the liability of the seller because it is the op’s legal liability as seller not to sell the damaged articles.But in this case that has been done.

At the same time it is found that as per Law, generally when a consumer finds defect in the goods, he sues the person from whom he bought the goods and Reasons areprivity of contract.But if the defect is a manufacturing defect, the consumer may sue the manufacturer also along with the seller.This is an option with the consumer.Thus the manufacturer is a possible party, and not a necessary party.In this casein the receipt it must be noted that it is the manufacturer’s liability if any defect is found.But no such statement is in the said tax invoice issued by the op in favour of the complainant in support of the purchase of the said sweater.

Moreover a consumer may sue against manufacturer also along with the seller.But this is an option with the consumer.Thus the manufacturer is a possible party and not a necessary party.But in the present case it is fact that complainant purchased it from the seller, nowhere in the said receipt it is noted if there is any manufacturing defect, it shall be replaced by the manufacturer and there is no warranty in the same.But fact remains that no seller has his right to sell damaged article showing as new one to any customer which is damaged and defective and no doubt it is evident from the article which was sold to the complainant by the op and invariably when op has also failed to prove by any cogent documents that it was manufacturer’s fault and warranty is there and within warranty period, complainant has not come.But it is fact that complaint was filed on 17.02.2015 with prior notice sent to the op but they did not respond and did not give any relief whereas it is found that complainant filed this complaint within one year and three months that is within 2 years from the date of purchasing the same that is within the limitation period.

So, apparently this complaint is maintainable as it is not time barred and from the date of cause of action, this complaint is filed and in fact the argument as advancement by the op is only to save their skin and at the time of argument op failed to give any explanation for selling an old stock sweater in damaged condition of the year 2012 to the complainant on 30.11.2013.

Moreover the Ld. Lawyer for the op has tried to convince that there is no expert opinion.But in this regard we may say that the testing of the sample of the in question is not requiredso, in the present case when it is proved that op sold away old stock goods of the year 2012 to the complainant in the year Nov. 2013 and damage is apparent after wash and so there is no necessity to take any expert opinion when from the op’s own document it isproved that it was sold away on 30.11.2013 but that article was kept in thegodown of the op since Nov. 2012 that means for one year it was in the godown and when the damage was caused.But only to clear the damaged stocks, it was sold in such a way suppressing the fact that it was an old one and in the present case when the intention of selling of old stock by the op is proved then there is no question of testing the same because op did not sell a newly made article to the complainant, though complainant paid Rs. 1,530/-.But on payment of Rs. 1,530/- he got a damaged sweater and that was suppressed by the op and that was fault on the part of Gajkumar Brothers and it is no doubt an unfair practice and by that act he deceived the customer like the present complainant and such sort of practice on the part of the GajkumarBrothers is no doubt punishable offence.In view of the fact that there is none to control such companies who are clearing their old stocks in such a manner and if op wants to clear the old stock, then he must have to sell it at Chitra Sale or yearly reduction sale and even op wants to sell any old stock, he must have to note down in the receipt against the item of old that same is sold on reduction.When complainant purchased it and op sold the damaged old stock of the year 2012 which is proved for which we are convinced to hold that damage and defective goods was sold by the op to the complainant and by that act complainant was deceived for which complainant is entitledtoRs. 1,530/- and further for harassing the complainant in such a manner and for selling such type old stock presenting as new one and for deceiving the complainant, complainant is entitled to get compensation and op shall have to compensate of Rs. 2,500/- to the complainant also for deceiving the complainant as seller and for adopting unfair trade practice and for harassing the complainant in such a manner.

In the result, this complaint succeeds.

Hence, it is

That the complaint be and the same is allowed on contest against the op with cost of Rs. 2,000/-.

Op is hereby directed to pay the entire price of sweater of Rs. 1,530/- and also shall have to pay Rs. 2,500/- as compensation to the complainant for mental pain and agony and also for selling damaged article to the complainant and further for deceiving the complainant in such a manner and for adopting such unfair trade practice.

Op shall have to pay the entire amount i.e. litigation cost of Rs. 2,000/- + refund price amount of Rs. 1,530/- + Rs. 2,500/- as compensation that is total Rs. 6,030/- to the complainant within one month from the date of this order, failing which for non-compliance of the Forum’s order, op shall have to pay penal damages at the rate Rs. 100/- per day till full satisfaction of the decree and if it is collected, it shall have deposited to this Forum.

Op is directed to comply the order immediately within the stipulated time of one month, in default penal proceeding u/s 27 of C.P. act 1986 shall be started for which op shall be imposed further penalty and fine.