BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 23^RD DAY OF MAY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. The OP1 to refund my full amount paid to purchase spectacle Rs.17,400/- with 12% interest.
2. OP1 should refund my full amount paid to purchase the frame Rs.1,400/- with 12% interest.
3. OPs should pay compensation of Rs.2,00,000/- against the mental agony, harassment, difficulties and causing health issues.
4. OP should pay the cost of Rs.1,00,000/- for filing this complaint.
5. The OP should pay the interest at 12% on all the above amount totaling to Rs.3,23,312/- as claimed here from the date of filing this complaint till realization.

2. The case set up by the complainant in brief is as under:-

The complainant has purchased Essilor VX comfort 3.0 AW Crizal PRV Spectacle from GRAND VISIOM by paying Rs.17,800/-.  The spectacle was manufactured by OP2 and it was delivered to the complainant by OP1 on 14.04.2021. There was a delay due to covid lockdown.

3. The main grievance of the complainant is that on wearing this new spectacles his eyes started getting severe strain within 10 minutes. The mobile screen and laptop screen is showing trapezoidal shape instead of rectangle. Only right half portion of laptop screen was clear rest of the screen is completely out of focus and blur.  Hence the complainant has switched back to old spectacle which is four years old and is same OP2 brand.  After that the complainant has called OP1 and he has assured that he will get it rectify.
4. As it was during lockdown period, after multiple visits to the OP1 shop and trying adjustment by himself and his technician it was understood that the problem cannot be rectified. On 22.04.2021 the OP1 informed the complainant that he will send the same to OP2 for replacement. The complainant was doing regular follow-up with OP1. They have informed the complainant that replacement will take longer time due to frequent lock down. In the mean time, they have also advised the complainant to go for one more eye test. Hence the complainant has gone to Shankar Eye Hospital for his eye test and they have given report to OP1.  The complainant has received the replacement on 26.07.2021 along with new guarantee card.  
5. It is further case of the complainant that the new spectacle was given in similar distorted vision. Laptop and mobile screen has trapezoidal, severe strain on his eyes within 10 minutes of use. Again complainant has switched back to his old specks. The OP1 has asked him to use new specks for some time to see whether it is adoption issue. The complainant tried but got severe head ach and even in a traffic signal he was seen 45 degree angle green signal as straight and jumped signal and the police have stopped him. Meanwhile the complainant took one more frame for old spectacles by paying Rs.1,400/- from OP1.
6. It is further case of the complainant that the OP1 had arranged experts in his shop to check the issue on first week of august 2021. The experts suggested there is pantoscopic tilt which cannot be rectified by adjusting the frame. The OP1 took the spectacle back for replacement.   There is an issue due to faulty workmanship during manufacturing or during measurement.
7. This time the replacement took more than a year. The complainant was kept on following up with OP1 and finally received replacement on 17.08.2022.  This time also the vision was not proper but distortion was slightly less compared to previous two times.  The guarantee card was also looking different. He has informed the OP1 and at that time he has replied that this time the second OP sent the guarantee card like this and use the specks for some time.  
8. This complainant work as solution architect spending 10 to 12 hours a day in front of laptop and his job involved creating architecture diagram and his client IT infrastructure.  This was the reason for using best brand SLR.  This new spectacles is also not working for him again the complainant informed the OP1,  the complainant also went to other spectacle dealer who is known to him. They confirmed the third time replacement is duplicate nor SLR make. It is just a quoting with Crizal on it and it will cost below Rs.5,000/-.  After that he has sent email to OP2. He has also sent legal notice asking for refund of Rs.20,000/- there was no response. The OP1 and 2 have practiced unfair trade practice in issuing duplicate spectacles as a replacement for the third time. The complainant came to know that he is cheated by the fake product even the OP2 is a number one progressive brand in the world have started washing their hands saying one year completed. If they are incapable of fixing the issue they would have refunded the money. Under these circumstances, the complainant has filed this complaint.
9. In response to the notice, OP1 appeared in person and OP2 appeared through their counsel.

10. OP1 has filed his version submit that the complainant got his eye testing done at Shankara Eye Hospital, Kundanahalli Gate, Bangalore, the glasses made according to the doctor’s prescription with no error. When the complainant visited their shop they have given 100% accurate product as the order placed by the complainant but the complainant is complaining that is not comfortable with the glasses. However as an optician they did their job and delivered glasses to the customers.  Any lenses manufacturing company will give one month of adoption guarantee for end customers to adopt to the new number. But the complainant started complaining after two months guarantee period, still as a optician he stood behind the customer and asked the OP2 team to solve the issue and also from one of the expert of the OP2. They did check everything and informed that everything is fine. There is no problem with the glass.
11. It is further case of the OP1 that since the guarantee period was over the OP2 has informed that they can’t do anything. Inspite of that this OP1 paid second time and got new glasses to the complainant to keep him happy. Again after wearing for one year and more same issue started by the complainant.  This OP1 took some time to understand what is really going on after warranty period also this OP1 had given their best service to the customers.  Again the OP1 called one more expert from VRX Mr.Deepak and he has also checked the eye power and glass i.e., used by the complainant and found that there is no problem. After his suggestion the OP1 decided to change the third pair of glass and got it changed and this OP1 had paid to the brand again third time from his pocket and got it changed.  This OP1 has given door delivery to the complainant several times to keep him happy.  Now the complainant after three years is raising this issue by filing complaint to the court. This OP1 has changed the glasses for two times with free of cost and also changed one time frame to the complainant at free cost. After losing so much money they are still ready to solve the issue with OP2 team support.  One of the articles is with OP2 and another one article with complainant and another one article is with OP1.  This OP1 has paid amount for all the three articles and sustained big loss. The complainant  need to pay for him for rest of two articles amount.  This OP1 has done best service to the complainant.
12. OP2 filed objections stating that the complaint is not maintainable and liable to be rejected as not having cause of action.  The complainant has instituted this complaint for recovery of money and damages and the said reliefs can be granted only by the civil court. The alleged dispute is clearly pertaining to sale of products by the OP1 to the complainant and this OP2 had no role to play in the transaction.  This OP2 has not misrepresented anything to the complainant nor has it been the direct supplier of the product to the complainant.  The complainant has made this OP as a party just to harass and defame this OP2.  The complainant has claimed fanciful amounts towards compensation for alleged harassment.  These are all the claims which ought to be claimed with cogent evidence and cannot be the subject matter of consumer dispute.
13. It is further case of the OP2 that they are leading global player in the manufacture of ophthalmic lenses. They are having trans-border reputation and they are world famous in the field of ophthalmology.  This OP2 has always engaged with the end customer/wearer of the lenses only through its distributors and its retailer opticians and they are not at all involved in any direct sale to such end customer. 
14. It is further case of the OP2 that the complainant is admittedly using this product of OP2 for a long time and never had any problem. If the OP1 sold a wrong product which is not suited to the vision correction requirements of the complainant then this OP2 cannot be liable.  The complainant has not approached the OP1 within a reasonable time to address his alleged concerns.  This OP2 was not informed of any concerns raised by the complainant to the OP after replacement of pair of lenses were provided in July 2021 until it receive by the complainant in March 2023.
15. The only duty of this OP is manufacture and supply lenses based on the prescription submitted to it by the distributor or retailer optician in this case based on the prescription containing the eye power readings of the complainant, this OP2 provided the lenses accordingly. Again in April 21 also based on the prescription this OP has supplied the lenses to the OP1.  The complainant has complained to the OP1 relating to discomfort which in technical terms called funneling effect and it is an adoption issue caused due to change in power or difference or mismatch in the actual eye power of the customer and the eye power recorded in the prescription.
16. This OP representative has also informed the complainant and advised him to go for eye test at an eye hospital and provide them with a fresh prescription recording his eye power.  The complainant got his eye checked at Shankar eye hospital and submitted fresh prescription to the OP1 which was then furnished to this OP2. It is clear from bare perusal of the same that there was substantial difference in the eye power recorded in the prescription used for lenses provided in April 2021 and July 2021 indicating that the complainant’s discomfort was owning to the mismatch in its actual eye power and the eye power that was recorded in the prescription of April 2021.
17. After issuance of the replacement lenses this OP was not intimated of any discomfort or any issue being faced by the complainant. Hence it can be safely presumed that he has faced trouble owing to the mismatch in his actual eye power and eye power recorded in April 2021.
18. This OP had received notice of the issue raised by the complainant in March 2023 through email sent by the complainant.  This OP has maintained its consistent stand that it cannot provide replacement of the product or refund of the cost thereof beyond one month unless there is a manufacturing defect to the lenses based on the physical examination and confirmation by quality management team of this OP2.  The complainant has not produced any evidence to show the manufacturing defect and also not produced any material to substantiate his allegation that he had issues even after replacement of lenses was provided to him in July 2021. Hence the complaint is liable to be dismissed. Therefore OP2 prayed for dismissal of the complaint.
19. The complainant has filed his affidavit evidence and relies on 09 documents.  Affidavit evidence of official of OP1 has been filed and OP1 relies on 03 documents. OP2 has adduced their evidence and relied on 01 document.
20. Heard the arguments of both the parties. Perused the written arguments filed by the complainant and OP2.

21. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

22. Our answers to the above points are as under:

Point No.1:  Affirmative against OP1

Point No.2: Affirmative in part against OP1

Point No.3: As per final orders

REASONS

23. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence of both the parties, written arguments and documents.
24. It is undisputed fact that the complainant has purchased Essilor VX Comfort 3.0 AW Crizal PRV Spectacle from grand vision by paying Rs.17,800/-.  The spectacle was manufactured by OP2 and it was delivered to him by the OP1 on 14.04.2021. There was delay due to covid lockdown. He has also relied on the guarantee card issued by the OP2 dated 01.04.2021.  
25. The main grievance of the complainant is that on wearing this new spectacle his eye started getting severe strain within 10 minutes. The mobile screen and laptop screen are showing trapezoidal shape instead of rectangle. The only right portion of the laptop screen was clear and rest of the screen was completely out of focus and blur. He has switched back to his old spectacles which was four years old and the same is from the OP2 company.
26. During lockdown after multiple visit to OP1 and trying adjustments by himself and his technician the problem was not rectified. The OP1 has informed him that he will send it for replacement to OP2 on 22.04.2021. Meanwhile they asked him to go for eye test. Hence he did his eye test from Shankara Eye Hospital, Kundanahalli and gave report to OP1.  After that he has received the replacement on 26.07.2021 along with new guarantee card dated 16.07.2021.
27. The new spectacle was also giving him similar distorted vision.  Hence he switched back to his old spectacles. In the meantime, the OP1 had informed him to use the new specks to see whether there is any adaption issue.  The complainant tried that new specks but he got severe head ach and the eyesight was also not proper that made him to jump the signal while driving.  After that he went to OP1 shop and he got a new frame by pay Rs.1,400/-.
28. It is the specific grievance of the complainant that in the first week of August 2021 the OP1 arranged experts in his shop to check the issue. The experts suggested there is pantoscopic tilt which cannot be rectified by adjusting the frame. Again the OP1 took the spectacle for replacement. The complainant continued to use his old spectacles as it works fine.
29. OP1 took more than one year to provide the replacement even after continuous follow up and finally the complainant has received replacement on 17.08.2022, this time also the vision was not proper but distortion was slightly less compared to previous two times. The guarantee card given by the OP1 was also looking different. He has enquired the OP1 about the card and he told him that the OP2 company this time has sent the guarantee card like this and use the specks for some time.
30. The new spectacle was also not working and still the complainant starting using the old specks. He has informed the OP1 and after that the OP1 stopped answering his queries. He has also got issued legal notice and there was no response from the OPs.  
31. It is the main allegation made against the OPs that the OP1 has got issued a fake guarantee card alleging that the same was issued by OP2 company.  Even after taking third replacement the issue was not solved by OP1 and 2 and both are laid fraud and also practiced unfair trade practice and washed their hands saying that one year is completed they are not responsible for resolving the issues.
32. In support of his contention the complainant himself has filed his affidavit evidence and also relied on 09 documents. Ex.P1 is the copy of the bill for having purchased the specks from OP1 shop by paying Rs.17,600/-, Ex.P.2 is the guarantee card of OP2 company dated 01.04.2021, Ex.P3 is the also guarantee card of OP2 company dated 16.07.2021, Ex.P4 is the copy of the receipt for having purchased frame from the OP1 shop, Ex.P.5 is the fake guarantee card issued by the OP1, Ex.P6 is the email sent by the complainant to the OP2, Ex.P7 is the notice sent by the complainant through email to the OP1, Ex.P8 is the copy of the whatsapp communication between the parties.
33. On the other hand, the contention taken by the OP1 is that the complainant started complaining after purchase of the specks after two months and the company guarantee period was not in force even after that the OP1 has replaced the spectacles for two times.  When he has send back the spectacles for curing the defect to OP2 company, they have informed him to send the fresh eye test report of the complainant. As per their request he has requested the complainant to go for eye test and submit the report. Again this OP1 has sent the spectacles for replacement to OP2 with the medical report.  He has also delivered the new pair of glasses to the complainant. Again after wearing the glass the complainant started the same issue that the vision is not proper. Hence again he sent back the specks to the OP2 even after warrantee period. When the complainant has raised issue for third time he has got checked the glass from expert from VRX Mr.Deepak and he also informed that there is no problem and also suggested the complainant to use the same.  After replacement of the glass for the third time he only paid the amount from his pocket and got it changed. He has also given door delivery to the complainant. Now after lapse of three years the complainant has raised the same problem and filed this complaint. He has served his best to the customer to resolve the issues. He has got changed the glasses for two times with free of cost and one time at the cost of the complainant.  This OP1 after loosing so much money from his pocket still ready to resolve the issue with the team Essilor support.  One article with the Essilor, and another one article with the complainant and another one is with this OP1.  This OP1 has paid from his pocket and got them to solve the customer issue. The complainant needs to pay for the rest of the two article amount. Inspite of that he just left it because to keep the customer delight. Inspite of that the complainant is asking for money for no reasons.
34. In support of his contention the OP1 has produced one document as Ex.R1 i.e., copy of the guarantee cards dated 01.04.2021 and 16.07.2021 and copy of certificate of authenticity of Crizal.
35. On the other hand the main contention taken by the OP2 is that they are leading global manufacturer of the ophthalmic lenses. The alleged dispute is clearly pertaining to sale of products by the OP1 to the complainant and this OP2 has no role to play in the said transaction. This OP2 has not misrepresented anything to the complainant nor has it been the direct supplier of the product to the complainant. The complaint itself is not maintainable and the complainant has to approach the competent court.  This OP2 is not aware of anything happened between the OP1 and the complainant after he supplied the lenses to the OP1 based on the prescription of July 2021. After issuance of the replacement lenses this OP2 was not intimated of any discomfort or any issue being faced by the complainant. Thus it can be safely presumed that he has faced trouble owing to the mismatch in its actual eye power and the eye power recorded in the prescription of April 2021. It is obvious that any discomfort in use of new lenses is something that is noticeable immediately within 2 to 3 days. This OP2 provides for 30 days time for the end customers to report any adaptation issues and also offer suggestion to enable adoption to the progressive lenses.  This OP1 or complainant has not informed any adoption issue or any other discomfort problem after the replacement lenses was provided to the complainant in July 2021.
36. In support of their contention OP2 authorized person filed his evidence and also relied on Ex.R2 to 4.  Ex.R2 & 3 are the copies of the guarantee card of Varilux dated 01.04.2021 and 16.07.2021 and Ex.R4 is the certificate of authenticity.
37. There is no dispute in respect of the transaction took place between the complainant and OP1.  As per the request of the complainant the OP1 has replaced the specks for three times.  It is also undisputed fact that the OP1 has sent the specks for curing the defect to the OP2 along with the medical report of the complainant as per the request made by the OP2.  The OP2 has returned the specks in July 2021. After that there was no communication between the OP1 and OP2 and the OP2 has also not at all received any complaints regarding the replacement of the specks.  He has only received notice of the alleged issue in March 2023.  In addition to this the OP2 has no direct connection with the complainant. The transaction took place only between the complainant and OP1.  The OP2 is not at all supplied any specks to the complainant directly. The complainant has purchased the specks through OP1 and also informed the issues faced by him regarding the specks to the OP1. As per his request he has returned his specks for three times for replacement and to resolve the issue.  Even though the OP1 has send back the specks to the OP2 and got the replacement in July 2021. Even after that the complainant has faced the same issue and further he has informed the OP1 regarding the issue.
38.  It is clear from the very version filed by the OP2 and the email communications took place between the complainant and OP1 that the OP1 has not returned the specks for curing the defect to the OP2 for the third time after July 2021.  The OP1 has played mischief while replacing the specks for the third time. He has issued a fake guarantee certificate and also returned the specks without resolving any issues raised by the complainant. The complaint is still using his old specks which is comfortable and it is manufactured by the OP2 company. When the OP1 has failed to cure the defect even after repeated request made by the complainant and it was also replaced by the OP1 for two times. When the OP1 has failed to rectify the defect and also issued a fake guarantee certificate, it is clear that the OP1 has practiced unfair trade practice and also cheated the complainant.
39. The OP1 would have refunded the amount when he was unable to resolve the issue after doing replacement of the specks for two times. Instead of refunding the amount in order to avoid refund of the amount, the OP1 had played fraud and also returned the specks without affecting any repairs by issuing fake guarantee card as per Ex.P5.  Under these circumstances, the OP1 is liable to refund the amount.
40. The conduct of the OP1 also clearly discloses that he took sufficient time i.e., more than two to three years to resolve the issue and inspite of that he has failed to resolve the issue and ended this transaction by issuing fake guarantee certificate with defective specks. Under these circumstances, the complainant has suffered mental agony and harassment and also difficulties in health issues by wearing the defective glass. Hence the complainant is entitle for refund of the amount of the spectacles Rs.21,576/- and frame charge of Rs.1,400/- also compensation of Rs.50,000/- with litigation expenses of Rs.10,000/-.  The OP2 is not liable to pay any amount in favour of the complainant. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
41. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part against OP1 and complaint is dismissed against OP2.
2. OP1 is hereby directed to refund Rs.21,576/- and frame charges of Rs.1,400/- with interest at the rate of 8% p.a., from the 29.03.2021 to till the date of realization to the complainant.
3. OP1 is further directed to pay compensation of Rs.50,000/- with litigation expenses of Rs.10,000/- to the complainant.
4. The OP1 shall comply this order within 60 days from this date, failing which the OP1 shall pay interest at 10% p.a. after expiry of 60 days on Rs.21,576/- + Rs.1,400/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 23^RD day of MAY 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party1 – R.W.1;