By Sri. A.S. Subhagan,  Member:

          This is a complaint filed under Section 35 of the Consumer Protection Act 2019.

          2.  Facts of the case in brief:-  On 23.01.2021,  the Complainant  had purchased some wedding dress for Rs.11,688/-  from the Opposite Party company shop at Kalpetta.  The dress purchase included a Saree having  the value of Rs.1,320/-  too.  But, reaching  home,  when the Saree  was opened for wearing, it was seen to be pasted with gum and seen white spots on it.  As the saree was not able to be worn,  it was convinced to the Opposite Party,  reaching the shop.  Being convinced the matter,  the Opposite Party agreed to replace the defective  saree but not yet got it  replaced.  The saree has not been used  till date.  The Opposite party had sold a defective  saree and though they had agreed to replace it, they have not replaced it so far,  which is deficiency  in service and thereby, the Opposite Party cheated the Complainant.  This  has caused mental  agony  and the Complainant has lost confidence in the Opposite Party and thus, the Complainant has the right to get refund of the price of the saree,  compensation etc  from the Opposite Party.  Hence  this complaint with prayers:-

1.  To direct the Opposite Party to refund  Rs.1,320/ - to the Complainant.
2. To direct the Opposite Party to pay Rs.10,000/-  towards compensation for mental agony  to the Complainant and his wife and
3. To direct the Opposite Party to pay cost of this Complainant.

3. On getting summons,  the Opposite Party appeared before this Commission

and  filed version,  the contents of which in brief are as follows:-  The Complainant had purchased dress for Rs.11,688/-  from the Opposite Party which included a cotton saree to the value of Rs.1,320/-.  The contention of the Complainant  that the saree  was seen to be pasted with gum and white spot on it are denied.  The contention that the Complainant had approached the Opposite Party with the saree and the matter was convinced by the Opposite Party and  had agreed to replace the saree are denied.  The matter was known to the Opposite Party only on getting notice from  the  Commission.  The Complainant and his family had checked the saree unfolding and wearing it on her body and the staff of the Opposite party had also checked it before sale and then sold it to the Complainant.  They had worn the saree   The white spots may be due to the falling of juice or ice-cream or other food materials on it from their home.  The defect in the saree is caused due to the wrong use of the  saree by the wife of the Complainant and as such there has been no deficiency  in service from the  part of the Opposite Parties.  All other allegations of the Complainant are not true and hence denied.  The Complainant is not entitled for any replace, refund,  compensation or cost from the Opposite Party and therefore,  the complaint is to be dismissed.

          4. Chief affidavit was filed by the Complainant,  Exts.A1 series and MO1 marked and he was examined as PW1.  Affidavit was  also filed by the Opposite party,  Ext.B1 marked from their side and they were examined as OPW1.

          5. On perusal of the Complaint, Version, Affidavits, oral depositions of both the parties to the complaint, the MO1 marked and the arguments of the counsels of the parties to the Complainant,  Commission raised the following points for consideration.

1.  Whether there has been any deficiency in service from the part of the Opposite Party?
2. Whether the Complainant is entitled for  refund of the price of the alleged defective saree?
3. Whether  the Complainant is entitled to get compensation for mental agony and deficiency in service?
4. Whether the Complainant has the right to get cost of this complaint?

6. Point No.1:-  The  complaint is filed by the Complainant with allegation

that he had purchased a saree from the Opposite Party but  the saree was defective.  He approached the Opposite Party and on convincing the issue,  though the Opposite Party had agreed to replace the saree,  they did not acted as agreed upon.  Losing  the  confidence in the Opposite Party, the Complainant approached this Commission for getting refund of the price of the saree,  compensation and cost of this complaint.  On the other hand,  the Opposite Party admitted the transaction,  but denied all other allegations of the Complainant.  According to the Opposite Party,  they had not sold a defective saree.  The  white spots on the saree might have been occurred  due to the defective use of the saree and falling juice or ice cream on it.  So, they  contend that there has been no deficiency in service from their part and hence prayed to dismiss the complaint.  Commission perused the issue,  the documents,  and the MO1 produced and marked.  The Opposite Party have admitted the sale of the saree which also evident from  Exhibit  marked as  A1 series.  In oral  examination, which is a sworn statement of the Complainant,  PW1 has  stated that “MO1 hm§n t]mb-Xn\v tijw FXnÀ I£nsb kao-]n¨p F¶-Xn\v bmsXmcp \yq-\-X-bp-ap-­m-bn-«n-söpw 200 Znh-k-¯n\v tijw ]e  {]mh-iyw D]-tbm-Kn-¨-Xp-sIm-­p-ff \yq-\-X-bm-sW¶pw ]d-ªm icn-bÔ.   “kmcn hm§n-b-Xn\v tijw `mcym ktlm-Z-cn-bpsS hnhm-l-¯n\v D]-tbm-Kn¨p F¶pw ]d-ªm icn-b-Ã.  Xte Znhkw D]-tbm-Kn-¡m³ t\m¡n-b-t¸mÄ hm§nb kmcn-bà Pack  sNbvXXv”.  “kmcn hm§p¶ ka-b¯v 06.07.2021 apX Ønc-am-bn, hm§nb kmcn D]-tbm-Kn¨p sIm­n-cp-s¶¶pw D]-tbmKw aqe-amWv sFkv{Iotam Pyqtkm hoWv  ]i t]mse H«n-¸n-Sn-¨-Xm-sW¶v ]d-ªm icn-bÔ.  The main contention of the Opposite Party is that the damage to the saree might have been caused due to the falling of juice or ice cream  on the saree by the defective use of it. But the Opposite Party has not succeeded  to prove that it was caused so, with corroborating evidence.  Another allegation of the Opposite Party is that the saree has been used by the wife of the Complainant, on the day before the marriage function, which is also not proved by the  Opposite Party with any sustaining piece of evidence.  So, the contentions of the Opposite Party that (1)  the saree has been used by the wife of the Complainant  on the day before the marriage  and (2) the white spots on the saree might have been caused due to the falling of juice or ice cream on it etc  cannot be accepted, due to the lack of evidence.  Commission  examined the MO1 and found that  there have been white  sports on the saree and also seen that the saree is not seemed to be used by the Complainant’s wife or any other person.  A reputed company shop of the Opposite party like  Kalyan Silks had the Opportunity to settle the matter  amicably with the Complainant in order to safeguard and  retain their own reputation, instead they tried to contest the case only with false allegations without having  any reliable evidence to prove their allegations.  Considering  the facts and circumstances of the case and evidences adduced by the parties,  we are of the view that, there has been deficiency in service from the part of the Opposite Party for which they are liable to  compensate the Complainant.  Hence, point number  one is proved against the Opposite Party.

          7. Point No.2 to 4:-  As point No.1 is proved  against the Opposite Party,  they are liable to refund the price of the saree, to pay compensation and cost of this complaint to the Complainant.

          In the result, the complaint is allowed and the Opposite Party is directed to

1.  Return Rs.1,320/- (Rupees One thousand Three hundred  and Twenty only) being the price of the defective saree,
2. Pay  Rs.10,000/- (Rupees Ten thousand only)  towards compensation for mental agony and deficiency in service and,
3. Pay Rs.5,000/- (Rupees Five thousand only) towards cost of this complaint.
4. It is also clarified that the Opposite Party shall be at liberty to collect MO1 from this Commission,  after the order is complied with.

The above amounts shall be paid by the Opposite Party to  the Complainant

within one month from the date of this order failing which the amount will carry interest at the rate of 8% per annum from the date of this order.

          Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 12^th      day of June          2023.

Date of filing:09.07.2021

                                                                             PRESIDENT:  Sd/-

                                                                             MEMBER    :  Sd/-

APPENDIX.

Witness for the Complainant:

PW1.          Shibu George                           Complainant.

Witness for the Opposite Party:

OPW1.        Manoj.                                     Manager, 

Exhibits for the Complainant:

A1(a)     Copy of Tax Invoice.                     dt:23.01.2021.

A1(b)     Copy of Tax Invoice.                    dt:23.01.2021.

MO1           Saree.                                                                   

Exhibit for the Opposite Party:

B1.         Copy of Transfer  Letter.               dt:25.06.2022.

                                                                                                PRESIDENT:  Sd/-

                                                                             MEMBER    :  Sd/-