PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        The Complainant by this complaint has prayed to refund an amount of Rs.1,444/- towards purchase price of Cargo Trouser Pepe Jeans, London Brand. The Complainant has prayed damages and compensation towards mental agony and hardship suffered by him together with interest @ 18% p.a. on the amount of Rs.5 Lacs from the date of filing of the complaint till its realization from the Opposite Parties.

 2)        According to the Complainant at the relevant time of the case made out in the complaint he was working as the Additional Municipal Commissioner of Mumbai Municipal Corporation. The Complainant has filed the present complaint in his personal capacity. The Opposite Party No.1 is Departmental Store and the Opposite Party No.2 is the Authorized Distributor for Pepe Jeans, London and therefore, as the Opposite Party No.2 distributed the goods of the said Company to the out-late of Opposite Party No.1 the Opposite Party No.2 is impleaded in the present complaint.  Opposite Party No.3 are the Manufacturers for Pepe Jeans, London. 

 3)        According to the Complainant he purchased a Cargo trouser in black colour of “Pepe Jeans, London Brand” from the Opposite Party No.1 on 09/06/2007 by making payment of Rs.1,444/- with his HDFC/Master Credit Card.  The copy of the said payment made to Opposite Party No.1 is marked as Exh.‘B’.  It is alleged that the Complainant purchased the aforesaid trouser from the Opposite Party No.1 as he had to visit England on an Official visit and he desired to purchase some branded clothes for the said trip. 

 4)        It is submitted that he visited England from 10/06/2007 to 17/06/2007 with his family.  While returning from England he was wearing the trouser purchased from Opposite Party No.1 in Aeroplane journey at that time he suddenly noticed that this trouser have got frayed and there was tear in the front of about 12 inches length due to material being tattered.  According to the Complainant, he noticed the said defects in the purchase trouser from Opposite Party No.1 only after wearing the same for the first time in the Aircraft.  It is the case of the Complainant as he was travelling with his family, he was facing the said situation embarrassing before his family. It is alleged that he being the Additional Municipal Commissioner, he was known to the crew/staff of the Aeroplane due to his frequent travel and being well known face in the media due to his position in the corporation.  According to the Complainant, however with the visibly torn pair of cargo trouser he was distressed and distraught and found himself helpless since, he could not change as all his cloth were kept in the luggage in cargo hold.  It is submitted that even after getting down from the aeroplane till he came out of the airport with his family members he had to face awkward position as immigration staff as well as few members of his staff came to receive him at Mumbai Airport and they had noticed trouser of Complainant was torn. 

 5)        According to the Complainant immediately on his return on 17/06/2007 he went to the shop of Opposite Party No.1 and complaint to the Manager of the shop about the trouser being torn after just one wearing. The Sales Manager of the Opposite Party No.1 had accepted that it was the fault at the factory level and there was manufacturing defect in the said trouser.  The Sales Manger of the Opposite Party No.1 did offer to refund the said amount and to replace the trouser to the Complainant but it was not acceptable to him as it would not in any way compensate the ridicule and mockery experienced by the Complainant which was multiplied more so because of his public status in the society.  It is submitted that due to defect and deficiency in goods sold by the Opposite Parties and services provided by them in negligent, irresponsible manner, the Complainant had suffered irreparable loss of reputation, mental agony, hardship and humiliation throughout his journey due to fault and lapses on the part of the Opposite Parties. The Complainant has therefore, issued notice through advocate on 26/07/2007 and 13/08/2007 to the Opposite Parties and called upon them to compensate the Complainant.  The copies of the said notice and relevant documents are at Exh.‘C’ to ‘E’ colly.  The Opposite Party No.1 did not reply to the said notice. The Opposite Party No.2 replied the said notice on 06/08/2007 and contended that they are not manufactures but they are distributors and are not in a position answer the grievances as they are not technical expert in respect of manufacturing of Pepe Jeans.  The copy of the said notice of Opposite Party No.2 is marked as Exh.‘F’. The Opposite Party No.3 by reply dtd.13/09/2007 have denied to accept that it was the serious case of manufacturing defect.  The copy of the said notice reply is at Exh.‘G’.

 6)        It is alleged that the product sold by the Opposite Parties was defective and of inferior quality and not upto the warranted assurances of the quality.  The said defect is within the meaning of Sec.2(f) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act).  The Complainant has therefore, prayed for compensation and the reliefs referred in para 1 of this order.                                

7)        The Opposite Party No.1 contested the complaint by filing written statement.  The Opposite Party No.1 has admitted that the Complainant purchased the trouser in question from it.  However, it is contended that the Complainant after verifying the trouser and being completely satisfied about it’s quality and fitting and taking trial wear of the said trouser purchased the said trouser from the Opposite Party No.1.  It is contended that the Complainant has ever made the Sales Manager for redressal of his alleged complaint any time after purchase of trouser in question.  According to the Opposite Party No.1 it has rendered services to the Complainant, but it was to the utmost satisfaction of the Complainant. It is denied that the Sales Manager had informed the Complainant about the problem of cloth as alleged and he had accepted that it was the fault at the factory level and due to some serious manufacturing defects.  It is denied that there was neither deficiency in services provided nor defects in the goods sold at the time of purchase by the Complainant.  It is submitted that the Opposite Party No.1 has not indulged any acts of negligence, irresponsibility, recklessness, etc.  It is denied that the Opposite Party No.1 is liable to pay any amount to the Complainant as claimed.  It is submitted that the complaint against Opposite Party No.1 be dismissed with cost.

 8)        The Opposite Party No.2 has also contested the claim of the Complainant by filing written statement.  It is contended that the complaint against the Opposite Party No.2 is bad for misjoinder of parties and is liable to be dismissed with cost.  It is contended that at no point of time the Complainant contacted the Opposite Party No.2 for purchase of Pepe Jeans Cargo Trouser.  According to the Opposite Party No.2 it is not the case of the Complainant that the Opposite Party No.2 is having concerned with the manufacturing activities of Pepe Jeans and therefore, there is unnecessary harassment to the Opposite Party No.2.  It is contended that the Opposite Party No.2 is not the manufacturer and therefore, no claim can arise against it.  It is contended that no relief as prayed for in the complaint be granted against the Opposite Party No.2 and complaint be dismissed with exemplary cost.

 9)        The Opposite Party No.3 filed its written statement and contended that the alleged defect in trouser in the complaint seems to have occurred on 17/06/07 whereas the alleged trouser was purchased by the Complainant on 09/06/07 and therefore, the complaint is not maintainable as there is gap of about 8 days from actual date of purchase and the defect which was first time came to the notice of the Complainant on 17/06/07 that itself is not justifiable. It is contended that the Complainant had undergone the trial and fitting whilst purchasing the alleged trouser and therefore, the complaint is not maintainable.  It is alleged that the Opposite Party No.3 is not aware whether the Complainant had purchased the trouser in question from the Opposite Party No.1 as the Complainant has failed to produce original invoice of purchase of alleged trouser of brand of Pepe Jeans and has merely relied upon his credit card invoice for sum of Rs.1,444/- for purchase of some material at Opposite Party No.1.  It is contended that the Complainant has come out with the case that he was wearing the said Cargo Trouser in the Aeroplane while coming back from England that means he was wearing the said trouser at least 3 hrs. prior to getting inside the aircraft.  Considering the security checking which is 2 hrs. for international flights it is submitted that there is no allegation that the said defect was evident between the said time of checking at England Airport.  It is contended that therefore, the case made out by the Complainant that he suddenly came to know about the tear in front of about 12 inches in length whilst his aircraft journey cannot be believed. It is further contended that not admitting the said fact it is possible the defect may cause due to neglect of Complainant himself considering the journey timing required for travel between England to Mumbai and whilst in such bodily movement it was possible to believe that the said defect might have occurred to the trouser of the Complainant.  It is contended that the allegation of the Complainant therefore, cannot be believed.  It is contended that the Complainant has made contrary allegations regarding noticing of defect of the trouser in question in the complaint itself and therefore, the same cannot be believed.  It is contended that the Complainant be directed to put-forth strict proof that he was well known face in media and was given V.I.P. status as alleged.  The Complainant is also required to prove that he was on official visit to England.  It is contended that it is the practice of Opposite Party No.3 that if the manufacturing defect is found in its material then either the goods are replaced or money is refunded.  It is denied that the Opposite Party No.3 has caused ridicule and mockery to the Complainant and have damaged his public status in society as alleged.  It is denied that there was defect and deficiency in good sold and services provided as alleged. It is contended that the notice alleged to have been issued by the Complainant was wrongly addressed to Pepe Jeans London Manufacturer Mumbai and that there is no company of such name.  The Opposite Party No.3 denied that there is any base in the complaint.  It is also denied that there are any lapses and deficiency of services of the Opposite Party No.3, it is therefore, submitted that the complaint be dismissed with cost.

 10)      The Complainant has filed affidavit of evidence. The Opposite Parties however, did not file affidavit of evidence.  All the parties have filed their written arguments.  We heard the Ld.Advocate for the Complainant Shri. Ramchandra Yadav, the Advocate for Opposite Party No.1 & 2 remained absent at the time of oral argument, the Ld.Advocate Kalpana More on behalf of Manoj Dalvi, Advocate for Opposite Party No.3 made oral submission for Opposite Party No.3

11)      While considering the rival contentions in our view the contention raised by the Opposite Party No.3 that the Complainant has not placed on record any document showing that on 09/06/07 such as Invoice for purchase of alleged trouser of brand of Pepe Jeans and the alleged credit card note does not specify what was purchased from Opposite Party No.1 and on that count the complaint can not be entertained, cannot be accepted as the Opposite Party No.1 has admitted that the Complainant had purchased the alleged trouser from the Opposite Party No.1. The Complainant was on official tour during the period 10/06/07 to 16/06/07 is supported by the Complainant by the documents placed on record filed with his affidavit compilation at Sr. No.4 at Pg. No.21 to 24.  The Complainant was having dignified status due to his post is proved from the said documents.  The Complainant has suffered embracing position whilst in his journey from London to Mumbai is supported by his own affidavit.  The Complainant has also placed on record the test report of Sasmira (Synthetic and Art Silk Mills Research Association) dtd.16/01/09 at Annexure –‘2’ of compilation to his affidavit. The Complainant has also placed on record the test report of Bombay Textile Research Association dtd.24/09/09 with the above compilation. The conclusion drawn by the Bombay Textile Research Association regarding the trouser in question shows that the probable cause of tendering of fabric (i.e. very low tear strength) of the trouser could be due to its heavy chemical degradation which may be due to acidic pH.  It is also mentioned that the tear strength of the fabrics was tremendously low.  Thus, in our view the Complainant has proved that the trouser in question was having manufacturing defects and the quality of the fabric was tremendously low.  In our view the Opposite Party No.3 being the manufacturer of the trouser in question is mainly responsible for sale of such defective trouser.  At the same time as the Opposite Party No.2 was the distributor it was also it’s duty to verify the required standard of the goods which the Opposite Party No.2further distributed or sold to the retail dealers.  The Opposite Party No.1 being the seller of the said goods was also expected to take necessary caution while selling the good and ought to have satisfied itself that the same was of good quality.  We therefore, hold that the Opposite Party No.3 is mainly liable to pay compensation for the mental agony suffered by the Complainant during his public travel in the air craft for facing embracing position due to tearing of the trouser from the front side to the extent of 12 inches in length and thus, the Opposite Party No.3 is directed to pay Rs.20,000/- to the Complainant.  The Opposite Parties No.1 & 2 are also vicariously liable for providing defective goods to the Complainant by way of sale by which the Complainant had suffered embracing position as alleged in the complaint while returning from London to Mumbai.  In our view therefore, the Opposite Parties No.1 & 2 each are liable to pay Rs.10,000/- for such hardship suffered by the Complainant.  The Opposite Party No.1 is also liable to refund Rs.1,444/- to the Complainant.  We therefore, hold that the Opposite Parties No.1 to 3 manufacturer, being service provider of the trouser in question and they had sold the defective trouser to the Complainant as mentioned in the Analysis Test Report by BTRA referred above they all are liable to pay the aforesaid compensation to the Complainant. The Opposite Party No.1 to 3 each are liable to pay cost of Rs.3,000/- to the Complainant towards this proceeding.  In the result we passed the following order

O R D E R

i.                    Complaint No.214/2008 is partly allowed against the Opposite Parties.

ii.                 The Opposite Party No.3 is directed to pay an amount of Rs.20,000/- (Rs.Twenty Thousand Only) to the Complainant towards mental agony and hardship suffered by the Complainant.

iii.               The Opposite Parties No.1 & 2 each are directed to pay an amount of Rs.10,000/- (Rs.Ten Thousand Only) to the Complainant towards compensation for the mental agony and hardship suffered by the Complainant  

iv.               The Opposite Party No.1 is also directed to refund Rs.1,444/- (Rs. One Thousand Four Hundred Forty Four Only) to the Complainant.

v.                  The Opposite Parties No.1 to 3 each are directed to pay an amount of Rs.3,000/- (Rs.Three Thousand Only) towards the cost of this proceeding to the Complainant. 

vi.               The Opposite Parties No.1 to 3 are directed to comply the aforesaid order within one month from the date of receipt of this order.

vii.             Certified copies of this order be furnished to the parties.