COMPLAINT FILED ON: 28.04.2009

DISPOSED ON: 04.08.2011

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

4^th DAY of AUGUST – 2011

       PRESENT:- SRI. B.S.REDDY                 PRESIDENT                        

                         SMT. M. YASHODHAMMA        MEMBER    

                         SRI. A. MUNIYAPPA                 MEMBER

O R D E R S

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Parties (herein after called as O.Ps) to refund an amount of Rs.7,290/- the cost of defective saree and to pay compensation of Rs.25,000/- on the allegation of deficiency in service on the part of OPs.

2.  The case of the complainant to be stated in brief is that:

          The complainant purchased goods viz.Silk fabrics from the 1^st OP on 09.06.2007 which included one Kanchee Silk Saree manufactured by the Op2 at Rs.7,290/-. The amount was collected from the complainant by OP1, the cash receipt was issued. However, the same is lost by the complainant. The saree was used by the complainant’s wife only once, immediately after its purchase, kept in safe storage thereafter, when it was taken out for use on the second occasion on 02.02.2008, it was noticed that the colour of the saree had faded completely and it had last its originality, making it un-useable any more. On 03.02.2008, the defective saree was taken to the 1^st Op shop and on complaining about the problem, OP 1 had shown indifference in accepting the saree but on repeated follows-up for about 6 months time, they have at last taken back the defective saree by issuing an endorsement dt.11.08.2008 and assuring the complainant that the saree would be sent to the Manufacturer and replacement would be made after hearing from them. The complainant had been making enquiries regularly with the 1^st OP for having the replacement as promised by the 1^st OP, but the said retail shop was giving evasive replies all along. The complainant approached OP2 on 22.02.2009 seeking replacement of the defective saree, but the 2^nd OP told the complainant that he had already been paid the amount and there were no dues on that account. OPs 1 and 2 have demonstrated negligence and deficiency in their services as a result, the complainant has been put to suffer loss of money besides mental agony. The legal notice dt.25.02.2009 was issued to refund the amount paid and to pay compensation. OP2 issued reply disowning the responsibility on the untenable grounds that the complainant had purchased the saree from a private shop i.e., 1^st OP, with whom they had no connection and as such they “are not binding the silk saree purchased” by the complainant. 1^st OP has not replied the notice, the complainant’s claim for replacement was just and proper but by the negligent conduct of both the OPs, for a collusive manner, the complainant is put to suffer financial loss and mental agony. Hence, the complaint.

3.    On appearance, 1^st Op filed version contending that the complainant is not at all the consumer, nor purchased the saree as alleged in the complaint and therefore he has no locus-standi to lodge a complaint and more over, the consumer received the amount and settled vide dt.21.01.2009, and therefore fore on this counts the complaint deserves to be dismissed.  It is denied that the saree supplied was defective. The contention that on 03.02.2008, the defective saree was taken to the 1^st OP shop is false, behind as shop was closed on Sunday being Holiday. It is also denied that the complainant approached Op1 and 2 on 22.02.2009 seeking replacement of the saree, since Sunday the shop remains closed. There was no occasion for replying to the legal notice since the complainant is neither the purchaser of the saree referred to in the complaint.

4.    It is stated that on 09.06.2007 one Sri.Krishnamurthy is the purchaser of three sarees at the cost of Rs.17,500/- after discounts, and the actual the cost of the saree is the cost of MRP and after discount comes to Rs.5,800/-. The consumer Krishnamurthy paid the said amount towards the cost of the sarees. The complainant only once approached on 02.10.2008, by that time the sarees which in fact that was handed over to the first OP and the same was sent to Zari test to Sri.Kamala’s Gold Check, C.T.Street, Bangalore, that on 12.09.2008 it is returned with a check report, there is no defects in the Zari Check report, prior to it the sareewas sent to weaver manufacturer Jayachandran sarees, No.146, Gandhi Road, Kanchipuram, on 21.08.2008, the saree was returned with a check report, ‘Do not find any mistake of manufacture end’ and ‘It is the fault of the customer side they have used excess art iron box for iron in on very particularly on that folding’ ‘If fading or colour change is happened,  it will not happen in one particular fold or in one area’, the said facts brought to the notice orally to one Mamatha the consumer came through Krishnamurthy and on 21.01.2009 a sum of Rs.2,900/- paid for full settlement, and she has given a receipt issued to that effect, there is no manufacture defects of the saree, OPs not liable to pay any amount. Hence, it is prayed to dismiss the complaint with exemplary costs.

5.    OP2 filed version contending that the transaction whatsoever has been made with the Op1 by the complainant; OP2 is not at all connected with the same. OP2 do not have any kind of transaction with OP1. OP2 has been falsely implicated. Hence, it is prayed to award suitable compensation from the complainant.

6.    In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. ON 22.12.2009 B.P.Krishnamurthy filed additional evidence by way of affidavit. One N.Rajeev representing OP2 filed affidavit evidence and produced documents in support of the defence version.

7.    Both the parties filed written arguments. Arguments on both sides heard.

8. Point for our consideration is:  

                        Whether the complainant is a “consumer” as defined under section 2(1)(d) of the Consumer Protection Act,1986 and complaint is maintainable.?

9. We record our findings in negative

R E A S O N S

The complainant claims that on 09.06.2007 he had purchased goods Viz silk fabrics from OP1, including one Kanchee Silk Saree worth of Rs.7,290/-, the said saree was manufactured by the 2^nd OP. The wife of complainant used the said saree only once, immediately after its purchase and thereafter when it was taken out for use on the second occasion on 02.02.2008, it was noticed that the colour of the saree had faded completely and it had lost its originality, making it un-useable any more. The saree was taken to the 1^st OP on 03.02.2008 and on complaining about the problem, the 1^st OP had shown indifference in accepting the saree but on repeated follows-up for about 6 months time, at last OP1had taken back the defective saree by issuing endorsement dt.11.08.2008. Thereafter, OP1 has not replaced the saree nor refunded the amount, as such the complainant claims cost of the saree with compensation.

10.     The main defence of OP1 is the complainant is not the purchaser of the saree, as such he is not a consumer, the complaint is not maintainable.

11.     The complainant has not produced the cash bill for having purchased the saree by paying an amount of Rs.7,290/- to 1^st OP on the ground that the same is lost in the afflux of time. It may be noted that OP1 produced the cash bill book containing the carbon copy of the cash bill which shows that one Krishnamurthy has purchased the saree from OP1. The name of the complainant is written as Ashwathnarayana with mobile number.9448350494. The name of this complainant came to be noted on the carbon copy of the cash bill only for reference when the saree was brought for replacement as contended by the learned counsel for OP1.

12.     In the affidavit filed by B.P.Krishnamurthy, who is the actual purchaser of the saree, has come up with a case that the complainant is his younger brother, on 09.06.2007 himself and his younger brother both went to OP1 to buy silk sarees and both have paid the costs, the names of both of them is shown in the cash bill. It may be noted that in case the complainant and his elder brother D.P.Krishnamurthy both of them have jointly purchased the sarees the names of both of them could have mentioned in the original cash bill and the carbon copy of the cash bill could have reflected both the names. The carbon copy of the cash bill reveals only the name of Krishnamurthy and the name of this complainant is written a fresh on the carbon copy with his mobile number. Therefore, we are unable to accept the contention that both the complainant and his elder brother Krishnamurthy jointly purchased the sarees as stated in the affidavit evidence by Krishnamurthy. Even in the complaint and affidavit evidence of the complainant there is no such case that both of them have jointly purchased the sarees. Under these circumstances, we are of the view that the complainant is not the purchaser of the sarees, as such, he is not a consumer as defined Under Section 2(1)(d) of the Consumer Protection Act, 1986. In view of the same, the complaint is not maintainable. Accordingly, we proceed to pass the following:               

                                      O R D E R

The complaint filed by the complainant is dismissed as not maintainable.  Considering the nature of dispute no order as to costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 4^th day of August – 2011.)

MEMBER                          MEMBER                  PRESIDENT                     

  Cs: