ORDER

10.05.2023

SH. SANJAY KUMAR, PRESIDENT

1. A complaint under Section 12 of Consumer Protect Act 1986 (hereinafter referred to as C.P.Act) filed by Sh. Ritesh Dewan (hereinafter referred to as complainant) against Lagan,  The Wedding Studio (hereinafter referred to as OP) seeking direction that OP should pay Rs.18,000/- for Suit, Rs.1,00,000/- for  harassment, inconvenience, financial hardship, pain and agony and legal expenses Rs.15,000/-.
2. In brief the facts are that the complainant purchased a wedding suit from OP Pitampura, Delhi on 10.02.2017 for a sum of Rs.18,000/-. The suit was delivered on payment made in cash. It is stated that the suit stated that the suit has started wearing off with threads coming out from various places and has become unwearable for which repeated complaints were made to OP but no efforts made to rectify the said faults or exchange the suit by OP. The suit is lying with the OP. It is further stated that on various occasions complaint was made to the OP store in spite of which OP has refused to address the issue or resolve the complaint.
3. It  is stated that due to the negligent acts of the OP the complainant has suffered loss and injury due to deprivation, harassment, mental agony and loss of professional practice for which he is entitled for compensation. It is further stated that OP is liable for breach of contact as it has not complied with the terms of the guarantee and have acted extremely negligently in attending to the complaint of complainant and therefore liable to compensate for the loss and injury caused to the complainant. It is stated that as per Section 11 of the Act, compensation claimed by the complainant is below Rs.20,000/- so this Forum has jurisdiction to determine and adjudicate the dispute. Hence present complaint filed.
4. OP filed detailed WS and taken preliminary objections that present complaint is legally not maintainable and same is only abuse and misuse of process of law. It is stated that complaint is without any cause of action and liable to be dismissed. It is further stated that there is no privity of contract between the complainant and the OP. It is stated that complainant had not purchased wedding suit from OP and same not sold by the OP to complainant. It is stated that complainant has not come to the Hon’ble Forum with clean hands and suppressed facts and wants to obtain decree by way of fraud and concealment of material facts. On merit all the allegations made by complainant are denied. It is stated that OP does not know the complainant as complainant had not purchased any wedding suit from OP. It is stated that there is no question of visiting the shop/showroom of OP regarding the wedding suit. It is stated that complaint is liable to be dismissed with heavy cost.
5. Complainant filed rejoinder to the WS and denied all the allegations made therein and reiterated contents of complaint. It is stated that present complaint is legally maintainable. It is further stated that complainant has annexed all  the receipts for purchasing the wedding suit with the complaint and approached this  Forum with clean hands. It is stated by complainant that OP has stated false facts.
6. Complainant filed evidence by way of affidavit and relied on copy of Aadhar card Ex. CW1/1, copy of receipt of credit card memo dated 10.02.2017 Ex. CW1/2 and copy of letter dated 23.12.2017 Ex. CW1/3 and reiterated contents of complaint.
7. OP filed evidence by way of affidavit of Manoj Gupta and relied on Ex. OW1/A, authorization letter and reiterated contents of complaint.
8. Complainant filed written arguments as well as OP filed written arguments.
9. We have heard Ms. Anisha Arora and complainant in person and Sh. M.K Gill counsel for OP and perused the record.
10. In order to appreciate respective submission of both the parties let us peruse the principle of law. The Hon’ble Supreme Court in the case of SGS India Ltd. VS Dolphin International Ltd. Civil Appeal No. 5759 of 2009 dated 06.10.2021 observed as under:

19. The onus of proof of deficiency in service is on the com-

plainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a judgment of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4, this court held that that the burden of proving the deficiency in ser-

vice is upon the person who alleges it.

“6. The deficiency in service cannot be alleged without 4 (2000) 1 SCC 66 attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent………..”

20. This Court in a Judgment reported as Indigo Airlines v.

Kalpana Rani Debbarma & Ors. 5, held the the intitial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer For a is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer For a, however, went on to unjustly shift the onus on the appellant because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

22.The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the respondent in the complaint. The rule of evidence before the civil proceedings is that the onus would lie on the person who would fail if no evidence is led by the otherside.

11. Now applying the above principles of pleadings and burden of proof in the present case. The complainant purchased a wedding suit from OP on 10.02.2017 for a sum of Rs.18,000/- and made the payment in cash on the day of delivery of wedding suit. The complainant specifically mentioned about the defect in the wedding suit and pleaded that wedding suit is lying with the OP. The complainant by way of evidence filed photocopy of credit memo Ex.CW1/2 to the name of OP “Lagan the Wedding Suit” dated 10.02.2017. In the credit memo Ex.CW1/2 time of receipt of payment is also mentioned as 6:33 pm. The receipt also bears the TIN No.07100222450 and telephone no. 9999507046 and 011-27311724. The complainant further proved the letter dated 23.12.2017 sent by OP for repayment of defective suit Ex.CW1/3. The complainant discharged his onus. Now it is the turn of OP. The OP in the detailed WS taken the plea that there is no privity of contract between the parties. The complainant never purchased wedding suit from the OP and ever visited the showroom.
12. It is pertinent to mention here that by way of evidence OP filed affidavit of Manoj Gupta partner and reiterated the facts mentioned in the WS. However the drastic improvement make beyond the pleadings of facts in the WS. The new fact introduced that the credit memo filed by complainant does not pertain to complainant but he has arranged the same documents from any other customer.
13. In order to substantiate no documentary proof such as billing book/credit memo book of month of February 2017 produced as evidence. In the absence of best evidence to rebut OP miserably failed to discharge the onus. The new plea taken in the WS is an after thought and found to be a false plea. It also established that the OP also adopted the wrongful unfair practice not to write the name of customer on the credit memo. In our considered opinion OP miserably failed to discharge the onus.
14. It is pertinent to mention here that during the course of proceedings when complainant insisted that the defective wedding suit is lying with the OP. The responsible person was called who failed to appear and when coercive steps were taken then affidavit of Manoj Gupta partner was filed denying that wedding suit is not in the custody of OP. The affidavit is also not supported with any documentary proof therefore same is unbelievable.
15. It is pertinent to mention here that the complainant proved his complaint and deficiency on the part of OP that the wedding suit purchased from OP was defective and unwearable in the marriage function. The event of marriage is one of the auspicious occasion in the life and if defective wedding suit is provided by OP it does not spoil the marriage celebration but also cause emotional hurt. The simple plea taken that there is no privity of contract is not established by the OP on the basis of documents. On the other hand, complainant proved his case on the basis of credit memo Ex.CW1/2 and letter dated 23.12.2017 Ex-CW1/3.
16. Hence, on the basis of above observation and discussion complainant has discharged burden of proof and proved the complaint and also established deficiency of service on the part of OP showroom. Hence complaint is allowed. OP is directed to pay as under:

i) Pay to complainant cost of wedding suit of Rs.18,000/- alongwith interest @6% per annum from the date of filing of complaint till realization.

ii) Pay to complainant compensation for harassment, inconvenience and mental agony of Rs.51,000/-

iii) Pay to the complainant a sum of Rs.11,000/- on account of cost of litigation.

17. OP is directed to comply the order within 30 days from the date of receipt of this order failing which OP is liable to pay to the complainant interest @9% per annum from the date of non-compliance till realization on the entire awarded amount.

18. Copy of the order be sent to the parties free of cost. The orders be uploaded on www.confonet.nic.in.

19. File be consigned to Record Room.

Announced in open Commission on  10.05.2023.

SANJAY KUMAR                              NIPUR CHANDNA                            RAJESH

PRESIDENT                                         MEMBER                                      MEMBER