ORDER

SMT.NANDINI.H.KUMBHAR, MEMBER

1. The Complaint is filed by the complainant under section 35 of the C.P. Act, 2019 against the OP alleging deficiency of service directing the OP to refund a sum of Rs.2,500/- along with interest  at 12% p.a.  from the date of payment, compensation of  Rs.5,000/- towards mental agony, harassment and cost of  Rs.5,000/- towards cost of proceedings and such other reliefs.

2. The brief facts of the case is as follows:

           This is the case of the complainant that the complainant approached the OP for purchase of Spectacles and during the time of purchase representative of OP  suggested the scheme/plan for purchase of two spectacle at a discount of 50% on the price or a full price of one spectacle by availing gold membership. Accordingly, the complainant  opted the said scheme and placed order for two spectacle i.e. 1)Silver Grey Rimless Rectangle John Jacobs Supreme Steel JJE12610-C2 and 2) Purple Brown Full Rim Cat Eye Vincent Chase classic Acetate VC E 13029-C each of Rs.5,000/- and on purchase of said scheme both the spectacle was discounted and bill of Rs.5,000/- was charged and same was paid by the complainant through debit card.  The complainant submits after placing an order the OP shall deliver the spectacle within 5 to 6 working days, but after expiry of 06 days the complainant did not receive any call from the OP and after equiry the OP informed that one spectacle is ready for delivery and other spectacle was not ready and informed that within 4 or 5 days the spectacles will be delivered. The complainant submits even after weak the complainant not received any communication, then the complainant visited the OP  store and found that the spectacle was ready and available at OP store, but on verifying the spectacle  there was a manufacturing defect/damage in the frame and even after visiting some days still the defect of the spectacle not rectified. The complainant visited the OP store on 06.11.2023, the complainant noticed that there is defect in the spectacle. The complainant after laps of weeks time re-ordered, but no communication from the OP store and complainant again visited the OP store and  on enquiry about re-ordered spectacle, the said spectacle is also had structural defect/damage with narrow bent at the nose holder and the OP have requested the complainant time to replace the same and due to that the complainant insisted the OP to cancel the order and to reimburse for the same. After insisting for cancellation, the OP Manager requested the complainant to  rectify all the defects of spectacle re-ordered  and to deliver a fresh and intact spectacle without any damage/defect and the OP informed the complainant that only last piece of defective spectacle is available and intimated the complainant to place re-order for new spectacle once again. The complainant submits that due to the act of the OP, the complainant cancelled the order and the OP agreed to initiate the refund process, but the OP instead of refunding the amount  they informed the complainant to reimbursement amount will be deposited in the form of ‘Credit Score Coins’ to complainant wallet as per Lens kart policy and same can be redeemed for the purchase of spectacle or other product at Lens kart store only. Due to the act of the OP, the complainant got issued legal notice to OP on 02.02.2024, calling upon them to refund the amount, but the OP have not responded to the demands of the complainant. Aggrieved by the act of OP the complainant filed the present complaint seeking  relief as prayed in the complaint.

3.  Notice to the OP duly served, OP remained absent and placed ex-parte.

4. Complainant filed chief examination affidavit by re-iterating the complaint allegations and also filed relevant documents in support of their plea.

5.  Heard arguments and matter is reserved for orders.

6. The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OP as alleged in the complaint and thereby prove that she is  entitled for the relief sought?
2. What order?

8. The findings on the above points are as under:

Point No.1           :       Partly Affirmative

Point No.2           :       As per final order.

REASONS

9. POINT NO.1:-  Despite of service of notice, OP not appeared before the commission and not chosen to file version to contest the matter.  The Judgment rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, which is reported in CPR 2018(1) at Page 325 between Kotak Mahindra Old Mutual Life Insurance V/s Dr.Nishi Gupta, In this case, Hon’ble National Commission has held that “Non-filing of Written version in the complaint which amounts to admission of complaint allegations”. The guidelines of the above ruling is aptly applicable to the case on hand as the OP in this case remained absent and on account of that they are placed ex-parte. In the absence of version and affidavit from their side, the complaint allegations of complainant is to be held as a proved fact. On this point, an inference could be drawn in favour of complainant as against the OP that there is a deficiency in service on the part of    the OP.  

10. The complainant filed chief examination affidavit by re-iterating the entire complaint allegations as against the OP and also produced relevant documents, which are mainly the advertisement  posted in the OP’s website marked as Annexure-A. Copy of invoice bill given by the OP marked as Annexure-B. The copy of order summary as Annexure-C and the status of the Credit Score as Annexure-D and also the copy of  Legal notice, receipt and postal acknowledge  produced as Annexure-E,F &G.  The grievance of the complainant with all the details before the OP that at the time of purchasing the spectacle in the store of OP had suggested an offer scheme of Two Spectacle at 50% discount on the price or at a full price of one Spectacle by  availing Gold Membership. Accordingly, the complainant placed an order for two spectacle each of Rs.5,000/- and as discounted  and after payment of Rs.5,000/- paid by the complainant through Debit card, but after expiry of more than a weak as assured by the OP store was surprised to know that one of the spectacle  has not being despatched  nor available at OP’s store. Further, on verifying the said spectacle, it was discovered by the complainant that there was manufacturing defect/damage in frame. The OP assured the complainant to replace the said defective spectacle with new one, but the OP had in turn not initiated the same and the OP requested the complainant to place re-order for a new spectacles, but the new spectacle were also damaged one. Upon which the complainant became annoyed and when the complainant approached the OP regarding the assurance given at the time of purchase of said  spectacles, by believing the assurance of OP, the complainant placed re-order for spectacle. Aggrieved by the act of the OP, when the complainant approached the OP for cancellation of  the order of undelivered spectacle and to reimburse for the same, the OP neither refunded nor replied. Despite of best efforts, when the complainant  has failed to get the refund, the complainant was forced to file the present complaint and sought for relief of refund of value of the spectacles along with other reliefs as prayed in the complaint.

11. From the perusal of the complaint averments and the documents produced by the complainant, it becomes ample clear that the act of the OP’s are completely unprofessional and malafide nature. Such action of the OP has put the complainant too much strain and stress  both physically and mentally, since the OP failed to refund the amount till this day. For non-delivery of the product is an illegal act made in order to make unlawful monetary gain from the complainant.

12. Under these circumstances, the commission is of the clear finding that, despite of receiving the amount for the said spectacles, the OP has failed to deliver and provide satisfactory product as assured in their advertisement nor refunded a sum of Rs.2,500/- for non-delivery of the product. This commission hold that the OP is responsible for unfair trade practice  and also deficiency in service for not providing said product as assured by the OP.

13. In the absence of OP and not chosen to contest the matter by participating in the proceedings of the complaint is fatal to the case on hand. Their absence in the complaint and not filing version and affidavit is a clear admission from OP side, that whatever the complaint allegations as against the OP is to be held as proved fact.

14. Under these circumstances, the commission comes to the conclusion that, the OP is squarely to be blamed for the inconvenience, physically suffering and mental agony to the complainant. For which the OP is held liable for deficiency in service to the complainant. Accordingly, we answer Point No.1 in partly affirmative.

15. POINT NO.2:- In the result,  for the forgoing reasons, we passed the following:

ORDER

1. The complaint  is allowed in part.
2. The OP is directed to refund the amount of Rs.2,500/- along with interest at 6% p.a. from the date of purchase i.e.18.10.2023 till the entire payment is made to the complainant.
3. The OP is directed to pay a sum of Rs.2,000/- as compensation for deficiency in service and Rs.2,000/- towards cost of the proceedings.
4. The OP shall comply this order within forty five days from the date of this order.
5. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 06^th July  2024)

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)                    (SHRINIDHI.H.N)            

Witness examined on behalf of the complainant by way of affidavit:

Ms.Shilpa.K- Who being the complainant.

Documents produced by the complainant:

Witness examined on behalf of the OP way of affidavit:- Nil

Documents produced by the OP: Nil

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)                (SHRINIDHI.H.N)            

           MEMBER                                  MEMBER