order dated 11/12/2008<br /> <br /> O R D E R<br /> <br /> M.R. DEVAPPA, PRESIDENT. <br /> <br /> Briefly stated the case of the complainant is as follows;<br /> <br /> 1. That the complainant was in need of an anti glare spectacle, hence he approached the opposite party on 9-3-2008 along with his family and asked the opposite party to supply best quality spectacle. That the opposite party showed several spectacle frames to the complainant and quoted the price of the same.<br /> <br /> 2. That the complainant having believed the representation of the opposite party placed an order for an anti glare spectacle with the opposite party on 9-3-2008 and the opposite party collected a sum of Rs.4,600/- from the complainant towards the price of the said anti glare spectacle and the spectacle was sent to the house of the complainant situated at Balamuri Village by Post. That the complainant used the said spectacles for few days and realized that the same is not an anti glare spectacle, hence the complainant approached the opposite party on 2-4-2008 and returned the said spectacles to the opposite party and at that point the opposite party admitted that the said spectacle is not anti glare one and the OP assured that a new spectacles would be supplied to the complainant within few days and collected an additional amount of Rs.2,000/- from the complainant on 2-4-2008 and assured the complainant that the new spectacles would be sent to the residence of the complainant.<br /> <br /> 3. That the complainant after few days received the spectacles sent by the opposite party by post and started using the same, but to his utter surprise he came to know that the spectacles are not anti glare one and therefore approached the opposite party and requested him to return the amount received by him. But the opposite party did not show any positive response, which compelled the complainant to issue legal notice on 10-6-2008 calling upon the opposite party to refund the entire amount collected by him from the complainant. The opposite party having received the amount did not respond immediately but nearly 45 days after sent, the vexatious and untenable reply with an intention to cover up his misdeeds.<br /> <br /> 4. That the spectacle supplied by the opposite party are defective and it suffers from manufacturing defects and hence it is not possible for the complainant to use the said specs as anti glare specs and as a result the complainant underwent several mental pressure and agony and as such the opposite party is liable to pay the compensation of Rs.5,000/- to the complainant. The complainant has prayed for following relief;<br /> <br /> a) Direction to the opposite party to refund the aforesaid amount of Rs.6,600/- to the complainant.<br /> b) Direction to the opposite party to pay the interest on Rs.4,600/- at the rate of 12% to the complainant from 9-2-2008 till realization.<br /> c) Direction to the opposite party to pay the interest on Rs.2,000/- at the rate of 12% per annum to the complainant from 2-4-2008 till realization.<br /> d) Direction to the opposite party to pay the compensation of Rs.5,000/- to the complainant.<br /> e) For cost of this complaint and such other reliefs deem fit.<br /> <br /> 5. Upon admitting the complaint, notice was ordered to be sent to the opposite party and on receipt of the notice from this Forum the opposite party appeared through his counsel and has filed version. <br /> <br /> 6. Both the complainant and the opposite party have filed their affidavit evidence in lieu of examination in chief. <br /> <br /> 7. The complainant has also filed some documents along with memo.<br /> <br /> 8. The opposite party has taken following defence;<br /> <br /> 1. That it is true that the complainant approached the opposite party for an anti glare specs and the opposite party has supplied the complainant specs fitted to a frame chosen by him with lens as per the requirement of complainant. The specs was manufactured in a reputed company, in tune with the power of the lens required to suit the customer. <br /> <br /> 2. That it is false that the complainant believed the representation of the opposite party and purchased the specs, but the opposite party as per the order of the complainant sold the anti glare lens prepared and after getting it fixed to the frame chosen by complainant and delivered it to him.<br /> <br /> 3. That it is denied that the specs supplied to the complainant was not an anti glare one.<br /> <br /> 4. That it is denied that the specs sold was not anti glare specs with UV coating. <br /> <br /> 5. That the opposite party, though the lense cannot be made use for others, as the same are mechanically manufactured, with a view to maintain good relationship with the customer, agreed to change the same to one with anti glare with UV coating and collected Rs.2,000/- being the difference in value of an anti glare lens and an anti glare lens with UV coating as the complainant submitted that his wife was a member of the customers Forum.<br /> <br /> 6. That the allegation made in para 4 of the complaint are false as the specs supplied to the complainant is according to his specification and therefore the question of returning the specs to the opposite party would not arise.<br /> <br /> 7. That the opposite party has sent a suitable reply to the complainant. That the complainant has filed this complaint with the ulterior motive to make unholly gain to himself at the expense of opposite party. <br /> <br /> 8. That the complainant is put to strict proof of the allegations made against the opposite party and as such the complaint is liable to be dismissed. <br /> <br /> 9. Having regard to the averments in the complaint and the defence taken by the opposite party the following points arise for determination;<br /> <br /> 1. Whether the opposite party having sold the defective spectacles has committed deficiency in service?<br /> <br /> 2. To what relief ?<br /> <br /> R E A S O N S<br /> <br /> 10. We have perused the bill for Rs.4,600/- dated 9-2-2008 and another bill for Rs.2,000/- dated 2-4-2008 and also the office copy of the legal notice dated 10-6-2008 sent by the complainant to the opposite party and postal AD card of the same and also a report of Optometrist and Contact lens practitioner. <br /> <br /> 11. The complainant has taken pains in producing the spectacles in question and brought to the notice of us that there are aberrations and scratch marks on the right side lens of spectacles. <br /> <br /> 12. The advocate for the complainant vehemently argued that the opposite party has collected Rs.4,600/- on 9-2-2008 without supplying the anti glare glass with UV coating, though the complainant wanted to have the same. But again has collected Rs.2,000/- for supplying anti glare glasses with UV coating on 2-4-2008 through postal authorities and the complainant having received the same started using but noticed that there were some defects like scratch and aberration marks on the right side of the spectacles. As against this the advocate for the opposite party took us through the report of the Consultant Optometrist and Contact Lens Practitioner and submitted that the expert has opined that the anti reflection coating on the lenses are to be fine but there were lot of scratch marks or sort of aberrations on the right spectacle lens and the left side seem to be fine. Therefore, he argued that it is false to say that the opposite party has not supplied the anti glare glass with UV coat to the complainant and the complainant has not pleaded in his complaint that there are several defects in the said specs. The advocate for the complainant took us to para 6 of the complaint and submitted that they have taken the contention that the specs are not anti glare with UV coat glass and suffers from manufacture defects. <br /> <br /> 13. The complainant has also produced a report from the consultant Optometrist and Contact Lens Practitioner which reads as follows;<br /> <br /> “This is regarding the spectacles you has sent for the inspection of anti reflection coating.<br /> <br /> On observing the lenses the anti reflection coating seemed to be fine, but there were a lot of strech marks or sort of aberrations in the right spectacle lens, and the left side seemed to be fine.<br /> <br /> The comfort level of the person using the spectacles may increases, by changing the right side spectacle lenses”.<br /> <br /> 14. It may not be out of place to mention here that the advocate for OP also verified right side glass of the spectacle and he also noticed some scratches and aberrations on the right side lens of the spectacle and he submitted that he would secure the presence of the opposite party and would send the defective glass and see that the same is replaced. But on the next date of hearing he submitted that he could not secure the presence of OP or his authorized person to do the needful and he expressed his helplessness. <br /> <br /> 15. We have verified and inspected the spectacle and with naked eye we could make out certain defects and the right side glass is not like that of left side glass and apparently there are some defects like scratches and aberrations. The opposite party is duty bound to supply defect free spectacle as he has collected Rs.6,600/-. It is also pertinent to note that the opposite party having received the legal notice from the complainant has not replied immediately and has taken nearly 45 days and has sent a reply which appears to be vague and ambiguous and informed the complainant that he is not liable to replace the right side glass of the spectacle and has shirked his responsibility. It is his duty to send the defective glass to the manufacturer and see that the defect free glass is delivered again. There are umpteen number of decisions which reveal that the agent is equally responsible as manufacturer is, as the direct nexus is there between the purchaser and customer and the person who has sold the article to the person is liable to replace the defective article. Having regard to the conduct and omissions on the part of the opposite party we can say that the opposite party has not been responsive and has not discharged his obligation and he has committed deficiency in service in not selling the genuine spectacle which unnecessarily driven the complainant to this Forum and the complainant has been put to mental anxiety and agony. Therefore, we answer point no.1 affirmatively. Consequently a direction is to be issued to the opposite party to refund the amount of Rs.6,600/- to the complainant and collect the defective spectacle from the complainant and for having put the complainant under inconvenience for all these days, the opposite party is liable to compensate the complainant and for having made the complainant to approach the Forum to seek his grievances redressed for the fault of the opposite party, the opposite party is to be directed to pay the cost of this proceedings to the complainant. <br /> O R D E R<br /> The complaint is allowed. The opposite party is directed to refund the amount of Rs.6,600/- to the complainant and Rs.1,000/- as compensation and Rs.1,000/- towards the cost of this proceedings to the complainant. <br /> <br /> The above order shall be complied by the opposite party within sixty days from the date of the order.<br /> <br /> Communicate the order to the parties. <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the open Forum on this 11th day of December 2008.<br /> <br /> <br /> (M.R. DEVAPPA), (K.S. PRASAD), (A.S. HEMALATHA),<br /> PRESIDENT MEMBER MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />