Present                                1. Justice S.N. Bhattacharjee

                                                   President, State Commission.

 

                                              2. Shri D.P. Mukhopadhyay

                                                   Member, State Commission

 

                                              3. Ms. G. Kaur

                                                  Member, State Commission

Mis Aysha Opticals                                                                         Appellant

                                                               Vs

Mrs. Jameela A.                                                                          Respondents

Dated: 27.2.2004

                                                                                                                                                JUDGEMENT

This is an appeal under section 15 of the Consumer Protection Act,1986 preferred by the opposite parties as Appellants herein from the order of the District Forum dated 16.1.2003 in C.D. case No. 24 of 2001, whereby the claimant was anted an amount of Rs. 4800/- together with a compensation of Rs. 1500/- against the opposite parties jointly or severally.

The Respondent herein filed a complaint under section 11 and 12 of the said Act against the Appellant No. 1 and 2 alleging that on 15.01.02 she got her eye tested by Mr. Navaz (OPW-1) the partner of Appellants No. 1 & 2 and purchased a spectacle at a price of Rs. 4800/- from him. The spectacle did not suit her. She had severe headache and problems in vision while using the glass. Then she made a complaint to the Appellant (OPW-1) but she was advised to use it for some time. Even thereafter the vision did not improve and the spectacle was handed over to the appellant No. 1. The Appellant took it inside the shop for adjustment and after examination advised the Respondent to continue to wear the spectacle about one month. As there was no improvement even thereafter she made complaint to the Appellant No. 1, who took the spectacle inside the shop with an assistant and returned the spectacle about one month.As there was no improvement even thereafter she made complaint to the Appellant No. 1, Who took the spectacle inside the shop with an assistance and returned the spect to the complainant.

The complainant took the spect at home but she found scratch marks on the right side lens of the sped. The petitioner at once brought it to the notice of the shop owner over phone and after two days i.e. on 25.8.01 she again visited the shop and requested Mr. Navaz to change the lens. Mr. Navaz refused to change the lens on the plea that such scratch were developed due to mishandling by the complainant.

The opposite parties I & 2 denied the allegations.

Before the Learned District Forum the complainant examined herse1f I She also examined one Ophthalmic Assistant of G.B. Pant hospital as P.W. 2. He examined the lens and prescription of the complainant. He submitted the report which marked as Exhibit. IV. According to him, the spherical lens of near vision of a man of 45 years old should be 1.5 to 2. In this case the near vision should not exceed (2.50 + 2) = 4.50. In his opinion the near vision as has been shown in the prescription as 5.00 is wrong. The Ophthalmic Assistant (PW-2) has been cross examined by the opposite parties but this part of the evidence has not been challenged.

The OPW-l Mr. Navaz is one of the partners of the Appellant No. 1 and 2. He conducted the test on 15.2.01 and the prescription was issued by him. He suggested the complainant to take kriptok bifocal glass because the existing glass pattern was of that type. The petitioner purchased a bifocal glass which was not prescribed by him. He sold the spect to the complainant at a price of Rs. 4800.00.

His further evidence is that on taking the sped the petitioner reported that she was facing some uneasiness after wearing the glass. He suggested that it was due to change of pattern of glass and also due to change of power. He further stated that it might take only a few days to adjust. In evidence he further stated that on 25.08.01 she came to the shop alleging that the sped was coming down and requested for adjustment. He called the technical assistant and adjusted the sped. The sped was in a good condition but on the next day she made a complaint over telephone that there were scratch marks on the lens. He replied that there was no scratch when it was delivered to her.

In cross examination it has been admitted by him that the complainant selected the spect which was progressive bifocal and the said shown was shows to her by OPW-1 himself though he did not prescribed such type of spect.

 He further stated that the progressive glass could not be used in big frame. He further admitted that if the lens is not accurately fitted with the frame in  case of bifocal lens, there may be some problem in vision. He also admitted that normally scratch marks cannot be detected on the lens but after careful looking those could be found. He admitted that there were  some scratches on the right side glass.

The District Forum found on perusal of the evidence on records that there was deficiency in nature of prescription by the OPs and defects in the quality of the spect. The District Forum also held that the complainants was entitled to get the refund of the cost of the sped and also to get compensation of Rs. 1500/- as the complainant could not avail herself of the benefit of the spectacle.

Being aggrieved by the order of the Forum below the opposite parties have came up with this appeal.

We have perused the evidence on record, the judgement of the District Forum and heard the argument of the appellants. It appears from the evidence of OPW-I that it was he who tested the eyes of the complainant and it was he also who showed a number of spectacles to the complainant. The spectacle which was sold to the complainant was not one prescribed by him. When the OPW-I prescribed a Kriptok glass for the complainant he had no reason to show a progressive glass to the complainant particularly when he knows that it is not possible to use that type of glass in a big frame. He also knew that if the lens was not fitted accurately with the frame in case of bifocal lens there may be some problem in vision. If that be so he was not justified in asking the complainant to go on using the spectacle for some time. He ought to have changed the spectacle as soon as he came to know that the complainant is experiencing difficulty with the new sped. Instead of changing the sped he was not justified in advising the claimant to try with the same knowing flilly well that the eyes are very vital and delicate organs of the human body. The OPW- 1 sent the sped to Chennal for repair but still the defect remained. The OPW-1 admits that there are some scratches on the right side glass but claimed that such scratches were not found on 25.8.2001 before his adjustment. He adjusted the frame not in the presence of the claimant but inside a room with the help of a technical assistant. According to him, normally no scratch is visible on the lens but after careful looking scratches can be found. That being the position it was not possible for the complainant to detect the scratches then and there particularly when no such scratches were  found before repair. The complainant took the spect at home and next day  communicated the fact of scratches having been found in the lens. As she resides at a distant place at Ferrargunj she visited the shop again on 28.8.2001 requesting the respondent to change the lens. The learned Members of the District Forum rightly held that there was no occasion for the complainant to mishandle the spect within such a short time. Moreover the complainant is a medical personnel and not unaware of handling a sped with due care and caution. That apart, an expensive sped of Rs. 4800/- cannot be expected to develop scratches overnight. The evidence of PW-2 who is an Ophthalmic Assistant was of the opinion that the near vision as has been shown in the prescription being 5 was wrong. This part of the evidence also has not been challenged by the appellant in course of examination.

At the time of hearing the appeal the learned Counsel for the Appellant prayed for acceptance of the counterfoil of the receipt book wherefrom the original receipt (exhibit —B) was handed over to the claimant. This document which was sought to be introduced would show that delivery of the sped was made 2 months before the date claimed by the complainant. Complainant took delivery on 26.4.2001 as evidenced by Exhibit-I But the counterfoil shows that delivery was made on 23.2.2001. By adducing this evidence the Appellant wants to show that the complainant made allegations about the sped after using the same for more than 2 months and as such, such allegations should not have been entertained by the District Forum. This additional evidence was not allowed by this Commission on the grounds (i) This will introduce a new case ; (ii) admission of such document will discredit the Exhibit-ll  which marked on admission and no cross examination regarding date of delivery was made by the appellants herein. In the written examination was no such plea was taken (iii) such evidence is no at all necessary for the adjudication of this case in view of the specific evidence of the Appellant OPW-1 that he sold sped which was not prescribed by him.

Therefore, from discussion of the evidence, both oral land documentary, we find that; (i) the Appellant OPW–l Mr. Navaz tested the eyes and prescribed the power of the spherical lens which is disputed by the , PW-2 who is an Ophthalmic Assistant of the Govt. Hospital land his evidence has not been contradicted in cross examination(ii) Mr. Navaz representing the Appellants has himself admitted that he sold the sped which was not prescribed by him. He prescribed Kriptok glass but showed a progressive glass which was selected by the complainant although this may give rise to some trouble in vision; the spect was ,expensive valuing Rs. 4800/-. The assertion of the claimant that the lens would be unscratchable and unbreakable was assured by the Appellant. This assurance has been denied by the Appellant. Nothing has been produced before the Forum to show the company rate of such breakable and easily scratchable lens. No guarantee card was given to the complainant and this part of the evidence also remains unchallenged. So complaint after expiry of  a period of two months or within a period of one week is a matter of little consequence in case of a highly expensive lens.

        We therefore have no hesitation to hold in agreement with the District Forum that the Appellants were guilty of deficiency in service and are liable to refund the cost of the spectacle. We also agree with the finding of the Forum below that the claimant is entitled to some compensation for not being able to use the spectacle and also for having taken recourse to the legal protection under the Act. We find that the compensation granted by the Forum below is quite reasonable and as such we are not inclined to interfere with that part of the award.

In the result the appeal fails the award granted by the Forum below is upheld.