Date of filing : 03.11.2017

Judgment : Dt.28.2.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Mrs. Christine Roy alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) M/s G. K. B. Lens Pvt. Ltd., (2) M/s G. K. B. Opticals and (3) Ms. Sumana Dutta Bhowmick

            Case of the Complainant, in short, is that she was having a reading problem and so she visited the show-room of OP No.2 on 14.2.2017 and her eyes were checked by Sri Goutam Banerjee. Previously on 25.7.2016 her eye power was checked up by the said Optometrist namely Goutam Banerjee. So, when she was checked on 14.2.2017 he found no change in eye power. So, Complainant with an intention to have a new spectacle placed the order. She paid an advance of Rs.5,000/-. On 20.2.2017, she was called by OP No.2 that spectacle was ready. But when she had worn the spectacle, vision was not clear. So the Sales Executive of OP No.2 named one Debasish Roy intimated the Complainant that there was some flaw with the centering of the spectacle and they will rectify the same and she was asked to come on a later date. Thereafter being called, Complainant again went on 8.3.2017 and she was handed over the spectacle by the said Debasish Roy asking her to wear the spectacle constantly for getting used to it. On assurance that one year warranty was there and she had nothing to worry, she paid the balance amount of Rs.6,952/-. Complainant wore it constantly. But, her vision on her left eye was not clear and she had also developed severe headache after wearing he spectacle. So, being compelled she took the spectacle back to the OP No.2 who told her they will call their expert, who will check the Complainant. So she was checked by the said expert after 10 days. But the problem still persisted. Again she was told that it needs time to get adjusted. But again as the Complainant was having constant headache after wearing the spectacle she took back the spectacle to the OP No.2 on 14.2.2017, whereby she was asked to get her power checked by some other eye specialists. Ultimately, the Complainant went to AMRI Hospital and she was checked by one Dr. Sudipta Mitra on 9.5.2017. It was found that the eye power stated by Sri Goutam Banerjee was different from the eye power stated by Dr. Sudipta Mitra. Again OP No.2 assured the Complainant that they would remake the spectacle on the basis of the said prescription of Dr. Sudipta Mitra. But when it was made the problem still persisted. So, Complainant tried in other shop at AMRI and selected frame and got the spectacle made there which was found alright. So, the Complainant went to the showroom of the OP No.2 and asked them to return the money or provide her with a credit note which could be utilized later on. But they did not pay any heed. She also sent  e-mail to the Manager of the OP No.2 namely Sanjib Dey but the money was not refunded nor credit note as asked was given. Ultimately, a notice was also sent by the Complainant through her Ld. Advocate which was replied by OP No.1 asking the Complainant to handover them the new spectacle purchased by her from other vendor to compare. The spectacle which was made by the showroom of OP No.2 was still with them. So, being aggrieved the present case is filed by the Complainant for directing the OPs to pay compensation of Rs.97,752/- inclusive of Rs.11,952/- by the OPs jointly or severely and to pay Rs.25,000/- towards cost of litigation.

            Complainant has annexed with the complaint petition, copy of the prescription (testing of eye power) of Dr. Goutam Banerjee, invoice showing payment of Rs.11,952/- to the OP No.2, the prescription of AMRI, copy of e-mails sent by the Complainant’s husband to the OP No.2 and the reply, copy of the notice sent by the Complainant to the OP through her Ld. Advocate and the reply sent by the OP.

            OPs have contested the case by filing the written version denying and disputing the allegations made in the complain petition, stating inter alia that Complainant placed the order for new spectacle on 14.2.2017. Her spectacle was made according to the prescription and she collected the spectacle on 22.2.2017. But as she found discomfort same was attended and was rechecked by the technical personnel. As there was no technical defect, on 8.3.2017 the complete spectacle was handed over to the Complainant. She paid full amount of Rs.11,952/-. But again the Complainant when visited OP No.2 complaining discomfort, she was asked to get her eye power checked by some eye specialist and when it was done by her, according to the prescription of the said Dr. Sudipta Mitra, OP again made a pair of glasses for the Complainant. Complainant collected the same on 20.5.2017. But again the Complainant visited complaining centering problem with the lens and she also informed she purchased the spectacle from another vendor and so she was quite comfortable with it. The OP No.2 requested the Complainant to bring the said new spectacle purchased from the other vendor so that the technical personnel of OP can tally both the spectacle to determine the reason for discomfort of the Complainant, but she refused and insisted on cash refund and issuance of credit note. But as per the terms of the Company on the back of the invoice, cash refund is not possible. Complainant herself left the spectacle and arbitrarily demanded refund of the money or for issuance of the credit note. There has not been any deficiency on the part of OPs and thus the OPs have prayed for dismissal of the complaint.

            During the course of evidence, both the parties have adduced their respective evidence by filing the affidavit-in-chief followed by filing of questionnaire and reply thereto. Ultimately, argument has been advanced. Both the parties have also filed written notes of argument.

So, the following points require determination :

1) Whether there has been any deficiency in rendering of service on the part of the OPs.

2) Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

Point No.1 & 2 :

Both the points are taken up together for a comprehensive discussion. It appears from the material on record that it is not in dispute that the Complainant’s  eye power was checked by Goutam Banerjee on 27.5.2016 and she had again visited OP No.2 on 14.2.2017 and her eye power was again checked by the said Goutam Banerjee an Optometrist sitting at showroom of OP No.2. It is also an admitted fact that the Complainant ordered for a new spectacle and a frame and the cost towards it, was Rs.11,592/- in total. The bill is also filed in order to substantiate that the Complainant has paid Rs.11,592/- towards the cost of the said spectacle. It is the specific claim of the Complainant that after she was handed over the spectacle and when she wore, there was some centering problem and they rectified it. But even after the necessary correction she could not wear the said spectacle and she had developed a headache and the vision of her left eye was not clear. The OPs in their written version have admitted the entire claim of the Complainant about her visits on different dates and complaining about spectacle made by them and according to them they have attended it and tried to resolve the defect which she was having. But it is apparent that in spite of attending the problem faced by her, Complainant still had discomfort. It is also not disputed and denied that the Complainant ultimately visited one Dr. namely Sudipta Mitra who on her eye testing found that the eye power stated by Goutam Banerjee the Optometrist sitting at the showroom of OP No.2, was different. The Complainant has filed both the prescriptions (relating to eye testing) and it appears that the eye power noted by the two doctors are different. Be that as it may, it has been claimed by the OPs that even as per the prescription of the said doctor namely Sudipta Mitra, they changed the lens of the spectacle and corrected the spectacle of the Complainant. But in spite of the same, Complainant did have the same problem of discomfort.

So, it is apparent that the Complainant visited almost ten times whenever she was asked by the OPs but in spite of necessary correction by OPs, Complainant’s grievance was not solved. The question remains for consideration is why the Complainant will have the problem in her vision or headache/discomfort, if the spectacle was made properly by the OPs. It is an admitted fact that when the Complainant approached another vendor at AMRI and got the spectacle prepared she did not have any discomfort which she found in the spectacle made by the OP. If OPs had resolved the problem in the spectacle, Complainant would not have approached another vendor again spending money. It suggests that there remained technical problem in fitting of spectacle properly. The eyes being a sensitive part, OPs cannot force the Complainant to wear the spectacle prepared by them at the cost of her health. It is not that Complainant did not give them any opportunity to correct the spectacle. Repeated opportunities were given but, in spite of the same,  they could not correct the spectacle and as such the spectacle is still with the OP No.2.

It appears from the e-mail sent by the Complainant to the OP she has even asked for an appointment with the Manager, so that the matter could be settled. But according to the Complainant, it was all in vain. So, there has been deficiency in service on the part of the OPs and, as such, Complainant is entitled to the refund of Rs.11,952/- and the litigation cost of Rs.12,000/-. However, considering that OPs tried to redress the grievance whenever Complainant visited them, no compensation is awarded.

These points are thus answered accordingly.

Hence

                        Ordered

CC/622/2017 is allowed on contest. Opposite parties are directed to refund Rs.11,952/- to the Complainant within two months from this date. They are further directed to pay Rs.12,000/- as litigation cost within the aforesaid period of two months in default entire sum shall carry interest @ 10% p.a. till realization.