DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB  : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Tuesday the 09^th day of May, 2023

C.C.201/2018

Complainant

P.T.Muhajir,

Puthiyathoppu, 14/949A,

P.V.M. Koya Colony,

Mananthalapalam,

Kallai –P.O,

Kozhikode – 673 003.

Opposite Party

M/s. Mark & Orion Ventures Pvt. Ltd.,

Brandport, shop No.14,

Focus Mall, Rajaji Road,

Kozhikode – 673 004.

(By Adv.Sri. Aboo Puthiyottil)

ORDER

By Sri. P.C. PAULACHEN – PRESIDENT 

This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2. The case of the complainant, in brief, is as follows:

On 19-08-2015 the complainant purchased a pair of shoes from the shop of the opposite party paying Rs.3,499/-.  But within two years, sole breakage occurred. On contacting the opposite party, they contacted the company and obtained approval for replacement.  Since the same model was not in the stock, he was asked to wait for two weeks or in the alternative, purchase another pair of shoes with a higher price and pay the difference in the price.  Since the complainant wanted same model shoes, he was prepared to wait for two weeks.  The opposite party received the defective pair of shoes from the complainant and a receipt was issued. But the new shoes were not provided to the complainant in spite of repeated requests and the opposite party repeated the advice to purchase another pair of shoes.  After waiting for a long time, the complainant decided to purchase another pair of shoes for higher price and pay the difference in the price.  But at that time, a new manager had taken charge in the shop and he was not ready either to replace the shoes or provide another pair of shoes.  After obtaining the defective shoes, the opposite party was cheating the complainant by stating that they would replace the product.  He had to wait for 8 months. Hence the complaint to direct the opposite party to provide him a new pair of shoes along with compensation of Rs.5,000/-.  

3. The opposite party filed written version wherein they have admitted the purchase of the disputed pair of shoes by the complainant on 19-08-2015.  On 02-10-2017 the complainant entrusted the shoes to the opposite party stating complaint of sole breakage.  The warranty period was over.  It was PU sole that may cause damage if not used regularly.  This was the reason for the breakage of the sole.  This aspect was well explained to the complainant.  But, for the customer satisfaction and to maintain good relationship with the customer, the shoes were collected to check whether the complaint could be rectified. It was further informed to the complainant that the complaint which occurred due to non-usage of the product regularly and that the complaint occurred out of warranty.  Even though this matter was informed to the complainant, he did not turn up to collect the product.  There is no negligence or defective service on the side of the opposite party.  The manufacturer is not impleaded and the complaint is bad for non -joinder of necessary parties. With the above contentions, the opposite party prays for dismissal of the complaint.
4. The points that arise for determination in this complaint are:

1) Whether there was any deficiency of service on the part of the opposite party, as alleged?

2) Reliefs and costs.

5. Evidence consists of the oral evidence of PW1 and Exts. A1 and A2 on the side of the complainant. PW1 is none other than the complainant and he filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim.  Ext.A1 is the copy of the complaint/damage report dated 03/10/2017 and Ext.A2 is the bill dated 19-08-2015.  The opposite party filed affidavit and the complainant filed counter affidavit.

6. We heard both sides.

7. Point No.1:  The complainant has approached this Commission alleging deficiency of service on the part of the opposite party.  The specific allegation is that the shoes purchased by him from the opposite party became defective due to sole breakage and the opposite party neglected to replace the same with a new pair of shoes, as agreed by them.

8. Ext.A2 shows that the disputed pair of shoes was purchased by the complainant from the shop of the opposite party on 19-08-2015 paying Rs.3,495/-.  The purchase is not disputed by the opposite party.  On the reverse side of Ext.A2, the terms and conditions regarding the repairs and guarantee policy are given.  As per the terms and conditions, exchange/refund is permissible within 30 days from the date of purchase along with price tag and bill copy.  3 months warranty is available for pasting and stitching defects.  Thus it is crystal clear that exchange/refund is permissible only within 30 days of purchase and warranty is available for 3 months and that too for pasting and stitching defects only.  In the instant case, the complainant reported sole breakage on 03-10-2017 as can be seen from Ext.A1.  Admittedly, the complaint was reported after two years.  The warranty was available only for 3 months and that too for pasting and stitching defects only.  The complaint of sole breakage is not covered under the warranty.  So the complainant cannot claim the benefit of warranty. 

9. The case of the complainant is that the opposite party had agreed to replace the product with a new one. But this is stoutly denied by the opposite party.  Nothing is produced by the complainant to show that the opposite party had agreed to replace the product. Ext.A1 is also silent about the alleged promise of replacement. PW1 has admitted in the cross examination that there is no evidence that there was any such offer from the part of the opposite party for replacement.  It is also hard to believe that the opposite party had agreed to replace the product like shoes which was used for more than two years.  It is not proved that there was an undertaking or offer for replacement, as claimed.

10. However, it is an admitted fact that the opposite party had collected the defective shoes from the complainant and issued Ext.A1.  The definite case of the opposite party is that for customer satisfaction and to maintain good relationship with the customer, the shoe was collected to check whether the complaint can be rectified and that the opposite party was reluctant to take the same back. 

11. It may be noted that the prayer is for the replacement of the defective shoes with a new one.  But the complainant has no case that the product is having any manufacturing defect.  Moreover, the manufacturer is not made a party to the proceedings.  The opposite party has taken a definite contention in the written version that the manufacturer Mark & Orion Ventures Pvt. Ltd. Chennai, is a necessary party to the proceedings.  But in spite of the specific contention, the complainant has not taken any steps to implead the manufacturer in the complaint. 

12. For the aforesaid reasons, we hold that the prayer for replacement of the product with a new one cannot be allowed. 

13. At the same time, it may be noted that the opposite party has failed to return the defective shoes entrusted to them as per Ext A1.  The complainant filed IA No.170/2019 to direct the opposite party to produce the shoes entrusted to them as per Ext.A1. Our learned predecessors-in-office allowed the petition and directed the opposite party to produce the shoes. Accordingly, the opposite party produced a pair of shoes before our learned predecessors-in-office on 29-05-2019.  The proceedings paper shows that the shoes produced were not the disputed shoes of the complainant. Our learned predecessors-in-office found that the pair of shoes produced is a new pair and not that of the complainant. The Opposite party has not yet returned the shoes to the complainant. It amounts to deficiency of service.  Though the complainant is not entitled for replacement of shoes, he is entitled to get reasonable compensation for the deficiency of service on the part of the opposite party in not returning the shoes.  Considering the entire facts and circumstances, we are of the view that a sum of Rs.2,000/- will be reasonable compensation in this case.

14. Point No:2 :- In the light of the finding on the above point, the complaint is disposed of as follows:

1. C.C. NO: 201/2018 is allowed in part.
2. The opposite party is directed to pay a sum of Rs.2,000/- (Rupees Two Thousand only) as compensation to the complainant.
3. The order shall be complied with within 30 days of the receipt of copy of this order.
4. No order as to costs.

Pronounced in open Commission on this the 09^thday of May, 2023.

Date of Filing: 24-07-2018.

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                        PRESIDENT                                                     MEMBER                                          MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 - Copy of the complaint/damage report dated 03/10/2017.

Ext.A2 - Bill dated 19-08-2015. 

Exhibits for the Opposite Party

Nil.

Witnesses for the Complainant

PW1 -  P.T.Muhajir (Complainant).

Witnesses for the opposite parties 

Nil.

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                           PRESIDENT                                                      MEMBER                                            MEMBER

                                                                               Forwarded/ By Order

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                                                                                     Assistant Registrar.