By Smt. Padmini Sudheesh, President:
The case of complainant is that the complainant filed a complaint before the Forum as O.P.504/02 against the 2nd respondent. The complainant purchased a readymade shirt on 27.2.02 from the second respondent on paying Rs.445/-. Since it is of small size on 6.3.02 the shirt was returned with packet and respondent gave the same brand shirt with that of larger size. Later on first washing it was found that colour of the shirt faded and complainant returned the shirt to respondent. But the 2nd respondent refused to accept it stating that colour will be faded on washing to a certain extent. But the colour of the shirt continued to fade. Since the complainant was studying at Mysore he came back on 13.7.02 and went to 2nd respondent’s shop and requested for a new brand. The 2nd respondent refused to receive back the faded piece and substitute with a new one. The complainant was mocked by the respondent also. Hence the complaint was filed. Later during the course of proceeding the shirt was sent for testing by respondent and the result was accepted to the file as Ext. C1 and C2. Later the Forum dismissed the complaint. Though the report was submitted by first respondent remaining sample shirt was not returned to the Forum. Hence the complainant was prevented from sending the same for a scientific examination by any other lab to dispute the truthfulness of the same. The report submitted by first respondent is not true. The destruction of remaining sample sent for analysis is illegal and erroneous. The act and omission in not keeping the remaining portion of the shirt and not returning the same are illegal and that caused mental agony. No relief is sought against the 2nd respondent. Hence the complaint.
2. The counter averments of the first respondent are that this respondent admits that there were certain proceedings filed by the complainant against the 2nd respondent in O.P.504/02. As per the direction of Forum the shirt has been examined and submitted a test report before the Forum on 28.7.05. It appears that the said O.P. was dismissed by the Forum. Later vide letter dt. 18.9.06 required this respondent to send the two shirts back to the Forum at the earliest. This respondent submitted its reply to the Forum that only results were required to be sent on or before 5.9.05 and that the samples were cut into bits and taken for testing. As the shirts may not be used after testing they were disposed. As per the manual of the National Accreditation Board for Testing and Calibration Laboratories the tested samples are preserved for 5 days in case of physics lab and for 30 days in case of chemistry lab and samples are given back to the customers along with the reports on request. As there was no such direction to return the samples at the time of sending them for testing, the samples were disposed off as per procedure. The request was made after a year of submitting the report by this respondent. It is incorrect to state that the act and omission in not keeping the remaining portion of shirts and non-returning the same are illegal and caused financial loss to complainant. There is no cause of action against this respondent. Hence dismiss.
3. The counter of 2nd respondent is to the effect that in OP.504/02 it was found that the claim of complainant is not sustainable and dismissed. This respondent is an unnecessary party to this complaint and dismiss with cost to this respondent.
4. The points for consideration are:
(1) Was there any deficiency in service from first respondent?
(2) If so, reliefs and costs.
5. The evidence adduced consists of Ext. P1 and P2. No evidence adduced by first respondent.
6. Points: It is the case of complainant that the shirt which has been sent for examination to first respondent is not returned and it is a deficiency in service on their part. As admitted by both there was an earlier case alleging manufacturing defect of the disputed shirt and that case has been dismissed as there is no manufacturing defect. In that case the Forum has perused the report of first respondent in this case. After considering the evidence the Forum has found against the complainant. Again the complainant filed this case to get back the shirt sent for testing. It is submitted that though report was submitted by first respondent remaining sample shirt was not returned and the complainant was prevented from sending the same for a scientific examination by any other lab. According to the complainant the destruction of the remaining sample sent for analysis is illegal and erroneous.
7. The first respondent stated that the samples were cut into bits and taken for testing. As the shirts may not be used after testing they were disposed the same. So according to them the shirts are not in a position to return. They further stated that there was no such direction to return the samples at the time of sending them for testing. The samples were disposed off as per procedure. So it is the case of first respondent that since there was no request to return the samples they did not do so. The request was made after one year of submitting the report by this respondent. But they did not adduce any evidence in support of their claim. The complainant produced Ext. P1 and P2 documents i.e. the lawyer notice and the reply notice. There is no evidence adduced by complainant in support of his claim. But it is admitted that there was an earlier litigation about the manufacturing defect of the shirts and were sent for testing to first respondent.
8. The first respondent produced the copy of judgement of earlier case i.e. O.P.504/02. Even if it is not marked we have perused the same. The case has been disposed on 19.2.07. It can be seen that the complainant failed to file appeal by challenging the order in O.P.504/02 till 25.7.07. There are no records available before the Forum to show that appeal has been preferred. Only on 25.7.07 the present complaint has filed to get back the shirts sent for testing. The reason stated to get back the shirts is that the complainant was prevented from sending the same for scientific examination by any other lab to dispute the truthfulness of the same. But there is nothing to show that the complainant has filed any objection to the test results of first respondent in O.P.504/02. It was his duty to make a request immediately after getting the report from first respondent. It was not done. There is lack of evidence to establish the case of complainant. He can very well call for the records in O.P.504/02 to prove his bonafide and prompt approach. He can very well take steps in O.P.504/02 to get back the sample much earlier. That was not done. The non-return of sample is not a deficiency in service and the complaint is liable to be dismissed.
9. In the result the complaint stands dismissed.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 20th day of September 2011.
