Punjab

Ludhiana

CC/16/839

Gaurav Verma - Complainant(s)

Versus

Nike India Pvt.Ltd - Opp.Party(s)

Amandeep sharma Adv.

27 Nov 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. : 839 of 14.12.2016

   Date of Decision       :   27.11.2018 

Gaurav Verma aged about 35 years son of Hari Krishan Verma, resident of H.No.86-B, Rishi Nagar, Tehsil and District Ludhiana.

….. Complainant

Versus

1.Nike India Pvt. Ltd. (Corporate Office) Ground and First Floor, Building No.66/1, C.V.Raman Nagar, Bangalore-560093.

2.Active Clothing Co.Pvt. Ltd, Plot No.F-279, Phase 8-B, Focal Point, Mohali-160055.

3.Active Clothing Co.Pvt. Ltd, Nike Showroom, MBD Mall, Ferozepur Road, Ludhiana.

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.VINOD GULATI, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.Sumit Sharma, Advocate

For OP1                         :         Sh.Amandeep Singh Pabla, Advocate

For OP2 and OP3          :         Ex-parte

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant purchased shoes from OP3 on 19.4.2015 for Rs.7995/-. Complainant was assured that shoes are within guarantee period of six months and same will be replaced within 10 days after process. Later on, damaged shoes along with the original cash memo were returned to Store Manager against receipt, but claim was denied by claiming that damage to shoes was not owing to manufacturing defect. Checking of these damaged shoes did not take place in the presence of complainant and nor any lab test was undertaken thereon. Despite various emails, phone calls and letters, Ops have not bothered for replacing the shoes. Earlier complainant filed complaint inadvertently in the name of his father and same was withdrawn after seeking liberty to file fresh one. Now by pleading deficiency in service on the part of Ops, prayer made for directing Ops to hand over the fresh shoes to complainant along with compensation of Rs.65,000/- on account of mental agony and harassment. Litigation expenses of Rs.22,000/- more claimed.

2.                In reply submitted by OP1, it is claimed that complaint being vexatious and filed for harassing Ops for extorting compensation deserves to be dismissed in the first instance itself. Father of complainant earlier filed complaint No.15/490 of 2016, which was dismissed as withdrawn vide order dated 22.3.2016 because the complainant earlier was not consumer himself. Since dismissal of previous complaint on 22.3.2016, complainant has taken no steps to file the complaint except this one on 8.12.2016. As this complaint filed after delay of more than 8 months and as such, this complaint not maintainable, more so when liberty was granted to father of complainant to withdraw the previous complaint for filing fresh one. In the earlier complaint, prayer was confined to refund of amount and no amount of compensation was claimed therein, but now compensation of Rs.65,000/- is claimed. Complainant informed Ops about alleged defect on 26.6.2015, but upon checking of shoes and inspection of same, it was found that damage to shoes in question was on account of same being torn out and not a manufacturing defect. So, Ops declined the request of complainant for replacement. Complainant has not submitted any photographs of shoes in question for proving the degree of damage to shoes, if any. Customers get all the opportunity of seeing the product because of their being displayed in the stores. Complainant happened to have opportunity of visual checking  the product and trying the same. In absence of any manufacturing defect, deficiency in service on the part of Ops cannot be found and as such, prayer made for dismissing the vague and false complaint. Op2 is the authorized retailer of Nike Shoes. For claiming replacement of the product, consumer has to produce the claim product along with proof of purchase. Claim procedure has to be followed for seeking replacement and if conditions mentioned in the replacement policy are met with, only then the retailers/stores are obliged to allow the replacement of the product. As damage to shoes was external one and not on account of manufacturing defect and as such, after inspecting the shoes, the claim was rightly repudiated. Admittedly, complainant handed over the shoes to OP2, but thereafter, he himself has never come forwarded for getting back the shoes. OP is willing to hand over the shoes in question to complainant. All other averment of complaint are denied.

3.               OP2 and OP3 are ex-parte in this case.

4.               Complainant in order to prove his case tendered in evidence his affidavit Ex.CW1/A along with document Ex.CW2/B and thereafter, his counsel closed the evidence.

5.                On the other hand, representative of OP1 along with counsel closed the evidence after tendering affidavit Ex.RA along with documents Ex.RW1 and Ex.RW2.

6.                          Written arguments not submitted by any of the parties. Oral arguments addressed by counsel for complainant and counsel for OP1 and those were heard. Records gone through minutely. 

7.                From the pleadings of the parties, it is obvious that replacement, if to be made as per terms and conditions of the company policy, the same to be made by OP2 and OP1 because shoes were deposited with OP2 and OP1 is the manufacturer. It is specifically admitted in para (I) of preliminary submissions of written statement that retailers/stores are obliged to allow the replacement of product and that retailer is OP2. Being so, liability of OP3 to replace the shoes does not arise. Admittedly, shoes have already been deposited with OP2 by complainant by claiming the same to be defective one. It is also the claim of OP1 that complainant has not returned back for getting back the shoes and as such, certainly the alleged defective shoes are still with OP2, the retailer. Memo Ex.CW2/B also shows the handing over the shoes to OP2 on 26.6.2015. As process of 7-10 days to take place for working out as to whether the replacement to take place or not as per endorsement on Ex.CW2/B and even as per case of OP2 and that is why shoes remained with OP2.

8.                Ex.RW1 is the authorization given by Ops in favour of Mr.Ajinderpal Singh, Area Sales Manager, whose affidavit Ex.RA has been tendered in evidence.

9.                Bone of contention remains as to whether the replacement of shoes permissible as per terms and conditions of company or not. Ex.RW2 is the authorization of representation given to officials of Ops. Except Ex.RW1 and Ex.RW2, no other document has been produced. As shoes are lying with OP2 and as such Ops could have get produced the report of an expert for establishing that damage to shoes was not on account of manufacturing defect, but the same was an external damage. No such report has been produced and as such, it is obvious that Ops though could have produced the best evidence available for establishing that owing to external damage to shoes in question, the replacement not        permissible, but such report has not been produced. As the shoes are already in possession of OP2 and as such, it was not possible for the complainant to produce the photographs. So, submissions advanced by counsel for OP1 has no force that in absence of production of photographs, claim of complainant for replacement not permissible. Even no material produced on record by Ops to establish that complainant was called on a particular date for having back the defective        shoes because policy of OP does not provide for such replacement. In absence of such notice given by Ops to the complainant, it has to be held that virtually Ops never offered for return back of deposited defective shoes. In view of all these circumstances, complainant entitled for replacement of pair of shoes with new one of same worth and same model. Complainant stood mentally harassed and as such, he is entitled for compensation of Rs.2000/- and of litigation expenses of same amount. The quantum fixed by keeping in view the price of shoes and other circumstances regarding withdrawal of earlier complaint with liberty to file fresh one, but of filing this complaint after 8 months. As earlier complaint was withdrawn being not filed by the consumer and as such, this complaint being filed by complainant within period of limitation, cannot be dismissed on technical ground alone of being filed after eight months. Submission of counsel for OP1 to the contrary has no force.

10.              Therefore, as a sequel of the above discussion, complaint allowed with direction to OP1 and Op2 to replace the pair of shoes with new one of same worth or of same model. Compensation for mental harassment and agony of Rs.2000/-(Rupees Two Thousand Only) and litigation expenses of Rs.2000/-(Rupees Two Thousand Only) more allowed in favour of complainant and against Ops. Liability of Ops held as joint and several. Payment of  these  amounts be made within 30 days from the date of receipt of copy of order by the parties. Copies of order be supplied to the parties free of costs as per rules.

11.                        File be indexed and consigned to record room.

 

 (Vinod Gulati)                                        (G.K.Dhir)

 Member                                                     President

Announced in Open Forum

Dated:27.11.2018

Gurpreet Sharma.