By: Sri. Mohamed Ismayil.C.V, Member
1. On 19/08/2019 the complainant purchased a saree worth rupees 1,598/- from the shop of the opposite party along with some other items. The saree was purchased for the complainant’s mother to attend a wedding at relative’s house and to wear the same when the guests came home during onam festival. At the time of purchase, the opposite party and his employees assured that the saree is of good quality and does not change colour or get damaged quickly. The opposite party has assured that if any damage occurs to the saree , he will take back and refund the price of the saree or replace the sareee. Believing the words of the opposite party, the complainant purchased it.
2. But the complainant’s mother did not need to wear the saree for onam festival. On 19-10-2019, the complainant’s mother attended a wedding ceremony wearing the saree and then neatly folded the saree and kept it in the almirah . Three days later, when the aforesaid saree was taken from the almirah to be worm for going to the hospital, it was found that the saree was torn on the folded side. Then the mother showed the torn. On to the complainant. On 26/10/2019 the complainant went to the shop of the opposite party and showed the damage of the saree to the opposite party and the employees are convinced of the damages. The opposite party informed that the next day was Diwali and staff was coming from the company that made the saree, so the opposite party made the complainant to believe that he would change the saree and give the complainant a new saree. Thereafter the opposite party deducted the price of saree and endorsed the same in the bill which was issued at the time of purchase of the saree. Later on 29/10/2019 as per the instructions of the opposite party the complainant and his mother went to the shop and tried to select a saree in order to replace the damaged one. While the complainant and his mother were choosing a new saree, the employee of the opposite party approached and used abusive words loudly in the hearing of other customers and told the complainant to file a case if wanted. The employee of the opposite party also told that if a new saree is required, it will be available only at a discount of 40% of the price. Due to the act of the opposite party, the complainant has suffered financial loss, mental agony and emotional distress. As a customer, the complainant has not received any service from the opposite party.
4. There is deficiency of service and violation of Consumer Protection Act from the side of opposite party. The complainant sent a legal notice to the opposite party claiming compensation of rupees 25,000/- and to refund the price of the saree. Even though the opposite party received the notice, the complainant did not get any reply.
5. So the complainant approached this Commission to get an order and thereby directing the opposite party to pay Rs.1,00,000/- as compensation for the mental agony , hardships suffered due to the act of the opposite party and to refund Rs.1,598/- as the cost of the saree. The complainant also prayed for payment of cost of the proceedings and an order to protect the interest of complainant as a consumer against the opposite party.
6. The complaint is admitted on file and issued notice to the opposite party. The opposite party received notice and appeared through a counsel. But the opposite party did not file the version the commission set the opposite party exparte and ordered to file affidavit of the complainant. Accordingly on 26/03/2021 the complainant filed affidavit and documents. Documents are marked as Ext. A1 to A3. Ext. A1 document is the original bill dated 19/08/2019 issued by the opposite party to the complainant. Ext. A2 document is the lawyer notice dated 08/11/2019 issued by the complainant to the opposite party. Ext. A2 (a) document is the postal receipt dated 08/11/2019. Ext. A3 is the acknowledgement card signed by the opposite party. The case was taken for orders. Mean while the opposite party filed I.A 163/2021 to set aside the exparte order. On 19/04/2021 the commission allowed the petition with cost of Rs.2,000/- to the complainant. Thereafter the opposite party filed version.
7. In the version, the opposite party denied allegation of the complainant and prayed for the dismissal of the complaint. The opposite party denied the statement of the complainant that the saree was purchased for the complainant’s mother to attend a wedding at relative’s house and to wear the same when the guests came house during onam festival. The opposite party also denied the allegation made in the complaint that at the time of purchase of the saree the opposite party and his employees given assurance of good quality and does not change colour or get damaged quickly. According to the opposite party there was no assurance of take back of the product or refund of the price. The statement of the complainant that he purchased the saree relying on the assurance given by the opposite party is also denied in the version. All the allegation are concocted for the sake of making the complaint. The contention of the complainant that the complainant’s mother did not need to wear the saree for onam festival and on 19-10-2019 she attended a wedding ceremony wearing the saree and then neatly folded the saree, kept it in the almirah are denied by the opposite party . According to the opposite party no such incidents happened.
8.. The statement in the complaint that when mother of the complainant was taken the saree from the almirah three days later, it was found in torn on the folded side and same was showed to the complainant is not correct. The opposite party denied the allegation put forwarded In the complaint that to get the saree replaced, the complainant and his mother went to the shop of the opposite party on 26/10/2019 and convinced everyone of the damage in the saree and as the next day was Diwali, employees were coming from the company that made the saree and then the opposite party would replace with new one is falsehood. The allegation that the opposite party deducted the price of the saree and recorded in the bill issued at the time purchase of the damaged saree also denied by the opposite party. According to the opposite party complainant and his mother did not approach him on 29/10/2019 to replace the saree. So the opposite party never wanted the complainant to select a new saree on that day and the employees did not made abusive words towards the complainant and his mother. According to the opposite party his employee did not offered 40% discount on price of the new selection and did not say that complainant would go and file a case if he wanted. All their stories are false and incorrect and fabricated for making of the complaint. There is no deficiency of service on the part of the opposite party and never violated the provision of Consumer Protection Act.
9. According to the opposite party the shop was not owned by him but by his wife Kadheeja. The complainant is not a consumer of the shop. The complainant did not purchase anything from the shop. It is stated in the version that two ladies came to the shop and purchased cloths and later came back and replaced one saree. After two months of the replacement of the saree the complainant came to the shop and created trouble by demanding refund of the price of the saree. According to the opposite party he sold a fancy saree not an ordinary one. No guarantee is given to the fancy items purchased from the shop of the opposite party. This fact is informed to every customer by the employees of the opposite party. In the version the opposite party has raised doubts whether the saree which was brought for exchange was actually bought from the opposite party’s shop. According to the opposite party the complainant has to prove that the saree shown in the bill is the same one mentioned in the complaint. It is also contended by the opposite party that there is non-joinder of necessary party in the complaint. The opposite party even alleged that the complainant may be a tool of some rival textile shops in the town. The complainant is misusing the provisions of Consumer Protection Act. According to the opposite party complainant has no locus standi and the complaint filed on an experimental basis so he prayed for the dismissal of the complaint with compensatory cost.
The opposite party filed affidavit and no document produced.The complainant did not adduce additional evidence.
10. Heard both parties in detail, perused affidavit and documents. The following points arised for consideration:-
- Whether there is any deficiency of service or unfair trade practice on the side of the opposite party.
- Relief and cost.
11. Point No.1 and 2
The grievance of the complainant is that he purchased a saree worth Rs. 1,598/- from the shop of the opposite party for the use of his mother. On 19-10-2019 the complainant‘s mother attended a wedding ceremony wearing the saree and after that she neatly folded the saree and kept it in the almirah. Three days later , when the saree was taken from the almirah to be worn for going to the hospital , it was found that the saree was torn on the folded side. According to the contention of the complainant he contacted the opposite party for replacing the damaged saree. But as per the version and affidavit filed by the opposite party that he sold a fancy saree to two ladies not to the complainant. According to the opposite party the saree sold to the two ladies was fancy one and which do not come with guarantee. It is added in the evidence by the opposite party that he explicitly exhibited the fact of no provision for guarantee to the fancy items on the wall of the shop room. Moreover every bill issued by the opposite party also inform the same fact to the customers. The complainant produced Ext. A1 bill issued by the opposite party also carries the same information. During the time of hearing of the case the complainant produced the torn saree before the commission and commission convinced of the damage occurred to the saree. But the opposite party cannot adduce evidence to show that the saree sold to the complainant was a fancy saree. One of the defence availed by the opposite party is that he sold a fancy saree which is exempted from the guarantee.The opposite party did not take any steps to invalidate the claim of the complainant and to establish that the saree sold belonged in the category of fancy item. Even if it is a fancy saree, if it is damaged after a single use within a short period of purchase the opposite party is responsible for the damage. So from the evidence it is very clear that the saree was sold to the complainant by the opposite party is an ordinary saree and bill was also produced before the commission to prove the transaction. More over it is stated by the opposite party that he sold a fancy saree to two ladies an later they came to the shop and demanded for replacement . Accordingly the opposite party replaced the saree. Two months later the complainant came to shop and created trouble demanding refund of the price of the saree. At the same time he pleaded that there is no guarantee to fancy items . So this contradictory statement cannot be taken for the appreciation of evidence of the case in favour of the opposite party .
12. It is contended in the version as well as in the affidavit that there is non-jointer of necessary party in complaint. But the opposite party did not take any step to produce the details of manufacturer before this commission instead he pleaded for exoneration on the ground that the saree belonged in the category of fancy item.
The opposite party also contended that his wife is the owner of the shop. From the evidence it can be seen that he received Ext.A2 notice and a detailed version is also filed opposing entire case of the complainant. Moreover no reply was sent by him to the complainant. This shows that the opposite party is responsible for the entire happenings occurred in the shop.
According to the complainant he along with his mother went to the shop and convinced the damage of the saree and then the opposite party gave assurance of replacement of the saree. The complainant even added that employee of the opposite party used abusive words loudly to the hearing of other customers.Even though the opposite party denied that allegations, it is admitted in the version as well as in the affidavit two ladies came to the shop and replaced one saree. More over the opposite party also admitted the visit of the complainant to the shop. This factual narration shows that there existed customer – seller relationship between the two parties.
It is also come in the evidence that the price of the saree was deducted by the opposite party and it was endorsed in Ext. A1 document. This evidence was not contradicted by the opposite party. So if the billed product was actually a fancy cloth item, then the opposite party would not have endorsed in such a manner.
13. After going through the entire evidences adduced by both parties, the commission finds that the complainant purchased a saree from the shop of the opposite party and damage was also caused to the saree within a short span of time. The opposite party has evaded from the responsibility to replace the damaged saree So there is deficiency in service on the part of the opposite party and the complainant suffered mental agony and hardship due to the act of the opposite party. The complainant is entitled to get the order and so the complaint is allowed as follows:-
- The opposite party is directed to pay Rs.1,598/- as the cost of the saree to the complainant .
- The opposite party is directed to pay Rs.10,000/- as the compensation for the mental agony and hardship suffered due to the act of opposite party.
- The opposite party is also directed to pay Rs.5,000/- to the complainant as the cost of the proceedings.
The opposite party shall comply this order within one month from the date of receipt of this order, failing which he is directed to pay @ 9% interest per annum till realization of the total amount as aforesaid.
Dated this 24th day of September, 2022.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A3
Ext.A1: Original bill dated 19-08-2019 issued by the opposite party to the
complainant.
Ext.A2: Lawyer notice dated 08/11/2019 issued by the complainant to the opposite
party.
Ext A2(a): Postal receipt dated 0811/201.
Ext A4: Acknowledgement card signed by the opposite party.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Nil
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
VPH
