Haryana

Ambala

CC/152/2019

Dr. Kamlesh Vasudeva - Complainant(s)

Versus

Priya Sarees - Opp.Party(s)

N.K Vasudeva

04 Nov 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint Case No.:  152 of 2019.

                                                          Date of Institution            :   03.05.2019.

                                                          Date of decision    :   04.11.2019.

 

Dr. Kamlesh Vasudeva wife of Dr. Ashok Vasudeva aged about 68 years, resident of H.No.31-C, New Lal Bagh Colony, Patiala (Punjab).

                                                                                       …. Complainant.                                                    Versus

Priya Sarees, Main Showroom:- B-4/386, Kansra Complex Wholesale Cloth Market, Opposite Dev Samaj Girls Hostel, Ambala City, Ambala through its Director Rajan Kansra.

 

Second Address:- Branch Outlet:- #104, Wholesale Textile Market, Aggarsain Chowk, Ambala City, Ambala (Haryana).

                    …. Opposite Party

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri N.K. Vasudeva, Advocate, counsel for the complainant.

Shri H.S. Baidwan, Advocate, counsel for the OP.

 

ORDER:     SH. VINOD KUMAR SHARMA, MEMBER.

 

Complainant has filed this complaint under Section 11/12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To refund the amount of Rs.47,575/- paid by the complainant for purchase of Lehnga alongwith interest @12% per annum till date of payment.
2. To pay Rs.50,000/- as compensation for the mental agony and physical harassment suffered by him.
3. To pay Rs.40,000/- as litigation charges.
   382.  

                   Any other relief which this Hon’ble Forum may deem fit.

Brief facts of the case are that the complainant was regular customer of OP and used to purchase clothes from OP. On 08.07.2018, complainant purchased a Lehnga for the marriage of her daughter bearing Tag No.87474HHYYT from the OP’s showroom vide cash memo No.84 for a sum of Rs.47,575/-. At the time of purchase of the said Lehnga, it was assured to the complainant by Sardar M.P. Singh, sales representative that the same was a new one and it was also told that the same is a designer piece. After purchase of the said Lehnga when the complainant came home, she found that the said Lehnga was used one/old/dry-cleaned on seeing the same with naked eyes. Immediately, she contacted the sales representative on his mobile No.98132-87122 and told him about the situation and he asked her to visit the showroom situated at Ambala. She rushed from Patiala to Ambala for replacement of said Lehnga, but said sales representative told the complainant to keep the Lehnga with them and he will discuss the said issue with the owner of the showroom and only then he can help the complainant. Complainant requested him either to replace the said Lehnga immediately as she requires the same for the marriage of her daughter or to refund the money paid by her. Said sales representative misbehaved with the complainant and refused to redress her grievance and told her that they have no policy of returning the amount as well as the goods which are sold from their shop. It is also written on the bill that there is no guarantee of colour, zari and fabric and accordingly, refused to return/replace the said Lehnga or refund the amount of the complainant. On seeing the said Lehnga with naked eyes it is clear that the colour and design of complete set of Lehnga is not matching and is old one/used/dry cleaned.  Complainant suffered a lot as she purchased another Lehnga for the marriage of her daughter and after marriage of her daughter she again contacted the sales representative Sardar M.P. Singh for replacing the said Lehnga or to refund the amount, but refused to do so. Cash memo issued by the OP clearly shows that the OP has clearly evaded tax and no tax amount has been shown on the said cash memo whereas as per the Provisions of the GST Act 12% tax is to levies on every dress material/cloth sold and any evasion of tax would entail penalty proceedings as well as criminal proceedings against the OP. Despite her repeated request when her grievance was not resolved, she sent a registered legal notice dated 30.10.2018, to the OP claiming refund of amount of Rs.47,575/-, but OP deliberately and intentionally avoided the receipt of said notice. On 21.11.2018, again a legal notice was sent to OP, despite receipt of said legal notice till date no reply has been received. This way, the OP is deficient in providing the services and have indulged into unfair trade practice. Hence, the present complaint.

2.                Upon notice, the OP appeared through counsel and filed written version and raised preliminary objections regarding maintainability, estoppels, not coming to this Forum with clean hands, concealing of facts. On merits, it is submitted that it is emphatically denied that the complainant has purchased the said Lehnga for Rs.47,575/- and the Lehnga was found used one/old and dry cleaned on seeing the same from the naked eyes because the complainant had purchased the Lehnga after fine investigation of fabric, colour, design, embroidery and Zari work of the said Lehnga. The possibilities of the use of said Lehnga by the complainant cannot be ruled out as it is a stitched and ready to wear piece of Lehnga and after using the same the complainant concocted this false story. The complainant never visited the shop of the OP for replacement of the said Lehnga. Complainant had done only telephonic conversation with the sales representative and he humbly told that the goods once sold from the shop of OP cannot be returned and there is no guarantee of colour, zari and fabric and the same clause is also recorded on the bills of OP. Complainant is a well educated lady and she is very well aware with the terms and conditions of purchase of said Lehnga. Complainant is guilty of “Suggestio Falsi “ and “Suppressio Veri”. Complainant has concealed the original Tax Invoice and produce only approval bill of Rs.47,575. Original Tax Invoice vide No.PS3/000730/07-18 dated 08.07.2018 amounting Rs.38000/- after discount of Rs.9575/- is not produced with malafide intention and to extract the money from OP. There is no deficiency on its part and the complaint filed against it may be dismissed with costs.

3.                Rejoinder to the written version filed on behalf of complainant, reassessing the averments of complaint.

4.                The Ld. Counsel for complainant has tendered affidavit of complainant  as Annexure CA alongwith documents as Annexure C-1 to C-6 and closed his evidence. On the other hand, learned counsel for OP tendered affidavit of Shri Rajeev Kansra, Director M/s Priya Sarees as Annexure OP/A alongwith documents Annexure OP1 & OP2 and closed the evidence on behalf of OP.

5.                We have heard the complainant and the learned counsel for the OP and carefully gone through the case file.

6.                The learned counsel for the complainant reiterated the version as mentioned in the complaint and prayed for allowing the present complaint.

7.                Similarly, the learned counsel for the OP reiterated the version as mentioned in their written version and prayed for dismissal of the present complaint.

8.                Learned counsel for the complainant has argued that on 08.07.2018, complainant purchased a Lehnga bearing Tag No.87474HHYYT from OP vide cash memo no.84 for a sum of Rs.47,575/- and the sale representative of the OP assured her that the same was a new one designer piece. After purchase of the Lehnga, when complainant came back to home, she found that Lehnga was used one/old/dry cleaned. She contacted the sales representative of OP for her grievance, but despite several requests OP refused to solve the grievance of the complainant on the pretext that they have no policy of returning the amount as well as the goods which are sold from their shop. Further argued that cash memo issued by the OP clearly shows that the OP have clearly evaded tax and no tax amount has been shown on the said cash memo whereas as per the provisions of the GST Act 12% tax is to be levied on every dress material/cloth sold and any evasion of tax would entail penalty proceedings as well as criminal proceedings against the OP. Despite notice sent to OP, no action was taken, therefore OP committed deficiency in service. On the other hand, Ld. Counsel for the OP has argued that  Lehnga in question is new one and complainant after thorough checking of the Lehnga purchased the said Lehnga. The said Lehnga was stitched and ready to wear piece of Lehnga and after using the same complainant concocted a false story. Further argued that complainant never visited the shop of OP for its replacement, she only contacted telephonically and the concerned sales representative told her that goods one sold will not be taken back or exchanged and there is no guarantee of color, zari and fabric, which duly has duly been mentioned on the bill itself. Further argued that complainant has concealed the original Tax Invoice and produced only approval bill of Rs.47,575/-. The original Tax Invoice No.PS3/000730/07-18 dated 08.07.2018 amounting Rs.38,000/- after discount of Rs.9575/- has not been produced with mala fide intention and to extort the money from the OP. There is no deficiency on the part of the OP and the present complaint may be dismissed with costs. Ld. Counsel for the OP also placed reliance upon case law titled as Sunil Kapoor Versus Reebok West Wind Retails & 3 Ors, (2019) 1 CPR 541, National Consumer Disputes Redressal Commissioner Single Bench.

9.                The plea of the complaint is that she has purchased the Lehnga set from the OP for Rs.47,575/- and has placed on record Invoice dated 08.07.2018 (Annexure C-1). Whereas, the stand of the OP is that it had sold the lehnga set to the complainant for Rs.38,000/- and has placed on record Tax Invoice (Annexure OP-2). However, both the invoices were not having any stamp or signature of any of the party. It is not understandable how two invoices can be issued for the same product. The OP in its written version has stated that the invoice produced by the complainant is approval bill, whereas there is no mention of the word “approval bill” on the said bill. Undisputedly, the bill dated 08.07.2018 (Annexure C-1), which was in possession of the complainant has been given by the OP only, therefore we do not find any merit in this contention of the OP that the Lehnga in question was sold for Rs.38000/- instead of Rs.47,575/-. During the course of arguments Ld. Counsel for the complainant produced the original lehnga set i.e. (Choli + Lehnga+ Chunni) and has contended that on seeing with naked eyes it is clear that the colour and design of choli, Lehnga and Chunni are not matching with each other. After seeing the Lehnga set, same was returned after placing on record its photographs which are Mark A to Mark E. On seeing, the Lehnga set, it was observed that the colour and design of choli, Lehnga and Dupatta are not matching with each other. From the above mentioned facts and circumstances, it is clearly established that all the three pieces of the Lehnga set sold by the OP were not matching with each other. Thus, we find force in the contention of the complainant that her daughter could not wear the said lehnga on her wedding and the purpose for which the lehnga set was purchased got defeated. In view of the above said matter, we are of the considered opinion that the OP is liable to refund the cost of the lehnga i.e. Rs.47,575/- to the complainant. OP is also liable to compensate the complainant for the mental agony and physical harassment caused to her alongwith litigation expenses.

10.              In view of the aforesaid discussion, we hereby allow the present complaint against the OP. The OP is directed to comply following directions:-

1. To pay the cost of Lehnga amounting Rs.47,575/-, as per invoice (Annexure C1) to the complainant .
2. To pay Rs.5,000/- as compensation for mental agony and physical harassment suffered by the complainant.
3. To pay Rs.2,000/- as litigation expenses.

 

                   The OP is further directed to comply with the aforesaid direction, within the period of 30 days from the date of receipt of the certified copy of this order, failing which, the awarded amount shall carry interest @ 9% per annum for the period of default. The complainant is also directed to return the Lehnga set to the OP on receipt of the cost of the Lehnga set. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 04.11.2019.

 

 

          (Vinod Kumar Sharma)        (Ruby Sharma)                   (Neena Sandhu)

              Member                             Member                            President