Kerala

Idukki

CC/266/2017

Saju Joseph - Complainant(s)

Versus

Propriter Pushpak - Opp.Party(s)

Adv.K M Sanu

24 Aug 2021

ORDER

DATE OF FILING : 18.12.2017

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION IDUKKI

Dated this the  24^th  day of  August, 2021

Present :

          SRI. C. SURESHKUMAR                            PRESIDENT

SMT. ASAMOL. P.                                           MEMBER

 

CC NO.266/2017

Between

Complainant                                                :   Saji Joseph,

                                                              Paradiyil House,

                                                              Karimannoor P.O.,

                                                             Thodupuzha, Idukki

    (By Adv: K.M. Sanu )

And

Opposite Party                                    : 1.  The Proprietor / Manager,

                                                                                 Pushpak +one,

                                                                Bombay Dyeing Dealer,

                                                          Choorappuzha Tower, Thodupuzha P.O.                                                                   (By Adv: Peter V. Joseph )

                                                                    2.  The Managing Director

                                                                                                                                  (cont.....2)

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O R D E R

 

SRI. C. SURESHKUMAR,  PRESIDENT

 

1 . Complaint filed under Section 12 of Consumer Protection Act of 1986.  Facts of the case are briefly narrated hereunder :

2 .  Complainant who is a native of Thodupuzha, used to wear only clothing stitched using material from Bombay Dyeing Company.  1^st opposite party is a dealer of Bombay Dyeing textiles in Thodupuzha.  Complainant had purchased 3 pant and 2 shirt pieces in the 1^st week of September, 2017 from opposite party and  entrusted those for stitching with a tailoring concern, namely, M/s. Pant House in Thodupuzha, for which he had paid stitching charges at the rate of Rs.450/- per pant and Rs.280/- per shirt.  After getting the cloth stitched, complainant had started using the same.  While so, he noticed that clothing of the pants had started to shrink and its threads were standing out indicating that clothing material was defective.  He had immediately approached the opposite party with 2 pants stitched using defective clothing material purchased from him and had demanded replacement of cloth and  stitching charges of Rs.900/-.  1^st opposite party had given him material for 2 pant pieces which he subsequently discovered were not of Bombay Dyeing Company.  However, 1^st opposite party had refused to give the amount Rs.900/- spent for stitching the pants.  Complainant had again stitched 2 pair of trousers using  new material and subsequently  he had noticed that one of the pants had started showing signs of deterioration owing to defect in material.  Hence complainant had again approached opposite party for replacement of the damaged pair of pants and also demanded stitching charges earlier spent by him amounting to Rs.900/-.  However, 1^st opposite party had refused to replace the damaged item or to reimburse the tailoring charges.  According to  complainant, 1^st opposite party had resorted to unfair trade practice by giving him a different item of clothing than what was demanded by him and defective also.  Hence complainant prays for award of cost of clothing material used for stitching one of the  2  pair of  pants  along  with  stitching  charges.    He  also seeks   payment of Rs.900/- which he had expended earlier for stitching 2 pair of pants using the  

                                                                                                         (cont.....3)

 

 

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material earlier supplied by the opposite party.  Again he seeks award of damages to the tune of Rs.5000/- since the 1^st opposite party resorted to unfair trade practice and also a sum of Rs.3000/- towards cost of this litigation.

3 . Though two opposite parties are named in the complaint, 2^nd opposite party is simply described as the Managing Director without disclosing the concern or institution of which he is the Managing Director.  For all practical purposes, steps were only taken for notice to the 1^st opposite party and he alone is contesting also.  Upon receipt of notice, 1^st opposite party had appeared and filed his written version disputing the claim raised by  complainant.  Its case is briefly discussed here under: According to 1^st opposite party, complaint is not  maintainable either upon facts or in law.  1^st opposite party is not aware of initial purchase of 3 pant  and 2 shirt pieces from it by  complainant.  He is not aware of any specific demand made by  complainant for Bombay Dyeing clothing and supply of different item to him.  Bill pertaining to purchase of aforesaid clothing material has not been produced by  complainant.  1^st opposite party is not aware of complainant getting 3 pants and 2 shirts stitched on 6.9.2017 from the concern named Pant House or any other tailoring shop.  It is also not aware of any charges or expenses incurred by  complainant for stitching as aforesaid.  On 25.10.2017, complainant had come with 2 pant pieces seeking exchange  which according to him were gifted to him.As those cloths were purchased from  1^st opposite party, he had obliged the complainant by exchanging both pant pieces with superior clothing material for which an extra amount of Rs.418/- was paid by  complainant.  Clothing material  purchased in exchange by the complainant was of Raymond Company which is far superior in quality to Bombay Dyeing clothing material.  It is incorrect to say that the complainant had given 2 stitched pants and demanded return of 2 pant pieces and stitching charges incurred by him.  It is incorrect to say that one of the pant piece given in exchange was also of defective quality and again it’s exchange with stitching charges was demanded by complainant.  1^st opposite party sells clothing material manufactured by reputed companies like Raymond, Bombay Dyeing,                                                                                                                 (cont.....4)

 

 

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Gwalior  Suitings, Ramraj and the  like. He is not exclusive dealer of Bombay Dyeing clothing.  Two pant pieces sold in exchange on 25.10.2017 were of  Raymond Company and this was made clear to the complainant at the time of sale itself for which he had paid the difference in price also.    1^st  opposite party is not liable to pay any amount towards cost of material, stitching charges or  damages to  complainant.  No unfair trade practice was adopted and nor was there any  deficiency in service rendered to  complainant.    Complaint is to be dismissed with costs.

          4. After filing of written version, case was taken up for trial after affording sufficient opportunity to both parties  for taking steps.  On the side of  complainant, he himself was examined as PW1 and Exts.P1(series) 3 in numbers were admitted in evidence. On the side of 1^st opposite party, his manager and power of attorney holder was examined as RW1.  Ext.R1 is the power of attorney executed by 1^st opposite party in favour of RW1.  After examination of RW1,  evidence was closed.  Hearing of the matter was delayed due to  Covid 19 pandemic situation prevailing since last year.  Case was finally heard in camp at Thodupuzha on 6.8.2021.  Complainant’s counsel was heard initially.  1^st opposite party has already filed argument notes, copy of which was given to the counsel for  complainant.  Able counsel was heard in reply also.

5. Now the point which arise for consideration are :

1. Whether any unfair trade practice was resorted to by 1^st opposite party as against complainant  or whether there was any deficiency in services rendered to him?

2. Whether complainant is entitled to get back Rs.900/- from the 1^st opposite party spent by him initially for stitching 2 pair of pants. 

3.  Whether complainant is entitled to get the cost of materials and stitching charges related to one of pant pieces purchased by him on 25.10.2017 as per Ext.P1.  

4.  Whether complainant is entitled to get compensation from the 1^st opposite party.                                                                                                         (cont.....5)

 

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5.  Order as to cost. 

6.  Relief if any to be granted, order regarding.

          6. Point Nos.1 to 4 are considered together for the sake of convenience:  Learned counsel for the complainant submitted that the matter can be taken as heard from the side of complainant but at times in the course of arguments addressed orally by counsel for 1^st opposite party would intervene with brief narration of complainant’s case and would contend that though no bill relating to initial purchase of 3 pant and 2 shirt pieces was produced by  complainant, it is admitted that  clothing material were sold from the shop of 1^st opposite party.  He has also admitted of having consented to replace both pant pieces with fresh one.  This would make the evidence of  complainant regarding  production of 2 pair of defective pants before  1^st opposite party, demand for substitution with new clothing material and reimbursement of stitching charges.  Ext.P1(2) bill issued from  tailoring shop would disclose the amount initially spent as stitching charges for  3 pair of pants and 2 shirts which the complainant had got stitched from the tailoring shop.  After getting different clothing material in exchange for  damaged pair of pants, believing the material to be of good quality and of the brand he had demanded, complainant had again entrusted these materials with the same tailoring shop for stitching.   Ext.P1(3) is the 2^nd bill issued on 25.10.2017 from the very same tailoring shop for subsequent bailment.Again one  of the pants developed defects owing to inferior quality of  cloth and complainant had sought for substitution with fresh clothing material and also reimbursement of stitching charges for which 1^st opposite party was not amenable.  These things are borne out from the complaint.  Evidence in this regard, by  complainant is reliable                               and can be acted upon.

          7.As far as 1^st opposite party is concerned, his version consists of bland denials and partial admission of complainant’s case. His evidence  is of no consequence.Therefore, complaint is to be allowed in to with costs.                                                                                                                                     (cont.....6)

 

 

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          8. In the argument notes submitted by the learned counsel for 1^st opposite party, contentions taken in written version are reproduced in brief. It is stated that  1^st opposite party was not aware of initial purchase of 3 pair of pants and two shirt pieces  by  complainant in the 1^st week of September 2017 as claimed by him.  According to the 1^st opposite party, complainant had came to the 1^st opposite party with  2 pant pieces which he claimed to have received as gift. Since clothing material was purchased from 1^st opposite party, he had consented for exchange with other material of  complainant’s choice.  This was done only as goodwill gesture and not for the reason that the clothing material brought for exchange was  defective or of inferior quality.  Complainant himself had chosen the 2 pant pieces which were of Raymond Company and had paid the difference in price knowing fully that cloth being purchased by him was Raymond and not Bombay Dyeing. There was no specific demand for Bombay Dyeing cloth from the side of  complainant.  It is further mentioned in the argument notes that pleadings addressed in complainant are  inconsistent with evidence tendered by complainant. It  pointed out in the notes that case of complainant that he was supplied with a different quality of clothing material than  Bombay Dyeing as demanded by him and his further case that he had believed the misrepresentation that clothing was of Bombay Dyeing is rendered false as admittedly he had paid the difference in price as could be seen from P1 itself. During his cross examination, complainant has clearly admitted that he knows how to verify/check clothing and ascertain it’s brand by perusing the same and that he had taken back pant pieces from the shop rather selected in exchange of  material earlier purchased by him after carefully perusing the same.  He has also conceded   that he had realized that the clothing was of Raymond Company only after reaching home.  That being so his specific case in complaint that he had  realized that the material supplied on second occasion was of Raymond Company only after noticing damage in the stitched pant is utter falsehood.  As far as 2 bills issued from the tailoring shops are concerned, one  which is dated 6.9.2017 is forged as it is serially numbered as 1161 whereas serial number of Ext.P1(3) bill is 1159 which is dated 25.10.2017.  There is no possibility of a bill with Sl. No.1159 being issued earlier than a bill with Sl.No.1161.  It is also argued that pair of pants purportedly stitched subsequently using exchanged piece of clothing which according to the complainant was damaged has not been produced in court at all.  Though the complainant had expressed his readiness to examine the tailoring shop owner, no                                                                                                                                                                                                                                             (cont.....7)

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steps were taken by him.  There was no unfair trade practice or deficiency in service.  Complainant is not entitled for getting back price of clothing, stitching charges, compensation or cost of litigation.  Complaint is liable to be dismissed with costs.

          9. Thus these are the rival contentions.  We have carefully gone through the pleadings addressed and evidence tendered by both sides  respectively.  As rightly pointed out by  learned counsel for 1^st opposite party, complainant has not produced any bill evidencing initial purchase of 3 pant and 2 shirt pieces from the opposite party.  He has  not given the  date of purchase though he would contend that it was in the 1^st week of September 2017.He  has further pleaded that he entrusted the cloth with  tailoring shop for stitching on 6.9.2017.  Ext.P1(2) is the bill purportedly issued from tailoring shop in this regard.  We shall consider the probative value of Ext.P1 at a later stage.  Presently we are considering the case  pleaded that the complainant had purchased aforesaid items of clothing from opposite party and had then entrusted the same for stitching on 6.9.2017.  A careful reading of pleadings in this regard would go to show that entrustment for stitching vide Ext.P1(2) was allegedly much subsequent to the claimed purchase of clothing which was in the 1^st week of September 2017, as he has no case that he had given the cloths for stitching on the same day he had purchased them. Complainant does not say whether he had verified/checked the clothes for any difference in brand or quality at the time of purchase or even before he had entrusted those for the stitching at a later date. He has no case that he did not get any opportunity to verify the cloths either. Ordinarily no prudent man will venture to purchase goods like clothes or those which are perishable in nature without examining them. Case of the complainant that he had purchased clothes relying solely upon representations by 1^st opposite party or his employer that the clothes were of a particular brand and of good quality is not believable, in view of his own evidence that he is capable of differentiating between brands and quality of clothing by physical examination and that his second purchase/exchange was after such physical examination. Ordinarily, regard being had to common course of events, presumption is that he had effected purchases only after properly examining them. In the instant case, if at all the complainant did not get an opportunity to examine the clothes before or at the  time  of  purchase, then  the only  possibility is that he had  not  personally purchased those articles and those must have been purchased by someone else on                                                                                                                  (cont.....8)

 

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his behalf. It is pertinent to note that 1^st opposite party has a case that complainant had approached him with two pant pieces seeking their exchange claiming that those were gifted to him by someone else. This appears to be convincing under the circumstances.

          10. Opposite party has a further case that as a gesture of goodwill, he had permitted the complainant to exchange the fabric for the one of his like.  Ext.P1 bill itself would show that difference in price of the pant pieces subsequently purchased upon exchange was also paid by the complainant.  That being so, his case that the goods were misrepresented as to be of Bombay Dyeing and that he had only realized that those were not Bombay dyeing material days after when he had seen defects in the pair of pants stitched using the same is not believable.  As mentioned in the argument notes, complainant has clearly admitted that he had verified the quality and condition of the clothing at the time of purchase itself.   

          11. That apart ordinarily no textile shop would accept stitched or used goods for exchange in any condition.  Complainant has not produced any bill pertaining to initial purchase of clothing from the shop of the opposite party in the 1^st week of September 2017. For reasons given earlier we find that probabilities are that complainant had sought for exchange of clothes from 1^st opposite party as these articles were gifted to him and he wanted those to be substituted by clothes of his choice from the same shop. As far as Ext.P1(2) is concerned, it bears a serial number which is subsequent to that of the serial number of Ext.P1(3) which is of a later date.  Discrepancy in serial numbersof Exts.P1(2) and P1(3), remain unexplained by the complainant.  Though the complainant has stated that he was ready  to summon and examine the tailoring shop owner, he has not taken any steps to do so.  Hence Ext.P1(2) cannot be relied upon without sufficient                          corroboration from other materials.  Earlier purchase of 3 pant and 2 shirt pieces as alleged by the complainant from the shop of opposite party itself  is not proved.  His case is that he was given 2 new pant pieces in exchange of stitched 2 pair of pants by the opposite party due to defective clothing material used  is also unbelievable.  As far as subsequent purchase is concerned, complainant claims that one of the pants stitched using cloth obtained in exchange on 25.10.2017 was also of  defective  material.   Complainant  has  not  produced the defective item.                                                                                                                               (cont.....9)

 

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No explanation is given for non production either. Therefore his case that the subsequent material supplied was also defective and of different brand  also cannot be accepted.

          12. To sum up,  complainant has not succeeded in proving  that goods earlierpurchased and subsequently obtained upon exchange from 1^stopposie party were  defective in nature or that there was any deficiency in service. That being so, complainant is not entitled to get value of materials purchased/exchanged or stitching charges purportedly incurred by him on both occasions.  As a                        necessary corollary, we also find he is not also entitled for compensation claimed either. Opposite party is not liable for the costs of complainant also.  Point numbers 1 to 4 are answered accordingly.

          13. Point Nos.4 and 5 are considered together:

                                       In the result, this complaint is dismissed. 

           Pronounced by this Commission on this the  24^th day of August, 2021

                                                                              

                                                SRI. C. SURESHKUMAR, PRESIDENT

                                                                                                                                                                            SMT. ASAMOL.  P., MEMBER

 

                                                         

 

 

 

 

                                                                                                 (cont.....10)

 

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APPENDIX

Depositions :

On the side of the Complainant :

PW1 -  Saji Joseph

On the side of the Opposite Party :

DW1 - Sathesh K.T.

Exhibits :

On the side of the Complainant :

Ext.P1(series)  -  Bills.

On the side of the Opposite Party :

Ext.R1 –Power of attorney

 

                                                                              Forwarded by Order,

 

                                                                          SENIOR SUPERINTENDENT