DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.724 of 25-11-2014

Decided on 13-08-2015

Mohit Manish Singla aged about 26 years S/o Raj Kumar Singla R/o H.No.3237, Street No.4, Court Road, Bathinda.

........Complainant

Versus

Punjabi Fashion, New Cloth Market, Lower Mall Road, Bathinda, through its Proprietor/Partner/Owner.

.......Opposite party

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Smt. Sukhwinder Kaur, Member.

Sh.Jarnail Singh, Member.

Present:-

For the Complainant: Sh.R.K Bhandhari, counsel for the complainant.

For Opposite party: Sh.N.P Singh, counsel for opposite party.

ORDER

M.P Singh Pahwa, President:-

1. The complainant Mohit Manish (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite party Punjabi Fashion (here-in-after referred to as opposite party).

2. Briefly stated, the case of the complainant is that he purchased two suits for Rs.6399/- and Rs.4699/- respectively in cash vide bill No.2927 dated 3.9.2014 from opposite party for his newly wedded wife as a wedding gift.

It is alleged that at the time of purchase, the complainant told opposite party to check the fittings of suits to call his wife, but opposite party told him that he (complainant) can check the suits in his house and in case, the fitting is not proper, it would change the suits. It is further alleged that after checking the suits by the wife of complainant, one suit of Rs.6399/- was not fitted to his wife and fitting of that suit was not according to the size of his wife. After trying the suit, the complainant went to show room of opposite party and requested it to change the suit as per commitment, but opposite party told him that so far the suit according to the size of his wife is not available with it and to come after 15 days as he has booked the order for new suits. Thereafter the complainant many times approached showroom of opposite party to get changed the suit, but opposite party lingered on the matter. The complainant requested opposite party either to change the suit or to refund its price, but all in vain and on 27.10.2014, opposite party totally refused to accede his request.

On this backdrop of the facts, the complainant has alleged deficiency in service and unfair trade practice on the part of opposite party. The complainant has claimed Rs.50,000/- as compensation and refund of Rs.6399/-, which is price of suit in question and Rs.25,000/- as litigation expenses.

3. Upon notice, opposite party appeared through counsel and contested the complaint by filing its written version. In written version, opposite party raised the legal objections that the complainant is not a consumer under the 'Act'. The complainant has no locus-standi or cause-of-action to file this complaint against opposite party. The complaint is not maintainable. The complaint involves intricate and complicated questions of law and facts, which cannot be decided in summary proceedings before this Forum. Only a Civil Court can decide it. That the complaint is estopped by his act, conduct, omission, negligence and acquiescence from filing this complaint. The complaint is bad for mis-joinder and non-joinder of necessary parties. The complainant has not come with clean hands before this Forum and has concealed the material and true facts from this Forum. The complainant has filed false, frivolous and vexatious complaint only to harass opposite party.

On merits also, all the material facts are categorically denied by opposite party. It is asserted that the complainant never purchased two suits from opposite party on 3.9.2014. In fact, two suits were purchased by two ladies customers vide bill No.2927 dated 3.9.2014 after choice, selection and wearing/checking its fitting in the try room of the showroom of opposite party for a function. The lady customers may be related to the complainant and they paid Rs.10,000/- only for the said purchase. The complainant is not consumer of opposite party. The complainant procured the bill No.2927 dated 3.9.2014 from lady customers and filed this complaint. It is denied that opposite party told the complainant to check the fitting of the suits at his house and if the fitting is not proper, opposite party would change the suits. It is also added that as per terms of the bill 'Goods once sold cannot be taken back. No guarantee of any cloth and embroidery. Sold suit will not be changed and returned'.

After controverting all the averments, opposite party prayed for dismissal of complaint.

4. Parties were afforded opportunities to produce evidence.

5. In support of his version, the complainant tendered into evidence his own affidavit dated 25.11.2014, Ex.C1; copy of bill, Ex.C2; copy of legal notice, Ex.C3; copy of postal receipt, Ex.C4 and lady suit in question, Ex.C5.

6. Opposite party tendered into evidence affidavit of Parminder Kaur dated 10.6.2015, Ex.OP1/1 and closed the evidence.

7. We have heard learned counsel for parties and have gone through the file carefully.

8. It is submitted by learned counsel for complainant that the complainant has purchased two suits vide bill, which is produced on record as Ex.C2. Therefore, the complainant is consumer of opposite party. The categorical stand of the complainant is that opposite party promised him to change the suit, if fitting is not proper and as per complainant, one suit was not fitting to his wife. The complainant approached opposite party immediately and asked it for change of suit. Opposite party is taking defence of 'No guarantee no warranty', but Government of India (Department of Consumer Affairs) has already issued D O letter dated 22.12.1999 prohibiting the printing of the condition 'Goods once sold will not be taken back'. It is further made clear in this letter 'if the customers are dissatisfied with any merchandise, they can return it and get the refund of their money even though the receipt says that 'goods once sold will not be taken back'. If the shop refuses to take it back, filed a complaint before the Consumer Forum and get money back'. Therefore, this defence is not available to the complainant and opposite party is liable to refund the money. As such, the complainant has adopted unfair trade practice and there is deficiency in service on the part of opposite party. Therefore, the complainant is entitled to claim relief from opposite party.

9. On the other hand, learned counsel for opposite party submitted that provisions of 'Act' are not attracted in this case. The complainant has failed to prove that he has purchased the suits as the bill is not in his name. Even otherwise there was no contract of any service. After sale, the transaction became complete. The complainant has not pointed out any merchandise defect. It is simply case of the complainant that suit is not fitted to his wife.He was to make sure for proper fitting before purchase or change of the suit immediately thereafter, but the version of the complainant that he went to showroom of opposite party and it asked him to come after 15 days, is not acceptable. If the complainant was not satisfied with the suit in question, he was not to take it back and was certainly keep it to opposite party. This fact itself shows that the complainant has concocted a false story. The complainant had tried to change the suit in question after its use, which is not possible.

10. We have given careful consideration to these submissions.

11. Before further proceedings, we would like to mention that there is no dispute that the shopkeeper cannot escape from his liability only by mentioning (Printing) 'Goods once sold cannot be taken back', but before asking opposite party to get change the suit, the complainant should have given the proof that there is any merchandise defect in it. In this case, the complainant has not alleged any merchandise defect in the suit in question and has simply submitted that suit was not fitted to his wife. Although, the complainant stated that immediately after trying the suit in question, he went to showroom of opposite party and requested it to change the suit,but it is highly improbable and unbelievable because the complainant has also mentioned that he was asked to come after 15 days as opposite party has booked the order for new suit. If the purchased suit was not fit for the purpose of the complainant, he was not expected to carry it back and was certainly to handover the same to opposite party. These facts make the version of the complainant doubtful. The complainant has purchased two suits, one is stated to be of proper fitting. It is also not believable when the complainant was having proper size, he will not take care of it before purchase of the suits.

12. For the reasons recorded above, it is concluded that the complainant has failed to prove any unfair trade practice on the part of opposite party. As such, the complaint is dismissed without any order as to cost. The suit in question is with the record. The complainant is at liberty to take it back after expiry period of appeal/revision.

13. This case could not be decided within the statutory period due to heavy pendency.

14. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

13-08-2015

(M.P Singh Pahwa)

President

(Sukhwinder Kaur)

Member

(Jarnail Singh)

Member