Date of filing:      05.08.2019

                                                                                                                                   Date of disposal:22.11.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                 .…. PRESIDENT

                 THIRU.P.MURUGAN,M.Com.ICWA(Inter),B.L.,                                        ....MEMBER-II

RBT/CC.No.120/2022

THIS TUESDAY, THE 22nd DAY OF NOVEMBER 2022

(CC.No.116/2019 sent from DCDRC, Chennai North)

 

Mr.A.Anand, S/o.Arumugam,

No.21, AD Block,

BSNL Quarters, Vysarpadi, 

Chennai 600 039.                                                                             .........Complainant. 

                                                                        //Vs//

Revathi Home Needs,

Reb. by its Proprietor,

No.3, Madhavaram High Road,

Perumbur, Chennai 600 011.                                                            ...Opposite party.

 

Counsel for the complainant                                       :   Mr.Vijay Krishna, Advocate.

Counsel for the opposite party                                   :   M/s.C.Shankar, Advocate

                         

This complaint has been filed before DCDRC, Chennai (North) in CC.No.116/2019 and transferred to this commission by order of the Hon’ble State Consumer Disputes Redressal Commission, Chennai in RC.No.J1/809/2022, dated 18.05.2022 and taken on file as CC.No.120/2022. The complaint was heard by us  on various dates and finally on 25.10.2022 in the presence of Mr.Vijay Krishna Advocate,  counsel for the complainant and M/s.C.Shankar Advocate, counsel for the opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service in charging the carry bag along with a prayer to direct the opposite party to repay Rs.8/- the cost of carry bag and to pay a sum of Rs.75,000/- towards mental and physical agony by the complainant and to pay a sum of Rs.20,000/- towards cost of the proceedings to the complainant and to prove free carry bag to all customers.. 

Summary of facts culminating into complaint:-

 

On 07.07.2019 the complainant had purchased one plate for Rs.103/- from the opposite party but was charged Rs.111/- including Rs.8/- for a carry bag.  When questioned and sought for bill for the carry bag the same was provided under the head COSMETIC.  The carry bag was also endorsed with the logo, symbol and design of the opposite party which was actually an advertise to them.  Aggrieved by the act of the opposite party, the complainant after issuance of a legal notice had preferred the present complaint for following reliefs;

 

To direct the opposite party to repay Rs.8/- the cost of carry bag and to pay a sum of Rs.75,000/- towards mental and physical agony caused to the complainant;

 To pay a sum of Rs.20,000/- towards cost of the proceedings to the complainant;

 To provide free carry bag to all customers.

Crux of the defence put forth by the opposite party:-

The opposite party submitted that the complaint was an vexatious one and that they have issued a detailed reply to the legal notice issued by the complainant.  On merits they admitted the purchase of plate for Rs.103/- on 07.07.2019.  However, it is contended that for Rs.8/- the complainant did not purchase any carry bag but bought one Bindi packet. It was submitted that the opposite party never proposed to furnish or sell carry bag as alleged in the complaint to the customers.  Thus they disputed the complaint allegations and sought for the dismissal of the complaint. 

The complainant filed proof affidavit and documents Ex.A1 to Ex.A5 were marked on their side.  On the side of opposite party proof affidavit was filed and document Ex.B1 was marked by them.  

Points for consideration:-

Whether the allegations raised by the complainant that the opposite party had charged Rs.8/- towards the cost of carry bag amounting to deficiency in service and unfair trade practice has been successfully proved by admissible evidence?

If so to what reliefs the complainant is entitled?

Point No.1:-

On the side of the complainant the following documents were filed in support of the complaint allegations;

Purchase bill for plate dated 07.07.2019 was marked as Ex.A1;

Purchase bill for carry bag shown as Cosmetic dated 07.07.2019 was marked as Ex.A2;

Photo Copy of carry bag along with plate  was marked as Ex.A3;

Legal notice issued by the complainant to the opposite party dated 15.07.2019 was marked as Ex.A4;

Acknowledgement card was marked as Ex.A5;

On the side of the opposite party the following document was filed in support of their contentions;

Reply notice given by the opposite party to the complainant dated 01.08.2019 was marked as Ex.B1;

 It is represented by the complainant that the written arguments filed by them may be treated as oral arguments. We heard the oral arguments adduced by the opposite party and perused the material evidences and pleadings produced by both parties.

In the written arguments the complainant has contended that the opposite party had provided two bills and had clandestinely provided Bill No.38223 as such the complainant had purchased one BINDI packet and had taken a stand that no carry bag was sold to the complainant but it is not explained by them that why two bills were raised on the same day.  Further it is stated that as per Ex.A1 the time is 9:38:18pm and as per Ex.A2 is 9:44:45pm.  Thus it is proved that two bills were provided within a few minutes and what necessitated in not providing a single invoice for both items.  Further the opposite party also failed to prove what are the items sold under the category of Cosmetics and what was sold on that day under the head Cosmetics.  Section 102 of the Indian Evidence Act, 1872 was relied upon by the complainant as it was stated that the burden of proof lies on the opposite party.   Further as the carry bag contains the logo of the opposite party the commission could easily presume that the carry bag was sold only by the opposite party to the complainant. Also it was stated that nothing was mentioned and found in the opposite party’s store that no carry bag was sold by them.  Thus on the whole it is stated that the opposite party committed not only deficiency in service but also unfair trade practice. Thus the complainant sought for the complaint to be allowed.

On the other hand the learned counsel appearing for the opposite party submitted that Ex.A2 clearly states that Cosmetic was purchased by the complainant and that there is no immediate complaint made by the complainant.  It is stated that if at all they charge for carry bag the same would be mentioned in the bill and not in a separate bill.  In total it was submitted by the learned counsel that no carry bag was sold by them as they did not provide any carry bag to their customers as it is against the rules and regulations of the Corporation and sought for dismissal of the complaint.

On perusal of the materials provided by the complainant we are of the view that the complaint has to be allowed for the following reasons;

As rightly pointed out by the complainant in their written arguments the opposite party failed to explain why two bills were raised on the same day within a few minutes when the purchase was made by the complainant at a single instance.

It is not proved by the opposite party that under the 2nd bill under head Cosmetic what product was sold to the complainant.  In the absence of any explanation in respect of the same we have to believe only the version of complainant that the carry bag was charged under the head ’Cosmetic’.  When it is alleged by the opposite party that they are not providing any carry bag to the customers they literally failed to explain how the complainant was in possession of the carry bag with their stores logo and name under Ex.A3.

Though it is stated that the complaint was not preferred immediately and that the complainant had approached the Forum with a complaint belatedly causing suspicious on the allegation the same could not be accepted by this commission for the reason that the complaint was filed very well within the limitation period of two years as provided under the statute.

When it is the argument made by the opposite party that they never sell or provide carry bag to the customers as rightly pointed out by the complainant nothing was proved about the display by the opposite party intimating the customers that no carry bag was provided by the opposite party.

Further it is argued by the opposite party that if at all any carry bag was sold by them they would have charged the cost in the same bill and not in a separate bill.  However, when they failed to prove what item was sold in the separate bill the said arguments could not be accepted.

In total when the complainant was in possession of carry bag with the name and logo of the opposite party, the defence by the opposite party that they did not provide any carry bag was proved to be an ultimate false statement.

The opposite party by providing or selling carry bag to the consumer with their logo has committed a unfair trade practice as they use the customers like complainant for their advertisement when they failed to establish that they have not sold the carry bag.

For the above reason we hold that the opposite party had committed clear deficiency in service and unfair trade practice in charging extra amount of Rs.8/- for the carry bag supplied to the complainant.  Thus we answer the point accordingly in favour of the complainant and as against the opposite party.

Point No.2:

With regard to the reliefs to be granted as we have held above that the opposite party had committed deficiency in service we direct the opposite party to refund the cost of carry bag to the complainant along with a compensation of Rs.10,000/- for the mental agony caused to the complainant.  We also award Rs.5,000/- to be paid by the opposite party as litigation expenses to the complainant.

In the result, the complaint is partly allowed against the opposite party directing him 

a) to repay a sum of Rs.8/- Rupees eight only) cost of the carry bag to the complainant within six weeks from the date of receipt of copy of this order; 

b) to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for the mental agony caused to the complainant;

c)  to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant. 

d) Amount in clause (a) & (b) &(c) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 6% will be levied on the said amount from date of complaint till realization. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 22nd day of November 2022.

      

 

     Sd/-                                                                                                                Sd/-

MEMBER-II                                                                                                  PRESIDENT

 

List of document filed by the complainant:-

 

Ex.A1 07.07.2019 Purchase bill for plate. Xerox

Ex.A2 07.07.2019 Purchase bill for carry bag as shown as Cosmetic. Xerox

Ex.A3 ................ Carry bag along with plate. Xerox

Ex.A4 15.07.2019 Legal notice issued by the complainant. Xerox

Ex.A5 ............... Acknowledgement card. Xerox

 

 

 

List of documents filed by the opposite party:-

 

Ex.B1 01.08.2019 Reply notice issued by the opposite party. Xerox

 

 

    Sd/-                                                                                                                    Sd/-             

MEMBER-II                                                                                                   PRESIDENT