The appeal is directed against the ex-parte final order delivered by the Ld. DCDRF, Siliguri vide order no. 17 dated 22/6/2018 in connection with CC no. 124/S/2016. The case in particular is that the complainant/respondent Kavita Bhawmik has purchased two sarees from the appellant for a consideration price of rupees 14015 on 12/3/2016.

Subsequently, defect was found in both the sarees and in consequence the complainant/respondent returned back the said sarees to the appellant and the appellant had received the said sarees with an acknowledgement mentioning as defective sarees and it was assured on the part of the appellant that the new and fresh sarees would be replaced. The complainant/respondent visited various occasions to the shop of the appellant and asked him to hand over the new sarees but the appellant has taken various excuses, avoided to hand over the same. Thereafter the complainant/respondent sent legal notice to the appellant who in turn to such legal notice, was agreed to replace the said sarees by old and inferior quality of sarees which was refused to accept by the complainant/respondent and then the complainant/respondent was seriously abused by the appellant. So, she came before the Ld. Forum  with a consumer complaint which was admitted in the Forum and due notice was sent to the address of the OP/appellant. The OP/appellant in spite of receiving the notice, did not contest the case by filing any written version.

Thereafter the Ld. Forum has decided the matter ex-parte and allowed the consumer complaint on its own merit after recording evidences and adjudicated the dispute by delivery of final order which is under challenge in the appeal. The impugned order under appeal is challenged to the score that the Ld. Forum has misconceived the facts and circumstances of the case and the exact  provision of law has not been strictly complied with. The judgment and order passed by the Ld. Forum was not vested to the Ld. Forum in the eye of law and liable to be set aside. The complainant/respondent after receiving notice of appeal has contested the appeal by appointing Ld. Advocate who conducted the case on behalf of respondent. The appeal was heard in presence of Ld. Advocate of both sides.

Decision with reasons

It was contended in the memo of appeal that after receiving the notice of consumer complainant, the appellant had with the Ld. Advocate to contest the consumer Complaint and appointed a senior advocate to conduct the case of the appellant before the Ld. Forum. But the Ld. Conducting advocate appointed by the appellant could not file the WV in proper time and as such the case was heard ex-parte against the appellant, where the appellant could not get the opportunity for a hearing and case of the appellant before the Forum remained un-heard.

At the time of argument, Ld. Advocate of the appellant mentions that the complainant/respondent after some days of purchasing said sarees, found manufacturing defects and for that reason, she has come to the shop of OP for a replacement. Ld. Advocate mentions in his argument that the specific term “manufacturing defect” which is inserted in the consumer complaint did not specifically mention which kind or what kind of defect was found in the sarees. Here defect must be any fault, imperfection or shortcomings in the quality or potency, purity or standard. Mere pleading of some defect is not sufficient in the provisions of Consumer Protection Act. Here in this case neither in the pleading nor in that evidence, there is any reflection as to what kind of defect was found in the sarees.

It is further contended on the part of the appellant at the time of argument that in the final order of the Ld. Forum, it is found that the Ld. Forum has observed that the defect was admitted by the appellant at the time of receiving the return back of the sarees by inserting word “dispute Saree” in the cash memo (annexure-1).

He further mentioned that the very word “dispute” endorsed in the cash memo dated 12/3/2016 (annexure-1) indicate the controversy regarding alleged manufacturing defect. The Ld. Forum have the opportunity to decide the said controversy on the basis of the evidence but here in this case, no such evidence was tendered before the Ld. Forum to give an opportunity to the Forum to hold that the appellant has sold out two manufacturing defect sarees.

He further argued that the Forum had the opportunity to have a test of the saree through any laboratory to come in a conclusion that there was any apparent or manufacturing defect in the said two sarees. But the said method of testing  has not complied in this case which is contrary to the provisions of Consumer Protection Act.

It is further pointed out that the Ld. Forum in the body of judgment has decided that while the appellant abused the complainant/respondent, when the complainant/respondent had refused to get back the replacing sarees, such abuse tantamounts to the unfair trade practice and deficiency of service on the part of the appellant. This mind set of the Ld. Forum clearly implied that without any evidence on record and having no corroborative evidence, the allegation abuse (respondent) is imaginary and hypothesis one and there was no application of proper judicial mind and for want of evidence, the finding of the Ld. Forum appears to be perversed one. It is further argued on the part of the appellant that on the very date of purchase the purchaser ( respondent) after careful inspection found no defect in the sarees and she went  home with the said two sarees for personal use. She found defect after same days and came to the appellant for replacement. The appellant had received the said two sarees from the respondent only to verify whether there was any manufacturing defect or not and finally the appellant found no defect but in spite of that he wanted to handover another saree of same quality which was utterly refused to accept by the complainant/respondent who only intended to squeeze some money with ulterior motive.

Ld. Advocate of the complainant/respondent countered the valuable arguments of the appellant by mentioning before the Commission that the cash memo no. 973 dated 12/3/2016 clearly speaks that the respondent had purchased two sarees from the appellant after making full payment of consideration money. The said cash memo  clearly reflects that the two sarees was returned to the appellant by the respondent and the appellant has received the said two sarees by making endorsement defect and dispute and expressly promised to replace the same after some days.

His motive to defraud the complainant/respondent clearly established when he had refused to return back or to replace the sarees. While he received the legal notice from the complainant/respondent, then without sending any reply letter he personally contacted with complainant/respondent and approached her to take two sarees in place of the said defective sarees. The act and conduct on the part of the appellant clearly speaks that his behaviour to the customers is not the fair one  and while in respect of defects in the sarees, he was reluctant to replace the same which clearly, indicates that he had committed unfair trade practice and there was deficiency of service on his part.

It is contended on the part of the appellant that as Opposite Party/ appellant could not get the opportunity to contest the consumer complainant before the Ld. Forum, The Ld. Forum without appreciating the evidences in rightful manner has come to a conclusion that the complainant could suffice the case with such evidences which was not countered by any contrary evidence from the OP. This finding of the Ld. Forum is not acceptable in the legal arena and for that reason, the final order of the Ld. Forum should be interfered in the appeal and the order must be set aside.

After going through the record and documents, furnished by the parties to this case, we very carefully gone through the contents of the documents  and found that the two sarees in two different dates was returned back by the complainant/ respondent to the Opposite Parties with allegation of manufacturing defect and OP/Appellant has received the said two sarees from the complainant/respondent  on the pretext of replacing the same. But ultimately the appellant has refused to do so in spite of repeated visiting to his shop by the respondent and ultimately she was compelled to send legal notice.

Therefore, the Commission found that the appellant has not come clean hands to dispute the consumer Complaint and while the order was passed against him, he has approached this Commission in appeal to make the sufferings of a bona fide customer longer.

It is a fact that when an woman purchases costly saree to wear in special occasion and at the time of very special occasion if she finds that the saree is defective one she receives, immense mental pain and agony.  Which ultimately compels her to come to the seller for immediate replacement. In such a situation if the grievances of the said woman are not properly redressed by the seller then that lackadaisical attitude on the part of the seller also amounts to unfair trade practice and deficiency of service on his part.

So, after appreciating the valuable arguments canvassed by the Ld. Advocate of both sides this Commission found that no utter irregularity in the findings of the Ld. Forum could be detected and the Commission deems it fit not to interfere with the Judgment and order passed by the Ld. Forum as the appeal devoid of any merit.

Hence it is,

Ordered,

That the appeal be and the same, is hereby dismissed on contest without any cost.

The free copy of the final order be supplied to the parties and also to be sent to the Ld. DCDRF, Siliguri by E-mail.