Complainant Hardev Pal Singh through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite parties be directed to replace his Sweaters and Jacket. Opposite parties be further directed to pay Rs.50,000/- as compensation on account of mental agony, physical harassment and deficiency in service on the part of the opposite parties alongwith Rs.5,000/- as litigation expenses, in the interest of justice.
- The case of the complainant in brief is that on 3.2.2016, he purchased two full sleeves sweaters size 42, and one Jacket size XL from the opposite party for Rs.2553/- vide cash memo No.3794 dated 3.2.2016. At the time of purchase of articles he requested for issuance of 44 size and large size Jacket in place of 42 and XL size, but the opposite party told him that the above-mentioned sizes are not available and asked him to replace the articles so purchased with larger size articles on 8.2.2016, in case the sizes delivered may be not suit/fit for wearing by him. Since the sizes of Sweaters and Jacket were small, so he approached the opposite party on 8.2.2016 but he was stunned to notice behaviour of the opposite party. They instead of listening him behaved with him in a very rude and rough manner. Again on 9.2.2016, he approached the opposite party and requested for the replacement of sweaters with 44 size and jacket with large size, but the opposite party not only misbehaved him but also threatened him to go where he wants. A registered AD legal notice to the opposite party through his counsel was also served on 9.2.2016 requesting them to replace the articles in question within period of 7 days from the receipt of the notice. Notice was duly served, but despite the service of the notice, the opposite party neither gave any reply nor taken any action into the matter. Thus, there is deficiency in service in the part of the opposite parties. Hence this complaint.
3. Notice of the complaint was served upon the opposite parties who appeared through their counsel and filed the written reply by taking the preliminary objections that the complaint is not maintainable; the complainant is stopped by his own act and conduct as he himself purchased the goods after full satisfaction and wearing in try room at the time of buying the same on 03.02.2016. So he has no right to harass the opposite party afterward on the false allegations because size of the products always depends on the availability of stock with the company and the same is not under the control of opposite party running business at Gurdaspur which is well within the knowledge of complainant and the complainant has not approached the Forum with clean hands. The complainant unnecessarily created scene in the showroom of opposite parties in front of his customers by using filthy language and lowered down their goodwill in the market. Even the opposite parties have requested with folded hands to exchange the goods with any other variety for the satisfaction of complainant but he was adamant to harass and defame the opposite party without any reason. So the opposite parties are entitled for compensation from the complainant for causing loss to goodwill and defamation due to act and conduct of complainant as the complainant is liable to be dismissed with heavy costs. On merits, all averments made in complaint have been denied and lastly prayed for dismissal of the complaint with heavy costs.
4. Complainant tendered into evidence his own affidavit Ex.CW-1/A along with other documents Ex.C1 to Ex.C3 and closed the evidence.
5. Sh.Ankush Aggarwal Sales Man/Authorized Signatory of the opposite parties tendered into evidence his own affidavit Ex.OP-1 and closed the evidence.
6. We have examined all the documents/evidence as produced on the records of the present proceedings in the backdrop of the arguments as duly put forth by the learned counsels for the present litigants in order to judiciously adjudicate the present complaint in accordance with the provisions of the applicable statute i.e., the Consumer Protection Act’ 1986 (hereinafter, for short: The Act).
7. We find that the complainant purchased two nos of Pullovers and one Jacket from the opposite party vendor on 03.02.2016 for Rs.2,553/- but accepted these in sizes of close ‘adjoining’ variance to his ‘desired’ sizes; on the firm-assurance of ‘exchange’ (by the OP vendor) to correct sizes on 08.02.2016. It is understood that the vendors in order to push-up their instant Sales do give such like assurances/promises etc and also do honor their ‘exchange’ commitments depending upon the status of stock availability/arrival of fresh stocks etc. In many cases, the customers do not return for ‘exchange’ and consume away the receipted purchases, in due course of time.
8. However, in the instant case the promise of ‘exchange’ could not be honored by the OP vendor on 08.02.2016 and instead culminated into the present complaint duly aggravated by inter-se allegations/ counter-allegations of rude cum indecent misbehavior etc. The respective affidavits Ex.CW1/A & Ex.OP1/1 of the opposing litigants duly depose of the situation from their own aspects but with no cogent evidence for placing judicial reliance upon. The Invoice Ex.C1 does evidence sale of 2 nos of Pullovers (of size 42 each of different color) & one Jacket 40 XL size but it does not corroborate the story of ‘exchange’. However, the legal notice Ex.C2 duly served upon the OP vendor (through registered post Ex.C3) coupled with ‘admitted’ visits of the complainant to the vendors’ place of business do, for sure, establish that the complainant was in fact ‘aggrieved’ with the misfit sizes of the purchases and was seriously attempting to avail of the promised ‘exchange’ to the desired sizes. It is understood that there was no compulsion for the complainant to go in for ill-sized purchases at the ‘mere’ assurance of the OP vendor but that does not somehow discharge him (OP vendor) of the liability of an un-satiated/ fake assurance. However, going by the triviality of the subject matter and formulae of ‘moderation’ we are not inclined to award a severe statutory penalty.
9. In the light of the all above, we partly allow the present complaint and thus ORDER the opposite party vendor to exchange the purchases in question with the opted size of readymade clothes to the complainant and in case of its ‘non-availability’ with him (OP vendor) ’shall pay a ‘full’ cash refund (against proper stamped receipt) of the invoice amount besides a cash payment of Rs. 2,000/- in lump sum as cost and compensation within 30 days of the receipt of these orders failing which proceedings u/s 27 CPA shall be initiated against opposite parties.
10. Copy of the orders be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
June,09 2016 Member
*MK*
