Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
CC No.93/dated 03.11.2020
Rajesh Kaushik, s/o Shri Radhe Shyam,
R/O H.no. 3157 2nd floor,Mohalla Dassan
Cherkhe Walan, Hauz Qauzi Delhi 110006 ...Complainant
Versus
OP1. Sonu Monu Opticals
through its proprietor Manish Gupta
E-2/2 near Metro Station Road
Shastri Nagar New Delhi 11 0052
M.NO 9213503111
Email: sonumonuspectacles@rediffmail.com ...Opposite Party no.1
OP2. Delhi Eye Centre,
3/24, Shankar Road, Old Rajinder Nagar,
New Delhi [name of OP2 is struck off as
per paragraph 7.3.3. of this Order] ...Opposite Party no.2
Order Reserved on: 02.02.2023
Date of Order: 13.04.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1.1 (Introduction to case of parties) : The complainant seeks compensation of Rs.50,00,000/- from the OPs for negligence and deficiency of services, since the complainant ordered for two pairs of opticals after checking of his eyes on machine, however, the opticals prepared were of different numbers, which were not ordered as well as in one of the opticals box, a card of some other was found having a big glass number, on wearing of optical has caused immense pain and headache apart from damages to the eyes of complainant. There is negligence as well as deficiency of services on the part of OPs.
Whereas, the OP1 opposes the complaint vehemently, neither there is negligence nor any deficiency in services by OP1. The complainant placed order for preparing two pairs of spectacles and accordingly spectacles were prepared. The complainant's eyes were not tested in machine, since direct order was placed to prepare spectacles as per specification provided. The complaint is false, vexatious and a concocted story has been framed to extract money, in the name of compensations and damages from the OP1.
1.2. The complaint, under consideration, is in English language, there are many syntax flaw or some incomplete expressions or wordings, however, care is being taken in this Order to express them completely, with proper wordings and syntax to make it appear in the context it is filed.
1.3. This complaint was filed on 03.11.2020 and till then the Consumer Protection Act, 2019 was already notified w.e.f. 20.07.2020. The heading of complaint is mentioned u/s 12 of (erstwhile repealed law) of the Consumer Protection Act, 1986, however, without considering that nomenclature, the complaint is being considered under Act of 2019.
2.1 (Case of complainant) : The complainant is law abiding citizen of India and his present address is as mentioned above. The complainant Sh. Rajesh Kaushik, is a practicing Advocate in all courts in Delhi. His enrolment no. is D/728/2000 of Bar Council of Delhi (BCD), his address is of H. No. 4156, Sector-9-A Bahadurgarh District-Jhajjar, Haryana-124507 and present address is of H. No 3157, 2nd floor, Mohalla, Dassan Cherkhe Walan Hauz Quazi Delhi-110006. His office is in Chamber no. 637 Dawarka Court Chamber Complex; Central Hall in Patiala House and Chamber no. C-91 Tis Hazari Court, Delhi.
2.2. The complainant got checked his eyes in first week of August 2020 and after examination of his eyes in computer, OP1 assured him to prepare good and excellent opticals [i.e. eye glasses] to suit his profession. The shop of OP1 is authorised and approved from OP2, OP1 is working under OP2.
On such assurances of Manish Gupta, proprietor of OP1, the complainant ordered two pairs of opticals, he paid total amount of Rs.1,200/- to OP1, who asked to collect spectacles on next day. Accordingly, after two days complainant met OP1 and collected the optical. However, when complainant was checking the opticals, it was uncomfortable and it was told to OP1, who advised that since opticals are new, it will be adjusted in a few days.
2.3. The complainant started using the spectacles but he felt them not good. Whenever, he was putting the spectacles, complainant started feeling headache and surroundings were not visible. He made telephonic call to OP1, OP1 was apprised of status of opticals but OP1 again assured for better opticals as per report of eyes and it will adjust in few days after regularly using pairs.
2.4. Then complainant got checked his eyes from M/s Perfect Spectacles Company against receipt no 8616 book no 87 and also got checked the pairs of opticals got prepared from OP1. It was found that opticals were not pertaining to the complainant, number of glass was completely different of right side glass -7.00 -2.00x1.80 and left side -6.00'-1.50×180. The complainant was shocked and surprised when found a paper card, underneath cleaning cloth, in the optical box, it was in the name Kamalieet Kaur. The front side of said card is visiting card of OP1/Sonu Monu Opticals. Immediately, the complainant contacted OP1 and narrated the status of opticals. OP1 advised the complainant to visit him after four days.
The complainant handed over a pair of optical to OP1, it was checked by him in machine and he also admitted that optical was completely wrong. The complainant again went to OP1 to deposit the other pairs of opticals. This second pair of spectacles was found having number 1.75/05+ and 2.25/1.05 +. Thus, both eye glasses prepared were not pertaining to complainant, since his eyes testing report gives number 2.00 +0.50+ of both eyes. Therefore, complainant's eyes were damaged and created difference in both eyes due to deficiencies of service of OP1. The complainant is unable to see properly, he feels heavy pain and headache and is not well because of gross negligence of OP1.
2.5 The complainant's work profile is of reading of case files of his clients but now the complainant is feeling uncomfortable during reading of files. Thus, on 12.10.2020 he got checked his eyes from Aruna Asaf Ali Hospital, near Tis Hazari Court. The complaint was advised by the doctor not to use the spectacles prepared by OP1, since complainant's eyes were tested and opined he needs '1.75. near glass is sufficient'; the spectacles prepared by OP1 are of '2.00+.50 which is heavy; and 'near-sight is only 1.75'. The complainant visited several times to OP1, because of deficiency and negligence of OPs and he spent his
valuable time and money, without reasonable cause. Complainant's future is pushed into dark by OPs. there is irreparable losses, which cannot be counted.
2.6 The complainant makes claims as meager compensation of Rs.50 lakhs in lieu of losses caused by OPs for mental and physical agony, eye pain, pecuniary
loss, loss of profession, due to the
negligence and deficiency of service on part of
OPs. When OPs can cause losses to an Advocate, it clearly indicates that OPs may also cause losses to public. Moreover, in order to grab money, OP1 is using sign board of 'Delhi Eye
Centre', Old Rajender Nagar for advertisement of its shop
and to induce and make fool to public. The complainant also served legal notice to OPs, its report from internet has been taken, it is admissible u/s 65 of the Evidence Act.
2.7: The complaint is accompanying with the visiting cards, prescription of Sept. 2020 of Perfect Optical Co.; OPD Card dated 12.10.2020-09:34am of Aruna Asif Ali Government Hospital, legal notice dated 12.10.2020 along with postal receipt of 13.10.2020 - 12:35pm.
3.1 (Case of OP1): The OP1 filed its reply and opposed the complainant vehemently. The complaint is not maintainable for want of cause of action and complaint has been filed to harass and to extort money from the
OP1. The complaint is vague,
ambiguous and not clear. He has not approached this Hon'ble Forum with clean hands but by suppressing material facts. It is also bad for mis-joinder of OP2, since OP2 has no concern
in the complaint. it was arrayed unnecessarily and
its name is liable to be struck off. The complainant is not residing at H. No. 3157, 2nd Floor, Mohalla Dassan, Charkhewalan, Hauz Qazi, Delhi-110006 as the complainant has not filed any proof in this regard.
3.2 The complainant never got his eyes checked from the OP1 at any point of time. The complainant placed order for two pairs of spectacles as the complainant himself wanted one spectacle for near-vision and another bifocal-spectacle. The complainant himself provided glass numbers for preparing the spectacles. OP1 prepared the spectacles and gave them to the complainant. The complainant checked by using both the spectacles at the shop itself of the OP1 and after reading the material contents by using them, he found them perfect, then took the delivery and paid Rs.1,200/-. The complainant found both the spectacles perfect and comfortable after checking them in shop of the OP1, and only then took the delivery of the same, he never complained or visited or reported any uncomfortable to the OP1 nor that he was feeling headache or having no visible surroundings. He never made telephonic call in this regard. Otherwise, in case, the complainant has any complaint of spectacles, then the same can still be rectified as per the requirement of the complainant as the same was never denied by OP1.
3.3. The complainant may have got his eyes checked from Perfect Spectacles Co. OP1 never provided the spectacles of right side glass no. as -7.00 -2.00X1.80 and left side glass no. as -6.00 - 1.50X180 to the complainant at any point of time. In fact if a person wears the spectacles of this specification, referred above, then he even cannot see properly and cannot walk even a millimeter. The complainant wrongly states that he found the card (placed underneath cleaning cloth in box) in the name of Kamal Jeet Kaur but in order to extort the money, the complainant has forged the visiting card in the name of some Kamal Jeet Kaur by mentioning fictitious specifications of his choice by picking up a blank visiting card of the shop of the OP1. It is unbelievable that an educated person, who is an Advocate, will take the delivery of the spectacles without checking the glasses at the shop. Moreover, the complainant never contacted OP1 immediately nor narrated the fate of glass or that the OP1 called the complainant after four days or that the complainant approached the OP1 or that the complainant handed over the spectacles. Since OP1 after taking the delivery of the spectacles, complainant never contacted the OP1, thus no question arises of checking the pair in machine or admitting the spectacles is wrong or asking him to again visit for deposit of second pair of spectacles or finding the second pair of spectacles as +1.75/05+ and 2.25/1.05 or that both glasses were not pertaining to the complainant. The complainant has concocted a false story in order to extort money from the OP1.
3.4 In fact, the OP1 had provided the spectacles to the complainant as per the specification mentioned in the card of Rajesh Kaushik (at Page no. 11 of the complaint) and not as per other the specification shown of Kamal Jeet Kaur. The question of damaging the eyes of the complainant does not arise. There is no deficiency of service on the part of the OP1. The complainant has failed to
prove that he is unable to see properly or
is feeling heavy pain or headache or that he
is unwell due to act of the OP1.
There is no negligence on the part of the OP1, even the complainant has not placed any report of doctor, which may show that the eyes of the complainant were damaged because of wearing the spectacle provided by the OP1. The complaint is totally baseless, it is
not maintainable and it is liable to be
dismissed with heavy cost. The complainant has also wrongly mentioned that the doctor of
Aruna Asif Ali Hospital advised him not to use the spectacles prepared by OP1 nor any such advice ever since given by the Doctor of Aruna Asif Ali Hospital nor by any other doctor nor the complainant has proved any such report. There is no deficiency and negligence on the part of OP1 nor the future of the complainant pushed into dark by OPs nor any loss has been caused to the complainant by any act of the OP1, thus OP1 is not liable to pay any compensation.
3.5. The complainant is an Advocate, he has filed false, frivolous and vexatious complaint against the OP1 in order to extort money. He has not suffered any loss pecuniary, either mentally, physically, loss of eyes and loss in profession, hence the question of claiming Rs.50 lakhs as compensation does not arise. The complainant has failed to prove these facts. He also wrongly states that the OP1 is using sign board of Delhi Eye Centre for advertising of shop or for inducing or fooling public persons. Neither OP1 is having dishonest intention nor ill motive nor grabbed money of any person at any point of time nor indulge in unfair trade practice at any point of time nor caused any loss to any person, hence the question causing any loss to an advocate does not arise. Since no notice was ever since delivered to the OP1, hence no occasion came for its reply. The complaint is without cause of action, hence the complaint is liable to be dismissed with heavy cost.
4.1. (Replication of complainant) : The complainant filed rejoinder to the complaint after reply of OP1, rejoinder is composite of many paragraph (like paragraph 3-4, 4-10, 11-14) to deny the case of OP1 and for reaffirming his case. It is also explained that he lives at the address given, for which copy of ownership of house no. 3157 is furnished [it is a photocopy of single page of non-judicial e-stamp paper of 04.02.2020/article-23 Sale, without further papers of document], photographs of shop/ sign board of OP1, spectacles and prescriptions.
5.1 (Evidence) : Complainant Shri Rajesh Kaushik filed his affidavit of evidence, supplementing it with the record already filed.
5.2: On the other side, Shri Manish Gupta, Proprietor of OP1 filed his detailed affidavit of evidence, which is on the pattern of his reply to the complaint.
6.1.1. (Final hearing) : The complainant filed his written arguments, it is also reflection of the complaint. The complainant himself (being Lawyer by profession) also made oral submissions, that he suffered a lot of pain and headache because of negligence and deficiency of services of OPs. The complainant relies upon Aashna Roy vs Yogesh Deverswer & Ors [CC no. 1619/2018 before NCDRC], stating that compensation of Rs. 2 crore was granted against the haircutter, who cut longer hairs than the instructions given by complainant.
Whereas the complainant is an Advocate, he has to perform his professional obligations to read and write files, he suffered damages because of OPs. There is also sign board of OP2, the OP1 is working under the OP2 or otherwise the public is being misguided under the name and style of Delhi Eye Centre, whereas OP1 is not Eye Centre. The complainant deserves the compensation for suffering sustained to him because of OPs and he is asking meager amount of Rs.50 lakhs.
6.1.2. It is relevant to mention that after the case was reserved for Orders, the complainant was to file case law, if any, but he had filed certificate u/s 65B of Indian Evidence Act that the certificate (while explaining that original video recording, photographs, call recording which was in his mobile phone and downloaded into pan drive are in his safe custody). The complainant refers Arjun Panditrao Khotkar Vs Kailash Kushanrao Gorantyal (CA Nos. 20825-20826 of 2017, SC dod 14.07.2020, para 57) that certificate can be filed at any stage before judgment. It was because of OP1 took the objections in final hearing, while relying upon Ravinder Singh alias Kaku Vs State of Punjab 2022 Livelaw SC 461 that oral evidence in place of such certificate cannot possibly suffice as section 65B(4) is mandatory requirement of the law. Further reliance is placed on Suresh Kumar Vs Sharma Eye Care & Hospital [FA no.550/2013, dod 9.5.2017, Punjab SCDRC, para 13) that no mechanical approach can be followed but each case has to be judged on its own facts.
6.1.3. The OP1 opposed the case of complainant vehemently that there is misrepresentation by the complainant. There is single sign board, however, on one portion of sign board, it clearly mentions name of Sonu Monu Opticals (computerized eye testing) in red paint with address of shop and other portion of the sign board is name of Delhi Eye Centre, of different address of 3/24 Shankar Road, Old Rajender Nagar, New Delhi. It is just an advertisement board of Delhi Eye Centre, it is not being displayed for the purposes of misguiding anyone but to guide that there is Delhi Eye Centre at the address mentioned.
The complainant filed a speculative claim for compensation, otherwise documents on record does not prove case of complainant. The digital photos are filed, without appropriate certificate u/s 65B(4) of the Indian Evidence Act, such photos cannot be considered, reliance is placed on Ravinder Singh alias Kaku Vs State of Punjab 2022 Livelaw SC 461. Moreover, pairs spectacles could be produced before the Commission, however, the same were not produced intentionally and with-held, which goes against the complainant. In Unit Trust of India Vs Sabitri Devi Aggarwal [in RP no. 55 of 1997] the Hon'ble National Commission has held that the Consumer Protection Act is not for entertaining or compensating speculative transactions or losses.
No claim for compensation is made out in this case and without any rational the figure of Rs. 50,00,000/- is mentioned by the complainant, whereas, in Gaurav Garg Vs Pepsico India and Antr [CCno. 142/2013} it was held that claiming hefty damages without any basis is an abuse of the process of consumer courts. There was no loss or damage to the complainant, it is an imaginary story and the complainant has not produced the subject spectacles before the Commission to prove his case. In Indian Airlines Ltd. Vs.V.J. Phillip [RP No. 770 of 1996] the Hon'ble National Commission has held that the compensation can be awarded only if any loss or injury is caused due to the negligence of opposite party. Lastly, the OP1 is rendering services to the society by performing his own tasks, however, in case the original spectacles are produced and they are shown to be suffering from any defect by the complainant, the same can be rectified in the same spirit of services and his task, although no defect exists. The complaint deserves dismissal.
7.1 (Findings) : The contentions of both the sides are considered, they are admixture of admitted facts as well as disputed facts. It is an admitted case of both the parties, that the complainant visited the shop of OP1 for two pairs of spectacles and OP1 had prepared the same, the same were delivered to the complainant, who paid the amount of Rs.1,200/- to the OP1.
However, other plea of both the sides are disputed, apart from some other allied issues. All of them are taken one by one.
7.2: The OP1 raised an issue in respect of residential address of the complainant mentioned as House no. 3157 2nd floor Mohalla Dassan Cherkhe Walan, Hauz Qauzi, Delhi-06, as it is not the actual residential address of complainant nor any proof of residence is filed. Whereas, according to complainant it is present address, in support thereof the complainant filed photocopy of non-judicial e-stamp paper. In said single page of e-stamp, name of the first party mentioned is Ayush Gupta and second party is Rajesh Kumar Kaushik, this non-judicial e-stamp paper is of 04.02.2020, however, no address of any of the parties is mentioned therein except property description of H. No. 3157 and 3158 (part, Phatak Nanak Chand, Mohalla Dassan Cherkhe Walan, Hauz Qauzi, Delhi).
On perusal of this document, it does not depict address of the complainant. There is no other documentary proof of identity card or other record of residential address of the complainant. While writing this judgment, it was recollected that there were cases in the name of Ayush Gupta and of such addresses, which was decided in the last month of March 2023 and Shri Rajesh Kaushik Advocate was also appearing in cases. The files were called, it is case CC no. 95 filed on 03.11.2020 [Ayush Gupta vs Branch Manager, decided on 07.03.2023] and it is found the address of Ayush Gupta is mentioned as House No. 3157, Mohalla Dassan Cherkhe Walan, Hauz Qauzi, Delhi. Further, two other cases no. CC-94/filed on 03.11.2020 [Sheetal Gupta vs Eureka Forbes Ltd. and CC no. 60/filed 14.09.2020 Sheetal Gupta vs Union Bank of India, respectively decided on 24.03.2023 and on 31.03.2023] are found, the address of Sheetal Gupta is mentioned as H. No. 3157, 2nd floor Mohalla Dassan Cherkhe Walan, Hauz Qauzi, Delhi.
However, the address of OP2 is of Old Rajender Nagar, New Delhi, it is within the area of Central District of this Commission, from that point of view this District has jurisdiction to try the complaint. accordingly, this contention of the parties is disposed off.
7.3.1. The complainant vehemently emphasizes that OP1 is working under OP2, which is opposed by OP1. There is no record or evidence or proof that OP1 is working under the OP2, consequently there is no relationship of Principal/OP2 and of agent/OP1 or of employee or employor. Therefore, for want of such proof, the complainant’s plea to this effect carries no weight.
Similarly, the complainant has grievances that name of OP2 is appearing on the sign board of OP1, it is in order to misguide and fool the general public to extract money as if the OP1 is 'Delhi Eye Centre', since whosoever will read the name of 'Delhi Eye Centre', it will be misled that there is 'Delhi Eye Centre' in the shop, which is actually belonging to OP1. Whereas the OP1 has strong objection, that it is not misguiding or making fool of the public for any purposes, the 'Delhi Eye Centre' is a separate institute and its address is also different from the address and name of OP1/ Sonu Monu Opticals. It is just an informative advertisement of name of OP2 on the sign board, which usually happens.
7.3.2. The plea of complainant is inconsistent and contradictory. On the one side, the complainant suggests that OP1 is working under OP2, if it is so then where is the scope of grievances?. Otherwise, if one reads the sign board one will be able to distinguish that name of OP1 [Sonu Monu Opticals] and of name of OP2 (Delhi Eye Centre], which are written in different colours paint as well as their separate addresses. There is also no scope for misleading. When one is able to read the names on sign board in English, it will also be easy to understand the names and the other particulars mentioned. It is also not the case of complainant that he was mislead by the name of OP2 on the sign board while approaching the shop of OP1. Lastly, in paragraph 11 of complaint, the complainant himself pleads that sign board is for advertisement, this plea itself demolish the allegations of be fool of public or to grab money from public. Since this name of OP2 on sign board is adjacent to name of OP1, it does not make out a case of complainant but of OP1 that sign board is for informative advertisement of OP2 of its existence at the given address, nothing more. There is no substance in the plea of complainant on this count.
7.3.3. In fact, these circumstances are suggesting and establishing that OP2 has no role at all so far the case of complainant is concerned, therefore, OP2 was joined unnecessarily, thus name of OP2 Delhi Eye Centre is struck from the array of opposite party.
7.4.1: On plain reading of case of both parties, it is abundantly clear that the dispute is around the two pairs of spectacles, however, there is rival stand of the parties as complainant contends that 'one pair of spectacles' was returned to the OP1 and 'other pair' was with the complainant, for which he had visited the shop of OP1. On the other side, the OP1 denies all these allegations that the complainant ever visited its shop on any occasion after taking delivery of two sets of spectacles. Thus, there are juxtaposition stand of the parties.
OP1 contends that no spectacles pair has been produced by the complainant in the proceedings of this complaint. It is also the admitted position by the complainant that spectacles are not produced by him in the proceedings of this complaint. However, digital photographs (with date) of spectacles & other record were filed. With this preliminary observations and discussions now the core issue is being taken.
7.4.2: In order to appreciate the rival contention in right prospective, it needs to introduce some important terms and abbreviations, which have been mentioned in the prescription pertaining to spectacles and optic.
(a) 'SV' (Single Vision) - there is only one prescription through-out the lenses. Single focal glass is for single vision which sharpens view of either nearby object or far away item but not both. Reading glasses are type of single vision lenses. that
(b) 'BF' (Bifocal) - A lens in which distance prescription is placed on the top of the lens. The near prescription is placed on the bottom portion of the lens and marketed by line. Bi-focal are glasses that have both a correction for distance, vision using the top of lens and for correction to help read at bottom. BF lenses.
(c ) 'OD' stands for 'Oculus Dxter' (Latin term), means 'right side/eye',
(d) 'OS' stands for 'Oculus Sinister ' (Latin term), means stands for 'left side/eye',
(e) 'SPH" stands for sphere, which means that correction is equal in all meridians,
(f) 'ADD' (additional correction). additional correction means one needs for reading, it is used when the lens is to be bi-focal lenses or reading glasses. It represent the additional power over distance prescription. It is written once in the prescription as additional power is same for both eyes.
(g) IPD (Interpupillary Distance) The linear distance between fixation axis of the wearer's eyes or centers of the pupil with eyes focused at distance.
(h) Pl (Plano) (Latin term) for word 'flat', It also means one has distance problem.
(i) PAL (Progressive Addition Lenses). These lenses progress from distance to intermediate to near prescription without a distinct line. It also indicates that the doctor is to be consulted for appropriate correction of number.
(j) DV (Distance Vision) & NV/VN (Near Vision) - DV is portion of prescription for away & NV means the prescription is for reading only.
Generally, prescription is written + SPL /CYL/Axis/+ADD for spectacles.
7.4.3: In short, the complainant has grievances that his eyes were checked in the machine by OP1, he ordered for two pairs of spectacles, however, delivery given was of one spectacles as R-7.00-2.00x1.80 and L-6.00'-1.50×180, this spectacles was found in the box containing card of Kamal Jeet Kaur [digital photo dated 9.9.2020 of card in the name of Kanwal Jeet Kaur, digital photo dated 9.9.2020 of prescription of M/s Perfect Optical Co., digital photos of a spectacles of 26.9.2020 and of box having name Sonu-Monu were filed with the rejoinder (total four photos)]. On wearing this spectacles, it has caused headache and eye pain to the complainant. The other pair of spectacles was having no. 1.75/05+ and 2.25/1.05 +, it was also not the proper number for which it was ordered. The complainant’s glass no. are 2.00+0.50+. Moreover, the complainant got checked his eyes from M/s Perfect Opticals company and then Aruna Asaf Ali Government Hospital and the number provided by them is +1.75 near glass is sufficient, consequently the spectacles provided by OP1 were not only wrong but proved damaging and fatal to the eyes of complainant, as a lot of pain, headache and then agony has been caused as the complainant could not perform his duties for his client properly.
Whereas, on the other side, the OP1 opposed the contentions of complainant that the visiting card showing name of Kamal Jeet Kaur and glass number were creation of the complainant himself. Whenever eyes are tested on the machine there is generation of glass numbers, the complainant was not examined on the machine. The spectacles were prepared on the basis of number provided by the complainant. The one spectacles ordered was bi-focal and other spectacles was ordered for single focal. No such spectacles showing the glass number of so-called Kamal Jeet Kaur is produced by the complainant nor the other spectacles of number alleged by the complainant. There was no pain or headache as alleged by the complainant.
7.4.4. It is relevant to compile the circumstances. The complainant had visited three places for spectacles and/or eye testing, firstly, at the shop of OP1 in the month of August 2020, secondly, at M/s Perfect Opticals Company, Ballimaran, Chandi Chowk, Delhi, in the month of September 2020 (date is not visible but digital photo is of 19.09.020, it means prescription is of or before 19.09.2020) and then at OPD of Aruna Asaf Ali Government Hospital, Rajpur Road, Delhi on 12.10.2020 at 9:32am.
At page no. 11 of the paper-book. There is visiting card of Sonu-Monu on one side and on over-leaf there is column for name & address, table for glass numbers R-eye and L-eye. In the prescription of M/s Perfect Opticals Co. there is prescription chart of OD, OS, Dist, Near, Pal, Right/Left- SPH, CYL, AXIS, V/N. In the prescription of Aruna Asaf Ali Government Hospital some identical and additional expressions are mentioned manually especially for patient under examination being 'BE' (both eyes), Vc-R-6/9 & L-6/9, O/E (on examination), BE-WNL (i.e. both eyes - Within Normal Limit), BE +1.75 - N6 and so on.
With this introduction, now it will be easy to read different prescriptions. Now coming to other record at page no. 11. The visiting card showing name- Rajesh Kumar, it is filled, which R+0.50 (SPH), + 2.00 (ADD) and L+0.50 (SPH), +2.00 and it is bi-focal lens. In the prescription of Perfect Optical there is also prescription for Left and Right Eyes (distance)-Pal, for V/N (remarks given are illegible); for near vision ADD 2.50 SPL/for left eye.
In OPD card of Arna Asaf Ali Hospital, Rajesh Kaushik was examined by Sr. Resident, Eye Department. The details given is 'complaint/of DOV[i.e. direction of view] in both eyes for six months; on/examination-B/E -WNL [i.e. both eyes- within normal limit], Adv- Refer. & review. Further two number are mentioned +0.50DS (in first line), +0.50 OS (in second line) and Add+2.00 (in third line). Then, BE +1.75 -N6.
7.5: After this discussion, question arises whether the complainant was provided wrong spectacles other than ordered for and whether the complainant had suffered consequently, if so then what? The following conclusion are drawn:-
(A1). The first spectacle stated to be with card in the name of Kanwal Jeet Kaur, is not produced nor there is any report from any one, that it was actually having right side glass no. as -7.00 -2.00x1.80 and left side glass no. as -6.00 - 1.50x180. Although, the complainant had visited in September 2020 to M/s Perfect Optical Co. for check-up but no report is furnished that said spectacle was having right side glass no. as -7.00 -2.00x1.80 and left side glass no. as -6.00 - 1.50x180.
(A2). The complainant's case is that this spectacle was taken to OP1 and it was given to him, then how he could produce it? This plea does not inspire confidence, since the complainant had started gathering the circumstances and digital photo of '19.09.2020 of card in the name of Kanwal Jeet Kaur, digital photo of 19.09.2020 of prescription of M/s Perfect Opticals Co., digital photos of 26.9.2020 of that spectacle and spectacle case'. Can it be believed he would have returned that spectacle without taking receipt/acknowledgement from OP1?
(A3). It also does not appear natural that complainant had taken the pair of that spectacle to OP1 after about 4 days of visit to M/s Perfect Opticals and then OP1 had checked the glasses in its machine and it was found of wrong number. If the complainant had taken the spectacles to M/s Perfect Opticals as well as to OP1, who had checked them in the machine, then where is that report? Would the complainant had not obtained the report, when he had already gathered other materials?
(B1) In respect of second pairs of spectacles, the complainant's case is that he again visited the shop of OP1 to deposit the spectacles and number of this spectacle was 2.00+0.50+ both glasses, it was not pertaining to his eyes. The complainant's reporting test was 2.00+0.50+of both eyes.
However, the complainant failed to establish how this number 1.75/05+ and 2.25/1.05+ was discovered by him and from whom? There is no such testing report proved.
(B2) Complainant has filed a digital photo of 8.10.2020 of a spectacle, however, the spectacle was never produced by him during the proceedings.
(B3) It infers from case of complainant spectacle was of 1.75/05+ and 2.25/1.05+.
against his actual number was 2.00+0.50+.
Whereas, the OP1 in paragraph 8 of reply, stated it specifically that spectacle was prepared as per specification of card in the name Rajesh Kaushik (at page 11 of complaint, R+0,50 SPL+2.00 ADD & L+0,50 SPL+2.00 ADD). However, the complainant had not responded or denied specifically despite it was a very vital fact to the case. It is of bifocal lenses.
(B4). It is not the case of complainant that he had first time went for eye check-up but he was already using the eye-glasses. He was very well knowing his glasses numbers.
(B5). The complainant has stated his address of Hauz Qauzi but the shop OP1 is located in Shastri Nagar, New Delhi-52. His case is that he had visited twice especially at shop of OP1 with first pairs of spectacles after checking from M/s Perfect Opticals and then again after four days to deposit the second pairs of spectacle with OP1. Had he been knowing of both spectacles were not goods, he got examined from M/s Perfect Opticals, would go there with single pair on first occasion and then to deposit other pair subsequently, which was actually not deposited? It does not appear natural.
(C1) The complainant is emphasizing seriously that his eyes were damaged by using spectacles prepared by OP1, however, there is no such evidence established by the complainant.
(C2) The complainant got him examined from Aruna Asaf Ali Hospital, New Delhi. Its details reflects many hidden aspects. The OPD card depicts, what was complained about by the complainant. It was recorded as "complaint/of DOV[i.e. direction of view] in both eyes for six months". To say, on 12.10.2020 at 9:32am, he informs the Sr. Resident, Eye Department that he is suffering from DOV for the six months, which means from Feb.2020. Whereas, complainant had visited the shop of OP1 in August 2020 for placing orders for spectacles.
(C3) The concerned doctor as recorded what was found after examining him, OPD card gives details as 'on/examination-B/E -WNL [i.e. both eyes-within normal limit]. On finding so, Rajesh Kaushik was 'Advised- Refer. & review".
(C4) Then glass number was prescribed as +0.50DS (in first line), +0.50 OS (in second line) and Add+2.00 (in third line). Then, BE +1.75 -N6.
(C5) As per record, on 12.10.2020 itself the complainant sent legal notice dated 12.10.2020 through Shri Rajender Kaushik, Advocate to OP1 and it was posted on 13.10.2020 at 12:35pm.
(C6) The complainant has not produced any further record about his follow up or review with the Aruna Asaf Ali Hospital about his checking of eyes or further facts during the pending of this complainant. However, the complaint under adjudication was filed on 3.11.2020 and original OPD card of 12.10.2020 was filed with the complaint itself. There is no record of further visit of the complainant to Hospital for review as advised.
(D) The conclusions drawn as (A) to (C) above do not establish the case of complainant against OP1 but it establish the case of OP1 that complainant came with readymade specifications, on his request two pairs of spectacles were prepared. Moreover, complainant's has not proved other allegations of damage to his eyes or other perils, rather his own history of complaint got recorded in OPD card of 12.10.2020 suggest that he was having 'DOV for the last six months' but in examination it was found 'WNL'. The allegations made have not been proved. Thus, complainant could not establish his complaint against OPs. The complaint fails.
7.6: The complainant had pleaded he was claiming meager amount of compensation of Rs.50,00,000/- (Fifty Lakhs), while relying upon case of Aashna Roy (supra), wherein compensation of rupees two crore was awarded. However, the amount of rupees fifty lakhs is not a meager amount. Secondly, the said case of ITC Limited Vs Aashna Roy [Civil Appeal no.6391 of 2021 dod 07.02.2023], remitted back to Hon'ble National Commission to give opportunity to lead evidence with respect to her claim of Rs.3 crore apart-from right of rebuttal to other side. Otherwise, award of compensation will be subsequent to first proof of deficiency of service or negligence. That has not happened in this case.
8. In view of above conclusions, the complaint is dismissed. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
9: Announced on this 13th April, 2023 [चैत्र 23 , साका 1945].
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
