JUDGEMENT

          Complainant by filing this complaint submitted that being allured by widely circulated representation and published advertisements made by the op during publication on good faith visited the outlet of op Nos. 3 & 4, Lindsay Street on 03.10.2013 with a desire to buy a pair of shoes for himself and as per ops’ advertisement considering the definite business of the op and also relying upon their advertisement and their status complainant intended to purchase shoes as per quality, product and durability of the said product at reasonable price at the outlet of the op and complainant was sure that the goods sold by the op was completely manufactured by the op itself as represented by them.

          Accordingly complainant picked up one choice able suit and also enquired from the op whether about the durability of the said product of the op employees assured that he would feel extremely comfortable wearing the said pair of shoes and it will last long and in any event for a period of not less than 2 ½ years and it was on the basis of such assurances.   On payment of Rs.598/- complainant purchased it with proper receipt and from the said receipt it would be clear that there was warranty for a period of 180 days and as per clause as noted on the back of the receipt the pair of shoes purchased by the complainant may be exchanged prior to using the same and within a period of seven days from the date of purchase and after purchasing the same complainant returned to his home and discovered to his utter shock and surprise, that the pair of shoes did not bear any seal or stamp or even the name of its manufacturer and complainant was astonished as to why the name of its manufacturer was omitted on the body or inside the said pair of shoes, particularly when as per advertisement and representations of the op, all the products offered only for sale by the op at its outlet are essentially manufactured by the op only.

          So, complainant was very much shocked and even he did not find any seal mark print of ops’ manufacturer on the pair of shoes wrapped with plastic and box and practically complainant suspected about the genuinity and trustworthiness of the representations of the op relating to the product sold by the op and tried to wear the pair of shoes purchased by him inside his room.  On such trial, complainant found wearing the said pair of shoes to be extremely uncomfortable and for which complainant went to the op for replacing but they refused and misbehaved with him and such a practice is completely unfair trade practice and for the above reason complainant prayed for compensation and refund of the said amount.

          On the other hand op by filing written statement submitted that there is a partnership firm carrying on the said business of retail sale of foot wears and other leather accessories from the said premises situated at 3 & 4 Lindsay Street, Kolkata-700087 and they have no role to play with M/s Sreeleathers Ltd who is a necessary party and instead Sreeleathers Ltd. present op is made party who has no power of the concern.  So, the complaint is maintainable for non-joinder of necessary parties and also mis-joinder of parties and further it is submitted that op M/s Sreeleathers are only traders of foot wears and have never engaged in manufacturing the footwear and they sell shoes and no advertisement was made by op that they sell shoes manufactured by themselves and it was also mentioned that the products sold by Sreeleathers are cheaper than other well-known shoe manufacturer as alleged or not.

          Moreover in the shop room it is specifically mentioned that customer are responsible for checking the size and being sure one must have to purchase write other terms and conditions.  It is specifically mentioned that he purchased the same being satisfied about the conditions and question of selling back it is not arise at all because op never sold any branded products but they only sell unbranded products and therefore, question of selling any branded products does not arise at all.  So, present answering op the Sreeleathers never indulged in any sort of unfair trade practice as alleged in the complaint.

          Further it is submitted that complainant never came to the ops outlet of M/s Sreeleathers on 04.10.2013 with a request to exchange the shoes as alleged at all.  Had it been the case, it is submitted that M/s Sreeleathers would have definitely exchanged the said footwear purchased by the complainant and if it is in an unused condition because as per declared exchange policy, all unusd goods are exchanged by M/s Sreeleathers if brought within 7 days but without assigning any reason whatsoever such request of the complainant for exchanging his shoe was flatly turned down and also without appearing before this M/s Sreeleathers outlet complainant lodged this complaint falsely.

          Further it is submitted that it is an age old practice in all foot wear shops that before purchasing a shoe the customer usually tries various pairs of shoes, before selecting the right one for his feet and each and every customer is asked to wear, walk and try inside the showroom as long as possible before deciding the exact size of the shoes that fits him best and once they are satisfied only then the sale is closed and they it is the choice of the complainant and full satisfaction before purchasing and invariably in the present case complainant was satisfied and then he purchased and in this regard op has no fault.  But it was categorically informed that if they use the purchased foot wear on the road even for once it cannot be replaced.  But in the present case complainant used the said shoe on the road and thereafter he came for exchange and for which he was refused. 

          Anyhow complainant has failed to prove in support of his claim that after using the shoes his legs began to swell.  Fact remains M/s Sreeleathers is not duty bound as manufacturer as alleged in the complaint at all.  Since foot wear was not packaged commodity, name of manufacturer need not to be mentioned.  Further it is submitted that op has never published to public that they deal the products manufactured by them only and it is also not true that the op has adopted any unfair trade practice to dupe, cheat and defraud its customer as alleged in the complaint and op never made any false allegation as alleged by the customer.  It is not a fact that the op made any false representation to allure the complainant to opt for a pair of shoes from the outlet of the op as alleged in the complaint at all.

          Sreeleathers never refused to exchange any shoes which are unused and brought within 7 days from purchase in any manner and so op did not commit any breach of contract by selling the same.  So the complainant is not entitled to get relief in this case and complaint should be dismissed.

                                                      Decision with reasons

          After in depth study of complaint and written version and also on evaluation of argument as advanced by the Ld. Lawyer of the op and the complainant himself and after considering the copy of the advertisement, it is clear that there is an advertisement to the effect that Sreeleathers is a world biggest shoe and bag store and in the said publication it is specifically mentioned price subject to change without notification product available till stock last and considering the advertisement it is clear that they are selling Sreeleathers shoes.  But fact remains that complainant made Sreeleathers Ltd a company including his business place and op received it and appeared and submitted written version.

          But all over India Sreeleathers is a brand name for shoes and bags.  But op has failed to show that he is not a outlet shop room of Sreeleathers Ltd.  But on the contrary considering the advertisement it is clear that all over India name and style Sreeleathers means outlet of Sreeleathers manufactured shoes and bags.  No doubt in the present case complainant invariably at the time of checking the purchase of shoe found that no brand name of the Sreeleathers is engraved on purchased goods. 

          No doubt it is the duty of the customer to check the shoe properly before purchase in the outlet because about fitting of shoes only the customer can say not the person who are selling it because different type of shoes even they are very beautiful and its durability are for high but even then it cannot be fitted.  So, in the present case complainant has failed to give any appropriate explanation and correlation in between the swelling of the feet and the purchase of the shoes.  If any shoes do not fit with the feet of the customer then it is invariably customer’s fault and in the present case no defect or damage of the shoes are pointed out by the complainant in the complaint and in the slip it is not noted that it is Sreeleathers manufactured goods as argued by the Ld. Lawyer of the op.

          So, complainant cannot blame the present op for any reason and complainant has failed to prove any deficiency and negligence on the part of the op.  So, the complaint should be dismissed.  But complainant has submitted that very specifically that all over India Sreeleathers brand is used by those shoes and bags sellers and other articles manufactured by Sreeleather Ltd and in the advertisement it is specifically mentioned the names of the Sreeleathers outlet at different places of India. 

          Fact remains this Sreeleathers (op) outlet is for selling manufactured items of Sreeleathers Ltd.  No document is produced by the op that present op Sreeleathers is a different company and they have also failed to produce their any document to show that they are not dealers of Sreeleathers Ltd.  Moreover complainant has produced a receipt of Sreeleathers dated 03.10.2013 of College Street, New Market wherefrom it is found that Upkar Binimay Pvt Ltd is the dealer of Sreeleather and they also used same seal, Sreeleathers pad and in the present case also op has used the same seal of Sreeleather on 03.10.2013 and considering the both the seals it is clear that the present op Sreeleathers is the dealer of Sreeleathers Ltd. and practically op has tried to convince that they are not dealer of Sreeleathers Ltd but it is proved completely false rather it is found in their advertisement there is specific mentioned of Sreeleathers outlet at Kolkata – (1) at Lindsay Street, 2) Free School Street, 3) College Street and 4) Garia.  Similarly they have their Sreeleathers outlet at Hooghly, Dum Dum, Serampore and all over India and considering that advertisement as made by Sreeleathers at Lindsay Street it is clear that the present op is the dealer of Sreeleather Ltd.

          But they have suppressed it for some purpose.  Fact remains shop owners cannot use any brand name of any company if he does not sell the same without authenticity.  But in this case op has used this brand name and also made advertisement and for which it is clear that the op sold the customer the unbranded shoes being outlet of Sreeleather, which is evident from their own advertisement.

          Further more the brand of Sreeleather and its monogram are also used in their advertisement in the shop building.  Then it is clear that op Sreeleathers outlet of Sreeleather is the dealer of Sreeleather company.  So, invariably customers are being allured by that brand name and are stepping into the shop of the op and they are being deprived because unbranded products are being sold by the op and that is not at all legal in all respect because it is proved that the shoes which was purchased by the complainant was not branded shoes and it was unbranded shoes.  But in the advertisement it is stated that it was Sreeleathers goods and complainant purchased it no doubt and truth is that Sreeleathers outlet of 3 & 4 Lindsay Street appeared and contested.  But they have failed to prove that they are not dealers of Sreeleathers Ltd.  But in the present case complainant has rightly made Sreeleathers Ltd. company including their daily outlet as party and notice was served and present op appeared.  But they are trying to show that they are not the dealers of Sreeleathers Ltd.  But such a plea cannot be accepted in view of the fact that their seal on 03.10.2013 paid on the receipt is similar to another receipt of Sreeleather dated 03.10.2013 of College Street, New Market.  So, it is clear that op has been conducting a business in such a manner by alluring the customer that they are only seller of Sreeleathers product but they are not selling the Sreeleather’s articles no doubt it has caused harassment to the customer and it is no doubt an unfair trade practice on the part of this present op Sreeleathers and fact remains they sold as dealer are bound to sell the Sreeleathers manufactured articles and it is their duty to satisfy the customer about their need etc.

          But in this case op has not produced any paper to show what is the name of this shop but adopted some other plea.  But anyhow the very conduct of the op is no doubt unfair trade practice in nature.  Fact remains that complainant went to purchase Sreeleather products but op sold away unbranded goods which is no doubt an unfair trade practice.  But may be complainant after proper check up purchased it, thereafter at the time of using on road he found that the said shoes was not fitting with his feet on the ground his feet are swelling.

          Fact remains it has been used by the complainant and it may not be exchanged as per terms and conditions.  But truth is that op is running the business of Sreeleathers by a brand name of Sreeleathers which is completely unfair trade practice.  If this outlet wants to sell unbranded articles in that case op outlet at 3 & 4 Lindsay Street have no legal right to use it Sreeleathers brand and when no other outlet of Sreeleather is situated at New Market then invariably the people at large number relying upon the said brand name is stepping to op’s shop.  But if one uses such brand name with such monogram in that case it is a unfair trade practice and so the present M/s Sreeleathers has adopted unfair trade practice and no doubt act of op is in all respect to defraud the customers and they and have acted illegally and for duping the customer they have used their shop as outlet brand with monogram of Sreeleathers waht is fact as it is evident from the op’s conduct, so it is clear that op adopted unfair trade practice and for which the op should be penalized and fact remains complainant was duped by the present op M/s Sreeleathers for using monogram and other figures trade mark and name every where even in the sign board and receipt.

          Though op present M/s Sreeleathers have tried to convince that they are not selling branded shoes and bags but it is completely false because in the advertisement it is published that in Kolkata there are 4 Sreeleathers shop 1) at College Street, 2) at Lindsay Street, 3) at Free School Street and other at Garia.  But there is no other outlet of Sreeleathers manufacturer.  Then it is clear that the present op M.s Sreeleathers has been defrauding the customer by various means and in fact op has no legal right to use that brand name of Sreeleather manufacturer including their monogram etc. when op does not claim that he is not outlet or dealer of Sreeleathers Ltd.

          In this regard it is to be mentioned that College Street Sreeleathers dealer is Upkar Binimay Pvt Ltd an ond 03.10.2013 in respect of one receipt of Sreeleathers said shop used seal and monogram of Sreeleathers and same seal was used by the present op at the time of selling the present article by the complainant but no other name of shop of op is found.  Then it is clear that the present op is the dealer of the Sreeleathers Ltd and they using the monogram, trade mark and their advertisement of Sreeleather but only to avoid their responsibility they are no doubt telling that they are not Sreeleathers manufacturers’ dealers.  But it is a separate aspect that they are selling unbranded article.  Fact remains the complainant is deceived by the op the present M/s Sreeleathers and this Sreeleathers is duping the public at large in such a manner and in fact he cannot use the trade mark, brand name and monogram of Sreeleathers in respect of advertisement including their hoarding or use it as their shop name room.  It is one kind of unfair trade practice and by adopting such unfair trade practice no doubt op has committed offence and has duped the complainant and if the brand name of Sreeleathers style and monogram would not be used by op (shop name) in that case complainant must not have to enter into the shop of op for purchasing shoe. 

          Truth is that op in their written statement has not stated what is their name of shop.  Why they are using the brand name, monogram as their shop room name like Sreeleathers.  They are silent about that.  It indicates that the present op no doubt deceived the complainant in so many manners and for which the complainant was duped by the op and for which after introspective evaluation we are convinced that op M/s Sreeleathers adopted unfair trade practice for which complainant was no doubt deceived and for which the complainant is entitled to such compensation from the op.

          In the result, the complaint succeeds.

          Hence, it is

                                                               ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.3,000/- against op.

          Op Sreeleathers situated at 3 & 4 Lindsay Street, New Market who is hereby directed to pay a sum of Rs.10,000/- to the complainant for adopting unfair trade practice and for using brand name, monogram of the Sreeleathers Ltd. as their shop room name for duping the customer in such a manner and for selling unbranded articles in place branded articles of Sreeleathers.

          For adopting unfair trade practice by the M/s Sreeleathers of 3 & 4 Lindsay Street, New Market is hereby directed to pay punitive damages to Rs.15,000/- to this Forum for adopting such unfair trade practice and for duping the customer in such a manner by publishing advertisement in running such business and to check that this punitive damage is imposed upon them.

          M/s Sreeleathers of 3 & 4, Lindsay Street, New Market is hereby directed to comply the order within one month from the date of this order failing which the penal action shall be started against them and for which they shall be prosecuted and further penalty and fine may be imposed.