Orissa

Rayagada

CC/18/2019

Sri Mihira Kumar Pati - Complainant(s)

Versus

Sri Chowdeswar Cloth - Opp.Party(s)

Self

04 Oct 2019

ORDER

                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

POST  /  DIST: Rayagada,  STATE:  ODISHA,12.10  Pin No. 765001.

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C.C.case  No.       18         / 2019.                                    Date.  04 .   10. 2019

P R E S E N T .

Dr. Aswini  Kumar  Mohapatra,                                     President

Sri  Gadadhara  Sahu,                                                       Member.

Smt.Padmalaya  Mishra,.                                                Member

 

Sri Mihira Kumar Pati, S/O: Sri  Nilakantha Pati, Kasturinagar, 5^th.lane, Po/ Dist:Rayagada(Odisha).                                                   …..Complainant.

Versus.

1.The  Propritor, Sri Sajja  Sankar Rao, Sri Chowdeswari Cloth Store, Opposite state bank of India, Main Road, Rayagada.                                                …Opposite parties.           

Counsel for the parties:                                 

For the complainant: - Self..

.For the O.Ps:-  Set  Exparte.

 

                                                JUDGEMENT.

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non exchange of Saree which was found defective    for which  the complainant  sought for redressal of the grievances raised by the complainant.

The gist of the complaint   was that  he had purchased 3(three)  pieces of sarees worth of Rs.1,663/- from the O.P on dt.10.02.2019 which the O.P assured to be of good quality and  incase of damage or defective sarees found, the same will be exchanged. Accordingly the complainant paid the bill amount of Rs.1,663/- and obtained Retail tax Invoice No.2437 from the O.P. The complainant after took delivery of the said  Sarees came to his house and opened the same found   that two Sarees were lying with many  effects and also of poor quality which were not up to the mark. Immediately  next day  the complainant went to the shop of the O.P  with two  defective sarees  for exchange  but the O.P denied to exchange the  defective sarees  with an allegation that the said saree was damaged by the complainant itself which was not at all true and the O.P misbehaved  the complainant. The act of the O.P put the complainant to harassment and humiliation which caused mental agony  and loss of images and reputation for which he his entitled for compensation. Hence prayed  direct the O.P to exchange the said Sarees  besides pay compensation of Rs.5,000/- towards mental agony inter alia  cost of litigation and such other reliefs as  the forum deem  fit and proper for the best interest of  justice.         

Upon  Notice, the  O.P.  neither entering in to appear before the forum nor filed their  written version inspite of more than  03 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.Ps.  Observing lapses of around 7(seven) months   for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  from  the complainant set the case  exparte against the O.Ps. The action of the O.P   is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P.   set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

We therefore proceed to dispose of the case, on its merit. We perused the complaint petition and the document filed by the complainant.

         FINDINGS.

            Undisputedly the complainant  had  purchased  3(Three) Nos. of Sarees  on Dt.10.2.2019   from the  O.P. on payment of consideration a sum of Rs.1,663.00  ( copies of the Retail Tax invoice No.2437 which is in the file marked as Annexure-I).

The OPs despite receiving notice from this forum are failed to render service to the complainant, which amounts to deficiency in service on the part of the OP. as provisions laid down in Sec.2 (1)(d) of the Act.

The main grievance  of the complainant  is that he has purchased 3(three) Nos. of  Sarees from the O.Ps  out of which 2(two) sarees were found defective to which the O.P refused to exchange.  Hence this C.C. case.

During the course of exparte hearing the complainant  put forth the Retail Tax Invoice  bill  Dt. 10.2.2019 before the forum and objected the N.B. written by the  O.P. in their  tax invoice. The O.P. in their Tax Invoice had written  viz :- “Items once sold can not be refunded in case of any defect, exchange is possible with in  48 hours  of the purchase. Exchange not possible without  Bar code and bill No. No colour  guaranty.”

Further the complainant  vehemently argued  that   he  was  not  signed in the Tax Invoice and as a matter of fact no body reads the conditions which are written in the Tax Invoice Dt.10.2.2019. So  N.B.  written  by the  O.P.  is  not  applicable to the complainant.  

We are of the opinion that the case  is relating to defective goods  which is covered under section 2(i)(f) of the C.P. Act. The C.P. Act  which provides that  “Defective means any fault, in imperfection or shortcoming in the quality, quantity, potency, purity are standard which is required to be maintained by or under any law for the time being in force”.                                                                  After amendment made by  the C.P. Act   of 2002 wherein it  is made clear that when a complainant  is using the product of the O.P.(Manufacturer)  purchased from the  O.P. (local dealer) he is also coming within the definition of consumer and the service provided  or attached to the said  goods in the shape of warranty or guarantee is also available to the users.

On perusal of the record  it is revealed that  the fact of the  purchase  of 3 No. of  Sarees from the  O.P. is true according to Tax Invoice issued by the O.P. in favour of the complainant.   It is admitted position the complainant having  purchased   above goods for  consideration  having the warrantee for replacement/Exchange/refund   is  entitled  to him.

It is held and reported  in  CPJ 2005 (2) page No.781 the Hon’ble State  Commission , Chandigarh observed  the dealer is the person who in the market comes in direct contact with the consumer and he assures about the quality   of goods sold and in case  the consumer  had problem with the above Sarees, the dealer was under an obligation to refer the matter  to the manufacturer for necessary  relief, which  in the  instant case was not  done.

Coming to the merits of the case the complainant had purchased the 3 No. of  Sarees   from the O.P    on payment of consideration  an amount of Rs. Rs.1,663.00 on Dt.10.2.2019   (copies of the  retail  tax  invoice) marked as Annexure-I.  On perusal of the record we observed  the complainant  after took delivery of the said  Sarees came to his house and opened the same found   that two Sarees were lying with many  effects and also of poor quality which were not up to the mark. Immediately  next day  the complainant went to the shop of the O.P  with two  defective sarees  for exchange  but the O.P denied to exchange the  defective sarees. So  the complainant  purchased another sarees from the market.

On perusal of the record we observed that  the complainant made several complaints with the O.Ps pointing out the defects in Sarees  which goes on to show that  right from  the very beginning  which was intimated by the complainant.   Further we observed that  on repeated complaints made  by the complainant to the O.Ps neither the exchange  have been made nor replaced  with a new  Saree. We observed  inspite of  required  request made  with in the  warranty  period  the above Sarees could not be exchanged.  We  hold   at this stage if the above Sarees found damage   then it can be presumed that it has a manufacturing defect. If a defective Saree  is supplied a consumer   is entitled to get refund of the price of the  Saree or to replaced  with a new Saree and also the consumer concerned is entitled  and has a right to claim compensation and cost to meet the mental agony. In the instant case as it appears that the  above  Sarees which was purchased by the complainant which had found  defects and the O.Ps were unable to exchange during the warranty period.

             It appears that the complainant invested a substantial amount and purchased the above  Sarees  with an expectation to have the effective benefit of use of the above good. In this case the complainant was deprived of getting beneficial use   of the goods  and deprived of using the above goods for such a long time and the defect Sarees were not exchanged  by the O.Ps who could know the defects from time to time from the complainant. In the instant case the O.P   is  liable.      

            A consumer goes to market to buy an article  having a particular brand name. It is the brand name which  gives him the satisfaction and he pays the price for the same however there may be difference in the quality  in that case  the complainant wants  replacement  which was objected  by the O.P. in the instant case.

For better appreciation  this forum relied citations  which are mentioned here under:-

It is held  reported in  Consumer Law today 2014(1) page No. 153 where in the  Hon’ble  Goa State Commission observed “The tax invoice duly   signed by dealer can be considered to be an agreement between the parties subject to which the   sale was   made to the  consumer – liability for defect in article sold both the dealer and manufacturer  are jointly and severally.”  Though you have not mentioned any where the manufacturer address  so you are liable to  refund the  price of the above product.

 

Again  it is held and reported  in N.C. & S.C. on Consumer cases  1986-2005 (Part-VI) page No. 8688(NS) the Hon’ble National C.D.R. Commission, New Delhi  where in observed  “Consumer Protection Act, 1986 – Section 21(b) – revision -  Dry cleaner- lost clothes – District Forum granted compensation -  revision contending  conditions  written  on  receipt  not taken  into account- held  receipt not signed by  the complainant – revision petition dismissed.

Further it is held and reported in  N.C. & S.C. on Consumer cases  1986-2005 (Part-VI) page No. 9311(NS) the Hon’ble National C.D.R. Commission, New Delhi  where in observed  “Courier –non delivery of package- contract-courier receipt-terms and conditions printed on back- condition limiting liability in small and fine print-  District Forum granted compensation -  revision contending  conditions  written  on  receipt  not taken  into account- held  receipt not signed by  the complainant – revision petition dismissed.

 

It is held and reported in C.P.R-2012(1) PAGE No.  303  in the case  of Loga Prabhu Vrs. Adonis Electronics Pvt. Ltd and ors  the Hon’ble  State  CDR Commission, Chennai  where  in observed  “Consumer  is entitled to free service/replacement during warranty period”.

It is held and reported in NC  & SC on consumer cases (Part-VI) 1986 to 2005  page  No. 9089(NS) the Hon’ble National Commission, New Delhi where in observed   “ Motor Vehicle- dealer’s responsibility- vehicle sold by dealer after receiving payment- manufacturing defect- dealer can not be absolved  from his liability in refund the price or replacement-  jointy  liable with manufacture.

In the instant case  admittedly the complainant has not signed in the Tax Invoice.  Hence  the  N.B.  written by the O.P. in the Tax Invoice  which was issued in favour of the complainant is not applicable to the  complainant/consumer   inter alia the same also not entertain able before the forum U/S-14 of the C.P. Act. This forum further observed such type nuisance on the part of the O.P. are misrepresentation and  un fair trade practice which attracts penalty.

   The O.P has not filed a single piece of document to substantiate  his case. Hence, we believed the contentions alleged against the O.P and  allowed the complaint in part against the O.P and passed the order  on the basis  of the  above citation.

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part.

Hence  to  meet the  ends of justice, the following order is passed

.                               ORDER

        In resultant  the complaint  is allowed in part on exparte.

        The  O.P  is  directed to  exchange the defective  2(two) Sarees without any extra charges and   for harassment  and mental agony undergone by the complainant  the Opposite  Party is liable to pay Rs.1,500/- towards compensation inter alia  cost of litigation  to be paid to the complainant within one month from the date of receipt of this order, failing which the O.P  is   liable to pay penal interest  @  Rs. 12%  per annum on the above awarded  amount  from the date of default  till its realization. 

        Pronounced in open forum today on this        4^th day of October, 2019 under the seal and signature of this forum. Supply the copy of order free of cost to the parties.

Member                                              Member.                                    President