Sri. Apurba Kr. Ghosh          ……….President

The Complainant has filed this case against the O.P. and praying for the following order / reliefs:-

1. Directions against the O.P. to replace a footwear of Liberty Cool, Colour Blue, Size No. 9, for or more amounting to Rs. 899/ to the complainant.
2. Direction against the OP to refund the total price of the footwear to the complainant.
3. Directions against the O.P. to pay a sum of Rs. 1,00,000/- to the complainant on account of compensation for deficiency in service and for restrictive trade practice in service as well as for harassment, mental torture and agony caused to the complainant.  
4. Direction against the OP to pay a sum of Rs. 15,000/ to the complainant towards cost of legal proceeding.
5. Any other relief/reliefs to which the complainant is entitled.

BRIEF FACT OF THE COMPLAINT

1. That the complainant is a consumer of the OP. He purchased a footwear of liberty Cool, being item No. 7123306, Colour Blue, Size No. 9, Price -Rs.899/- on 11.03.2017 from the OP. Bearing Tax Invoice No,. 7600 dated 11.03.2017.
2. That, within one and half month from the date of purchase the sole of the footwear became damaged and the complainant produced the said footwear to the OP on 09.05.2017 which was within the period of warranty. That footwear was duly received by the authorized person of the OP. Being repair challan No. 916 dated 09.05.2017 / the serviceman who received the footwear assured the complainant that, they will contact over phone within 3 - 4 days for delivery of the same.
3. That, after few days therefrom the complainant contacted with the shop of the OP but the employee of the OP refused to talk with the complainant and the OP had also refused to receive the phone call of the complainant.
4. That, the complainant on several occasions tired to contact with the OP. But the OP failed to cooperate the complainant, misbehaved with him and also threatened him.
5. That, when the OP or its service centre made no contact with the complainant for a considerable period the complainant went to the shop of the OP and the authorized person of the shop clearly states that he had nothing to do for the said matter and complainant can take any action.
6. That, inspite of repeated requests of the complainant the OP had willfully and deliberately failed, refused and neglected to repair or replace the footwear of the complainant though it was within the period of warranty.
7. That, thereafter the complainant sent legal notice to the OP through his advocate on 31.05.2017 which was duly received on 01.06.2017, the OP replied the same on 12.06.2017 by admitting the fact that the OP received the footwear on 09.05.2017 and they also admitted that, they will deliver the footwear to the complainant after repairing the same on 19.05.2017 but the OP did not deliver the said footwear to the complainant.
8. That, the cause of action of this case arose on 11.03.2017 when the complainant purchased the said footwear from the OP and on 09.05.2017 when the complainant deposit the said product to the OP and on 31.05.2017 when the complainant sent legal notice to the OP and lastly on 12.06.2017 when the OP replied the demand notice of the complainant.

In support of the case the complainant has filed the following documents:-

1. Original Tax Invoice/Bill, Tax Invoice Memo No. 7600 dt. 11.03.2017 (Annexure-I)
2. Original repair challan No. 916 dated 09.05.2017 (Annexure- II)
3. Original Legal Notice sent by the complainant dt. 31.05.2017 (Annexure-III)
4. Original postal receipt dt. 31.05.2017 (Annexure- IV)
5. Original postal return dated 01.06.2017 (Annexure-V)
6. Original reply to the demand notice of the complainant dated 12.06.2017 (Annexure-VI)

Notice was sent from this commission for serving the same upon the OP. On receipt of notice the OP appears before this commission, filed written version, denied all the material allegations of the complainant. In the written version the OP has stated that the complaint is not  maintainable/the complaint suffer from various defects/ the complainant has filed this case to humiliate & harass the OP/the complainant has file the case by suppressing the material facts the complainant has no cause of action to file this case/the complaint is barred by law of limitation/barred by the principle of waiver, estoppels  and acquiescence and the complaint is liable to be dismissed. The OP has further stated that, there was no negligence, latches or deficiency in service or unfair trade practice on the part of the OP. It is further stated that, the statements made in para No. 2, 5, 6, 7, 8, 9, 10, 11, 12, 13 to 16 of the complaint are false and with regard to Para No. 3 the OP has stated that, the complainant purchased the black colour foot wear of Liberty Cooler bearing item no. 7123306 on 11.03.2017 for Rs. 899/- against terms and conditions being Tax Invoice No. 5PM/7600 dated 11.03.2017 and as per that invoice the footwear once sold would be exchanged only if found with manufacturing defect before use and repair can be taken place if any manufacturing defect is found after use within 45 days from the date of purchase and no new pair is allowed in any case. With regard to Para no. 4 of the complaint the OP has stated that, the same are partly true and partly false and the complainant deposits the footwear on 09.05.2017 i.e. on 59^th days from the date of purchase after completion of warranty period and to show the  good gesture the representative of the OP received the footwear and asked the complainant to visit the showroom on 19.05.2017 for taking delivery of the foot wear and since after deposit of the foot wear the complainant never visited the show room of the OP and the OP has also stated that the said foot wear is lying for delivery to the complainant since 19.05.2017 onwards and in the reply letter the OP requested the Ld. Advocate of the complainant/complainant to collect the repaired foot wear with brand new sole from the show room of the OP as per its convenient date. By filing the written version the OP praying for disposal of this case.

Having heard the Ld. Advocate of both the parties and on perusal of the complaint, written version document filed by the parties the following points are to be considered by this Commission.

POINTS FOR CONSIDERARTION 

1. Whether the Complainant is a consumer?
2. Whether the case is maintainable under the C.P. Act 1986?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Is the Complainant entitled to get any award and relief as prayed for as per the prayer of her Complaint?

                   Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

In order to prove the case the complainant has adduced evidence in the form of an affidavit. In the written evidence the complainant has corroborated the statements so made in the complaint. The complainant has specifically stated on which day he purchased the footwear  from the OP and on which day he deposited the same to the OP for repairing the sole and on which day he sent demand notice to the OP. He also corroborates that, the OP make reply to the demand notice.

At the time of argument Ld. Advocate of the complainant submits that they have filed written notes of argument and stated everything. He further argued that within one and half month from the date of purchase of the footwear. The sole of the same became damaged and the complainant  deposited the same to the showroom of the OP which was duly received for repairing. He also argued that, since the date of receiving the footwear of the footwear the OP did not deliver the same to the complainant after repairing the same despite receiving  demand notice Ld. Advocate of the complainant also argued that, the complainant has been able to prove the case against the OP and he is entitled to get the relief as prayed for.

To falsify the case of the complainant the OP has also filed written evidence in the form of an affidavit. In the written evidence the OP has corroborated the statements so made in the written version. In the evidence the OP has stated that the complainant has filed this case by suppressing the material facts and only to humiliate & defame the OP he filed the case which has no cause of action.

By foiling written notes of argument Ld. Advocate of the OP argued that, the complainant after lapse of the period of warranty (45 days) deposited the footwear on the 59^th day for repairment of its sole and the representative of the OP received the said footwear even after the period of warranty to show the good gesture. He further argued that the OP after completion of repairing work of the footwear informed the complainant for taking delivery of the same on 19.05.2017 and the complainant also assured the OP that he would visit the show room of the OP for taking delivery of the footwear but he did not visit the show room of the OP and sent demand notice upon the OP through Ld. Advocate. It is further argument of the OP that, there was no negligence on their part and there was not deficiency in service as well as restrictive trade practice.

Having heard the Ld. Advocate of both the sides and on perusal of the evidence of the parties as well as documents of the complainant it reveals that, the complainant had purchased footwear from the OP which is admitted by the OP. It is also admitted fact that, the complainant deposited the footwear in the showroom of the OP for the purpose of repairing of sole. It is further admitted fact that, the representative of the OP showroom on receiving the footwear from the complainant issued one receipt in favour of the complainant. It is also admitted fact by the OP that the sole of the footwear has been replaced.

Only dispute in this case is that, the complainant is claiming that, on several occasions he visited the showroom of OP for taking delivery of the footwear but the same has not delivered to him. But the OP is claiming that, immediately after replacing the sole the OP contacted with the complainant over phone requested him to take delivery of the footwear from their  showroom on 19.05.2017 but the complainant without visiting the showroom issued legal demand notice to the OP.

Now let us see how far the complainant has been able to prove the case against the OP or not?

From the written version and in the written notes of argument the OP claims that, the complainant deposited the footwear in their showroom on the 59^th day from the date of purchase which is after the period of warranty i.e. 45 days. But the OP has failed to explain before this commission by adducing evidence or by providing documents as to what prevented the OP to refuse or return back the footwear to the complainant when he produce the same in the show room for repairing the same after the period of warranty?

Moreover the OP has also admits that, the footwear is still lying in his show room. The OP claims that, he contacted the complainant over phone requesting him to take delivery of the footwear from the show room. But in this regard the OP has failed to produce any documentary evidence/oral evidence to prove the fact that he requested the complainant over phone for taking delivery of the footwear.

Be that as it may, since when the representative of the OP received the footwear from the complainant it was the duty of the OP to deliver the same to the complainant. But the said footwear has not yet deliver the complainant.

Considering all we are of the view that, the complainant has been able to prove the case against the OP to the effect that, there was deficiency in service as well as restrictive trade practice on the side of the OP towards the complainant.

Hence,

 It is therefore,

O R D E R E D

That, the instant Consumer Case being in No 63/2017 is allowed on contest but in part. The OP is directed to return back a footwear of liberty cool, colour- Blue, Size No. 9 to the complainant within 45 days from this day failing which the OP will have to pay a sum of Rs. 899/- to the complainant along with interest @ 4 % per annum with effect from 09.05.2017 till making payment of the entire amount.

The OP is also directed to pay a sum of Rs. 10,000/- to the complainant for deficiency in service and cost of legal proceedings. The OP is further directed to pay a sum of Rs. 10,000/- in the Consumer Legal Aid Account of this Commission.

The OP is directed to pay the awarded amount within 45 days from this day failing which the OP will have to pay interest @ 4 % per annum with effect from this day till making payment of the entire amount.

 Let a copy of this judgment be given to the parties free of cost.