ORDER

SMT.SHARAVATHI S.M.  MEMBER

1. This is the complaint filed by the Complainant U/S Section 34 of the Consumer protection Act 2019, against the opposite party (herein referred to in short as OP) alleging the deficiency in service in providing a wrong spectacles thereby causing damage to the vision of his daughter and hence there is negligence on the part of OP and for compensation of Rs.10,00,000/- by way of damages along with interest at 18% per annum, Rs.15,000/- towards legal notice charges, for cost of the litigation and the amount paid to the doctor for consultation and for such other reliefs as the Hon’ble commission deems fit and under circumstances.

2. The brief facts of the case are that:- the complainant’s daughter Adwithi aged about 10 years was wearing spectacles for her vision from 2018. The right and left eye vision had plus(+) power. The doctor had prescribed the said power glasses on 10.08.2018. The same was purchased from the Basaveshwaranagara Branch of OP. The same got broken on 03.10.2019 and the complainant visited OP which was nearby to his house and placed order for her spectacles +1.25 on the right eye and +1.50 on the left eye by showing the prescription given by the doctor to the employee of the OP.  As a precautionary measure, OP once again checked the power of her daughter.  Afterwards, the glasses were delivered by OP informing that the power of the lens is +1.25 in the right eye and +1.50 on the left eye.

3. After using the said glasses given by OP, his daughter started complaining uncomfortableness by using the said glasses. Complainant thought that it may take time for her to adjust to the new spectacles and requested her not to remove the same and to wear for her needs. His daughter again complained severe headache and pain in the eye and also felt confortable without the glasses. Immediately, she was taken to eye doctor and after checkup doctor informed that there is no problem with her eye. Inspite of it, the daughter of the complainant after using the said glasses for three more months, was having headache, uncomfortable ness and suffered from smudge eye sight, irritation and giddiness and could not concentrate on her studies.

4. On 04.01.2020 again complainant was taken to eye doctor with the spectacles and to his utter surprise and shock, the spectacle given by OP were of different power. Instead of giving a spectacle of +1.25 for the right eye and +1.50 for the left eye, OP has given glass with power -1.25 to the right and -1.50 to the left eye which is gross negligence on the part of OP. When the same was informed to the OP, OP accepted its mistake and admitted the same in writing regarding the carelessness and negligence in giving a wrong powered spectacles which caused problem to the vision to the complainant’s daughter. She had to suffer immensely without her fault. After the use of the wrong glasses given by OP negligently the vision / power of the glasses of his daughter got increased from +1.25 to +1.75 in the right eye and from +1.50 to +2.25 in the left eye, which is clear from the facts itself. The things speaks for itself is the  principle to be adopted res ispa loquitur or the thing speaks for itself in this case and hence there is deficiency in service on the part of OP which made the vision of the complainant’s daughter to be more than what it was, due to the use of the wrong spectacles of – power given by OP.  It is due to the utter negligence and deficiency of service on the part of OP.  Hence OP is liable to pay a damages of Rs.10 lakhs along with interest at 18% per annum and further the consultation fee paid to the doctor and also the litigation expenses.

5. Upon the service of notice, OP appeared before the commission and filed the version,  Contending that there is no cause of action for the complaint to file this complaint there is no reason for filing this complaint, and is the complainant filed on misconceived unsustainable, concocted, facts to gain unlawfully. Lenskart is just a brand name operated by DEALS CART online services Pvt. Ltd having its regd. Office at New Delhi and lens cart store is not a separate legal entity and hence complaint filed is not maintainable.

6. Compensation under Consumer Protection Act can be awarded only in case loss or injury suffered by the consumer due to negligence of the OP.  In the present case, the complainant has failed to prove the negligence of the OP. Without proper analysis or tests of the goods in the authorized laboratory, this commission cannot decide as to whether there is deficiency in service and selling of a defective goods. The same has to be sent to laboratory test by the commission.  This complaint filed is only to extract money from the OP.  It has not supplied or provided the alleged product to the complainant.  Without subjecting the product sold for test, to ascertain the defect, this commission cannot come to a conclusion as to the selling of a defective product.  Complainant has concealed the relevant fact. The complainant did not came with or shown any medical prescription but gave the staff only the spectacles already in use by his daughter and asked the staff to match the power of the lens already in use by her daughter and the store staff followed the instructions of the complainant, and now alleging giving wrong power lens just to extract money.  The complainant has already taken the replacement of his lens as per his choice on 10.02.2020 without any objections. Therefore since the product is already replaced, complaint is not maintainable.  The complainant raised the issue of supply of  incorrect power lenses after the expiry of three months. It is impossible for any person to wear such a lens for such a long time and a reasonable prudent person would find out such mistakes on the first day of its use.  The allegation that the complainant’s daughter complained regarding headache, uncomfortable ness or giddiness are just imagination and no proof of it has been produced and also the opinion of the expert eye specialist in this regard. Denying all the other allegations made in each and every para of the complaint prayed the commission to dismiss the complaint.

7.  In order to substantiate the case of the parties, and both parties filed their affidavit evidence and also documents produced. Heard the arguments. On the basis of the pleadings, of the parties, the following points arise for our consideration are:-

1. Whether the complainant has proved negligence and sale of wrong product by OP?

2. Whether the complainant is entitled to the relief prayed for in the complaint?

8. Our answers to the above points are:-

POINT NO 1: IN THE AFFIRMATIVE

POINT NO 2: PARTLY OF THE AFFIRMATIVE.

                       For the following.

REASONS

POINT NO.1 :-

9. On perusal of the pleadings of the parties, it is not in dispute that the complainant’s daughter was having a power spectacles of 1.25 in the right eye and +1.50 on the left eye. In the email dated 04.01.2020, letter Ex.P3, OP has clearly and unequivocally admitted having given a spectacle of -1.25 power in the right eye and -1.50 power on the left eye.  The wordings  of the said email is reproduced as hereunder:

“On behalf of our staff, I would like to apologize for unhappy experience you had with your daughter spectacle, and I take responsibility for the mistake and assure you that we are taking the necessary steps, I am requesting you to provide the doctor prescription.”

10. Ex P2 is the order taken by OP-1 wherein it is mentioned as minus power in respect of the said eyes.  Ex P1 are the two test reports wherein in the 1^st test report dated 10.08.2018. The power mentioned is +1.25 in respect of right eye and +1.50 on the left eye.  The complainant has got her daughter tested after he detected the wrong selling of the spectacles to his daughter. He found that the lens supplied is -1.25 right eye and -1.50 on the left eye. The power of eyes tested on that day is mentioned as right eyes +1.75 and left eye +2.25.  When this is taken into consideration there is an increase in the power in the eyes of the daughter of the complainant. The academic report is also produced to show that due to the said fact of giving a  spectacles of wrong power, her acadamical progress has gone down.  It is to be noted here that OP has contended that after the report incident, they have exchanged the spectacle of a right of the power which the complainant has suppressed. Considering all these facts and circumstances of the case, though OP has vehemently denied all the allegations in the version, the very fact mentioned in Ex.P3 negates its contention in the version . Hence we hold that there is negligence on the part of OP in providing a wrongly powered glasses to the daughter of the complainant and also there is selling of a wrong product and answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

11. The complainant has sought Rs.10,00,000/- as compensation along with interest at 18% per annum on the said amount and also Rs.15,000/- towards legal notice charges and also litigation expenses and doctor fee, for which he has not produced any materials. It is to be noted here that compensation is to be granted in case where actual damage has taken place or a notional damage to be accessed in case there is no concrete evidence.

12. In this case, the complainant has failed to produce sufficient supporting and concrete evidence to show that her daughter has suffered damage to the extent of Rs.10 lakhs and also that he has paid Rs.15,000/- towards legal notice.  It is to be mentioned here that litigation shall not become a route to earn money or to enrich once self by resorting to the legal procedure which amounts to misuse, and abuse of law and procedure. At the same time in the absence of clear cut evidence we are of the opinion that since the complainant has already taken a replacement for the wrong spectacles given and that the daughter of the complainant has been using the said spectacles it is just and proper to order OP to pay sum of Rs.25,000/- towards the suffering which the complainant and his daughter have suffered due to the wrong spectacles given and also a litigation expenses of Rs.5,000/- as OP has made the complainant to approach this commission by filing this complaint and by conducting the case. Hence we answer POINT NO 2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The complaint is allowed in part.
2. Op THE LENSKART STORE represented by its Store Manager/Authorized Signatory is hereby directed to pay sum of Rs.25,000/- towards damages  and Rs,5,000/- towards of the litigation expenses.
3. Op is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this commission within 15 days thereafter.
4. Send a copy of this order to both parties free of cost.                

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this day the 27^th day of JULY 2022)

MEMBER                   MEMBER             PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the prescription related reports issued by Nayanalaya.

Ex P2: Copy of the receipt issued by lenskart (3)

Ex P3: Copy of the apology letter

Ex P4: Copy of the progress report of complainant daughter.

Ex P5: Copy of the brochure issued by lenskart.

Ex P6: Copy of the legal notice

Ex P7: Copy of the reply given by OP

Ex P8: Copy of the email correspondences

Ex P9: Certificate issued by Nayanalaya (2 Nos.)

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Praramesh HM store manager of OP.

Copies of Documents produced on behalf of Opposite Party/s

- Nil-

MEMBER                   MEMBER                  PRESIDENT

RAK*