Presented by:

Minakshi Chakraborty,  Presiding Member.

 Brief facts of the case: This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that on 31^st August, 2019 the complainant bought a pair of ladies shoe costing Rs.799/- from the OP-2.  The payment was made through debit card of the complainant and the transaction shall appear from the bank statement of the complainant and also from the massage received by the complainant from his banker and the right unit of the shoe pair was found to be defective and the same became unusable within 30 days of purchase.  The same was purchased by the complainant for his old and infirm mother.  The old mother of the complainant had to face difficulty due to the defective pair sold by the store and the complainant has misplaced the cash memo issued by the said store and even after much search the same could not be ascertained and the complainant approached the said store within the specified time to get the defective pair of the shoe replaced but the store refused to accept his request on the ground of non–availability of the cash-memo and the complainant also approached the store manager on the issue and further requested him to issue a duplicate cash memo so as to sort out the issue but his request was again refused and the complainant by an email to Manager-in-charge, customer service dated 7^th November, 2019 attached his detailed representation dated 6^th November, 2019 and the email of the complainant was replied to by the customer service department of the company by an email dated 26^th November  2019 wherein stating in absence of the cash memo the defective shoe cannot be replaced and the complainant several times tried to redress his grievance and get the defective pair of the shoe replaced but all his efforts went in vain.

Complainant filed the complaint petition praying direction upon the opposite party to test the quality and undefectiveness of the product and to hand over the fresh pair of shoe of the same model and to pay a sum of Rs. 50,000/- for inconvenience caused for mental and physical harassment and unfair and deceptive trade practice and to pay a sum of Rs.10000/- for litigation cost.

Defense Case:- The opposite parties 1 and 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that for redressal of grievance of customers, a customer care department has been established by Bata India Limited and which is in operation.  In case complainant was aggrieved the recourse available to him was to approach the customer grievance department of OP for redressal of its grievances within prescribed period pursuant to the terms and conditions as stipulated on cash memo.  The complainant having failed to provide the cash memo to the concerned department for redressal of his alleged grievance even through it has been specifically asked by the concerned department within prescribed period, the complaint on this account is not maintainable and liable to be dismissed and under the claim policy it is clearly envisaged that Bata products are manufactured with utmost care and stringent quality control is always maintained.  However, despite this high quality assurance, there could be few exceptions of defective merchandize among the millions they manufacture and sell.  In case a customer finds a manufacturing defect in the product purchased, he is requested to visit his nearest Bata shoe along with the cash memo to get the product checked and avail of the benefits under our claim policy and they provide 100% replacement for major manufacturing defects, if the concerned product is brought to their store within 60 days from the date of purchase and claims are entertained within the above period only against manufacturing defects and admissible when shoes have been appropriately used.  All minor defects are to be considered for repair first and not replaced and replacement against exchange is subject to availability of the same product.  In case, the same product is not available at the store then replacement shall be adjusted against subsequent purchase at the same store and the value of the replaced merchandise shall be equal to the original purchase price of the exchanged article, as mentioned in the cash memo irrespective of the current price of the exchanged article, at the time of the exchange being made and if the value of the replaced article is less than the original value of the exchanged article, there will be no cash refund or credit note issued and if the value of the replaced article is more than original value, the selling store will recover the difference in cash against the sale.  Since the alleged claim of the complainant does not fall under the claim policy as such the complaint is not legally maintainable and is liable to be dismissed.

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The opposite parties have filed a joint evidence on affidavit which reiterates  the averments of the written version.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties have filed separate written notes of argument. BNA and the evidence on affidavit of both sides shall have to be taken into consideration encompassing the petition of complaint and written version of OPs for disposal of the instant proceeding.

            Heard argument of both sides at length. In course of argument ld. Lawyers of both sides have given emphasis on evidence and documents produced by the parties.

From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get relief?

DECISION WITH REASONS

Issue no.1:

     In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986.The point is thus answered in the affirmative.  

Issue no.2:

                        Both the complainants and the opposite parties are residents/having their office addresses within the district of Hooghly and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.

Issue nos. 3 & 4:

Both the issues are taken up simultaneously for the sake of convenience.

On perusal of the case record it appears that on 31^st August, 2019 the complainant qua the petitioner bought a pair of ladies shoe of Rs.799/- from the OP-2 for his aged and infirm mother by payment through his debit card and transaction of which has been traced in his bank statement and in massage received from his banker. It is his case that the right unit of the shoe pair was found defective and became unusable within 30 days of purchase while the complainant misplaced and colud not find out the cash memo issued against said purchase and then he approached said store within the specified time to get the defective pair of the shoe replaced but the store refused to accept his request on the ground of non–availability of the cash-memo. It is his further case that he also approached the store manager on the issue and requested him to issue a duplicate cash memo but he was refused and then he sent an email to Manager-in-charge, customer service on 7^th November, 2019 attaching his detailed representation dated 6^th November, 2019 and said email of the complainant was replied by the customer service department of the company by an email dated 26^th November  2019 stating that in absence of the cash memo the defective shoe cannot be replaced which ultimately did not produce any fruitful result but has given rise to the instant proceeding . According to the complainant the acts of both the O.Ps amount to unfair trade practice and deceptive in nature for their refusal to consider his grievances even being acknowledgement about the article no. 87-6539 purchased from their store no. 0109 at Chinsurah.

Both the O.Ps contests the case by filing written version and both the parties have submitted their respective arguments. From the arguments of the O.Ps it appears that the case of the Ops is that the complainant having failed to provide the cash memo to the concerned department for redressal of his alleged grievance even through it has been specifically asked by the concerned department within prescribed period, the complaint on this account is not maintainable and liable to be dismissed and under the claim policy it is clearly envisaged that Bata products are manufactured with utmost care and stringent quality control is always maintained. According to them, in case a customer finds a manufacturing defect in the product purchased, he is requested to visit his nearest Bata shoe store along with the cash memo to get the product checked and avail benefits of their claim policy and they provide 100% replacement for major manufacturing defects, if the concerned product is brought to their store within 60 days from the date of purchase and claims are entertained within the above period only against manufacturing defects and admissible when shoes have been appropriately used and all minor defects are to be considered for repair first and not replaced. In addition to this, they out and out denied the case of the complainant.

Now the question to this commission as arises in the instant case whether production of the cash memo was only option as proof of said purchase to the extent of consideration of the grievances of the customers of OPs like that of the petitioner herein while before answering to this question it has to be ascertained that the complainant purchased article no. 87-6539 being said pair of shoe purchased from store no. 0109 on 31^st August, 2019 of Rs.799/- from the OP-2. On scrutiny of the record it appears that in support of his case regarding said purchase of said pair of shoe on payment of Rs.799/- from the OP-2, the complainant has submitted relevant statement with stipulated date of his SBI A/C no.11143717933 of High Court SPB Branch, Kolkata from which it is revealed that Rs.799/- has been transacted from his said A/C. to BATA INDIA on the said date, i.e., 31.08.2019 against which neither any counter specific case or evidence is brought on record from the end of the OPs. In short, we may say that the petitioner has not at all willfully failed to cash memo before them whereas on the contrary he had produced supportive relevant document for paying said amount of rupees through his SBI debit card and further more he approached within one month from said purchase as made out in his written representation dated 06.11.2019 against which no legally acceptable case on record or evidence has been placed before the commission from the Ops when he prayed direction upon the opposite party to test the quality and undefectiveness of the product.

In the aforesaid facts and circumstances, having regard to the submissions of both parties and also the documents filed by them along with materials referred to herein above this commission expresses its opinion that the petitioner has been successful to make out his case to such an extent that he has become entitled to get a fresh pair of shoe of the same model along with compensation and litigation cost.

Both the issues are thus disposed of.     

Hence,

ordered

that the complaint case  no. 10 of 2020 be and the same is decreed on contest against both the O.Ps.

The complainant does get a fresh pair of shoe from the O.Ps along with Rs. 10000/ for mental agony and harassment and Rs. 5000/ for litigation cost within 45 days from date. In case of on compliance of the award the complainant may take recourse to law.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

The Final Order will be available in the following website www.confonet.nic.in.