Order by:

Smt.Aparana Kundi, Member

1.           The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that he has gave his measurements for stitching two Kurtas pajamas at opposite party no.3 after purchasing premium cloth from their showroom itself. As these has to be worn at a family ritual, so he requested opposite party no.3 to deliver the same in next week. Both articles were delivered after receiving payment of Rs.8000/-, however no bill/invoice was given to the complainant. When he insisted for invoice, he was asked to collect the same after one week. The complainant after few days complained opposite party no.3 for fitting & shrinking issue, mismatch of quality of cloth chosen by him with that of one used for both articles by opposite party no.3, articles substantially under-size of his actual size & measurement and peeling & tearing of thread from various sides of the articles. Opposite party no.3 denied to redress the grievance of the complainant. After various requests and reminders no action of whatsoever kind has been taken by opposite party no.3. The complainant expressed his helplessness to opposite party no.3 wherein left with no other option he has to take legal action against opposite party no.3. Further alleges that the purpose for which such an expensive articles  were purchased from the opposite party no.3 could not be served due to the harassment, exploitation and negligent services provided by the opposite party no.3. But thereafter opposite party no.3 agreed to repair/replace the articles and emailed the invoice. However, being accustomed to deceiving their customers opposite party no.3 again does an eyewash to get rid of their legal duty towards the complainant. Not being satisfied again number of complaints and reminders has been raised with opposite party no.3, however not plausible solution has been extended to the complainant. Even the articles that has been again collected for repairs still lying with opposite party no.3. Further alleges that legal notice dated 09.10.2020 and 07.02.2021 have been unattended till date. Hence this complaint. Vide instant complaint, the complainant has sought the following reliefs:-

a)       Opposite Parties may be directed to reimbursed an amount of Rs.8000/- as value of both articles.

b)      To pay an amount of Rs.29000/- as compensation on account of harassment and exploitation suffered by the complainant alongwith interest @ 12% till its realization.

c)       To pay an amount of Rs.10,000/- as litigation expenses.

d)      And to take punitive and deterrent action against the errant company in order to avoid such like complaints in future.

2.       Opposite Parties appeared through counsel and contested the complaint by filing written version taking preliminary objections therein inter alia that without prejudice to the other legal submission of objection regarding maintainability of the present complaint is concerned, it is respectfully submitted here that as per the Consumer Protection Act serving of prior notice is sine qua non before filing the complaint whereas the facts of the present complaint would reveal that the complainant without serving upon the present answering respondent any prior notice has straightway filed the present complaint before this Commission. Further alleges that with regard to the service of legal notice dated 09.10.2020, 07.02.2021 and 07.02.2021 are concerned the same is out rightly denied as the present answering respondent has not received any such notice from the complainant. The present complaint is otherwise not tenable in the eye of law as the complainant in his complaint has failed to establish as to how the cause of action accrued in his favour. From the perusal of the complaint, it appears that the complainant has not divulged the necessary and vital information for the purpose of adjudication of the present complaint in as much as the complainant has no were stated to when he has bought the alleged goods from the humble answering respondent and no date whatsoever has been disclosed by the complainant manifesting the sale of the alleged goods of product, thus, the complaint filed by the complainant deserves to be dismissed on this count alone. The complaint filed by the complainant is even otherwise not maintainability in the eye of law for the reason that the complainant filed by the complaint suffers from the vice of non-joinder of necessary parties. The facts of the present case would reveal that the humble answering respondent is principally engaged in the business of providing customize and tailored fitted suits and other merchandize and the present answering respondent is only engaged in providing service of tailoring and is not engaged in the business of selling fabric nor the answering respondent is engaged in manufacturing of the raw material. Further alleges that answering Opposite Party has only sold the alleged goods on the fabric selected and chosen by the complainant himself and at the relevant time of the sale itself the complainant was made aware of the fact that the humble answering Opposite Party shall in no way be liable for any damage whatsoever in the make and manufacturing or the quality of the fabric. It is further submitted here that if at all the complainant still feels aggrieved with regard to the quality of the fabric then in that case the manufacturer of the fabric is responsible for its quality and very conveniently the complainant has not arrayed him as a party, thus in absence of the manufacturer this Commission may not like to pass an order against person who is not party to the proceedings. Further in parawise reply, it is submitted that the answering Opposite Party is not engaged in the sale of clothing garments, apparel and stitching services. On the contrary the answering respondent is principally engaged in providing customized tailored fitted clothes of the fabric chosen and selected by the customers and that apart the humble answering respondent is not in any way engaged in the business of selling unstitched cloth or fabric. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint is made.

3.       Complainant also filed replication to the written reply of opposite parties stating that the reply hasn't been filed within the maximum time limit mentioned under the Consumer Protection Act, 2019. Thus, prior leave of court is mandatory before filing the reply which hasn't been procured by the respondent. Moreover, all the pages of the reply are not signed. Opposite Party is deliberately misleading the Commission to gain undue benefit, as the manager of answering Opposite Party has duly called the complainant and acknowledged receipt of notice from the complainant. Moreover, the reply is self-contrary and contradictory as the respondent is relying on the invoice in some of his contentions while denying the same in other. Further submitted that he is admitting that he has sold the fabric to the complainant with some rider/conditions. Again, he is misleading this Commission to further harass the complainant and abuse the process of law. Squarely, again reveals that he is deliberately concealing the real facts in order to evade his liability under the provisions Consumer Protection Act, 2019. In addition, the complainant has raised issue apropos fitting & shrinking of goods, mismatch of quality of cloth chosen by him with that of one used for both articles by answering defendant, articles substantially under-size of complainant's actual size & measurements along with the issue of peeling & tearing of thread from various sides of the articles. Remaining objections raised by the opposite parties are denied.

4.       In order to prove his case, complainant tendered in evidence his affidavit Ex.C1 alongwith original receipt Ex.C2, copy of complaint and orders Ex.C3, CD Ex.C4 and legal notice Ex.C5 and postal receipts Ex.C1A.

5.       On the other hand, despite availing sufficient opportunities evidence of opposite parties was not present. Hence, evidence of opposite parties was closed by order.

6.       During the course of arguments, ld. counsel for both the parties have mainly reiterated the same facts as narrated in the complaint as well as written reply. The case of the complainant is that he has given his measurements for stitching two Kurtas pajamas to opposite party no.3 after purchasing premium cloth from their showroom itself. Both articles were delivered after receiving payment of Rs.8000/-, however no bill/invoice was given to the complainant. The complainant after few days complained opposite party no.3 for fitting & shrinking issue, mismatch of quality of cloth chosen by him, articles substantially under-size of his actual size & measurement and peeling & tearing of thread from various sides of the articles. After various requests and reminders no action of whatsoever kind has been taken by opposite party no.3 Further alleges that the purpose for which such an expensive articles were purchased from the opposite party no.3 could not be served due to the negligent services provided by the opposite party no.3. But thereafter opposite party no.3 agreed to repair/replace the articles and emailed the invoice. Not being satisfied again number of complaints and reminders has been raised with opposite party no.3. However the articles that has was again collected for repairs still lying with opposite party no.3. Ld. counsel for the opposite party has repelled the aforesaid contentions of ld. counsel for the complainant on the ground that Opposite Parties are only engaged in providing service of tailoring and is not engaged in the business of selling fabric nor they are engaged in manufacturing of the raw material. Opposite Parties have only sold the alleged goods on the fabric selected and chosen by the complainant himself and at the relevant time of the sale itself the complainant was made aware of the fact that Opposite Party shall in no way be liable for any damage whatsoever in the make and manufacturing or the quality of the fabric. It is further submitted here that if at all the complainant still feels aggrieved with regard to the quality of the fabric then in that case the manufacturer of the fabric is responsible for its quality and very conveniently the complainant has not arrayed him as a party, thus in absence of the manufacturer this Commission may not like to pass an order against person who is not party to the proceedings. But we do not agree with the contentions of ld. counsel for the opposite parties because the complainant on only complained about the quality of the cloths but also complained about the fitting issue.

7.       We have perused the rival contentions of ld. counsel for both the parties and have gone through the record. The complainant has placed on record copy of order of State Tax Officer, Moga attached with Ex.C3, which was passed on the complaint of the complainant regarding violation of GST Laws, vide which it has been stated that “on receiving complaint from Sh.Radhe Mohan Garg through PB-Gram Portal against M/s Fabrich, a notice bearing no.15/G.S.T dated 07.12.2020 was sent to firm and in reply to the said notice the owner of the Firm stated that this firm was firstly working in Ludhiana, but due to some personal reasons firm was shifted to Moga and new GST number was taken at Moga. Due to pandemic of Covid-19 and due to financial problem and to save the wastage of stationery, inspite of printed new, old bill book was used and started issuing bills by cutting old GST number by writing new GST number by hand.” It has been further stated in the order that “complainant in his complaint also stated that firm has issued one bill for Kurta-Pajama and its stitching. In this regard it is informed that due to rate of clothes (unstitched) and stitching (Services) being same one bill (5%) is issued and situation being not normal due to Covid-19 old stationery is to be used. In this regard businessman has been warned to print new bill book or if he wants to use old bill book then new address and new GST number should be stamped on it.”

          From the above, it is evident that there is unfair trade practice on the part of the opposite parties as they have used old bill invoice slip by cutting old GST number and by writing new GST number by hand inspite of issuing new bill slip. Moreover to corroborate his assertion, the Complainant has placed on record his duly sworn affidavit Ex.C1.

8.       In view of this, we found that there is certainly a deficiency in service as well as unfair trade practice on the part of the Opposite Parties.  On this count, the Complainant prayed before this District Consumer Commission to pay Rs.8000/- as costs of the articles. Rs.29000/- as compensation alongwith interest @ 12 % and Rs.10,000/- as litigation expenses, but we are of the view that the amount claimed by the complainant appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would  be fully met if the complainant is awarded lump-sum compensation to the tune of Rs.8,000/- alongwith interest @ 8% and we award the same accordingly.

9.       In view of the aforesaid facts and circumstances of the case, we partly allow the complaint of the complainant. Opposite Parties are jointly or severally directed to pay Rs.8000/- (Rupees Eight Thousand only) as lump sum compensation to the complainant alongwith interest @ 8% per annum from the date of filing of this complaint i.e. 15.02.2021 till its actual realization to complainant. Compliance of this order be made by the Opposite Parties within 60 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to  get the order enforced through the indulgence of this Commission.   Copies of the orders be furnished to the parties free of cost. File is ordered to be consigned to the record room.  

Announced in Open Commission.