Hon'ble Mr. Haradhan Mukhopadhyay, President.
The brief fact of the case is that the Complainant Dr. Sanat Kr. Bose is a senior physician at Patna Neuro Super Speciality Hospital at Harinchowra. Due to his personal need the Complainant purchased one pair of shoes for Rs.999/- on 22.03.2022 bearing No. ZVX-S No.91603, Size No.07. The OP issued a warranty card come cash memo dated 22.03.2022. At the time of purchase the Complainant checked only one shoe in his leg, but having come to home and going to duty he put on the shoes are different in size. The Complainant immediately informed it to the OP who promised to the Complainant to replace the shoes within two days. Thereafter the Complainant went to the shop of the OP but OP did not replace the shoes. Instead this staff of the OP misbehaved badly with the Complainant in rough language. Thereafter the Complainant sent a written complaint on 28.06.2022 and subsequently through registered post on 06.05.2022 which the OP received on 07.05.2022. But the OP did not reply to that letter till today nor did they replace the shoes. Therefore the activities of the OP is clearly deficiency in service and malpractice for which the Complainant suffered financial loss and mental pain and agony. The Complainant prayed for refund of Rs.999/- and replace the shoes and also prayed for Rs.40,000/- for deficiency in service and mental pain and agony. Complainant also prays Rs.20,000/- as litigation cost and any other relief or reliefs prayed for.
OP contested the case by filing written version wherein they denied all the allegations. The positive defence case of the OP, Padasree in brief is that it is incorrect that the OP misbehaved with the Complainant in filthy languages or the OP does not know the manner. The Complainant put on both the shoes and tested after walking and having satisfied that the shoes were suitable, left the shop. The OP is not aware of the registered letter and did not understand the terms and conditions of the warranty card. The shoes can be returned or changed if the same were new and unused. The OP claimed that the case is liable to be dismissed with cost.
After scrutiny of the case of the respective parties and having analysed the argument of both Ld. Respective Advocates the Commission considers the following points for adjudication of this case.
Points for consideration
- Whether the case is maintainable is its present form and manner?
- Whether the Complainant is entitled to get the relief?
- To what other relief or reliefs the Complainant is entitled to get?
Decision with reasons
Point No.1.
The defence case does not disclose any specific ground as to the question on the maintainability of the case save and except a formal plea that the case is not maintainable.
Having perused the pleadings of the parties and the evidence on record it is crystal clear that the relation between the Complainant and the OP is buyer and seller. The parties to this case also resides within the jurisdiction of this Commission and the relief claimed also falls within the pecuniary jurisdiction of this Commission.
Accordingly, Point No.1 is answered in favour of the Complainant.
Point Nos.2 & 3.
These points relates to ascertainment of relief claimed by the Complainant.
It is the admitted fact that the Complainant purchased one pair of shoes from the shop of the OP Padasree shoe Store.
The OP denied the major allegations of the Complainant. The Complainant in order to substantiate the case adduced both oral evidence in the form of evidence on affidavit and documentary evidence. “Annexure-A” is the warranty card of the said shoes dated 22.03.2022 issued by the OP company wherefrom it is revealed that a sum of Rs.999/- was charged as the price of the said shoes.
The Complainant alleged that after coming home and during going duty he found that the two shoes were different in size. So he immediately informed it to the OP who promised to replace the shoes within two days. But the Op did not replace it, when the Complainant went there. Instead the OP misbehaved with the Complainant.
Ld. Defence Counsel for the Complainant counter argued that the written complaint was sent to the OP on 06.05.2022 which he received on 07.05.2022. There is no time limit for raising grievance. The only time limit given in the Annexure-A being the warranty card is that the sole of the shoes can be changed if the sole is damaged within three months. Thus out of the seven grounds of the terms and conditions in the warranty card the present dispute is not covered to consider it as barred by limitation.
As per the said warranty card there is nothing that the sold shoes cannot be exchanged under any condition.
The Ld. Defence Counsel argued that it is uncommon that a customer would check only one shoe by wearing in one leg as claimed by the Complainant. In order to proper matching of the shoes it has to be worn in both the legs.
Although the argument is apparently convincing yet the OP did not cross-examine the Complainant in this respect challenging the said evidence of the Complainant which he stated in Para-3 of the evidence on affidavit.
The Ld. Defence Counsel further argued that the actual price of the shoes is Rs.999/- then how the Complainant mentioned that price as Rs.1000/-.
After perusing the said complaint it is found that the Complainant mentioned as Rs.1000/- but the OP did not deny through any reply to the said written complaint denying the contention of the said complaint.
The Ld. Defence Counsel argued that the said letter was not served upon the OP but after perusing the written version it transpires that the OP did not deny the said contention of the Complainant that the complaint was sent to the OP. The OP in Para-7 of the written version only stated that they do not know anything about the said registered letter.
As per the rules of the pleadings if the fact is evasively denied that is not acceptable. Any averment of the plaint/complaint has to be categorically denied in the written statement/ written version specifically. The evidence on affidavit of the OP dated 05.12.2022 also discloses that the OP did not deny by swearing affidavit that they did not receive the complaint but only made an evasive denial that he does not know about the registered letter.
The Ld. Defence Counsel further argued that what the Complainant stated in their letter that is not stated in the complaint. The Complainant for the first time stated in the complaint about manufacturing defect in his letter but not stated in the complaint.
The argument has not sufficient force in as much as the rules of contradiction is not applicable in cases under the CP Act unlike contradiction in criminal cases under Section-161 CRPC before the investigation Officer and during deposition in the Court.
It is also the argument of the Ld. Senior Defence Counsel that how the alleged defect can be considered as the manufacturing defect. Having worn the shoes the Complainant purchased and OP sold two shoes. The Complainant did not obtain expert opinion.
The Ld. Advocate for the Complainant counter argued that user of the shoes is the best expert. If one pair shoes does not fit and match in two legs, it is the user only who can say about the manufacturing defect or not. Therefore the user of the shoe is the expert of his own shoes.
The argument has reasonable force. In fact the OP did not file any petition seeking expert opinion in the shoes about the manufacturing defect.
The Ld. Advocate for the Complainant argued that OP has not contended that the Complainant used the said disputed shoes. A buyer/ customer buys shoes for wearing only and not for replace. The Complainant being a doctor felt uneasy and discomfort and as such he wanted for replacement of the shoes.
The argument is acceptable on the ground that there is nothing to show that the shoes were used by the Complainant.
It is also the defence argument that the Complainant claimed that he told over phone about the complaint. It means that he did not go to the shop. The letter is dated 28.04.2022. A few days back means how long? Therefore the statement is false.
In fact Ld. Defence Counsel argued regarding the different dates but after close scrutiny of the written version and its perusal it is crystal clear that the OP has not made out any specific defence case nor did they categorically deny some important pleading. The Op also did not cross-examine the Complainant to unearth the facts which the Ld. Senior Defence Counsel tried to establish through his argument.
Last but not the least argument of Ld. Senior Defence Counsel is that how could the deficiency in service and loss be so high. Whether the Complainant would go to the operation room.
The record shows that the Complainant claimed himself as a doctor.
Be that as it may as per the peculiar facts of the case, the Complainant is being seen as an ordinary customer and not as a doctor. The Commission in its considered analysis of pleadings and evidence never gave any waitage to the Complainant.
Thus after assessing the entire evidence in the case record vis-à-vis the observation made in the foregoing paragraphs, the Commission comes to the findings that the Complainant has been able to prove the case up to the hilt.
Accordingly, point No.2 & 3 are decided in favour of the Complainant. Consequently the case succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No. CC/26/2022 be and the same is allowed on contest with cost Rs.5,000/-.
The Complainant do get an award for Rs.5,000/- towards deficiency in service and Rs.5,000/- towards litigation cost.
The OP is directed to replace the shoes sold to the Complainant as per cash memo cum warranty card dated 22.03.2022 equivalent to the type and size of the said shoes which would match to the Complainant in exchange of the disputed shoes within 30 days from the date of passing the Final Order failing which the OP shall pay Rs.10/- per day to the Complainant. The Op is further directed to pay the awarded money of Rs.10,000/- within 30 days from the Final Order failing which it shall carry an interest @ 6% per annum from the date of the Final Order till the realization thereof.
The Case No. CC/26/2022 is accordingly disposed of.
D.A. to not in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
