BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 05^th DAY OF NOVEMBER 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to pay him Rs.4,330/- including the redeem amount of Rs.550/- together with interest @ 18% p.a from 03.09.2014 till realization and Rs.1,00,000/- towards damages with litigation cost.

2. The brief averments made in the complaint are as under:

That the complainant is a Journalist and he is using both Bi-focal and Progressive Lens for the last 6 years which he had purchased from the OP.  The complainant was using progressive lens for the past one year but when he went for routine eye checkup in the month of August 2014, it was found that the eye power has changed.  Hence, he was required to change the lens again.  Accordingly, on 03.09.2014 the complainant went to OP for purchase of Progressive Lens but he was advised by the OP to use bifocal lens instead of progressive lens.  As per the advise of the OP, the complainant on 03.09.2014 after getting his eyes tested in the show room of OP situated at new BEL Road, purchased Titan brand bifocal lens by paying Rs.4,330/- including redeemed loyalty points of Rs.550/-.

After the purchase of the lens from the OP, the complainant started using the lens but because of improper alignment of bifocal lens complainant was feeling very uncomfortable and was getting almost double vision and was feeling strain on his eyes.  The complainant also suffered severe head ache and pain in the eye balls.  The complainant brought to the notice of the OP regarding the inconvenience and problem suffered by him, by visiting the showroom of the OP.  The complainant requested the OP for conversation of lens from bifocal to progressive.  But all his efforts went in vain.  Therefore, the complainant sent an e-mail to the OP on 01.11.2014 explaining the problems suffered by him.  The complainant was informed by the OP that his complaint has been forwarded to the concerned department.  On 04.11.2014 the complainant received another e-mail from OP refusing for replacement of the lens on free of cost.  The complainant has suffered loss and injury because of the negligence on the part of the OP while dealing with him for which he is entitled for compensation.  That there is deficiency of service on the part of the OP.  That the complainant has suffered due to wrong assurance and advise by the OP and has been put to hardship and mental agony apart from financial loss.

For the aforesaid reasons, the complainant pray for an order directing the OP to refund him a sum of Rs.4,330/- including the redeem amount of Rs.550/- towards the cost of the defective lens together with interest @ 18% p.a from 03.09.2014 till realization and compensation/damages of Rs.1,00,000/- together with litigation cost.

3. In response to the notice issued, OP appeared and contended that the correct description of OP is Titan Eye Company Ltd., and further contended as under:

That the OP is not aware that the complainant was using bifocal progressive lens from the past 6 years.  It is true that the complainant visited the OP store situated at New BEL Road on 17^th August 2014 for eye test and during such checkup the OP had noticed that there was change in the eye power.  During such eye test the complainant was clearly informed that since he was using progressive lens from past one year it is better to continue with progressive lens only.  However, the complainant was insisting for providing him bifocal lens on the pretext that, he was used even to the bi-focal lens earlier.  That the OP never advised the complainant for bi-focal lens on 03^rd September 2014 on the day he purchased bi-focal lens.  It is false to allege that due to improper alignment the complainant was feeling uncomfortable and was getting double vision etc.  Since the complainant was used to progressive lens, his sudden change of the use of lens from progressive to bi-focal might have caused some strain to the eyes however this OP is not responsible for suffering of the complainant.  The OP has replied to the e-mail sent by the complainant.  Since, the complainant has purchased the bi-focal lens at his own volition, there is no question of free replacement of lens once again from bi-focal to progressive.  There is no negligence whatsoever on the part of the OP and there is also no deficiency in service.  Therefore, the question of paying compensation does not arise.  The complainant is unjustly trying to enrich himself at the cost of this OPs precious image and the complainant has not even bothered to justify as to how he is entitled for the huge compensation as claimed in the complaint.  That the OP as per the direction of this Forum offered to the complainant a free replacement of the lens however, the complainant being greedy and not ready to accept the same and was insisting for huge compensation.  This itself makes clear the wrongful intent of the complainant to make unjust enrichment from the OP.

For the aforesaid reasons, the OP prays for rejection of the complaint with costs.   

4. On the rival contentions of both the parties, the points that arise for our determination in this case are as under:

5. The complainant to substantiate the allegations made in the complaint filed his affidavit evidence in lieu of oral evidence reiterating the very same allegations.  The OP in support of their case filed the affidavit evidence of one Pramodh S/o Shivaprakash, Eyewear Consultant (sales).  Both the parties have submitted their written arguments.

 6. Perused the allegations made in the complaint, the averments made in the version and various documents filed by both the parties, written submission and the authorities relied upon by the OP.  We have heard the oral arguments advanced by learned advocate for the complainant as well as the OP who is represented by their Store Manager, Sri.Guruprasad.

7. Our answer to the above points are as under:

REASONS

8.  The OP in their version admitted that on 17^th August 2014 the complainant visited their store situated at New BEL Road for eye test and during such eye test the change in the power of complainant was noticed.  The OP further admitted the purchase of bi-focal lens on 03.09.2014 by the complainant for a sum of Rs.4,350/- including loyalty points of 550.  Complainant claims that he is using both bi-focal and progressive lens for the last 4 years however for the past 1 year prior to 03.09.2014 he was using progressive lens.  The complainant did not produce any material to show that apart from progressive lens he was also using bi-focal lens for the past 6 years prior to the date of filing of the complaint.

9. The complainant alleges that during the course of his eye test, he was advised by the OP to go for bi-focal lens, though he was using progressive lens during the said time.  However OP denies that they advised the complainant to go for bi-focal lens.  On other hand, it is contended by the OP that during his eye test they advised the complainant to go for progressive lens since he is using the progressive lens for the past one year, however the complainant himself insisted for providing bi-focal lens.  Therefore, it is contended by the OP that they provided him bi-focal lens on 03.09.2014 at his insistence.  There is no credible material on record except the self serving statement of complainant that he was advised to go for bi-focal lens by the OP.  Therefore, it cannot be believed that the complainant purchased the said bi-focal lens on the advise by the OP.

10. The complainant alleges that because of improper alignment of bi-focal lens he was very uncomfortable in using the same and he got almost double vision.  He was also feeling much strain to his eyes and started getting head ache and pain in the eye balls.  OP denied that the bi-focal lens sold to the complainant was having any defect or improper alignment as alleged by the complainant.  The complainant to substantiate that the bi-focal lens sold to him was having improper alignment or any like defects, either by producing expert evidence or by producing credible oral or documentary evidence.  The bare allegations of the complainant that there was improper alignment by the bi-focal lens sold to him cannot be believed at all in absence of any expert evidence or credible oral as well as documentary evidence.

11. It is argued on behalf of OP that since the complainant was used to progressive lens his sudden change to use bi-focal lens instead of progressive lens might have caused some strain to his eyes.  This submission of the OP appears to be probable in view of the fact that the complainant was using progressive lens in the past one year prior to purchase of bi-focal lens in this case and sudden change from the progressive lens to bi-focal lens must have caused inconvenience to the complainant.  However, the OP cannot be held liable for any such inconvenience caused to the complainant since there is no material to believe that the complainant switched on to bi-focal lens on the alleged advise of the OP.  Unless the complainant proves by adducing credible oral or documentary evidence that there was any defect in the lens or improper alignment in the lens, the OP cannot be held responsible for any negligence or deficiency in service.

12. The complainant failed to show any basis for his allegations that the OP were negligent while providing him bi-focal lens or committed deficiency in service.  We don’t find any material on record to hold the OP is responsible for the alleged sufferings of the complainant because of bi-focal lens sold to him.  The complainant has miserably failed to prove any negligence or deficiency in service on the part of the OP.

13. During the course or arguments, the Learned Advocate for the complainant submitted that on the intervention of previous President of this Forum, the OP agreed to replace the bi-focal lens with progressive lens free of cost and also pay some compensation.  However, OP denied the same and contended that at the behest of the Forum they came forward to replace the bi-focal lens with progressive lens of the same value but the complainant insisted for compensation apart from the replacement of the lens.  The order sheet maintained in the case sheet does not disclose any such suggestion by the President of the Forum.  However, the order sheet dated 10.04.2015 discloses that both the parties who were present on that day made a submission that they are likely to settle the matter amicably.  The order sheet dated 30.04.2015 discloses that the settlement between the parties has failed.  OP in his version as well as in his sworn testimony admitted that during the pendency of proceedings they offered free replacement by the said bi-focal lens with progressive lens.  The e-mail exchange between the parties also confirms the same.  There is no material to believe that OP conceded to pay any compensation/damages to the complainant.  Since, the OP has come forward to replace the said bi-focal lens with a progressive lens of the same power of the same value, we feel it appropriate to direct the OP to replace the said bi-focal lens with progressive lens of the same value at free of cost.  In view of the finding on point No.1, we are of the opinion that except the replacement of the lens, the complainant is not entitled to any other relief so also litigation cost.  The order could not be passed within the stipulated time due to heavy pendency.          

14. In the result, we proceed to pass the following:

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is disposed off with a direction to OP to replace the Bio-focal Lens purchased by the complainant on 03.09.2014 with a progressive Lens of the same power and of the same value free of costs within 30 days from the date of communication of the order.  Parties to bear their own costs.

          Send the copy of the order to both the parties free of costs.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 05^th day of November 2015)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainant dated 19.05.2015.

1. Sri.I.H Sangamdev

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 09.06.2015.

1. Sri.Pramodh    

Documents produced by the Opposite party:

MEMBER                            MEMBER                    PRESIDENT

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