DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.289 of 2017
Date of institution: 19.04.2017 Date of decision : 08.03.2018
Aditya Pandit son of Shri Vikram Pandit, resident of House No.1187, Sector 8-C, Chandigarh.
…….Complainant
Vs
1. Zara, Inditex Trent Retail India Pvt. Ltd., GF-14 & 15, North Country Mall, Kharar, Sector 117, Mohali-Kharar Road, Punjab 140301 through its Proprietor/ Manager/Authorised signatory.
……..Opposite Party No.1.
2. Zara, Inditex Trent Retail India Pvt. Ltd., Floor 15th DLF Building 9, Tower A, DLF Cyber City, Phase III, Gurgaon 122002, Haryana, India through its Proprietor/ Manager/ Authrosied Signatory.
……..Opposite Party No.2.
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member
Mrs. Natasha Chopra, Member.
Present: Shri Brijesh Khosla, counsel for complainant.
Shri P.K. Khindria, counsel for the OPs.
Order by :- Shri G.K. Dhir, President.
Order
Complainant purchased 3 trousers (one black trouser and two trousers of other different shades) of Zara brand having size Euro-42 from outlet of OP No.1 on 14.08.2016. After purchase, these garments were not worn by complainant. In month of January 2017 when complainant started wearing two of three trousers, then on wash of one of the trouser of light blue shade, it was found that the same had shrunk a lot from its original size. Due to this shrinkage, complainant felt uncomfortable on wearing. Complainant did not wash the other two trousers but kept them intact with tags affixed thereon. Complainant got measured these trousers from his tailor and he found that the trouser of light blue shade had shrunk in length, from waist and inner length, from aasan, bottom and thigh. Measurements of each of these trousers are mentioned in the letter issued by said tailor on the letter head. Complainant approached OPs on 21.01.2017 through e-mail for redressal of grievance of shrinkage, but in reply dated 23.01.2017 they expressed helplessness by claiming that exchange or return is not permissible. In first week of February again complainant visited show room of OP No.1, but Store Manager was not available and that is why complainant again visited show room of OP No.1 on 19.02.2017 for some purchases and also for meeting the Store Manager. Said Store Manager misbehaved with complainant and as such complainant approached company’s customer care through e-mail on 24.02.2017 by lodging complaint. Zara refund policy mentioned on the back of the bill of purchase not applicable to the facts of the present case, but despite that OPs are seeking shelter of the same. OPs enjoy good international reputation because of having multinational chain brand and that is why products in question were purchased by complainant. Non redressal of grievance of complainant caused mental agony and harassment to him. By pleading deficiency in service on part of OPs and by claiming that they adopted unfair trade practice, prayer made for refund of amount of Rs.5,970/- charged through invoice. Compensation for mental harassment and agony of Rs.60,000/- and litigation expenses of Rs.15,000/- more claimed.
2. In reply submitted by OPs, it is pleaded inter alia as if the complaint has been filed for abusing process of law with intention of harassing and pressurizing the OPs to submit to unreasonable and mischievous demand; complaint alleged to be false and frivolous; complainant alleged to be having no cause of action. OPs claim that they reserve right to file additional/supplementary statement. Moreover complaint alleged to be filed with malafide intention by fabricating true facts. It is claimed that present is not a case of deficiency in service as defined under section 2 (g) of Consumer Protection Act, 1986. Prayer made for initiating perjury proceedings against complainant. Complainant alleged to have not approached this Forum with clean hands. In view of involvement of intricate questions, it is claimed that matter should be got decided from Civil Court of competent jurisdiction. There is no defect in the trousers purchased by complainant. Presumptions drawn by complainant regarding defects in three trousers is without basis. Even complainant is aware of the refund policy of the OPs because information regarding same was supplied to complainant. As per that policy, exchange/refund claim entertainable within one month of purchase date. The purchased product should not have been cleaned, damaged or used. Complainant lodged the complaint in January, 2017, despite the fact that purchase of trousers took place on 14.08.2016 and as such in the absence of any manufacture defects in the trousers, complainant not entitled to return or refund or replacement. It is also claimed that this Forum has no jurisdiction. OPs are not liable or responsible for shrinkage of trousers after period of 5 months of purchase. By denying each and every other averment of complaint, prayer made for dismissal of the complaint.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-6 and thereafter closed evidence. Counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Ms. Deepti Anurag and thereafter closed evidence.
4. Written arguments on behalf of complainant submitted but not by OPs. Oral arguments heard and records gone through.
5. Invoice Ex.C-1 is produced on record to establish that complainant purchased 3 trousers from OP No.1 on 14.08.2016 by paying amount of Rs.5,970/-. That fact even is not denied by OPs in their written statement. Counsel for complainant vehemently contends that one of the trousers was washed and the same stood shrunk from bottom, thigh, waist and aasan etc. regarding which report Ex.C-2 was obtained from Proprietor of Sharma Tailors. Certainly comparison of details of lengths, of bottom, of thigh, of aasan, of waist etc. of three trousers given in Ex.C-2 shows that one of the trousers stood shrunk in length, from bottom, from thigh, from knee, from aasan and from waist. Even if this shrinkage had taken place, despite that it was the duty of complainant to establish that shrinkage took place despite taking due precaution in washing of one of the products. Kind of powder/soap/detergent used in wash is not mentioned anywhere in the complaint or in the affidavit or in any other document produced on record. Even instructions for washing as given on the tag of the purchased products not disclosed. It is not made out from the material produced on record that prescription for washing the trouser was specified by manufacturer or not. In case the specifications regarding washing of the product are there, then copy of the same must be produced on record. In the absence of this material on record, details of shrinkage worked out on letter pad Ex.C-2 not enough to establish that shrinkage took place, despite observing due instructions of washing.
6. Affidavit of tailor who submitted details through Ex.C-2 even has not been produced and as such just on the strength of Ex.C-2 alone it cannot be inferred that shrinkage took place due to manufacturing defect or against the terms and conditions of warranty. Non production of affidavit of the person who prepared Ex.C-2 itself enough to hold that due expert evidence has not been produced by complainant, despite the fact that onus of proving manufacturing defect lies on the complainant as per case titled as Classic Automobiles Vs. Lila Nand Mishra & Anr., 2010(1) CPJ 325 (Hon’ble National Consumer Disputes Redressal Commission, New Delhi) and Tata Motors Passenger Car Business Unit Vs. Amarjit Singh Garden Colony etc. 2016(3) CLT 197 (Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh).
7. For establishing manufacturing defect, complainant should have proved the kind of fabric used in manufacture of trousers in question alongwith report of expert that shrinkage after wash of the used fabric bound to take place. No material produced on record by complainant to establish that the fabric used by OPs in manufacture of the trouser in question was of inferior quality than that of the requisite specifications of manufacture of such trousers. Rather as per Section 13 (1) (c) of Consumer Protection Act, 1986, where defect in the goods alleged, then prayer should be made to the District Forum concerned to get the product analyzed from appropriate laboratory. However, no such request made by complainant in this case and the so called expert opinion report Ex.C-2 cannot be termed as an opinion of expert, particularly when affidavit of the person who prepared Ex.C-2 not produced on record. So even if e-mail correspondence Ex.C-3 to Ex.C-5 may have been entered for complaining about the defects, despite that OPs not bound to redress the grievance, more so when Zara refund policy mentioned in Ex.C-6 provides refund or exchange of the products within one month from the purchase date.
8. Admittedly complainant purchased the trousers in question on 14.08.2016 through invoice Ex.C-1 and he lodged the complaint through e-mail for the first time on 23.01.2017 as evidenced through Ex.C-3 and Ex.C-4 and as such certainly claim for exchange/return put forth by complainant after more than five months of purchase of products in question. So virtually claim is staked in violation of terms and conditions of Zara refund policy qua which document Ex.C-6 is produced by complainant himself on record. If the Zara refund policy not applicable, then there was no need for complainant to produce document Ex.C-6 on record. Submissions of counsel for complainant has no force that Zara refund policy not applicable, particularly when OPs consistently claimed through replies through e-mail as well as through written reply to the complaint and in the affidavit that Zara refund policy is applicable. As complainant purchased products in question with warranty of exchange/refund and as such if Zara refund policy not applicable, then it is the duty of complainant to prove as to which other policy applicable in respect of exchange or refund of the products in question. Complainant failed to disclose the name of the refund/exchange policy and as such submission advanced by counsel for OPs has force that Zara refund policy is applicable. Claim not staked within stipulated period of one month from the date of purchase and as such complainant estopped from seeking refund of price or exchange of the products in question. As neither manufacturing defect established and nor claim for refund of price or of exchange of product permissible as per terms and conditions of policy, and as such complaint merits dismissal.
9. As a sequel of above discussion, the complaint is dismissed without any order as to costs. Certified copies of the order be supplied to the parties free of costs as per rules.
Since there is shortage of postal stamps in this Forum, therefore, the parties through their counsel are directed to receive free certified copy of the order by hand and it will be the responsibility of the learned counsel for the parties to inform them accordingly. This direction issued by following the principle laid down by Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in Consumer Complaint No.956 of 2017 titled as Partap Rai Sharma Vs. Greater Mohali Area Development Authority (GMADA), decided on 25.01.2018. File be indexed and consigned to record room.
Announced
March 08, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
