Complaint filed on: 12.12.2017

                                                      Disposed on: 21.12.2018

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.3172/2017

DATED THIS THE 21^st DECEMBER OF 2018

PRESENT

SRI.H.Y.VASANTH KUMAR, PRESIDENT

SMT.N.R.ROOPA, MEMBER

Complainant/s: -                           

Mr.Sumukh M Gowda,

Aged about 21 years,

R/at no.113/2-6, West of Chord Road, Industrial Town, Basaveshwaranagar main road, Bengaluru-10.

By Adv.Sri.Pradeep Kumar.S.P   

V/s

Opposite party/s:-    

1. Aero Club Pvt. ltd.,

Rep. by its Managing Director, no.2168, Karolbagh,

Gurudwara Road,

Delhi-110005.

2. Aero Club Woodland,

Rep. by its Manager,

Maruthi Meridian,

LG 100 F, Kathriguppe, Banashankari III stage, Bengaluru

By Adv.Sri.K.H.Pradeep Kumar  

ORDER

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

            The Complainant has alleged the manufacturing defects in the purchased shoes and has prayed for direction against the Opposite parties no.1/Managing Director of the company & deficiency in service against the Opposite party no.2/Manager of the Aero Club Pvt. Ltd/dealer., to repay advance amount of Rs.1,920/- with interest at 12% p.a. and to pay damages of Rs.5,000/- towards legal expenses and compensation of Rs.5,000/- towards mental agony etc.,

          2. The case of the Complainant in brief is that, believing the words about the quality of footwear of OP 1 company, from sales executive of Opposite Party- 2/ dealer, he purchased a Temp 2 Men sandal/footwear by paying Rs.1,920/- on 15.06.17  which is covered under replacement warranty for 3 months and also covered under lifetime stitching and maintenance warranty. After 1½ month’s regular use, the said footwear suffered from manufacturing defect as the outer layer of the footwear got peeled off and the same was looking shabby, awkward and odd. Hence, upon the promise and assurance that the footwear would be replaced in 15 days as per company policy, the Complainant gave it to Opposite Party no.2 on 04.09.17 and got acknowledgement slip for replacement. Thereafter, he made several visits and approaches to Opposite Party-2 shop to get replacement, but its employees turned down their hands and failed to reply or respond properly and postponed the replacement for several months which act amounts to unfair trade practice. Being aggrieved, Complainant got issued legal notice, but did not receive the reply. Hence, this complaint is filed.

          3. Opposite Party no.1 & 2 in their common version categorically denied the allegations about manufacturing defect and its replacement. They admit the sale transaction and also return of the said shoes on 04.09.17 with a complaint of pasting and stitching. They contend that the employee informed to collect the same after the repair. The Complainant refused to take back the repaired sandals and demanded for new sandals as replacement, which needs approval from area manager of Opposite Part-1. After taking approval, the Complainant selected some other product which was higher in value but refused to pay excess price amount and left the shop and issued untenable notice on 23.10.17, which is suitably replied on 17.11.17.  The terms & conditions clearly says about Delhi Jurisdiction only’, and hence this complaint is not maintainable There is no manufacturing defect.  Footwear looks used roughly and it comes under ‘normal wear and tear due to usage of goods which does not qualify for warranty claim’. They offered to replace the sandals to safeguard the interest of its customer. There is no deficiency of service on their part. Hence complaint becomes liable to be dismissed with heavy costs.

          4. The Complainant and Area Sales Manager of Opposite Parties filed their affidavit evidences relying Ex-A1 to A5 and Ex-B1 to B3 documents respectively. Written arguments were filed by both parties. Arguments were heard.           

          5. The consumer disputes that arise for consideration are as follows:

1. Whether the complainant establishes the alleged deficiency in service by the Opposite parties in not replacing the footwear which is within the warranty period ?   
2. To what order the parties are entitled ?

6. Answers to the above consumer disputes are as under:

1) Negative.

2) As per final order – for the following      

REASONS

          7. Consumer Dispute No.1: The undisputed facts reveal that, the Complainant purchased pair of sandal shoes with another item from Opposite Party no.2/dealer on 15.06.17 wide invoice/Ex-A1 for Rs.1,920/-. The Complainant returned the said shoes after use to the Opposite Party no.2 on 04.09.17, complaining about the pasting, stitching, colour fade as per Ex-A2/acknowledgement contending that, within the warranty period of three months, the manufacturing defect was exhibited in the form of pealing of the outer layer of the footwear.

          8. It is also not in dispute that, on 23.10.17, he got issued legal notice/Ex-A3 to both Opposite Parties namely Opposite Party no.1/manufacturer and Opposite Party no.2/dealer supported by Ex-A4 & A5/postal receipts and postal acknowledgements. The Opposite Party no.2 issued reply notice/Ex-B1 dtd.17.11.17 supported by Ex-B2 & B3/postal receipt and postal acknowledgement.

          9. The Complainant has alleged that, he did not receive any information or response despite his efforts and the Opposite Party no.2 on one or the other pretext though assured to solve the problem adopted delayed tactics by using deceptive practice and he has requested to take necessary steps to replace the footwear.

          10. The Opposite Party no.2 has contended that, after effecting of the repair to the said sandals, the Complainant refused to take back the same and demanded new sandals as replacement. At the request of the Complainant, they took the approval and offered to select some other product, but he chosen the shoes of the higher rate refusing to pay balance amount and left the shop and thereby, they are not entitled to replace with higher value shoes.

11. The Opposite Party no.2 by filing memo dtd.21.03.18 showed readiness to report settlement by offering new pair of same quality/worth of shoes to the Complainant.

          12. The terms & conditions printed behind Ex-A1 about the warranty benefits do not provide more benefits than the offer made by Opposite Party no.2 i.e. in the form of replacement. Accordingly in reply notice/Ex-B1, Opposite Party no.2 expressed his readiness to replace the footwear, though denied the manufacturing defect, reiterating that, earlier also he was ready, but the Complainant refused to pay the balance amount for the chosen new pair, left the shop. Such attempt was reiterated even during the pendency of this proceedings through memo dtd.21.03.18. The Complainant has no other option except to get the advantage of such voluntary benefit.

          13. The Complainant has failed to establish through expert report/evidence that, there is a manufacturing defect in the shoes and hence, mere oral allegations cannot be accepted. The wear and tear of the shoes, especially during the rainy period depends upon the usage of the same. The lost condition of Ex-A1 states that, the said shoes are “water-resistant/not water-proof and slip-resistant/not slip proof” has to be taken in to account. The contention of Opposite Party no.2 that, apparently shoes were found used roughly remain unchallenged and thereby peeling of layer and opening of stitches cannot be considered as the manufacturing defect and when the same was repaired within the warranty period cannot be considered as deficiency in service with the Opposite Party no.2. In the result, the Complainant has failed to establish the Consumer Dispute no.1 against both the Opposite Parties. Accordingly, it is answered in the negative.  

14. Consumer Dispute No.2: The purchased shoes of the Complainant were returned to the Opposite Party no.2 and the Opposite Party no.2 offered the replacement of the shoes of the same value. Thereby, the Complainant is at liberty to take the replacement of the similar shoes of the same value or by paying the difference value and to select any other shoes. The Complainant has no right to seek refund of the amount. Accordingly, he deserves to get the following:

ORDER

          The CC.No.3172/2017 filed by the Complainant is hereby dismissed. No order as to costs.

          2. The Complainant is at liberty to get replacement of the shoes of the same value within 30 days from the date of this order. In response to the memo dtd.21.03.18, the Opposite Party no.2 to comply the same.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 21^st December of 2018).

Copies of Documents marked on behalf of Complainant/s:

Copies of Documents marked on behalf of Opposite party/s