Delhi

East Delhi

CC/46/2021

SMT. MANISHA AGRAWAL - Complainant(s)

Versus

M/S JAIPUR SAREE KENDRA PVT. LTD. - Opp.Party(s)

R P AGRAWAL

12 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.46/2021

 

	Manisha Aggarwal, R/o Flat No. 508, Vardhman Apartment, Mayur Vihar Phase-I, Ext. Delhi-110091	….Complainant
Versus
	M/s Jaipur Saree Kendra Pvt. Ltd., R-17, Ground Floor, Greater Kailash-1,  New Delhi-110048.	……OP

 

Date of Institution: 05.02.2021

Judgment Reserved on: 18.04.2023

Judgment Passed on:12.05.2023

                       

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms.Rashmi Bansal (Member)

 

Judgment By: Ms.Rashmi Bansal (Member)

 

 

JUDGMENT

 

The present complaint is filed by the complainant against OP alleging deficiency of service and unfair trade practice on its part in supplying defective saree/goods to her and claiming for refund of the price paid along with compensation for mental harassment, trauma and litigation cost.

1. The case of the complainant in brief is that she purchased a silk bandhage full Zari work sari (goods) from OP against consideration of Rs.22,800/- paid by credit card and received a bill dated 30.09.2018. The complainant submits that she was given assurances by the OP that the sari work is permanent and it will neither fade nor would loose its shine or original colour. The complainant has purchased the said sari for important occasions like weddings etc and used it only once after its purchase and then kept it in safe storage with proper care and caution. However when in the year 2020, the complainant opened the said sari for a wedding function in her family, she was shocked to find that Zari border of the sari has lost its shine and lustre was blackened and as such the said, sari, had become unusable. The complainant had spoken to OP in February 2020 telephonically and she was advised to visit the showroom with the sari, however, the complainant could not do so due to the Covid situation in India and she could visit OP only on 01.11.2020. The complainant submits that the OP has taken the sari and even issued an endorsement stating that it would be sent to the head office at Jaipur for a decision, either for change or for a refund and remarked on the invoice as -“above sari retained for consideration the complaint of the customer for defective Zari work being sent to Jaipur H. office”.
2. The complainant submits that she was shocked that the sari was returned to her in November 2020 itself, without redressal of her grievance, which shows that there is dishonest intention on the part of OP, and the promise for refund has been made only to mislead and defraud the complainant. A legal notice dated 09.12.2020 seeking a refund and compensation was sent to the OP & the same was replied by the OP thereby denying its liability. The complainant submits that due to the negligent and deficient services on the part of OP, the complainant has been put to suffer the loss of not only the money besides harassment and mental agony but OP also played with her sentiments, rendered negligent service by selling defective goods to her by giving false assurances and further failed to redress her grievance and to replace the sari or to refund the consideration and has been involved in unfair trade practice and is liable to pay damages to the complainant. Therefore the complainant seeks a refund of the cost of the sari, Rs. 22,800/-, Rs. 7500/- towards the cost of the legal notice, Rs.10,000/-  for mental agony and economic loss suffered by the complainant and, litigation cost of Rs.20,000/- along with interest thereon at the rate 12% per annum for the period of pendency of the complaint till the actual payments.
3. OP was served and has filed its version thereby not disputing the purchase of the sari by the complainant but denying any defect in the sari. The OP denied any assurances given to the complainant and submits that the complainant was aware at the time of purchasing the zari sari that “no guarantee of the colour and Zari policy” of the OP. The said information has been provided to the complainant orally as well as in writing by a tag attached to the sari. OP further submits that the bill given with the sari had a brief about the buyer’s guide governing the sale which explicitly mentions “no exchange, no refund of ready-to-wear”. OP further submits that the complainant suppressed this fact in her complaint and did not mention that the said tag was attached to the sari. OP further submits that it is the admitted case of the complainant that she wore the sari in December 2018, and thereafter the sari was kept in a safe place, without explaining the manner in which it was kept, nor the complainant could provide any evidence in support of the fact that she had opened the sari for family function in the last week of January 2020 only. OP further submits that the number of times that the sari was worn by the complainant and the way it was maintained are the relevant factors which would determine the cause of the alleged deterioration of the sari but have not been explained by the complainant.
4. It is further submitted by OP that when the complainant visited the store of the OP on 01.11.2020 with the specific grievance of a manufacturing defect in the purchased product, then the sari was taken to inspect the said allegation. OP denied any conversation with complainant in the February 2020 or that she was advised to come to the showroom for resolving the issue. The OP has investigated the grievance of the complainant and has kept it for consideration on the complaint and as raised, which establishes that OP is a gracious service provider and looking into the complaints of its customers. After due inspection, the sari was returned to the complainant as no manufacturing defect was found in it. OP states that it also tried to contact the complainant on 08.11.2020 to inform her that no defect was found and that the said sari cannot be exchanged. It is further submitted that complaint is bogus in nature and only filed to extract money or get a new sari from OP and the complainant has a dishonest intention and therefore made false claims to get a favourable order. The legal notice has been duly replied where the OP has clarified the situation. Since no manufacturing defect was found in the goods rather the fault was on the part of the complainant for being careless in preserving the sari. The OP prays for the dismissal of the complaint, denying his liability or any negligent or deficient service towards the complainant. It is also mentioned that admittedly, the cause of action arose on 30.09.2018 and the complaint has been filed on 20.01.2021 years i.e. after the alleged cause of action and the same is barred by limitation.
5. Both parties filed their respective evidence and documents in support of their contentions.
6. Complainant filed the following documents –

1. Bill number 00533 dated 30.09.2018, Ex. CW1;
2. the card for a wedding in January 2020, Ex. CW2;
3. copy of the legal notice dated 09.12.2020, Ex. CW3;
4. the copy of the envelope, in which the sari was returned to the complainant, Ex. CW4;

 

7. OP has filed
   1. Copy of the board resolution dated 05.04.2022, authorising his head sales Ex. RW1;
   2. Copy of the sample tag, Ex. RW2;
   3. Bill dated 30.09.2018, Ex. RW3,
   4. Copy of the telephone bill, showing that OP had contacted the complainant on 08.11.2020, Ex. RW4;
   5. Copy of the reply of the legal notice dated 04.01.2021, Ex. RW5;

 

8. The Commission has perused the record and heard the parties. The objection of OP with respect to the limitation in filing the complaint is bereft of any merit and is outright rejected as the cause of action has arisen in November 2020, and the complaint is filed on 20.01.2021, the same is within limitation. On merit, the Commission is of the opinion that the complainant has failed to establish that she wore the sari only once during this period from September 2018 to December 2020 and it is only the second time when she took out the sari to wear. Apart from the self serving affidavit of the complainant there is no evidence, or document to prove this contention. The complainant also failed to establish the manner in which the sari was preserved. No document is filed by the complainant to support that the preservation of the product was as per instructions or as per the usual course of the preservation of the product like the sari in question. No evidence was filed to show the way in which the sari has been used and maintained, which are the important factors in determining the reason behind the deterioration of the sari. There is no opinion of the expert in the record. The complainant also failed to show that any assurance was given to the complainant regarding the Zari work, or its shine or original colour, rather OP has placed on record the format of the tag that is provided with the sari mentioning “no guarantee of colour and Zari Policy” of OP. The OP has also shown the bill which mentions“buyers guide”, and explicitly mentioned “no exchange, no refund of ready-to-wear”. The complainant has also not filed the endorsement given to her by OP.
9. The law is very well settled that the burden of proving the deficiency in service is upon the person who alleges it. In SGS India Limited V/S Dolphin International Limited” Civil appeal No. 5759/2009 decided on 06/10/2021, the Hon'ble Supreme Court of India has held that, the onus of proof of deficiency in service is on the complainant and it is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.
10. Considering the facts and circumstances of the case and the decision of the Hon'ble Supreme Court of India, this Commission is of the view that the complainant has, on facts, been found to have not been able to establish any manufacturing defect or inadequacy in the service of the OP, hence the present complaint is dismissed.
11. The file be consigned to the record room after providing a copy of the order to the parties as per CPA Rules and the order be uploaded on the website.
12. This order contains 07 pages and each bears our signature.

Pronounced on 12.05.2023.