DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 15th day of May 2023
Filed on: 30.06.2016
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
C.C NO 371/2016
COMPLAINANT
Shiny Francis, W/o P.D.Francis, Pokkath House, Karuvally Lane, Cochin University P.O, Kalamassery, Ernakulam,
(By Adv.S Rajkumar, City Law Chamber, Broadway, Ernakulam-31)
VS
OPPOSITE PARTY
M/s.Jayalakshmi, M.G.Road, Cochin-682035 represented by its Managing Partner.
(op rep. by Adv.Saji Isaac K.J., 311. H.B.Flats, Panampilly Nagar,
Kochi-682 036)
F I N A L O R D E R
D.B.Binu, President
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the Complainant is a house wife residing at Kalamassery, Ernakulam. Opposite party is a Textile Shop. In connection with the marriage of Complainant's daughter, dress materials were purchased from the opposite party textile shop worth Rs. 30,000/- on 18-11-2015. Among those materials, a green Churidar material worth Rs. 190.59 was also included. For this item Rs. 250 was expended for stitching and Rs. 80/- for lining. But even before laundering Churidar was damaged due to its old age and inferior quality. On 30/03/2016. Complainant approached opposite party and requested for replacement of the damaged item. But they refused to replace the same and even abused the Complainant. Manager and staff of opposite party behaved in a very rude manner and forced the Complainant out of the shop. Several customers were present in the shop witnessing this event. This incident has caused defamation to the Complainant. She suffered severe mental agony and loss. Thereafter on several occasions the Complainant requested opposite party to replace the item but they refused the demand. Thereafter Complainant send a lawyer notice dated 16.06.2016 to opposite party calling upon to replace the above mentioned Churidar dress material or repay its value and also to pay an amount of Rs. 10,000/- as compensation for the defamation and mental agony caused to Complainant, within 3 days of receipt of the 'notice failing which the Complainant will initiate appropriate legal remedies. Opposite party received the notice on 20.06.2016 but no reply was sent. The Opposite party neither replaced the damaged material nor paid the compensation amount. The complainant had approached the Commission seeking an order directing the opposite party to replace the green Churidar dress material or to repay its value and to pay a Compensation of Rs. 10,000/- for the damage, defamation and mental agony suffered by the Complainant with interest to the complainant and the cost of the litigation.
2. Notices
Notice was issued from the Commission to the opposite party. The opposite parties received the notice and filed version.
3.THE VERSION OF THE OPPOSITE PARTY
The opposite party is an established firm with a reputable history and over 65 years of sales experience. The allegation in the complaint that the dress material which was purchased from the opposite party as alleged in the complaint is the same as that which was purchased by the complainant under bill No. 335178 is false and hence denied. The opposite party also denies that the bill No. 335178 which is alleged by the complainant to have been issued for the alleged dress material was issued to the complainant. Bill No. 335178 is not issued to the complainant and does not even state the name of the complainant. The complainant is only trying to get a dress material which was purchased by her from some other place, replaced under the guise of being purchased from the opposite parties. The allegation in the complaint that among the materials a green churidar worth Rs, 190.59/- was also included is false and hence denied. The opposite party denies that the churidar alleged in the complaint was purchased from the opposite party. The allegation that for this item Rs. 250/- was expended for stitching and Rs. 80/- for lining is not known to the opposite party. The allegation that even before laundering churidar was damaged due to its old age and inferior quality is false and hence denied. The allegation that the manager and staff refused to replace the same and abused the complainant is false and hence denied. The further allegation that the manager and staff of the opposite party behaved rude manner and forced the complainant out of the shop is false and hence denied. The allegation that the complainant requested the opposite party to replace the item but they refused is also false and hence denied. The dress material as admitted by the complainant was stitched with lining. The principle of res ipsa loquitur is applicable to the facts of this case. The fact that there was no damage to the dress material even at the time of stitching is evident from the act of the complainant in getting the material stitched with lining. This itself shows that the material was of good quality and did not have any defects. Customers purchase dress materials only after inspecting the same as a prudent customer. The material can be appreciated only when it is opened and displayed and the customers purchased sari only after opening it and seeing it. Even assuming without admitting, damages or defects if any would have occurred only due to the negligent use of the material either at the time of stitching or ironing after stitching using very hot iron. The opposite party cannot be made liable for the negligent use of the material by the complainant. The material was in the custody of the complainant till date. The complainant is only trying to obtain money from the opposite party after having stitched the material and used. The malafides of the complainant is evident from these facts. The alleged defects were caused while the material was in the custody of the complainant and only because it was not handled with care by the complainant. There has been no deficiency in service on the part of the opposite party.
4) . Evidence
The complainant had produced 3 documents that were marked as Exhibits-A-1 to A-3.
Exhibit A-1. True copy of the Bill No: 335178 dated 18.11.2015 issued by opposite party.
Exhibit A-2. True copy of lawyer notice dated 16.06.2016 issued by Counsel for the Complainant to opposite party.
Exhibit A-3. Acknowledgment Card
5) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
The above case is filed by the complainant for compensation for the deficiency in service of the opposite party.
The learned counsel for the complainant submitted that the complainant purchased dress materials for her daughter's marriage from a textile shop. Among the materials, a green Churidar material worth Rs. 190.59 was included, and additional expenses of Rs. 250 were incurred for stitching and Rs. 80 for lining. However, even before laundering, the Churidar was damaged due to its old age and poor quality. The complainant approached the shop for a replacement, but the staff refused and treated her rudely, causing defamation and mental agony. Despite several requests and a lawyer's notice, the shop did not replace the item or provide compensation. As a result, the complainant filed the complaint with the Commission, seeking the replacement of the dress material, compensation of Rs. 10,000 for damages, defamation, and mental agony, along with interest and legal costs.
The learned counsel for the opposite party submitted that the opposite party deny the allegations made in the complaint, stating that the dress material in question was not the same as the one purchased by the complainant. They claim that the bill number provided by the complainant does not correspond to their records and does not even include the complainant's name. They argue that the complainant is attempting to replace a dress material which she purchased from elsewhere by falsely claiming it was bought from the opposite party. Furthermore, they deny that a green churidar worth Rs.190.59/- was included in the purchase or that any expenses for stitching or lining were incurred. They refute the claim that the churidar was damaged before laundering or that their manager and staff refused to replace the item, behaved rudely, or forced the complainant out of the shop. They also deny the allegation that the complainant requested a replacement and was refused. The dress material was of good quality, as evidenced by the complainant's decision to have it stitched with lining. They argue that any damages or defects would have been caused by the complainant's negligent use of the material during stitching or ironing. They assert that the complainant is solely responsible for any damages as she had custody of the material and used it after stitching. The complainant's actions demonstrate malicious intent in seeking monetary compensation after using the material. They argue that the alleged defects were a result of the complainant's mishandling and lack of care.
For the sake of brevity issue Nos. (II), (III) and (IV) are considered together. The complainant has not adduced any evidence or has proven her case.
The loss of income as alleged by the complainant has not been proved by means of any oral or documentary evidence adduced by him other than mere averments made in the complaint.
The Honourable Supreme Court of India in Sgs India Ltd. Vs Dolphin International Ltd. on 6 October 2021 (Civil Appellate Jurisdiction Civil Appeal No. 5759 of 2009) held that:
“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. 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. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4, this court held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature, and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming, or inadequacy in the service of the respondent. ………….” 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. 5, held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under: - “28. In our opinion, the approach of the Consumer Fora is in complete disregard the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”
The complainant has neither called on the Commission on the date of posting of the cases, or filed evidences and proof affidavit to substantiate her complaint after 21.01.2020. Hence the complainant has failed to establish her case on the basis of evidences and proofs. The complainant had failed to prove her case on merit and hence point No. (2) is proved against the complainant and therefore we do not have considered point No. (3) and (4).
In the result, the complaint is dismissed with no cost.
Pronounced in the Open Commission this 15th day of May 2023.
Sd/-
D.B.Binu President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia TN., Member
Forwarded by Order
Assistant Registrar
APPENDIX
Exhibit A-1. True copy of the Bill No: 335178 dated 18.11.2015 issued by opposite party.
Exhibit A-2. True copy of lawyer notice dated 16.06.2016 issued by Counsel for the Complainant to opposite party.
Exhibit A-3. Acknowledgment Card
C.C NO 371/2016
Order dated 15.05.2023
