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Bhupinder Dhawan v/s Kapsons Fashion (P) Ltd. & Another

    First Appeal No. 536 of 2018

    Decided On, 05 August 2019

    At, Punjab State Consumer Disputes Redressal Commission Chandigarh

    By, MEMBER

    For the Appellant: Shubham Mehta, Advocate. For the Respondents: Ex parte.

Judgment Text

Rajinder Kumar Goyal, Presiding Member

1. The instant appeal has been filed by the appellant/complainant against the order dated 14.8.2018 passed by District Consumer Disputes Redressal Forum, Jalandhar (in short, ‘District Forum’), whereby the complaint filed by the complainant was dismissed.

It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.

2. Brief facts, as averred in the complaint are that opposite party No. 1 is engaged in the business of retail and distribution of branded clothes in Calvin Klein, U.S. Polo, Wrangler, Tommy Hilfiger etc in North India with 144 Stores in the region. The opposite party No. 2 is head office of opposite party No. 1. The opposite parties distributed of pamphlets in the general public with the scheme “Kapsons Fashion Festival 2017 from 5th May-15th June alluring general public to come and shop with their stores and get exciting offers. The complainant accordingly shopped various branded clothes from opposite party No. 1 worth Rs. 26,072 vide Cash Memo : SLC165, dated 25.5.2017. It was further averred that opposite parties failed to fulfil their terms and conditions as it was mentioned that shop for Rs. 25,000 or above and get cash vouchers of Rs. 7,500 OR 2 nights and 3 days holiday trip from Sterling Holidays. The complainant approached opposite party No. 1 number of times and requested to give him the benefits of the above said offer as mentioned but no positive response was received from the opposite parties. Alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainant filed the complaint before the District Forum and sought the following reliefs:

(i)to refund the cost of the purchased goods worth Rs. 26,072 along with interest at the rate of 24% per annum;

(ii)to pay Rs. 50,000 towards physical strain and mental agony suffered by the complainant;

(iii)to direct the opposite parties to provide 2 nights and 3 days trip for family members of complainant;

(iv)to pay Rs. 5,000 as cost of petition; and

(v)any other order which the Forum may deem fit.

3. Upon notice, opposite parties appeared before the District Forum and filed their written reply taking preliminary objections that the present complaint is not maintainable. The complaint is non-joinder of parties i.e. M/s Sterling Holidays as the offer was given by it. The complainant has no cause of action to file the present complaint. The complainant is barred by his own act, conduct and commissions to file the complaint. The complainant has filed this false and frivolous complaint to harass the answering respondents. The complainant was given two offers under Kapsons Fashion Festival 2017 of either get cash voucher of Rs. 7,500 or to get 2 nights and 3 days Holiday Trip from Sterling Holidays well within time on 13.6.2017. It was further stated that Sterling Holidays intimated to the opposite parties that they had sent the holidays voucher to the complainant together with other customers via computerized system by adding the customer’s details in the system; which automatically provided the voucher code and send the template e-mail to respective customers including the complainant. On inquiry, the complainant revealed that he did not get the voucher. As soon as, the opposite parties came to know that the complainant has not received the said Holiday Voucher they contacted the Sterling Holidays Team, who replied that the voucher could not be mailed due to technical error. The opposite parties urged Sterling Holidays to provide the same to the complainant again urgently. So, the voucher No. HVC-13686 dated 7.7.2017 was sent to the complainant on urgent basis. However, the complainant on receiving the same asked respondent No. 1 to issue the voucher for next summer, as he could not go during the 6 month validity period of the voucher. The opposite parties asked the complainant to contact M/s Sterling Holidays for that option. The voucher was valid till January 2018 and he can use the same to go destination of his choice out of the options given under the scheme by M/s Sterling Holidays. On merits, it was admitted that the complainant purchased various goods from opposite party No. 1 vide Cash Memo No. SLC165-4719 dated 25.5.2017. It is also admitted that the complainant purchased the goods from opposite party No. 1 to the tune of Rs. 26,072. The complainant was asked to contact M/s Sterling Holidays but M/s Sterling Holidays has not been deliberately made party, that they would reveal the lies of the complainant. The contentions as stated in the preliminary objections were reiterated by the opposite parties. Rest of all the averments as averred by the complainant in his complaint were denied and prayed to dismiss the complaint.

4. Notice of this appeal was issued to respondents being opposite parties but they did not appear despite their service and were proceeded against ex parte vide order dated 12.4.2019.

5. We have heard the learned Counsel for the appellant/complainant as the opposite parties were proceeded ex parte. We have carefully gone through the records of the case.

6. Learned Counsel for the appellant argued that the District Forum has wrongly and erroneously dismissed the complaint of the complainant. From the reading of the impugned order dated 14.8.2018 it clearly shows that the said impugned order has been passed without appreciating the fact that the complainant had never received the intended benefit of the scheme. The opposite parties only considered the case of the appellant/complainant after receiving the legal notice dated 5.7.2017. The District Forum has not considered this logical fact that even if the averments made by the respondents/opposite parties were taken to be true. The respondent never received the intended benefit of the scheme that was advertised by the respondents. The District Forum has also not considered the fact that the fault of the respondents had been admitted by them by appending the whatsapp communication dated 7.7.2017 in their written reply. It is prayed that the appeal as well as complaint be allowed and the order passed by the District Forum be set aside.

7. Admittedly, the complainant participated in the ‘Kapsons Fashion Festival, 2017’ (5th May-15th June) and made a purchase of garments amounting to Rs. 26,072 vide Retail Invoice dated 25.5.2017, Ex.C-1. As per the said Festival Scheme, Ex.C-3, the complainant was eligible to get exciting summer holidays and cash vouchers on his shopping over and above brand offers. Therefore, in lieu of the above purchase, he was eligible to get cash vouchers of Rs. 7,500 or 2 nights and 3 days Holiday Trip from M/s Sterling Holidays. The complainant chose the latter and opted for 2 Nights 3 Days holidays trip. The opposite parties vide Ex.OP-2 dated 13.6.2016 sent a list of customers who had qualified for the 2 Night 3 Days Sterling Vouchers whereas it has been alleged no such voucher was issued to the complainant. The complainant served a legal notice to the opposite parties on 5.7.2017 and after that the opposite parties came into action as is evident from Ex.OP-4 and they got issued the voucher on dated 7.7.2017 as per Ex.OP-5. There is no evidence on record that the said Sterling Voucher was sent to the complainant prior to 7.7.2017. Since the date of purchase is 25.5.2017, the opposite parties have issued the voucher only on 7.7.2017 after lapse of more than 45 days. Even otherwise, the evidence brought forward by the opposite party (Ex.C-5) is only a copy of web page with no details of the sender and receiver’s information. In such circumstances, it cannot be ascertained that the e-mail was rightly sent to the complainant’s e-mail id i.e. dicc81@gmail.com. As such, the onus is on the opposite parties to provide that the voucher was sent to the correct e-mail id of the complainant. In the absence of any cogent evidence, the opposite parties are liable to compensate him.

8. The Counsel for the appellant/complainant argued that even the voucher was issued on 7.7.2017, he could not avail being an Advocate that he has holidays in June only and after that he could not avail the same.

9. In view of the above, it is a deficiency in service on the part of the opposite parties for not getting issued the Sterling Voucher in June, 2016. The plea of the opposite parties that voucher was to be issued by Sterling Holiday, and they are not at fault is not tenable. As Kapsons Fashion Festival 2017 was organized by the opposite parties and not by Sterling Holidays, nowhere it is mentioned in the scheme circulated in public vide Ex.C-3 that Sterling Holidays will be responsible for issuance of voucher. The complainant had purchased the garments in view of the scheme launched by the opposite parties. Therefore, the opposite parties are responsible to pass the benefits of the scheme to the complainant.

10. From the perusal of the order, we find that the District Forum has failed to appreciate the evidence placed on the record as explained above. The District Forum has ignored the fact that

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there is no evidence placed by the opposite parties to evident that Sterling Voucher was ever sent to the complainant. The Ex.OP-5 is only a web page of computer screen. 11. Sequel to the above, the appeal filed by the appellant is partly allowed as well as the complaint filed by the complainant before the District Forum is also partly allowed and the order passed by the District Forum is set aside. The opposite parties are directed as under: (i)to pay Rs. 7,500 to the appellant/complainant along with 7% interest from the date of purchase i.e. 25.5.2017 till realization; (ii)to pay Rs. 5,000 as compensation on account of mental harassment, agony and litigation harassment. 12. Arguments in this appeal were heard on 25.7.2019 and the order was reserved. The certified copies of the orders be communicated to the parties, as per rules. 13. The appeal could not be decided within the statutory period due to heavy pendency of Court cases. Appeal partly allowed.