VELAN SILKS vs V.SUSAIRAJ

THE opposite party appeals.

THE complainant purchased a silk Saree on 23.11.94 from the opposite party for Rs. 1,395.50. After use on two occasions within a span of three months the colouring was found to be defective and the dye was coming out from the border. According to the complainant, he approached the opposite party asking him to take back the Saree and to reimburse the money. Since his request met with a refusal, he approached on 14.2.95 the District Forum for the refund to the money and compensation of Rs. 1,000/- with costs. The opposite party stated in his counter that the appellant did not approach at all the opposite party and took also several objections stating that there was no liability for him. The further added that the complainant has hand washed the Saree which could admit only of dry cleaning. The District Forum examined the Saree produced by the complainant and found that it was smelling new and that it was never washed. It found further that even a drop of water on the border and Mundi shows easy bleeding of dye. By order dated 15.11.95 it directed the opposite party to return a sum of Rs. 1,395.50, the price of the Saree, purchased by the complainant with interest @ 12% p.a. from 23.11.94 till payment. It further directed the opposite party to pay compensation to the tune of Rs. 1,000/- with cost of Rs. 200/-. Aggrieved by that order the opposite party filed the present appeal.

The first ground urged is that the vendor is in no manner liable in respect of the defect found in the Saree, because it is printed in the bill that there is no guarantee for colour. We have examined the bill and in the English version we find the sentence "No Return No Exchange no Guarantee For Colours". But in Tamil the only portion "No Reutrn No Exchange" is translated and the portion "No Guarantee For Colours" has not been translated into Tamil. The complainant according to the opposite party is a Government servant and therefore knows English. But all customers in this part of the country are not expected to know English and any mention found in English may be deemed not to be known to him unless it is shown that it was explained to him. Therefore, the opposite party will be well advised to make known in the regional language, whatever the information he wants to convey to his customers. Assuming that the complainant knows English, the mention in the bill will not absolve the vendor from all liabilities, because the bill is given to the consumer after he has purchased the material and paid the money at the time of taking delivery of the material. If there is any clause or condition on the basis of which the vendor seeks shelter to deny liabilities, that clause and condition should be brought to the knowledge of the customer before the contract of sale is concluded. If it is the averment of the opposite party that he has warned before hand the complainant that he cannot guarantee the colour, certainly he will be entitled now to go free from any liability. But this is not the course of action that he has taken. We are therefore unable to accept the absence of liability as pleaded by the learned Counsel for the appellant.

THE second ground urged is that the complainant is not entitled to any compensation, because he rushed straight to the Forum, without first approaching him. THE inconvenience for which compensation was awarded would have been avoided, had the complainant approached him as soon as he detected the defect, it was argued. Let us now proceed to find out whether there was an attempt by the complainant to get relief from the opposite party in the first instance. Regarding this fact there is a recital in the complaint and a denial in the counter statement. But the learned Counsel for the appellant would contend that he offered before the Forum to exchange the Saree or to give to the complainant any other textile material for the same value, that such an offer would prove according to the appellant that he was from the beginning ready to compromise the matter. Such an offer does not appear in the counter statement of the opposite party. There is also no record by the District Forum of any such offer. The order of the District Forum which recites all the details of the proceeding before it including the fact that the Saree was produced and the complainant was examined would not have failed to record the alleged offer if it was really made. Secondly such an offer would have provided to the District Forum the possibility to close the matter on the basis of a compromise and there would have been no reason to proceed further. The fact that the Forum went into the merits of the case proves the absence of any offer.

THE learned Counsel for the appellant would then draw our attention to the counter filed by the complainant in appeal in which the following sentences are found:" My confidence in the appellant was shattered at the first instance when the appellant stubbornly disowned the defect in the material sold. Hence my refusal to accept replacements or exchange for any other materials." He would say that the word "refusal to accept replacements or exchange for any other materials" would show that he has refused the offer of the opposite party before the Forum. But unfortunately for the appellant the full reading of both the sentences and especially the phrase "at the first instance" make it clear that the complainant refers only to his contacting the vendor in the shop and not in the Forum. So the very sentences on which the learned Counsel for the opposite party places reliance give a lie to his version. Further any consumer if he is aggrieved by the quality of the product would first go to the vendor and try to get relief. THE averment of the complainant stands also the test of probability. Taking all the factors into consideration we have to necessarily come to the conclusion that the opposite party was approached by the complainant before the latter came to the Forum and the version to the contrary of the opposite party cannot be believed. Both the grounds urged by the appellant fail. In the result, the appeal is dismissed with cost of Rs. 500/-. Appeal dismissed with costs.