IN THE HONORABLE DISTRICT CONSUMER DISPUTES REDRESSAL FORUMCHANDIGARH2015 MOOT PROPOSITION 1UILS, PU

IN THE MATTER OFSUNITA VERMANI..COMPLAINANTV.SUNDER LAL..RESPONDENT

AMANPREET KAUR, CLASS- B.A.LL.B. 9TH SEMESTERROLL NO- 13/11SECTION- A TABLE OF CONTENTS

1. Index of Authorities...3-4 Statutory Compilations Books Articles and Journals Dictionaries Websites Table of Cases2. List of Abbreviations...5-63. Statement of Jurisdiction.......................74. Statement of Facts..85. Statement of Issues..96. Summary of Arguments....107. Body of Pleadings.....12-188. Prayer for Relief...19

INDEX OF AUTHORITIES

STATUTORY COMPILATIONS1. The Consumer Protection Act, 19862. The Sale of Goods Act, 1930BOOKS1. Avtar Singh, Principles of the Law of Sale of Goods and Higher Purchase, Eastem Book Company, Lucknow (2012)2. Azmi S.S.H., Sale of Goods and Consumer Protection in India, Deep and Deep Publications, Delhi (2007).3. Brian W. Harvy, The Law of Consumer Protection and FairTrading, Butterwonhs, London (2009)4. Avtar Singh, Law of Consumer Protection: Principles and Practice, Eastern Book Company, Lucknow (2008).5. Barowalia J .N., Commentary on the Consumer Protection Act, 1986, Universal Law Publishing C0. Ltd., Delhi (2008).DICTIONARIES1. Bryan A. Garner, Blacks Law Dictionary (8th ed. 2001)2. Oxford English Dictionary, (2nd ed. 2009)3. Websters New International Dictionary (1926)WEBSITES1. www.manupatra.com2. www.judis.nic.in3. www.supremecourtcaselaw.com4. www.spamlaws.com/5. www.indiankanoon.org/

TABLE OF CASES

NAME OF THE CASECITATION

1. The Eye Foundation vs. K GopalakrishnanF.A.No.553/2010

2. Tip Top Dry Cleaners vs. Sunil KumarRP No. 1328 OF 2003

3. The Blue Dart Express Limited vs Stephen LiveraRP No 393 of 1997

4. J. Krishna Rao Hyderabad vs. To-Day Electric Dry CleanersFA No. 1546/2007

5. Karan Pal Singh, vs Rajiv AutomobilesComplaint Case No.523/2004

6. Kumar Rishabh vs Hot Spot FA No. 637/2011

LIST OF ABBREVIATIONS

ParaFIRFirst Information ReportAIRAll India ReporterItInformation TechnologyCr.P.C.Code of Criminal ProcedureIPC Indian Penal CodeHonble Honorable T.V.Television etcet ceterai.e.id est (that means) r/w read withS. SectionLJ Law JournalRe. Reference US United StatesLIC Life Insurance Corporation No. NumberOrs. Others Cri. Criminalp.Pageu/s under sectionw.e.f with effect fromPC Privy CouncilFC Federal CourtRP Revision PetitionSCSupreme CourtSCCSupreme Court Casesv. VersusVol. VolumePat. Patna LL.B. Legum Baccalaureus

STATEMENT OF JURISDICTION

The instant complaint is being filed by the complainant who is a consumer, for the enforcement of her Consumer Rights, which have been violated allegedly. The complaint is filed under the Consumer Protection Act, 1986.Section- 11. Jurisdiction of the District Forum.-1. Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs.2. A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, orb) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the district Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office,or personally work for gain, as the case may be, acquiesce in such institution; orc) the cause of action, wholly or in part, arises.It is humbly submits that the Honorable Forum has the complete jurisdiction to adjudicate over the present matter.

STATEMENT OF FACTS

1. Sunita Vermani purchased ten saris on sale for her wedding from Bengal Sari house, Chandigarh.2. Sunita got the blouses pieces attached to the saris separated and got them stitched from the same sari house.3. After her wedding, when she wanted to wear the sari, she found that sari was not of standard length and could not be worn properly.4. The label on the sari mentioned that the sari was of 5.5 m, but the actual length of the sari was 4.85 m and then she measured all the saris and all the saris were not of the length mentioned on the label.5. Sunita took the saris to the Sari house and asked the shopkeeper to replace the saris or refund the money.6. The shopkeeper Sunder Lal refused it on the ground that the saris have been purchased on sale and the bill clearly mentioned that no return or exchange would be made of items purchased on sale.7. The shopkeeper also refused to entertain her complaint saying that saris are no longer in their original state as the blouse pieces have been separated from them.8. Sunita Vermani filed this case before this District Consumer Forum.

STATEMENT OF ISSUES

1. WHETHER THE COMPLAINT PRESENTED BEFORE THE HONORABLE FORUM IS MAINTAINABLE UNDER THE CONSUMER PROTECTION ACT, 1986?2. WHETHER THE RESPONDENT IS RESPONSIBLE FOR ANY DEFECT IN THE GOODS PURCHASED? 3. WHETHER THE DISCLAIMER WRITTEN ON THE BILL OR RECEIPT IS BINDING ON THE COMPLAINANT?4. WHETHER THE ORIGINAL STATE OF THE SARIS IS REQUIRED TO REPLACE THE DEFECTIVE SARIS?

SUMMARY OF ARGUMENT

1. WHETHER THE COMPLAINT PRESENTED BEFORE THE HONORABLE FORUM IS MAINTAINABLE UNDER THE CONSUMER PROTECTION ACT, 1986? The complainant is a consumer under Section-2 (d) of the Consumer Protection Act, 1986 and the saris purchased are not for any commercial; purposes. The complainant has filed the complaint because the saris suffered from defects. The complaint is filed within the period of limitation, i.e., 2 years.2. WHETHER THE RESPONDENT IS RESPONSIBLE FOR ANY DEFECT IN THE GOODS PURCHASED? The saris are defective and the respondent is liable for unfair trade practice as they are not of the length mentioned on the label. Section-16 provides for the implied condition as to the quality of the goods.3. WHETHER THE DISCLAIMER WRITTEN ON THE BILL OR RECEIPT IS BINDING ON THE COMPLAINANT? There have been many frauds done to the consumers by the opposite parties by limiting their liability by providing receipts which claims that No Exchange No Return. The Consumer Courts held in various cases that such disclaimer shall not be binding on the complainant.4. WHETHER THE ORIGINAL STATE OF THE SARIS IS REQUIRED TO REPLACE THE DEFECTIVE SARIS? The saris which were purchased by the complainant were not of standard length. The blouse pieces were separated by the complainant and got stitched by the same Sari house prior to the discovery of the defect. If the complainant found the defect earlier then she would have not purchased the saris. The complainant believes the description of length on the label to be true and act in accordance. The Consumer Protection Act, 1986 has nowhere provided that the complainant cannot take the redress in the Consumer Forum if the goods are no longer in their original state.

BODY OF PLEADINGS

1. WHETHER THE COMPLAINT PRESENTED BEFORE THE HONORABLE FORUM IS MAINTAINABLE UNDER THE CONSUMER PROTECTION ACT, 1986? In India, Product liability is the area of law in which manufacturers, distributors, suppliers and retailers are held responsible for any injuries products cause. Regardless of any contractual limitations of liability, if a product or any of its component parts are defective its manufacturer may be liable for damage under the following laws:a) The Consumer protection act, 1986b) The Sale of Goods Act, 1930c) The Law of Torts.d) Special statutes pertaining to specific goods. The Consumer Protection Act, 1986 (CPA, 1986) was enacted for better protection of the interests of consumers. The provisions of the Act came into force with effect from 15-4-87. Consumer Protection Act imposes strict liability on a manufacturer, in case of supply of defective goods by him, and a service provider, in case of deficiency in rendering of its services. The term defect and deficiency, as held in a catena of cases, are to be couched in the widest horizon of there being any kind of fault, imperfection or shortcoming. Furthermore, the standard, which is required to be maintained, in services or goods is not to be restricted to the statutory mandate but shall extend to that claimed by the trader, expressly or impliedly, in any manner whatsoever.The Consumer Protection Act, 1986 provides that such persons are entitled to file a complaint under the Act. Section- 2 (b) of the Act provides that-Section-2(b)- complainant means(i)a consumer; or(ii)any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or(iii)the Central Government or any State Government; or[footnoteRef:2][(iv)one or more consumers, where there are numerous consumers having the same interest;] [2: Ins. by Act 50 of 1993, sec. 2 (w.r.e.f. 18-6-1993 ).]

[footnoteRef:3][(v)in case of death of a consumer, his legal heir or representative;] who or which makes a complaint. [3: Ins. by Act 50 of 1993, sec. 2 (w.r.e.f. 18-6-1993 ).]

The complainant in the present case filed this case being a consumer.Section- 2 (d) of the Act defines consumer .Section- 2 (d)consumer means any person who,(i)buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or(ii)[footnoteRef:4][hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who12[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person[footnoteRef:5][but does not include a person who avails of such services for any commercial purpose]. [4: Subs. by Act 50 of 1993, sec. 2, for "hires" (w.r.e.f. 18-6-1993 ).] [5: Ins. by Act 62 of 2002, sec. 2 (w.e.f. 15-3-2003 ).]

The complainant purchased ten saris for her own use and not for any commercial purpose. So the complainant shall be allowed to file this case.In a case, The Eye Foundation v. K Gopalakrishnan[footnoteRef:6], the complainant purchased spectacles from the opposite party which after two months was turned to be defective and the Tamil Nadu Consumer Redressal Commission allowed the complaint of the complainant and ordered the opposite party to repay the cost of the spectacles and compensation for the mental agony of the complainant. [6: F.A.No.553/2010]

So the complainant case shall also be allowed as complainant has suffered damage because of the defect in the saris.

The complainant filed this complaint because she suffered damage due to the defect in the saris. The Act provides that the Consumer can file complaint if the allegations are resulted from the purchase and Section- 2 (c) defines the complaint.

Section- 2 (c) - complaint means any allegation in writing made by a complainant that[footnoteRef:7][(i)an unfair trade practice or a restrictive trade practice has been adopted by[footnoteRef:8][any trader or service provider];] [7: Subs. by Act 50 of 1993, sec. 2, for sub-clause (i) (w.r.e.f. 18-6-1993 ).] [8: Subs. by Act 62 of 2002, sec. 2, for "any trader" (w.e.f. 15-3-2003 ).]

(ii)[footnoteRef:9][the goods bought by him or agreed to be bought by him] suffer from one or more defects; [9: Subs. by Act 50 of 1993, sec. 2, for "the goods mentioned in the complaint" (w.r.e.f. 18-6-1993 ).]

(iii)[footnoteRef:10][the services hired or availed of or agreed to be hired or availed of by him] suffer from deficiency in any respect; [10: Subs. by Act 50 of 1993, sec. 2, for "the services mentioned in the complaint" (w.r.e.f. 18-6-1993 ).]

[footnoteRef:11][(iv)a trader or the service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price [11: Subs. by Act 62 of 2002, sec. 2, for sub-clause (iv) (w.e.f. 15-3-2003 )]

(a)fixed by or under any law for the time being in force;(b)displayed on the goods or any package containing such goods;(c)displayed on the price list exhibited by him by or under any law for the time being in force;(d)agreed between the parties;][footnoteRef:12][(v)goods which will be hazardous to life and safety when used are being offered for sale to the public, [12: Subs. by Act 62 of 2002, sec. 2, for sub-clause (v) (w.e.f. 15-3-2003 ). Earlier sub-clause (v) was inserted by Act 50 of 1993, sec. 2 (w.r.e.f. 18-6-1993 ).]

(a)in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force;(b)if the trader could have known with due diligence that the goods so offered are unsafe to the public;] 5. Subs. by Act 50 of 1993, sec. 2, for sub-clause (i) (w.r.e.f. 18-6-1993 ).[footnoteRef:13][(vi)services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety;] [13: Sub-clause (vi) along with sub-clauses (iv) and (v) subs. for clauses (iv) and (v) by Act 62 of 2002, sec. 2 (w.e.f. 15-3-2003 ).]

[footnoteRef:14][24A.Limitation period. [14: Ins. by Act 50 of 1993, sec. 19 (w.r.e.f. 18-6-1993).]

(1)The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.(2)Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.]The complaint has been filed within the period of limitation.

In the present case, the complainant is making two allegation :1. Unfair trade practice by providing saris of short length then what was prescribed on the label.2. The goods purchased by the complainant suffer from defect which is of short length.

2. WHETHER THE RESPONDENT IS RESPONSIBLE FOR ANY DEFECT IN THE GOODS PURCHASED? The complainant purchased ten saris from the Bengal Sari House, Chandigarh for her wedding on sale. After the wedding the complainant found that the saris were not of the standard length and could not be worn properly. The label on the saris mentioned that saris were of 5.5 metres, but the actual length was 4.85 metres. When the complainant asked the shopkeeper to replace the saris, the respondent refused to replace them.In these circumstances, the complained has suffered the damage because these saris were of no use to the complainant as they cannot be worn properly. The complainant has also suffered loss because she got the blouse pieces stitched from the same Sari house. Now these blouse pieces were of no use to the complainant as the saris were not of the standard length.The Consumer Protection Act, 1986 provides rederessal for such damages. The complainant has filed the case by virtue of section-2 (f) and section- 2 (r) of the Act.Section-2 (f) provides that- defect means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force orunder any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods;The term goods has been defined under the Act, Section-2 (i)goods means goods as defined in the Sale of Goods Act, 1930 (3 of 1930).

Section 2 (7) of the Sale of Goods Act defines Goods as every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.

Section -2(r) provides that- unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely: (1)the practice of making any statement, whether orally or in writing or by visible representation which, (i)falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model.There has been defect in the goods provided by the respondent and by mentioning wrong measurement of the saris on the label the respondent has done unfair trade practice.The Sale of Goods Act, 1930 provides such conditions and warranties in sale, the breach of such would render the contract void or gives rise to claim for damages.Section-12.Condition and warranty.(1)A stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition or a warranty.(2)A condition is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated.(3)A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated.(4)Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract.Although the parties have used no express words that would create a stipulation of a condition or a warranty, the law annexes to sale of goods contracts many conditions, breach of which may be treated by the buyer as avoiding the contract or giving a right to damages. These are called implied conditions and are enforced on the grounds that the law infers from all circumstances of the case that the parties intended to add such a stipulation to their contract but did not put it in express words.Section-16- Implied conditions as to quality or fitness. Subject to the provisions of this Act and of any other law for the time being in force, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:(1)Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the sellers skill or judgment, and the goods are of a description which it is in the course of the sellers business to supply (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be reasonably fit for such purpose: Provided that, in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose.(2)Where goods are bought by description from a seller who deals in goods of that description (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be of merchantable quality: Provided that, if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed.In Karan Pal Singh, vs Rajiv Automobiles[footnoteRef:15], the scooter purchased was defective and the average mileage which was assured was also turned out to be false. The State Consumer Disputes Redressal Commission, Delhi held the respondent liable and ordered for compensation of Rs.15000. It was held that the article supplied ought to have been reasonably fit for a specific purpose ,and sellers liability in such cases where he knows the purpose to supply goods that are reasonably fit, is an absolute one. It was held that the case fell within the purview of section 16 (1) and 16(2). [15: Complaint Case No.523/2004]

In Kumar Rishabh vs Hot Spot[footnoteRef:16], the complainant purchased the mobile phone from the opposite party and the mobile phone has malfunctioning in the point of charge since the initial stage. The opposite party did not remove the defect of the mobile phone. The State Commission, Delhi held the opposite party liable for Rs.30,000 and Rs. 5000 as costs. [16: FA No. 637/2011]

The complainant is aggrieved by the false description on the label of the saris about the length which is breach of the implied condition. The Sale of Goods Act, 1930 provides for this breach.Section-15.Sale by description.Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description; and, if the sale is by sample as well as by description, it is not sufficient that the bulk of the goods correspond with the sample if the goods do not also correspond with the description.The saris were not of the length that was mentioned on the description on it. It resulted in breach of implied condition, due to which the complainant has suffered the loss. The complainant has filed this case for claiming replacement of the saris.59.Remedy for breach of warranty.(1)Where there is a breach of warranty by the seller, or where the buyer elects or is compelled to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may(a)set up against the seller the breach of warranty in diminution or extinction of the price; or(b)sue the seller for damages for breach of warranty.(2)The fact that a buyer has set up a breach of warranty in diminution or extinction of the price does not prevent him from suing for the same breach of warranty if he has suffered further damage.

3. WHETHER THE DISCLAIMER WRITTEN ON THE BILL OR RECEIPT IS BINDING ON THE COMPLAINANT?When the complainant came to know about the defect in the saris and she asked the respondent to replace the saris, the respondent refused to replace it on the ground that the saris have been purchased on sale and the bill clearly mentioned that no return or exchange would be made of items purchased on sale.

There has been many frauds done with the consumers by the opposite party by taking the shelter of unilateral terms printed on the receipts, saying, No Exchange, No Return.The consumer Courts have made it clear that such one-sided and unfair terms are not binding on the consumers.In Tip Top Dry Cleaners vs. Sunil Kumar[footnoteRef:17], the central issue was the terms and conditions printed by the drycleaner on the receipt. The receipt had several conditions printed on the reverse. A fire broke out in on the drycleaners premises destroying all the goods, including Kumars clothes. When Kumar asked the drycleaner to make good his loss, the drycleaner pointed that the conditions printed on the back of the receipt absolved him of any liability. [17: RP No. 1328 OF 2003]

The National Consumer Disputes Redressal Commission held that the drycleaner could not bind the consumer to the terms and conditions printed behind of the receipt as the receipt is not signed by the customer and as a matter of fact nobody reads the conditions on the back of the receipt.

In case of The Blue Dart Express Limited vs Stephen Livera[footnoteRef:18], the National Commission held that conditions in small print limiting the liability of a service provider were not valid if the customers attention was not drawn towards it and her or his signature obtained to show that the terms had been accepted by her or him. The case pertained to the failure of a courier to deliver an application form for admission to a medical college sent by a student. The apex court pointed out that the conditions printed on the couriers receipt limiting the liability of the courier in case of non-delivery was in extremely small print. Secondly, there was no signature to show that the customers attention had been drawn to the conditions and he had accepted them. [18: RP No 393 of 1997]

4. WHETHER THE ORIGINAL STATE OF THE SARIS IS REQUIRED TO REPLACE THE DEFECTIVE SARIS?

When the complainant asked the respondent to either replace the defective saris or refund the money the money the respondent refused it on the ground that the saris are no longer in their original state as the blouse pieces have been separated from the saris.The Consumer Protection Act, 1986 has nowhere provided that the complainant cannot take the redress in the Consumer Forum if the goods are no longer in their original state.

There have been many cases where the Consumer Forum has awarded compensation and replacement in defective goods which have been not in their original state due to repairs conducted on them.

In J. Krishna Rao Hyderabad v. To-Day Electric Dry Cleaners[footnoteRef:19], the pant given for dry-cleaning was returned to the complainant with tear marks which were not on it before washing. The State Consumer Disputes Rederessal Commission, Hyderabad held that the complainant is entitled to Rs.1000 (price of the pant) for the damage to the complainant goods. [19: FA No. 1546/2007]

In a case, The Eye Foundation v. K Gopalakrishnan[footnoteRef:20], the complainant purchased spectacles from the opposite party which after twenty days was turned to be defective and the colour of the spectacles was also faded away. The respondent alleges that the spectacles are no longer in the original state and the purchaser has changed his mind after using it. The Tamil Nadu Consumer Redressal Commission allowed the complaint of the complainant and ordered the opposite party to repay the cost of the spectacles Rs. 2325 and compensation Rs. 2000 for the mental agony of the complainant. [20: F.A.No.553/2010]

PRAYER FOR RELIEF

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is humbly prayed before this Honble Court to adjudge and declare:

(i)That the defect in the saris has caused damage to the complainant(ii)That in the light of the judgments cited, the complainant should be given replaced saris and compensation for the mental agony.

And any other favorable relief which this Honble Court may be pleased to grant in the interest of justice, equity and good conscience.

And for this act of kindness, Your Lordships Complainant shall as duty bound ever pray.

Sd./-Counsel for the Complainant

-MEMORANDUM FOR THE COMPLAINANT-Page 1