Brief dispute raised in this complaint application is that the complainant contracted to buy 31 pieces of sarees for his home use from the opposite party no.1 on 20/08/2019 through whatsapp message. The opposite party no.1 sent some photo copies of sample sarees through whatsapp message.
Complainant chose 31 pieces of sarees and placed order with opposite party no.1. Thereafter as per instruction of opposite party no.1 complainant sent Rs.37,200/- (Rupees thirty seven thousand and two hundred) only to the opposite party no.1’s bank account through NEFT from his Allahabad Bank account, Pepulpati Branch, Hooghly, West Bengal.
Opposite party no.1 prepared tax invoice no.1303on 12/09/2019 and dispatched 31 pieces of sarees through post office registered parcel to the complainant.
Upon unpacking the parcel the complainant found that same sarees were not according to his order and also inferior disliking. The complainant informed the opposite party no.1 on 21/09/2019 that some sarees were not according to order and also inferior disliking.
The complainant also informed the opposite party no.1 on 21/09/2019 to return those sarees. Since no reply was received from opposite party no.1 the complainant again informed on 17/10/2019. The complainant returned 15 pieces of sarees and sent it through registered parcel to the opposite party no.1’s address on 27/02/2020.
The opposite party no.1 received parcel of returned sarees on 02/03/2020.
The complainant demanded either to return money or change the sarees to the opposite party no.1. The complainant also informed opposite party no.1 that the GST charges @5% on selling price being shown in the tax invoice and paid, should also be returned / recovered from the Government, if return was made within six months as per GST Rules. Thereafter the complainant contacted the opposite party no.1 several times but opposite party no.1 did not take any action either by returning money or exchanging the sarees.
Complainant again contacted the opposite party no.1 in the month of July,2020 and informed him to return his 15 pieces of sarees which were sent to the opposite party no.1 on 27/02/2020.
The opposite party no.1 returned the parcel of sarees to the complainant through opposite party no.2 i.e. VRL Logistics Limited at their Dankuni, Hooghly, West Bengal office.
The opposite party no.2 did not deliver the parcel to the complainant’s address and informed him telephonically on 28/08/2020 to take delivery/receive the parcel from their Dankuni, Hooghly office.
Complainant expressed his inability to receive parcel performing 50 KM long journey from Bandel, Hooghly, West Bengal. Complainant also informed to return the parcel to the consignor i.e. opposite party no.1.
The complainant informed opposite party no.1 through telephone and whatapp message also that he did not take delivery of the parcel from opposite party no.2 at their Dankuni office performing such a long journey.
Thereafter opposite party no.2 neither returned the parcel nor communicated with opposite party no.1 about non-delivery/non-dispatch of the consignment goods/parcel to the complainant.
Complainant enquired from opposite party no.2 on 24/09/2022 about the status of the consignment goods/parcel. Complainant was informed by the opposite party no.2 that it was not returned to the opposite party no.1 and the parcel was disposed/sale by them because of non-claim of consignment goods by the consignee during a stipulated period.
Finding no other alternative, complainant sent an Advocate’s notice dated 16/12/2020 to the opposite party no.1 to return the money for 15 pieces of sarees returned by the complainant.
Opposite party no.1 refused to receive the notice and the same was returned back to the Advocate. Being aggrieved by such actions of opposite party no.1 and opposite party no.2, complainant has filed instant consumer complaint with the following prayers:
- an Order directing both the Opponent Parties to return/refund the amount of Rs.18,816/- (Eighteen thousand eight hundred sixteen) for value of return goods with GST charges from the Opponent Parties.
- an order directing both the Opponent Parties to pay a sum of Rs.50,000/- (Fifty thousand) towards compensation for mental agony, anxiety and harassment suffered by the Petitioner due to the deficiency in service and unfair trade practices on the part of the Opponent Parties.
- an order directing both the Opponent Parties to pay a sum of Rs.6,000/- (Six thousand) towards cost of litigation expenses to the Petitioner.
- any other Order or Orders which the Petitioner is entitled in law and equity.
And for which, act of kindness, your Petitioner, as in duty bound, shall ever pray.
On perusal of the record it appears that notices were served upon both the opposite party nos.1 and 2 on 24/07/2023 and 11/07/2023 respectively but neither of the parties appeared in the case to contest the same.
Therefore, the case was heard ex-parte against all opposite parties.
The instant consumer complaint was filed beyond the limitation period. However, the complainant filed Misc. Application bearing no. MA/123/2023, which was allowed vide order dated 26/06/2023 condoning the delay in submission of the consumer complaint.
Points for determination
- Is the complainant ‘consumer’ in terms of Consumer Protection Act,2019?
- Is the complainant entitled to get any relief or reliefs as prayed for?
Decision with reasons
Both the points are taken up together for consideration.
In order to prove the case the complainant has submitted his evidence on affidavit and the documents submitted are marked Exhibit no. :-1 Tax Invoice No.1303 dated 12/09/2019 of 31 nos. of sarees containing two pages; Exhibit nos.2 and 2/1 :- pay in slip and Acknowledgement issued by Allahabad Bank for Rs.37,200/- (Rupees thirty seven thousand two hundred) only; Exhibit no. :-3 copy of a letter dated 27/02/2020 along with postal receipt sent to opposite party no.1 along with a copy of Tax invoice with the markings in the serial nos. of the sarees returned. Exhibit nos.4 and 4/1 :- address details of the complainant as mentioned by opposite party no.2 in the consignment along with an intimation no.61363 sent to consignor by opposite party no.2. Exhibit no. :-5 Advocate’s letter dated 16/12/2020.
It is the settled principle of the law that the burden of proof lies upon the complainant to prove his case.
It is a fact that the complainant sent Rs.37,200/- (Rupees thirty seven thousand two hundred) only to opposite party no.1 by NEFT (Exhibit no.- 2/1). Thereafter, the complainant received 31 nos. of sarees at his residential address.
Complainant returned 15 nos. of sarees as they were not up to his liking or substandard on 27/02/2020 (Exhibit no.-3).
After return of the abovementioned 15 nos. of sarees the opposite party no.1 again sent a consignment containing 15 nos. of sarees through opposite party no.2 to the complainant.
As per the complainant, opposite party no.2 requested him to take delivery of the consignment from their godown which was 50 KM distance from his residence. Because of the distance complainant could not take the delivery of the aforementioned 15 nos. of sarees.
On this point we find from Exhibit no.-4/1 as follows:
“The CCA consignment covered by the above LR is not taken delivery though Automated SMS was sent to the consignee immediately on arrival of the goods at the delivery branch. The consignment is lying at our godown at your risk. Therefore, you are requested to arrange for taking delivery of goods by consignee at the earliest.”
On perusal of the content it is revealed that Automated SMS was sent to the complainant.
The complainant has not submitted on oath as evidence any paper showing the content of the SMS, nor has he denied that he received any SMS. It goes to show that the complainant has deliberately withheld the content of the SMS which would have proved to be a vital document to prove his contention that because of the distance between the godown and his residence he could not take delivery of the goods.
As such the complainant has miserably failed to prove that the opposite parties are liable for deficiency in service or unfair trade practices.
Furthermore no piece of paper has been submitted on oath by the complainant to show that he agitated the issue before opposite party no.1.
Furthermore, merely sending Advocate’s letter does not in any way prove the contention of the complainant.
Therefore, we do not find any unfair trade practice or deficiency in service on the part of the opposite parties.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed without cost.
Member Member
Ld. President Mrs. Firoza Khatoon :-
On careful scrutiny of the material on record and evidence it appears that the opposite party no.2/VRL Logistics Ltd., sent an intimation dated 15.12.2020 (Exhibit no.4/1) to the consignor/opposite party no.1 i.e. AGS Kanchipuram Handloom Silk House stating that the consignment which was booked on 06.08.2020 by opposite party no.1 could not be delivered to the consignee/complainant though Automated SMS was sent to the consignee immediately on arrival of the goods at delivery branch. Though the complainant in his evidence submitted Exhibit no.4/1 but has deliberately withheld the content of the said SMS which was sent to him by opposite party no.2. The contents of the SMS send by opposite party no.2 is very vital to adjudicate as to whether there was any deficiency in service on the part of opposite party no.2. Withholding such vital document raised a dark cloud upon the case of the complainant.
It is admitted by the complainant that after return of 15 nos. of defective sarees, the opposite party no.1 again sent 15 nos. of sarees through opposite party no.2. Such statement by the complainant clearly suggests that opposite party no.1 addressed the grievance of the complainant by sending 15 nos. of sarees again to the complainant.
Exhibit no.4/1 reveals that the consignment was booked on 06.08.2020 by opposite party no.1 at Sheikpet, Kanchipuram, Tamil Nadu. Without perusing the contents of the ‘Automated SMS’ it cannot be ascertained whether the consignment was sent to the address of the complainant and thereafter he has been asked to receive the same from the delivery branch or the opposite party no.2 after receiving the consignment from opposite party no.1 at their delivery branch directly asked the complainant to receive the same from their office. As the vital document i.e. contents of SMS has been withheld by the complainant himself and I am of the opinion that the complainant has failed to prove that the opposite parties are liable for unfair trade practice or deficiency in service.
Therefore, I agree with the decision delivered by the Ld. Senior Member Sailaranjan Das.
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Dictated by President
