By Sri. A.S. Subhagan, Member:
This is a complaint filed under section 35 of the Consumer Protection Act 2019.
2. Facts of the case:- The Complainant is an Architectural Designer, a 3D Generalist and a VFX Artist, and he employs the use of various complex 3D Designing, Rendering and Animation Softwares such as the Unreal Engine Software to perform his day-to-day functions, which includes, designing and animating architectural elements and rendering the same into images and videos, designing and incorporating Visual Effects (VFX) in short films etc. For the said purposes, the Complainant requires a very high central and graphics processing power, which requires the use of high end processors, RAMs, fast storages and very high performing Graphic Cards. The said requirement of the highest of specifications in computing power is indispensable for the purposes of his work.
3. The Complainant, owing to the purported reputation of the Opposite Party No.1 Company, had preferred to use the online e-commerce platform hosted by the Opposite Party No.1 company, vide its mobile application, to search for a superior graphic card, suited for his above said purposes. The Complainant had diligently selected ASUS ROG Strix NVIDIA GeForce RTX 3090 OC Edition Gaming Graphics Card (PCIe 4.0, 24GB GDDR6X, HDMI 2.1, Display Port 1.4a, Axial-tech Fan Design, 2.9-Slot, Super Alloy Power II, GPU Tweak II) from the seller named "Niroex PC Parts", for a price of Rs.1,99,989/-.
4. 0n 22.01.2022, the Complainant had made the order for the said graphics card, vide Order Number 405-2443457 3282765, as generated by the online platform hosted Opposite Party No.1 company. He had made the payment of Rs.1,99,989/- to the Opposite Party No.1 vide the same online platform via internet banking. After placing the said order, the Opposite Party had issued an online invoice in PDF format, vide number IN-6 Invoice details: BR-2062040345-2122 dated 22.01.2022, and the printout of said invoice has been produced by the Complainant. The Opposite Party No.1 company had also issued an order summary to the Complainant wherein the name and address of the Seller was shown as that of the person impleaded as the Opposite Party No.2. The online order summary depicting the payment made by the Complainant has been also produced by the Complainant.
5. The Opposite Party No.1 had initially provided the tracking information of the above order made via their mobile application and therein it was shown that the order was shipped on 24.01.2022. It was further shown in the description provided thereunder that the carrier had picked up the package on 24.01.2022 at 2.46 pm, and that the package would be arriving between 18.03.2022 and 03.03.2022. As per the tracking details, the package was shipped with Opposite Party No.3 courier company, vide tracking ID M28892027. The screenshot taken from the mobile application hosed by the Opposite Party No.1 company, depicting the above said details has been produced by the Complainant.
6. On 16.02.2022, the Opposite Party No.1 company had intimated to the Complainant that the shipment was getting delayed than expected and he could cancel the order and claim for refund if he wanted. Mysteriously, the tracking ID provided thereunder was seen to have changed from "M28892027" to "19041268009161". Screenshot of the said intimation, showing a different tracking ID has been produced by the Complainant. As per this information, the Complainant had attempted to communicate with the seller, the Opposite Party No.2, through the mobile App, but however, the Opposite Party No.2 failed to give him any reply. Thereafter, the Complainant had communicated with the messaging assistance service provided by the Opposite Party No.1 company in its mobile App and enquired about the reasons of the delay and the possibility of getting the ordered item, but failed to secure a satisfactory response. The Complainant did not receive any satisfactory reply from the messaging assistance service provided by the Opposite Party No.1. Combined with the mysteriously changed tracking ID of the said order, the Complainant had suspected some foul play. The Complainant had cross checked the tracking ID provided with in the website of the Opposite Party no. 3 (DTDC) but the details of the said order was shown as untraceable. The Complainant had also intimated the same in the Amazon messaging assistant service and enquired about the actual shipping details, but failed to secure any answers. The screen shots of the said communication with the Amazon messaging assistant has been produced by the Complainant.
7. On the very next day, i.e., on 17.02.2022, due to all the aforementioned reasons, the Complainant had cancelled the above said order in the mobile application itself, and raised a claim for the refund of the amount paid, i.e., Rs.1,99,989/-. The Opposite Party No.1 had taken about a week time to be processed. The screenshot of the said acknowledgment has been produced by the Complainant.
8. 0n 20.02.2022, the Complainant had received a notification from the mobile App of the Opposite Party No.1 and when checked it was found that the seller, i.e., the Opposite Party No.2 had directly sent four images to the Complainant, all of which purporting to indicate that the above order was delivered to Complainant. The images sent by the Opposite Party No.1 included the photo as well as the scanned copy of a proof of delivery document, the photo of the customer copy of the pickup receipt, and a long screenshot showing tracking information, all of which indicating that the said order in the tracking ID 19041268009161 was delivered on 06.02.2022 itself through Delhivery Courier service, impleaded as the Opposite Party No.4. The Complainant had immediately understood that he was being cheated, as the signature shown in the Proof of Delivery document was not of his. Further, the' courier service had been changed from Opposite Party No.3 (DTDC) to Opposite Party No.4 (Delhivery). The printout of the email notification of the message sent by the Opposite Party No.2 along with printouts of all four images sent by the Opposite Party No.2 via the mobile app of the Opposite Party No.1 have been produced by the Complainant.
9. The Complainant had immediately replied to the seller in the Amazon app itself that the signature shown therein is fake and he will take legal actions, after which the seller had asked him to check with the neighbours, friends, family etc. However, the Complainant had questioned the truthfulness of the same, as the expected delivery date shown initially was between 18.02.2022 and 03.03.2022, but the product is now being claimed to have been delivered on 06.02.2022 itself. The screenshot of this communication with the Opposite Party No.2 has been produced with the complaint.
10. Thereafter, on 21.02.2022, the Complainant had received an email from the Opposite Party No.1 stating that the refund claim initiated by the Complainant on 17.02.2022 had been investigated and that the same was denied. The email had suggested an appeal forum within the platform of the Opposite Party No.1 to appeal against the denial of the said claim. The printout of the email denying the refund claim of the Complainant is produced. The very same day, the Complainant had preferred an appeal to the appellate forum as suggested by the Opposite Party No.1, but again the earlier decision of denial of refund was upheld on the same day itself, i.e., on 21.02.2022. The printout of the email sent by the Opposite Party No.1 denying the appeal filed by the Complainant has been also produced with the complaint.
11. Consequently, on the very same day, i.e., 21.02.2022, the Complainant had approached the Opposite Party No.4 office at Kalpetta (shown in correspondence address in Wayanad) and enquired about the status of the package, wherein it was revealed that the package in the above tracking ID was some other item which was delivered by them in some other address and not in the Complainant's address. The documents received from the office of the Opposite Party No.4 indicated that the buyer was some another person at Kalpetta namely "Le Fascino" with the address, "Rawther Building, Opposite to Vijaya Bank, Chungam, NH 212, Kalpetta - 673121", and that the said buyer had purchased some other item named "Kartrorocketsmall Surface" from the seller named as Niroex PC Part, same as the Opposite Party No.2, and that the buyer had received the order on 06.02.2022. However, the tracking ID shown therein indicated the same tracking ID, i.e., 19041268009161, subsequently assigned to the order made by the Complainant. The document received from the office of the Opposite Party No.4 and the photo taken from their computer also have been produced by the Complainant.
12. Owing to the criminal acts resorted to by the opposite parties, on 22.02.2022, the Complainant had preferred a complaint in the Cyber Cell Police Station Kalpetta, and the copy of the complaint has been produced with the complaint.
13. As the Opposite Party No.1 was hesitant to provide the refund to the Complainant, the Complainant had contacted the Opposite Party No.1 through social media, and consequently, the Social Media Escalation Team of the Opposite Party No.1 had taken up the issue. The Complainant was thereby advised to wait up until the final estimated delivery date, being 03.03.2022. Unfortunately, even after the passing of the said date, the Complainant neither received the product, nor the refund. Thereafter, even the social media escalation team had denied the refund claim of the Complainant. The printouts of the email conversation between the Complainant and the Social Media Escalation Team of the Opposite Party No.1 has been produced with the complaint.
14. The Complainant submitted that the opposite parties have not only failed to deliver the above said package but they had have intentionally resorted to criminal breach of trust, misappropriation of property, forgery and other offences, for the purpose of cheating the Complainant and cause him unlawful loss and hardships. The opposite parties have used their online platforms to commit the above said unfair trade practices and deficiency of service and therefore the said acts constitute various offences as well. The opposite parties have neither delivered the Complainant's order, nor refunded him the above said amount. Further, the Opposite Parties have even gone to the extend of forging the Complainant's signature in the proof of delivery document for the purpose of cheating him. The above stated acts of the opposite parties amounts to unfair trade practices and deficiency in services at the minimum, and has caused irreparable loss and damage to the Complainant and mental agony to him, which cannot be merely compensated in terms of money.
15. The Complainant further submitted that the above said graphics card is now not available for the previously ordered amount of Rs.1,99,989/- and the prices had gone up tremendously. The Complainant is now financially drained to place a new order for the same product, that too, for an enhanced amount, and therefore, is continuing to suffer losses due to the irresponsible and illegal actions of the Opposite Parties. The Complainant is further seeking an additional compensation of the continuing and future damages in the tune of Rs.1,00,000/-. The printout of the hosting of the same product in the website hosted by the Opposite Party No.1 which shows an increased price has been produced by the Complainant.
16. The Complainant had caused to issue a registered lawyer's notice to the Opposite Parties No.1 and 2, and the office copy of the lawyer's notice along with the postal receipts has been produced with the complaint. The notice sent to the Opposite Party No.2 was returned on the endorsement that such a person was not found, and now the Complainant apprehends that the Opposite Party No.2 is only a front to abet and condone illegal activities entailing cheating and other online scams. The returned notice has also been produced by the Complainant.
17. The above graphics card was ordered by the Complainant for the purpose of his work and employment, and due to the actions of the Opposite Parties, had caused the Complainant to incur huge losses on account of delay, and his reputation was blemished due to the same, for which the Complainant is claiming a compensation of Rs.2,00,000. The action of the opposite parties falls nothing short of unfair trade practices and deficient service to its customers including the Complainant. The Opposite Party No.2 has miserably failed to apply due diligence in hosting the Opposite Party No.2 as sellers, thereby, at the least condoning, and the most abetting such criminal actions, which has caused unlawful loss of money and reputation to the Complainant. The Opposite Party No.1, who advertises itself to be one of the most secure and reliable players in terms of online e-commerce, has terribly failed to live up to the standards and has paved way to cause the Complainant to suffer the above said irreparable loss and damage.
18. Hence it is prayed before this Commission to make an award ordering the Opposite Party No.1 to Supply the Complainant the same product immediately or pay the Complainant a sum of Rs.1,99,989/- with interest @ 12% of the date of the complaint till realization, pay an additional sum of Rs.3,00,000/- as compensation and to pay the costs of this case.
19. Notices were served to the Opposite Parties for appearance. But they did not appear for contesting the case. Therefore, the Opposite Parties were set ex-parte.
20. Proof affidavit was filed by the Complainant, Exts.A1 to A20 were marked from his side and he was examined as PW1. In chief affidavit and oral evidence the Complainant reiterated all his allegation against the Opposite Parties. Commission perused the complaint, proof affidavit, documents marked and the oral evidence adduced by the Complainant in detail. On verification of Ext.A1 it is evident that the products as narrated by the Complainant were purchased by him through the online platform of amazon.in paying Rs.1,99,989/- by net banking method of SBI which is also evident from Ext.A2 document. On going through the subsequent Exhibits marked chronologically from Exts.A3 to A20 it is clear that the products ordered by the Complainant have not been delivered to the Complainant till date. The documents marked by the Complainant reveals that though he had ordered for the products paying Rs.1,99,989, the Opposite Parties have failed to deliver the products nor to refund the price of the products to the Complainant as demanded as per Ext.A6, so far. Accepting price of the products and not delivering the ordered products to the consumer by the seller and neglect to refund its price received by the seller to the Complainant is nothing but deficiency in service/unfair trade practice from the part of the seller. So here there has been deficiency in service/unfair trade practice from the part of the Opposite Parties for which they are liable to compensate the Complainant.
21. The Opposite Parties had the opportunity to appear before this Commission to contest the case. But they did not appear and contest. So, this Commission has no other option than to believe the allegations of the Complainant which are seen true from Exts.A1 to A20 documents.
In the result, the complaint is allowed and the Opposite Party No.1 is ordered to
- Supply the same product or to refund Rs.1,99,989/- (Rupees One Lakh Ninety Nine Thousand Nine Hundred and Eighty Nine Only) with interest @ 8% per annum from the date of this complaint to the Complainant,
- Pay an additional sum of Rs.3,00,000/- (Rupees Three Lakhs Only) as compensation to the Complainant and
- Pay Rs.10,000/- (Rupees Ten Thousand Only) as cost of this complaint to the Complainant.
The above order shall be obeyed by the Opposite Party No.1 within one month from the date of this Order, failing which the amount will carry interest @8% per annum from the date of this Order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 23rd day of January 2023.
Date of Filing:-30.04.2022.
PRESIDENT(I/C) :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the Complainant:-
PW1. Vishnu Ranjidas. 3D designer, VFX Artist.
Witness for the Opposite Parties:-
Nil.
Exhibits for the Complainant:
A1. Tax Invoice. Dt:22.01.2022.
A2. Final Details for order #405-2443457-3282765.
A3. Screen shot of expected delivery date and Tracking Information.
A4. Screen shot of Communication.
A5. Screen shot of Communication with amazon messaging assistant.
A6. Screen shot indicating the acknowledgment of the refund claim
initiated by the Complainant.
A7. Print out of the Email notification of the message sent by the
Opposite Party No.2.
A8. Printouts (4 Nos).
A9. Printout of Email.
A10. Printout of Email sent by Opposite Party No.1.
A11. Printout of Email sent by Opposite Party No.1.
A12. Copy of document received from Opposite Party No.4’s office.
A13. Copy of printout showing the delivery details of item in tracking
ID:19041268009161.
A14. Copy of complaint given by Complainant to Cyber cell.
Dt:22.02.2022.
A15. Printout of Email Conversation.
A16. Printout of Amazon website.
A17. Copy of Lawyer Notice. Dt:08.03.2022.
A18. Postal Receipts.
A19. Returned Notice sent to Opposite Party No.2.
A20. Certificate U/s 65B of the Evidence Act. Dt:27.04.2022
Exhibits for the Opposite Parties:-
Nil.
PRESIDENT(I/C) :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
ASSISTANT REGISTRAR
CDRC, WAYANAD.
