ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 12 of the Consumer Protection Act,1986 praying this Commission to direct the OPs to refund the cost of AC a sum of Rs.20,290/-, installation charges of Rs.1500/-, removal charge of Rs.1,000/-, damages for causing inconvenience Rs.30,000/- in all Rs.52,790/- in respect of the deficiency in service in not supplying the coolant in the AC and supplying a defective Air conditioner and such other reliefs as the Hon’ble District Commission deems fit and under circumstances.

2.     The brief facts of the complaint are that, the Complainant purchased one BPL 1 TON 3 star split AC under Order No.#403-5629710-9263536 through OP.No.1 sold by OP.No.2 on 17.07.2018 by paying Rs.20,289.74 and the same was delivered on 23.07.2018.  The product comes along with monitor split AC stand, heavy duty air conditioner unit with mounting units brackets.  The same was got installed by paying Rs.1,500/-.  At that time, it was noticed by the technician that there was no coolant in the AC.  Inspite of it, the same was installed. Since the room was refurbished, he could not use the AC for about four weeks. Then he realized that AC was not performing as expected and lodged a complaint with BPL customer care. The technician of BPL visited and confirmed that a faulty product was supplied and suggested to contact OP.No.1 as the same was ordered through it.  He requested OP.No.1 to take back the product and for refund of the amount. 

3.     Further he had to pay Rs.1,000/- for removing/uninstalling the said product in order to send it back to OP.No.1. The same was delivered to the men of OP.No.1 who had come with pickup van to take back the same and he did not issue any confirmation acknowledging for having received the same. Afterwards he only issued confirmation for having received the bracket and not in respect of the AC. The refund of the amount for the bracket was processed, whereas, not in respect of the AC. Since the complainant had contact details of the pick-up personnel, who received the AC to return, he informed that the same was delivered to the warehouse. The supervisor of the warehouse one Mr. Vamshi was contacted over phone and he confirmed the receipt of the product. The complainant followed the customer care of OP.No.1 to trace the product and to refund the amount.  Though the complainant was promised by OP No.1 for refund of the money, but the same was not done. Hence there is deficiency of service on the part of OPs. Hence the complaint.

4.     Upon the service of notice, Op No.1 and 2 appeared before the Commission and filed the separate version.

5.     The version filed by OP.No.1, it is contended that OP do not sell or offer sale of any products. It is only a web platform facilitation for purchase and selling of the products.  The buyers purchases the products from third party sellers from a virtual mall, shopping complex and the seller/manufacturer who sells the merchandise, and liable for their products.  They supply the materials or the products manufactured by Cloudtail India Pvt. Ltd and Keerthi Agencies and OP No.1 has no control over the said product.  Complainant do not fall within the definition of consumer. It has admitted that, the purchase of the split AC monitor out door unit mounting brackets through it. It is only a facilitator and there is no role to play regarding transaction and its installation. The act between the OP and the seller is on principal to principal and not on principal to agent basis. It is limited to a facilitator. 

6.     The conditions of use has been accepted by the complainant at the time of purchase. The complainant contacted OP for refund of the amount of the AC and also non-receipt of refund of the same. OP.1 investigated the issue by the sellers and received the information that the seller has received the different product and not the one sold to it. Hence refund was denied by the seller. OP.No.1 has no role to play in refunding the amount and hence the complaint is not maintainable. As per RBI guidelines, it requires to open a nodal account for settlement of claim of the sellers and buyers and transaction amount goes into said nodal account.  The complainant has not bought the product from OP.No.1 nor has the complainant paid the amount of consideration to OP.No.1. As can be seen from the invoice,  the same was sold by sellers.  This commission has no jurisdiction to decide this claim.  On the above grounds, prayed the forum to dismiss the complaint.

7.     In the version of OP No.2, it is contended that it is carrying on the business of sale of goods as a retailer through OP.No.1 website. It has denied each and every allegation made against it in the complaint. The complaint is liable to be dismissed on the ground of misjoinder of necessary parties as it nothing to do with the complaint who availed the services of OP.No.1 and in default of the same, refund  to be made OP.No.1. 

8.     Complainant has suppressed the material facts. No reasonable grounds and cogent evidence provided to prove the allegations.  The complainant purchased the AC for Rs.20,289.74 which was duly delivered to him. The OP 2 is a reseller of the OP.No.1 and the same was delivered by OP No.1. The allegations made by complainant is against OP No.1.  Complainant never contacted Op No.2 for redressal of his grievance. The service installation was obtained through OP.No.1 only.  OP.No.2 cannot be held responsible for the deficiency in service against Op.No.1, complainant is not entitled for any reliefs as it filed on baseless, frivolous and vexatious grounds and liable to be dismissed under Section 26 of the Act and prayed for dismissal of the complaint.

9.     In order to prove the case, Both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

10.   Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

POINT No.1 and 2:-

11.   Upon perusing the entire documents, version and the complaint it becomes clear that the complainant purchased split AC by paying Rs.20,289.74 made by BPL sold by OP.No.2 supplied by OP.No.1.  When the technician came to install, the same he found that the AC was not performing and the same was uninstalled.  He got only the refund of the bracket and whereas, the cost of AC was not refunded as it was not processed since it did not reached the fulfillment center. He obtained all the details and found that it has reached the destination as per one Maruti KR who picked up the material and delivered to the warehouse, wherein one Vamshi the supervisor has confirmed the receipt of the product. The same has not been denied by OP.No.1 and 2.  The email correspondences shows that the warehouse team has informed that they have received defect product from BPL other than the one supplied to the complainant and hence they cannot refund the amount.  The documents produced clearly establishes the complainant purchasing the AC with other accessories and emails confirm got within the same from OPs.

12.   How can a person purchased the AC from OP.No.2, can send back another different AC, is not explained.  Probably in order to avoid payment of the cost of the said product, OPs have taken such a stand which amounts to deficiency of service and also unfair trade practice. Hence we are of the opinion that, inspite of receiving back the product, has not refunded the cost of the same.  If at all, OPs have received the wrong product, they should have returned to the complainant with proper endorsement. They have not done so. They kept the product for themselves and denied for refunding the cost of the same. Hence we answer POINT NO.1 IN THE AFFIRMATIVE  and further order OPs to jointly and severally to refund Rs.22,790/- (Rs.20,290/- cost of the Act Rs.1,500/- installation charges Rs.1,000/- towards uninstallation charges )and Rs.5,000/- towards damages for causing mental agony and hardship and Rs.2,000/- towards cost of the litigation expenses and hence POINT NO.2 PARTLY IN THE AFFIRMATIVE  and pass the following:-

ORDER

1.  Complaint is allowed in part with cost.
2.  OP No.1 and 2 are jointly and severally hereby directed to pay sum of Rs.22,790/- (Rs.20,290/- cost of the AC Rs.1,500/- installation charges Rs.1,000/- towards uninstallation charges ) along with interest at 12% per annum from 17.07.2018 till the payment of entire amount to the Complainant.
3.  Further OPs are hereby directed to pay Rs.5,000/- towards damages and Rs.2,000/- towards cost of litigation.
4.  OPs further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5.  Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this day the 12^th day of February 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the notice sent by the complainant to OP

Ex P2: Copy of the notice sent to could tail.

Ex. P3: Copy of the  order

Ex P4: Email correspondences.

Ex P5: Copy of the photos.

Ex P6: Copy of the reply form the amazon to notice.

Ex P7:Copy of the reply form the cloud tail to the notice.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: -Nil-

Copies of Documents produced on behalf of Opposite Party/s

-Nil-

MEMBER                        PRESIDENT

RAK*