The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the Authorised Signatory of Momentum Technologies INC Pvt. Ltd., Motinagar, New Delhi, O.P No.2 is the Customer care of Momentum, Corporate Office, New Delhi and O.P No.3 is E-Com-Express, Fakirmohan Nagar, Balasore.
2. The case of the Complainant in brief is that the Complainant ordered for one laptop before O.P No.2 and as per direction of O.P No.2, he paid Rs.30,089/- (Rupees Thirty thousand eighty nine) only through net banking (Paytm) in favour of O.P No.1 for delivery of said laptop in the month of October-2016 and obtained a receipt after successful transaction. After few days, the O.P No.3 delivered one parcel to the Complainant on 22.10.2016 and after opening the same parcel, the Complainant found a ‘Tile’ instead of ‘Laptop’. Thus, the Complainant on receipt of said tile instead of laptop, communicated the O.Ps through phone immediately, but the O.Ps did not take any steps for settlement of the dispute. Accordingly, the Complainant sent legal notice to the O.Ps through his Advocate on 23.11.2016 through registered post with AD, but the O.Ps did not pay any heed to it, which amounts to deficiency-in-service by the O.Ps and causing mental agony to the Complainant. The Complainant has prayed to provide a laptop or return back the claim amount along with compensation for mental agony and litigation cost.
3. Though sufficient opportunities were given to O.Ps No.1 and 2, but they have not appeared in this case. The O.Ps No.1 and 2 are set ex-parte.
4. Written version filed by the O.P No.3 through his Advocate denying on the point of Consumer as well as its cause of action. The O.P No.3 has further submitted that the impugned product was delivered by the O.P No.3 in properly packaged condition, thus fulfilling their responsibility in the role of a “Courier Service provider” and signed POD receipt. The O.P No.3 denied that he has received any legal notice from the Complainant. Since the O.P No.3 has delivered the impugned product in properly packaged condition to the address of the Complainant, so the role of the O.P No.3 is confined and there is no deficiency of service on the part of the O.P No.3. Thus, the case of the Complainant is liable to be dismissed, for which the Complainant is entitled to any compensation from the O.P No.3 and in fact, the Complainant is liable to provide exemplary and compensatory costs to the O.P No.3 for causing undue harassment by dragging them into this litigation in an utmost frivolous and unnecessary manner.
5. In view of the above averments of both the Parties, the points for determination of this case are as follows:-
(i) Whether the Complainant is a Consumer under the O.Ps as per C.P Act-1986 ?
(ii) Whether there is any cause of action to file this case ?
(iii) To what relief the Complainant is entitled for ?
6. In order to substantiate their claim, both the Parties have filed certain documents as per list. Perused the documents filed. It has been argued on behalf of the Complainant that after receiving of the required parcel, when he opened it, he found a tile instead of Laptop and thereafter, he made correspondence to the O.Ps, but failed to get any remedy, which amounts to deficiency of service on the part of the O.Ps. Thus, the Complainant has filed this case praying to provide a new laptop or to refund the required claim amount along with compensation and litigation cost. On the other hand, the O.Ps No.1 and 2 are set ex-parte as mentioned earlier and it has been argued on behalf of the O.P No.3 that he being the Courier Service provider, has no role about the matter of the parcel and nothing has been complained to him after delivery of the said parcel. The Complainant issued legal notices to the O.Ps, but they remained silent and after several correspondences, they also remained silent in this matter. On perusal of the case record and documents available, it shows that payment has been made to Paytm vide Paytm cash transaction No.3320752853 having order No.2128546040. The Complainant has argued that he has received the courier and opened the same and found a tile. This fact has also been reflected in the documents submitted by him (but not marked as Annexure for the reason best known to him). A letter available in the case record issued by the O.P No.1 to the Complainant shows that the Complainant has bought laptop from Paytm. Another document (Annexure-OP-1) shows that the courier was received by one friend Alok Ku. Mohanty. So, the submission of the Complainant regarding receiving of tile is contrary to the documents available in the case record. Another document available in the case record shows that the Complainant submitted photo proofs of the marble stone instead of Dell laptop. But, the Complainant is silent what happened to the photographs and nothing has been proved before this Forum for filing of any evidence regarding photo graphs of tile/ marble stone received by him. No satisfactory explanation in this regard has been submitted to us to believe the plea of the Complainant. Moreover, the payment has been made to Paytm, but he has not been made Party in this case though in the complicated juncture, he is a necessary Party.
7. So, now on careful consideration of all the materials available in the case record and after hearing both the sides, this Forum come to the conclusion that the Complainant has not come to this Forum in clean hand and has suppressed the material facts, for which the Complainant is not entitled for any relief as prayed for and accordingly, this Consumer case is liable to be dismissed. Hence, Ordered:-
O R D E R
The Consumer case is dismissed on ex-parte against O.Ps No.1 and 2 and on contest against O.P No.3, but in the peculiar circumstances without cost.
Pronounced in the open Forum on this day i.e. the 4th day of June, 2018 given under my Signature & Seal of the Forum.
