Assam

Dibrugarh

CC/3/2022

AMBARISH BORTHAKUR - Complainant(s)

Versus

AVXellence TECHNOLOGIES PVT. LTD - Opp.Party(s)

Mr. Ambarish Borthakur

09 Apr 2024

ORDER

Date of Argument – 04.11.22 & 03.12.22  

                                                                        Date of Judgment –  15.06.2023.

 

            This complaint was filed by the complainant under section 35 of Consumer Protection Act, 2019 claiming to direct the O.P. either to replace the damaged delivered product in question of this complaint with a brand new one of same specification or refund the purchased amount of Rs.24,000/- and to direct the O.P. to pay a sum of Rs.1,05,000/- as compensation and the cost of this litigation.

 

Judgement

 

            The case of the complaint is that the complainant is a resident within the jurisdiction of this Commission. The complainant visiting their online website placed an order before the O.P. online on 02.10.2019 for a pair of PURE ACOUSTIC Supernova 5 Floor Standing Speakers and paid Rs.24,000/- through online payment to the O.P. vide invoice ID INV-000578 as consideration amount against the product ordered. The complainant alleges that upon delivery of the said ordered product on 13^th Oct, 2019 by the OP’s designated courier DTDC the complainant got to perceive that the base of the speaker was cracked for which he placed the request for replacement on that day itself. But he got no response from the O.P.

 

            The complainant in order to get proper and facilitated ordered product contacted the O.P. authority to replace the damaged product but he did not receive any response from the O.P. and also the O.P. did not take any initiative to replace the damaged product. Being deprived of proper and facilitated procurement he again and again intimated the O.P. by way of telephonic conversation and by way of e-mail conversation in order to solve the issue, but the executive of the O.P. had acted like flogging of a dead horse in lieu of solving the complaint.

 

            The complainant states that this disputes clearly indicates the negligence on the part of the O.P. and the said O.P. is running an unfair trade practice in order to dupe the hard earned money of the complainant wherein the O.P. has intentionally provided de novo dreadful and deceitful service to the complainant and has not provided proper services towards the complainant which has caused unnecessary noetic agony and stress and the O.P. is liable for deficiency in their services.

 

            The complainant has filed this complaint seeking the following reliefs from the O.P.

 

1. To provide a brand new product of same specification or refund the amount of Rs.24,000/- paid by the complainant as consideration amount against the product ordered.
2. Rs.1,05,000/- as compensation for deficiency of service and for mental harassment and agony.
3. The cost of litigation.

 

            After registering the case notice was issued to the O.P. and the O.P. contested the case by filing their W/S.

 

            In their W/S the opposite party denied the complaint filed by the complainant saying that the complaint is not legally tenable and hence liable to be rejected. The O.P. alleges suppression of material facts by the complainant in filing his complaint. O.P. claims that the complainant has not claimed any relief/compensation against the O.P. The O.P. stated that the complainant had not submitted any supporting document and communications that had been done with the O.P. along with the complaint with respect to deficiency in service or in product. The O.P. has also raised question regarding jurisdiction of this Commission to try this case. The O.P. has not admitted that the base of the speaker was cracked and also states that the O.P. accept various orders online from customers for their requirements of products like speakers, home theatres, subwoofer, sound bars, amplifiers etc. as per the orders and as per the satisfaction of the customers.  If there is any defect in the product, it is dealt with immediately. But in this case the complainant did nothing, instead the complainant is trying to get money and free product from the O.P. through fraud and as such a false complaint has been filed in this Court. The complainant, as alleged by the O.P., neither contacted the O.P. authority to replace the damaged product nor did the complainant take any action as per company’s rule to replace the damaged product.

 

            Denying the allegations of para 5, 6 and 7 of the complaint petition the O.P. submitted that it is not incorrect to say that in the case of distribution of the ordered product, the O.P. instructed the complainant to deliver the defective product as per the company’s return policy, the complainant was required to first send the defective product to the company, but the complainant did not take any action. The O.P. claims that although the complainant paid the full amount to the O.P. authority, he has been  given the item as per the rules of the company. The complainant has not delivered the item to the company within the stipulated time or warranty period, so the complainant is not eligible for any compensation. As regards condonation of delay in filing the complaint, the plea of the complainant of Covid-19 pandemic is not admitted by the O.P. and they claims that the complainant has not approached the Commission with clean hands. The O.P. claims that they replied the legal notice of the complainant on 24.03.2021 assigning the reasons about return/refund policy, warranty policy and baseless ground. Challenging the condonation of limitation the O.P. submits that “the product has been purchased on 02.10.2019 and was delivered on 12.10.2019. There was no question of Covid related delay at that time, so how can the complainant claim COVID delayed excuse?” Regarding jurisdiction the O.P. submits “the complainant has purchased the speaker through defendants online portal, hence the company rules are acceptable to the complainant as per company rules and regulations, hence the complainant had to file the complaint in Pune Court, but the complainant did not do so with the intention of harassment and hardship and fraud.”

 

            In support of their W/S the O.P. has enclosed 7(seven) Nos. of documents along with their W/S.

 

            In his evidence in affidavit the complainant states on oath that he is an employee in the position of an Estate Manager of Romai Tea Estate, Dibrugarh, Assam and on 01.10.2019 he became the consumer of the O.P. by making an online payment of Rs.24,000/- via gateway link of the O.P. to purchase the pair of PURE ACOUSTIC Supernova 5 Speaker Standing Base for personal use and this brand new speaker was purchased by him as per suggestions and recommendations of the O.P. (Ext. No. 1 and 2 are the online payment receipt acknowledgement). The ordered product was delivered to the complainant on 13.10.2019 by the OP’s designated courier DTDC along with tax invoice (Ext. No.3 is the invoice ID No. INV000578 in original).

 

            On opening the delivered box of the aforesaid ordered product, the complainant states that it was found that all the thermocols inside the cardboard box were completely damaged and the base of one of the speakers has cracks and there was no sound from one of the speakers when connected to a power amplifier. He alleges that the product was not accompanied with the warranty card of the manufacturer along with the product and the complainant further alleges that it appears to him that the product supplied by the O.P. is not genuine as all genuine products are provided with warranty card and this indicates that the O.P. resorted to unfair trade practice and adopted fraudulent means of business.

 

            The complainant immediately after that sent email to the O.P. on 13.10.2019 itself and also informed Mr. Anand Lulla (Proprietor of M/s AVExcellency Technology Pvt. Ltd.) over telephone and requested immediate replacement of the damaged speaker. (Ext. No.4 is the print out of the email sent to the O.P.). On 21.10.2019 he sent another email to the O.P. along with photographs of the damaged packaging material (thermocol) used inside the box. (Ext. No.5 is the print out of that email with photographs).

 

            On 22.10.2019 he received an email from Mr. Anand Lulla demanding photographs of the damaged speakers and a short video clip over whatsapp. (Ext. No.6 is the print out of the email of Mr. Anand Lulla) and he immediately on that day sent an email attaching photographs of the damaged speakers (Ext. No.7 is the print out of that email). He also sent a short video clip as visual proof of the damaged product delivered to him through whatsapp as sought for by the O.P. Lateron Mr. Anand Lulla called the complainant over telephone and asked him to explore the possibility of repairing the damaged speakers locally and assured him of reimbursing the cost of repairing of the speaker to make it functional. In reply to which the complainant promptly wrote an email intimating the cost of repairing the defunct speaker locally (Ext. No.8 is the print out of that email). But thereafter no response/reply etc. from the O.P. has been received by the complainant and the O.P. ignored the matter completely.

 

            That on 07.11.2019 the complainant sent another email to the O.P. requesting them to respond and address his issue, but unfortunately, there was no response from the O.P.(Ext. No.9 is the print out of that email).

 

            In his evidence in affidavit the complainant states that after several attempts he contacted Mr. Anand Lulla over telephone who in turn referred the matter to Mr. Nanik Lulla (another proprietor of the Firm). The complainant requested Mr. Nanik Lulla to send their authorized representative to verify the speakers at his end in the conditions he had received or to arrange reverse collection through courier, as it was not possible for him to repack and send the speakers back as the packaging materials (thermocol) were already damaged and sending back the speakers in that condition may cause further damage to the speakers obliterating the initial damages. The complainant alleges in his evidence that to his utter shock and dismay after a long gap, Mr. Nanik Lulla called him over telephone, abused him verbally and accused him that all his reports and claims about the damaged speakers are false, baseless and alleged that he had deliberately damaged the speakers. He claims that the O.P. adopted unfair means and unjust method to downplay their negligence, faults and deficiency in services and reveals their clear intention to sell substandard and spurious products online for maximum profit. The complainant also states that he lodged his complaint in the online consumer helpline

            The complainant after all these, due to Covid pandemic-2019 restrictions prevailing in that period, took online legal assistance of an advocate and a legal notice was also sent to the O.P. and the same was duly received by the O.P., but they considered it not to be replied.

            Having no alternative the complainant filed this complaint before this Commission, having jurisdiction claiming to direct the O.P.

 

1. To refund the purchase amount of Rs.24,000/-.
2. To pay Rs.1,05,000/- as compensation to the complainant for deficiency in service and for mental harassment and agony  - and
3. To pay the cost of litigation.

 

            In reply to the evidence of complainant the O.P. submitted their evidence in affidavit. In their evidence the O.P. deposed that D/W Shri Nanik Meghraj Lulla is the Director of the O.P. company and he is the authorized representative of the company and under that authority he has deposed his evidence on behalf of the O.P. company (Ext. A is the authority letter).

            As stated by this D/W they are not the manufacturer of speakers, home theatres etc. and they are only seller of those articles and they have their registered office at AKSHAY COMPLEX, DHOLE PATIL ROAD, PUNE. They have Udyam registration certificate No.UDYAM-MH-26-0044985 and GSTIN 27AAPCA2686QIZQ (Ext. B is the Udyam Certificate and Ext. C is the GSTIN certificate).

            The O.P. in their evidence in affidavit states that they sell products of reputed manufacturing companies through their show room and online. They are not manufacturer of any product. If there is any defect in the product manufactured by the reputed companies then the defective product is properly checked by them and sent back to the manufacturing company and defective product is replaced or refunded to the customer according to the terms and conditions of the company. They alleges that the complainant is not aware of the date of purchase of the product as in the plaint filed by him the date of purchase mentioned was 02.10.2019 but in his evidence the date of purchase was mentioned as 01.10.2019. The O.P. raises question in their evidence also regarding filing complaint within the stipulated time. At the same time they have stated that the product purchased is still retained by the complainant till filing this evidence. They claim that the product should have been returned once defect/damage was detected and moreover the complainant was fully aware of the terms and conditions of online purchases. If a customer makes an online purchase and payment, the terms and conditions of the seller are deemed to have been accepted at the time of purchase, moreso in their online portal until and unless a customer selects the box - I HAVE READ AND ACCEPTED THE TERMS AND CONDITION, any purchase transaction cannot be completed. They claim that the complainant neither contacted them to replace the damaged product nor did he take any action as per the company rules to replace the damaged product and moreover as per FAQ on Consumer Protection Act it is stated that “damage on the product itself cannot be the base for product liability compensation (Ext. D is the company’s terms and conditions and Ext. E is the shipping and return policy of the company). In reply to para 4 of the evidence in affidavit of the complainant the O.P. in their evidence termed it as totally false and baseless as first, for the record, there was no visible external damage to the package when it was received by him and secondly, when one opens the carton if one notices even slight damage to thermocol one should pack it up without going further opening the product. Failure to do so makes them to suspect malicious intent on the part of the complainant. As regards allegation made by the complainant regarding genuineness of product and warranty thereof, the O.P. states that the product supplied is a genuine product of a reputed United Kingdom based brand and it is an accepted fact that all products carry warranty for one year against manufacturing defects from the date of invoice and its supply. Admitting the conversation of the complainant and the O.P., this D/W says that it was in good terms and their intentions were to help the complainant by going the extra miles as for them “The Customer is God”, but the complainant took undue advantage of their humble gesture with a calculative intention to squeeze money from them and also to retain the goods supplied.

            In reply to para 12 of the evidence in affidavit of the complainant the O.P. in their evidence states that on 22.10.2019 itself the complainant was immediately told over telephone to go ahead to repair the unit at the cost of Rs.4,500/-, the amount being mentioned by the complainant and he was requested to submit bill and letter of satisfaction after which the amount will be remitted to him. In reply to para 17 of the evidence of the complainant this D/W states that he requested the complainant that if he has not already got the product repaired, he should returned the same after packing it to the best of his ability, but unfortunately for reasons best known to the complainant refused to comply with. In para 19 of their evidence in affidavit the D/W admits the receipt of Rs.24,000/-  from the complainant but denies the allegations of resorting to unfair trade practice.

            In their evidence in affidavit the O.P. repeatedly claims that the complainant for his selfish gain tried to mislead the Hon’ble Court by hiding many facts and information, mentioning false pretext of Covid-19, not returning the defective product till date inspite of very fact that in his full senses he has accepted the terms and conditions of online purchase of their company and online transactions in general and having read and understood them and placed order of his choice of product, also not repairing the same according to his own offer and choice including the amount to which they agreed upon and the acts of the complainant reflects his intention to harm the reputation of the O.P., harass them, defraud them and extract money from them and they claim to dismiss the complaint of the complainant with heavy cost.

            It is worth mentioning here that in reply to the advocate’s notice the O.P. expressed their intention to solve the grievance of the complainant amicably requesting the complainant to re-pack the (defective) unit securely so that they can arrange for their courier partner to collect the unit from where the item was delivered and they also declared the waiver of re-stoking charge which is normally calculated @25% of the order-value allowing 7 days time to the complainant to arrange for return of the product. (O.P.’s Ext. No.’G’).

           

            The complainant in this case submits his written argument on 04.11.2022. In his argument he confirms that the payment was made on 01.10.2019 through the payment gateway link provided by the O.P. directly to him. He has argued that the O.P. did not provided warranty card with the speakers, therefore unilateral terms and conditions of the O.P. are not applicable in this case. In reply to O.P.’s statement in W/S as well as in evidence that “in our online portal until and unless a customer selects a box I HAVE READ AND ACCEPTED THE TERMS AND CONDITIONS any purchase cannot be completed” is completely false and misleading as the complainant did not have to select any box of terms and conditions as payment was made via link to a payment gateway provided directly by the O.P. over whatsapp. In support of argument the complainant had submitted all email communications made with the O.P. and as such the statement of O.P. “the complainant did not contact us to replace the damaged product nor did the complainant take any action as per the company rules to replace the damaged product” is completely false and misleading. The complainant in his written argument has submitted that he provided all the photographic and videographic evidences to the O.P. about the damage to the speakers, box and packaging materials immediately after receipt of the item as requested by them. He claims that it is the responsibility of the O.P. as the seller to collect back the damaged speakers through their designated courier and to replace the speakers at their cost which is the prevalent norms practiced by all online sellers across the country. The O.P. also gave him this assurance at the time of purchasing the speakers. He alleges in his argument that the O.P. did not submit any evidence or certificate to prove the fact that they are the authorized re-seller for the manufacturer

“PURE ACOUSTICS INC”  to sell their product in India and it implies that they are not authorized to sell products of “PURE ACOUSTIC” in India for which the O.P. could not provide the manufacturer’s warranty card along with the speakers at the time of purchase. This proves that the O.P. resorted to unfair trade practice and fraudulent means to sell gray market product online. In support of his claim the complainant enclosed the printout of the manufacturer’s website information as a piece of evidence (Ext. No.15 is the print out). He also claims that the O.P. did not response to the email sent to the O.P. on 22.10.2019. He further claims that the O.P. made no reply to the legal notice sent by his advocate as the O.P. could not submit any evidence to substantiate their claim.

 

            The complainant claims in his argument that as claimed in para-9 of their evidence in affidavit of the opposite party, the complainant did not receive any response from the O.P. against the email dtd. 22.10.2019. He also claims that the primary motive of the O.P. is to sell duplicate/grey market products for maximum profit as it is not possible for the online consumers/customers to contact the O.P. personally. As claimed by the complainant, Mr. Nanik Lula, the Director abused and threatened the complainant verbally over phone to create a fear psychosis in his mine so that he does not pursue the matter further.

 

            In reply to para-14 of the evidence in affidavit the complainant in his argument said that it is the responsibility of any seller to arrange inspection, repair or replacement of any defective or damage electronic item at the customers end as soon as any complaint is received. This is the current system prevalent in our country and is being practiced by all the online sellers. But the opposite party deliberately did not take any of these method and instead tried to drag the matter to deny replacement or refund against the defective/damaged/duplicate product sold to the complainant online. In his written argument the complainant states that all reputed manufacturers provide certificate of dealership to resellers and dealers. But in this case the O.P. has completely failed to provide to this vital evidence before the Commission. It implies that the O.P. does not have authorization from the manufacture to sell their product in India. The O.P. did not provide the manufacturer’s warranty card with the product. All genuine products come with a warranty card duly stamped by the dealer/reseller. At the same time he also alleges that the Opposite Party has tried to defame the dignity of the complainant by making false and baseless allegations for taking legal recourse.

           

            The complainant concludes with the prayer that his complaint be decided by the Commission directing the Opposite Party to fulfill the prayers of the complainant with cost.

 

 

            Filing their W/S the O.P. claims that the complaint of the complainant is not legally tenable and hence liable to be rejected. The complainant has filed this case not with clean hands and has suppressed many relevant and important facts. The complainant as stated by the O.P. in their W/S, has not submitted any supporting document and communications that had been done with the O.P. along with the complaint with respect to deficiency in service or product. The O.P. has denied that the base of the speaker was cracked as claimed by the complainant. The O.P. accepts orders from the online customers for various items like speakers, home theatres, sub woofers, soundbars, amplifiers, digital media players, and as per orders and as per satisfaction of the customers. If there is any defect in the product, it is dealt with immediately. But in this case the complainant did nothing, instead the complainant is trying to get money and product from the O.P. through fraud. The O.P. has claimed that the complainant neither contacted the O.P. authority to replace the damaged product, nor did the complainant take any action as per company’s rule to replace the damaged product.

 

            In para 12 and 13 the O.P. has repeatedly submitted that it is incorrect to say that for distribution of the above product, the respondent instructed the complainant to deliver the defective product, as per the company’s return/refund policy, the complainant was required to first sent the defective product to the company but the complainant did not take any action despite communicating the same to the complainant on various occasions. The O.P. has submitted that the complainant has paid the full amount to the O.P. authority, he has been given the item, but as per the rules of the company the complainant has not deliver the item to the company within the stipulated time of warranty period, for which the complainant is not eligible for any compensation. The O.P. has not admitted that the complainant has sent legal notice through his advocate on 18.06.2021 to the O.P. by registered post and that the said notice was replied by the O.P. by reply notice on 24.03.2021 containing the false averments. The O.P. submits that on 24.03.2021 the O.P. replied by a letter giving reasons about return/refund policy, warranty policy and baseless grounds.

 

            The O.P. has submitted that, before coming to this court the complainant had lodged complaint with the National Consumer Help Line. The complaint was responded to immediately after which no further communication was initiated by the complainant or the National Consumer Help Like. The complainant has hidden this information from the court. Challenging the jurisdiction of this Commission in entertaining the complaint, the O.P., in their W/S has submitted that the complainant has purchased the speaker through O.P.’s online portal, hence the company rules are acceptable to the complainant as per company’s rules and regulations, hence the complainant had to file the complaint in Pune Court, but the complainant did not do so with the intention of harassment, hardship and fraund.

 

            Submitted their evidence the O.P. has claimed that the case of the complainant be dismissed with heavy cost to the complainant.

 

In his written argument the complainant has submitted that the actual date of payment of consideration was 01.10.2019. He has submitted that as the opposite party did not provided warranty card with the speakers, the unilateral terms and condition of the O.P. are not applicable in this case. The complainant in his written argument specifically said that he has submitted all email communications with the opposite party to establish that he contacted the O.P. regarding replacement of damaged product. But the O.P. did not take any action to verify the extent of actual damage and defects with the speaker. He has provided all the photographic and videographic evidence to the O.P. to substantiate his claim regarding damages to the speakers, box and packing materials immediately after receipt of the item as requested by them. He has again claimed that it is the responsibility of the opposite party as seller to collect back the speakers through their designated courier and to replace the damaged speakers at their cost and this is the prevalent norms practiced by all online sellers across the country. The complainant has claimed that the opposite party is not the authorized re-seller for their products of “Pure ACOUSTIC INC” in India and in support of his claim he has enclosed a printout copy of the manufacturer’s website information as a piece of evidence, which the Commission accepted as evidence vide Exhibit -15 for proper adjudication of the case vide its order dated 04.11.2022. He alleges in his argument that Mr. Nanik Lula, the Director of the O.P. company abused and threatened him verbally over phone to create a fear psychosis in his mind so that he does not pursue the matter further. He has also submitted that the opposite party could have lodged a formal police complaint against the complainant if he had resorted to any unscrupulous method to extort or extract money from the O.P. That the complainant finally conclude that the conduct and behavior shown by the opposite party and its directors as well speaks of and reflects their unethical nature of business, cynical attitude of the directors and their dubious representation for which the complainant has filed this complaint against the O.P. seeking justice.

 

In their written argument the O.P. has stated that the product in question was delivered to the complainant on 13^th October, 2019 and as per the company’s terms and policies, the complainant should be aware of the fact that the invoice of sale of the product is deemed as warrantee which the complainant has submitted while adducing evidence marked as Ex-3 which means that the warrantee which for this particular product which was for one year and starts from the date of invoice and website terms and conditions. The O.P. has emphasized on the laws governing E-commerce policies in India and Consumer Protection Act, 2019 which clearly lays emphasis on Refund and Cancellation policy. It has set rules and regulations which every seller as well as purchaser is under obligation to follow. As per the law “if a consumer is unhappy with a product or service, they will return it and receive a refund for the amount paid at the time of purchase”. The Act further describes “the right to return any semi-durable or durable products purchased free of charge within fifteen days of purchase if they are returned in their original condition with no change in shape or size, and in their original packaging”. And “the buyer has returned faulty products and will give them back to the manufacturer distributor from whom he purchased them”. Ex-‘H’ is the extract from National Consumer Help Line – Govt. of India ‘knowledge base’. The O.P. in their written argument has claimed that the claim of the complainant was filed after expiry of the period of limitation.

 

Along with other arguments the O.P. has quoted that as per laws governing E-commerce policy in India and Consumer Protection Act, 2019 “if a product is found damage after delivery the onus lies on the consumer to re-pack and return the same to the dealer. But despite repeated advice and request from their end and for reasons best known to the complainant, he did not do so. As he was not keen on returning the product and as suggested by him that the product can be repaired locally at a cost of ₹4,500/-, the O.P. had given their consent and agreed to reimburse him the cost provided he gives an undertaking of satisfaction to the repairs carried out, but to their surprise of the O.P. the complainant did not carry out the same and for his malafide  intention and unjust gain choose to institute a false and baseless complaint against the O.P. The O.P. has also stated in their written argument that the complainant as per his statement made in para 23 and 24 of the evidence adduced by him, the O.P. has already counter-claimed and replied to the false, baseless and concocted allegations of the complainant in the Consumer Help Line of Govt. of India vide their reply dated 20.11.2019 which had been concealed by the complainant while filing the complaint which can be clearly seen in para- 12 and 13 of the complaint and O.P.’s reply in written argument in para-19 when O.P. has raised question so unfortunately to cover up his malafide intention tactfully revealed this fact while adducing evidence. The O.P. claims that the complaint be dismissed with heavy cost.

 

 

Points for decision

 

1. Whether the complainant is a consumer under Consumer Protection Act, 2019.

 

2. Whether this Commission has got jurisdiction to try this complaint.

 

3. Whether the complaint was filed within the period of limitation.

 

4. Whether the opposite party is liable for deficient and negligent services towards the complainant and

 

5. Whether the complainant is entitled to get the reliefs claimed in his complaint petition.

Points decided

 

1. Held that the complainant is a consumer of the opposite party under the Consumer Protection Act, 2019. This fact is not challenged by the opposite party anywhere in their W/S, evidence etc.

 

2. On going through the record and perusing the complaint petition it is decided that this Commission has proper territorial as well as pecuniary jurisdiction to try this complaint. Section 34 of Consumer Protection Act, 2019 clearly says that the District Commission shall have jurisdiction to entertain complaints where the value of goods or services paid on consideration does not exceed one crore rupees (now fifty lacs after amendment) and the complaint should be instituted within the local limits of whose jurisdiction- the cause of action, wholly or in part arises and the complainant resides or personally works for gain.

 

3. Held that the complaint has been filed within the period of limitation. From perusal of exhibits it is seen that the complainant served legal notice on the O.P. through his advocate Mr. Kousik Saha on 18.03.2021 and the reply thereof had been sent to the complainant on 24.03.2021. The cause of action arose on that day itself also and the case was filed and registered on 28.01.2022. Seen that the case was filed within time and no condonation whether on ground of Covid pandemic or other reasons were not required.

 

4. On careful perusal of complaint petition filed by the complainant and the W/S thereof filed by the O.P. and on minute scrutiny of the evidence and exhibits led by each of the parties we have found no reason to disbelieve the contents of the complaint petition filed by the complainant. First of all though the O.P. in his/their evidence in affidavit as claimed that the complainant neither contacted them to replace the damaged product nor did he take any action as per the company rules but from the documents submitted with the complaint and documents exhibited has spoke in contrary to the claim of the O.P. The complainant kept contact with the O.P. through E-mail and all the copies of E-mail have been submitted along with the complaint. But interalia the O.P. has failed to prove their claim through any documentary evidence. From perusal of complainant’s exhibit No.15 filed with his written argument it is seen that in India ‘Focal Audio Systems’ is shown as the only authorized reseller of PURE ACOUSTIC INC and from the information/declaration given in the website of the manufacturer it is requested to the customer quoted “please make sure to buy only from authorized dealers. The warrantee may not be valid if the products have been purchased from an unauthorized dealer or unauthorized online etailer.” From perusal of exhibit-‘I’ filed by the O.P. along with their written argument it is seen that the O.P. AV Excellency Technology Pvt. Ltd. is the authorized online seller on www.avstore.in for PURE ACOUSTIC INC products imported and marketed by Focal Audio Systems in India and the certificate was issued by the Director, Focal Audio Systems Pvt. Ltd. Observed that the certificate was not issued by PURE ACOUSTIC INC. We found it difficult to disbelieve the complainant who claims that the O.P. is not the authorized reseller of PURE ACOUSTIC INC for their products in India. The O.P. as reflected from their own exhibit No.-‘I’ was only authorised b y Focal Audio Systems  Pvt. Ltd. as online seller for PURE ACOUSTIC INC products imported and marketed by Focal Audio Systems in India.

 

In para 5 of their evidence on affidavit the O.P. has claimed that the complainant was fully aware of the terms and conditions of online purchase. If a customer makes an online purchase and payment, the terms and conditions of the seller are deemed to have been accepted at the time of purchase more so in their online portal until and unless a customer selects the box ‘I HAVE READ AND ACCEPTE THE TERMS AND CONDITIONS’ any purchase transaction cannot be completed. The complainant was aware of damage and replacement procedure of the O.P. company. But the complainant in his written argument termed the allegation of the O.P. stating that he did not have to select any box of terms and conditions as payment was made via link to a payment gateway provided directly by the O.P. over WhatsApp. We found no valid reason to accept the claim of the O.P. Regarding taking back the offered goods and services in E-commerce Rule-6 of C.P. (E-Commerce) Rules, 2020 plays a vital role. Rule-6 says “no seller offering goods or services through a marketplace e-commerce entity shall refuse to take back goods or withdrew or discontinue services purchased or agreed to be purchased, or refuse to refund consideration, if, paid, if such goods or services are defective, deficient or spurious, or if the goods or services are not of the characteristics or features as advertised or as agreed to, or if such goods or services are delivered late from the stated delivery schedule.” In our opinion the O.P. has violated this rule.

 

Moreover from careful perusal of complaint, evidence and exhibits along with written argument we has found no reason of disbelieving the complaint of the complainant claiming deficient and negligent services towards him by the O.P.

 

We have seriously observed that in this case the O.P. while trying to evade their responsibility of deficient and negligent services has used certain derogatory/defamatory words against the complainant which are not at all desirable. Consumer Protection Act has given and guaranteed certain rights to the consumers. He has all the right to seek redressal against restrictive trade practices, unfair trade practices or unscrupulous exploitation of consumers etc. In replying to the complaint filed by a consumer the opposite party should keep in mind that his/their consumer is a respectable person and should avoid any derogatory statement against him. The consumer grievance should be treated fairly.

 

From all above observations we have seen that the O.P. is liable for deficient services towards the complainant. The complainant has proved his case against the O.P.

 

Finally we have found that the complainant is entitled to get the reliefs claimed by him.

 

This Commission unanimously pleased to direct the opposite party as follows :

 

1. To refund the purchase amount of ₹ 24,000/- (Rupees twenty four thousand)only to the complainant with 7% interest per annum from the date of filing the case till the date of payment.

 

2. To pay a sum of ₹ 15,000/-(Rupees fifteen thousand)only as compensation for deficiency in service and for mental harassment and agony.

 

3. To pay ₹ 5000/-(Rupees five thousand)only as cost of the litigation.

 

4. To take back the damaged speaker which is the subject matter of this case by the O.P. at their own cost. The complainant is directed to co-operate the O.P. in taking back the same by the O.P.

 

            All the awarded amounts be deposited into the credit of this Commission by the opposite party within 30(thirty) days from the date of receipt of this judgement.

 

            Send copy of this judgement and order to the O.P. for compliance. Complainant is to take step.

 

            The instant C.C. No.3/22 is accordingly disposed of on contest.