CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO. CC/508/2016

Date of Institution:-15.11.2016

Order reserved on:- 22.03.2023

Date of Decision:-05.04.2023

IN THE MATTER OF:

1. Jasvinder Singh

S/o Sh. Atama Singh

R/o D-26/1, New Govindpura,

Gali No.8, Delhi - 110051

                                          ....Complainant

VERSUS

1. BSC Enterprises

1226 Rajokri Village

New Delhi – 110038

2. Services Wire House

B-98, New No.B-1331,

New Ashok Nagar,

• ....Opposite Parties

O R D E R

Per Dr. Harshali Kaur, Member

1. The Complainant has filed the present complaint U/S 12 Consumer Protection Act, 1986, alleging deficiency-in-service on the part of the O.P.s.

2. Briefly stated, the facts of the complaint are that the Complainant booked a Vox Mobile phone on 03.05.2016,paying a sum of Rs.2,499/- vide order no.22478068 with OP-1. TheComplainant received his mobile on the same day with 6 month warranty (page no. 6 of the complaint).

3. The Complainant states that the mobile was defective from the first day and begancreating problems. The Complainant immediately called the O.P. helpline number and was given complaint no. 15559184 on 20.05.2016. He was assured that the authorised personnel would visit the Complainant's house within 2 days.But despite repeatedly following up, no action was taken by the O.P.s to address the Complainant's grievance.

4. On 04.06.2016, the officer of the O.P. told the Complainant that he could submit his mobile through courier service, which the Complainant immediately did, along with sending the email to OP-1. He was assured that his mobile would be replaced within 7 days by the officer of OP-2.

5. The Complainant alleges that he visited the office of OP-2, but his mobile was not delivered, nor did the O.P.s give any reply to his calls. He thereafter lodged a complaint in the mediation centre on 27.07.2016.The O.P.s did not appear in the mediation centre. Hence the Complainant could not resolve his grievance.

6. Due to the O.P.s callous attitude, the Complainant states that he suffered severe mental agony and harassment and hence filed the present complaint praying for a refund of the cost of the mobile, i.e.Rs.2,499/-; Rs.40,000/- towards compensation for mental agony, pain and harassment and Rs.7,000/- for the cost of litigation.

7. Notice was issued to the O.P.s in the instant complaint.OP-1 was proceeded ex-parte vide order dated 21.03.2017 when the Complainant filedproof of service qua OP-1 along with the requisite affidavit. OP-2 filed his reply in which OP-2 states that OP-2 is not a seller or vendor but only a marketing platform or service provider between the buyer &seller. Denying all allegations of the complainant OP-2 has stated in their Reply that the Complainant in the present complaint, Mr. Jasvinder Singh, is not connected with the subject matter of the present complaint or its transaction due to which the present complaint is not maintainable as per the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986.

8. OP-2 states that it was Mr.Surender Singh who placed the order for a "Vox4 Sim Touch Screen T.V. Mobile with Dual Camera-V6666"on 03.05.2016 having a warranty of 6 months of the handset against manufacturing defect through OP-2, the online shopping portal from the vendor "Alpha Radio Hyderabad" for Rs.2,499/- paid to the seller by way of cash on Delivery.

9. The product was dispatched to Mr. Surender Singh and not the Complainant, as reflected in the memo of parties on 03.05.2016 at his address as provided by him at the time of placing the order. Hence, the mobile phone in question was sold to Mr Surender Singh and not the presentComplainant by the seller. The O.P. has annexed the copy of the Receipt/Bill of the purchase of the product as Annexure-A. The mobile phone was delivered to Mr Surender Singh in good working condition. This issue has been reiterated in the affidavit filed by Mr. Arun Kumar Sinha, Legal Admin. Officer for OP-2 to be read as evidence.

10. Before we go into the merits of the case, it is pertinent to first check if the Complainant in the present complaint is also the consumer in the instant complaint.Section (2) (1) (d) clarifies who is a consumer in the provision as laid down in the Act as follows:-

Section 2(1)(d) in the Consumer Protection Act, 1986

(d) "Consumer" means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)  hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 12 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 13 [but does not include a person who avails of such services for any commercial purpose;

11. A bare perusal of the documents filed by the Complainant and the O.P. with their complaint and reply on page 7 and (Annexure-A) respectively, shows that the invoice issued by the vendor BSC Enterprises Delhi (OP-1), who is ex-parte is in the name of one Mr. Surender Singh, H. No.-183, Saini Enclave, Vikas Marg Road, Anand Vihar, Near-Karkardooma Metro Station, New Delhi, Delhi-110092dated 03.05.2016.

12. The Complainant, in his rejoinder, rebutted this contention of the OP-2, stating that the Complainant Jasvinder Singh is the actual owner of the mobile who booked the phone on 03.05.2016 and paid the sum of Rs.2,499/- to the OP-2 executive. It was OP-2 who wrongly mentioned another name in the Bill. He, however, remains silent on this issue in his sworn testimony.

13. We have heard the Complainant, Sh. Jasvinder Singh,in the present complaint, as the O.P.s chose not to present themselves on the date fixed to address final oral arguments. Since their Written Arguments were already on record, we felt it prudent to reserve the present complaint for orders, as the complaint has been relisted for Final Arguments since 14.8.2018.

14. We have gone through the documents filed by the contesting parties and carefully considered the facts and circumstances before us in the present complaint. In our view, theComplainant, in his entire complaint, has failed to place on record any cogent proof to show that heis a user of the mobile handset or its beneficiary. The mobile was purchased /ordered by Mr Surender Singh, resident of H. No.-183, Saini Enclave, Vikas Marg Road, Anand Vihar, Near-Karkardooma Metro Station, New Delhi, Delhi-110092, while the Complainant is a resident of D-26/1, New Govindpura, Gali No.8, Delhi – 110051. We find the evidence of OP-2, documentary, as well as the affidavit of Mr. Arun Kumar Sinha more plausible than the bald statement of the Complainant that it is he who had paid the consideration to purchase the handset in question, which statement does not inspire confidence in our mind.

15. Undoubtedly the Complainant has placed on record the copy of the receipt issued by the Service Warehouse in his name (page no. 5). But this does not show that he was the one who was using the phone. He has placed another document regarding the phone's deposit, allegedly damaged from the email Id of one singhlovedeep dated 4.6.2016. This document,too, has no veracity as it is clearly a part of an email, only a part of which has been reproduced on Page no. 8 of the complaint. The Complainant had also stated in his complaint that he approached the Mediation and Conciliation Centre, but he himself did not appear on the date fixed for mediation, as is clear from the Mediation/ conciliation report annexed with the complaint on Page no. 9 of the complaint dated 30.9.2016 wherein the In Charge of the Mediation cell has noted as below before closing the file.

"O.P. did not appear. Today the Complainant also did not appear."

16. Further, the Complainant did not even protest regarding the error in his name or address when he received the invoice in the name of Sh. Surender Singh or that his address was wrongly mentioned in the invoice annexed at page no. 7, being relied upon by the Complainant himself. We, therefore, feel constrained to hold that the present complaint is nothing but a misuse of the process of law. Hence the complaint is dismissed as the Complainant is not a consumer as defined under the Consumer Protection Act, 1986.

• Order be given as dasti.
• The file be consigned to the record room thereafter.