By Sri. MOHANDASAN.K, PRESIDENT

Complaint in short is as follows: -

1.    The complainant placed an order for a Samsung S21 mobile phone on 26/2/2021through the first opposite party’s online Bajaj Finserv Market by using Bajaj Finserv Credit card and the order number was 1002898894.  Complainant was under the impression that it was Samsung S21 ultra model and mobile phone, which was delivered to the complainant by the third opposite party through Blue Dart Express Limited on 02/03/2021 and the third opposite party issued an invoice for Rs. 73,999/- dated 26/02/2021. 

2.     The complainant submitted that subsequent to the delivery of the mobile phone he came to know that the delivered mobile phone was not an Ultra Model, but only a Phantom white model.  The complainant committed mistakes in his order and the phone which he actually wanted was S21.   Hence complainant wanted to return the mobile phone and thus contacted the first opposite party’s customer care on 03/03/2021 and he was informed that the company representative will collect the mobile phone back within 10 days.  After two days when the complainant did not receive any response, he contacted again the opposite party on 05/03/2021 and informed the same thing to the opposite party. 

3.      On 10/03/2021, the complainant received a call from the first opposite party’s customer care and informed the complainant that they will not take back the item and directed the complainant to contact second opposite party.  Accordingly, the complainant contacted the second opposite party after giving transaction ID as given by the first opposite party, but the second opposite party could not trace out the ID and directed the complainant to contact first opposite party again. 

4.        The   complainant   contacted   the first  opposite party and they informed the complainant that they had contacted the third opposite party and third opposite party will collect the product within 7days.  On 16/03/2021 the first opposite party informed the complainant that the third opposite party won’t take back the product.   

5.   The complainant submitted that, he had purchased the product through first opposite party’s online application and it is their responsibility to take back the product and replace the same since through their digital platform the complainant placed the order and product is delivered by the third opposite party which is manufactured and marketed by the second opposite party.   The complainant has no direct contact to the second and third opposite parties and not purchased the item directly from the second and third opposite parties. 

6.    The complainant submitted that the product is in the custody of the complainant and complainant has not opened the box in which the original mobile contains.  The opposite parties be pleased to take back the product immediately from the custody of the complainant.

7.     The complainant submitted that he placed the order after using the first opposite party’s Finserv credit finance facilities and so he has to pay the total amount of Rs. 73,999/- by 6 monthly payments starting from 02/04/2021.  The first instalment has to be paid on 02/04/2021.  The prayer of the complainant is to direct the first opposite party not to collect the monthly payments from the complainant and direct the opposite parties No. 1 to 3 to take back the product from the custody of the complainant. It is also sought direction to the 4^th opposite party not to honour the cheques issued by the first opposite party for the above transaction from the account No.0426053000009556 which is maintained by the complainant and also sought direction not to charge any amount from the complainant.   The complainant submitted that it is highly necessary to give a direction to first opposite party not to collect any amount by way of principal, interest, penal interest etc. from the complainant since they have done unfair trade practice. The complainant alleges the act of the opposite parties amounts deficiency in service and unfair trade practice.  He submitted that he had suffered heavy mental agony and monetary loss due to the deficiency in service committed by opposite parties. The prayer of the complainant is that direct the opposite parties to take back mobile phone, Galaxy S21 (256 GB) Phantom white Samsung and also direct the first opposite party not to collect amount of Rs.73,999/-, the value of phone, interest, penal interest etc. from the complainant. The complainant further sought direction against fourth opposite party that not to honour the cheques issued by first opposite party for these disputed transactions from the account No. 0426053000009556 and not to collect any amount from the complainant.  The complainant prayed for compensation of   Rs.1,00,000/- along with cost of Rs. 25,000/-.

8.       On admission of the complaint notice was issued to the opposite parties and opposite parties No. 1, 2, 4 entered appearance and filed version.  Opposite party No.3 did not appear and so opposite party No.3 set exparte. 

9.    The first opposite party filed version denying the entire averments and allegations in the complaint.  The first opposite party submitted that they are not proper party since the complainant availed loan from Bajaj Finance Limited and not from Bajaj Finserv as contented in the complaint.   It is submitted that “Bajaj Finserv” is a Trade /Brand name which is used by “Baja Finserv Limited” & “Bajaj Finance Limited” as per the mutual agreement.

10.    It is submitted that Bajaj Finserv Limited is a company incorporated under the Companies Act and is a core investment company as defined under the Core Investment Companies (Reserve bank of India) Directions 2011.  Bajaj Finserv Limited is the holding company of Baja Finance Limited not engaged in the business of financing of consumer durables to the end customers as alleged in the complaint.    The Bajaj Finserv limited does not have any branch office anywhere in India and hence allegations of the complainant is false and misleading. The Bajaj Finserv Limited and Bajaj Finance Limited are distinct legal entities.  The complainant availed various consumer durable loans from Bajaj Finance Limited, but has not made “Bajaj Finance Limited” as a party to the complaint and hence complaint is liable to be dismissed. 

11.  The opposite party submitted that the complainant has not made any communication with the opposite party and if the complainant would have reached to the opposite party, the opposite party would have cleared all the doubts and confusions of the complainant, but the complainant directly approached this Commission. The opposite party submitted that the complainant has raised the issue for the cancellation of the loan with the opposite party on 21/03/2021 and 08/04/2021 wherein the opposite party had duly replied to the complainant through email message.  It is reported that the opposite party had taken up the matter with the dealer and as per the record the loan cannot be cancelled since the product is already delivered to the complainant and the loan needs to be cancelled, the complainant has to provide the cancellation receipt from the dealer i.e.  Second opposite party and third opposite party in order to cancel the same.  The opposite party is only a financial company and provides loan to the needy persons only.  Thus, it does not hold any vicarious liability with any other opposite parties.  Hence the submission of the opposite party is that the complainant has to approach second and third opposite party for cancellation of the services and the return of the product, post which the opposite party only after receiving the consent and confirmation from opposite party No.2 and 3 will be in a position to cancel the loan and refund the deducted EMIs if any, which is part of master terms and conditions. 

12.       The  opposite  party submitted that, the complainant was a customer of the opposite party and has availed various loans   in the past which are closed as on date and No Objection Certificate has also been issued and with regard to the disputed loan account, the opposite party submitted that the complainant purchased product from the second and third opposite parties and accordingly had availed a loan from the opposite party on 03/03/2021. The loan amount was Rs. 73,999/- with tenure of 6 months and EMI fixed was Rs. 12,334/-. The complainant had issued NACH Mandate/Auto debit for the repayment of the instalments and the complainant had defaulted the very first EMI which was due on 02/04/2021.  The complainant paid the same as cash on 28/04/2021 and the second EMI also was due on 02/05/2021 but paid on the due date and so the said loan account as on date is active with an outstanding due of Rs. 454/- which the complainant has to pay in order to regularise the loan account.

13.     The opposite party submitted that the complainant has to approach second and third opposite parties to cancelation of product and service, but the complainant has not done it. But as a goodwill gesture the opposite party contacted second and third opposite parties but informed that the complainant has to raise the issue within 24 hours but the complainant has not done the same in this complaint but filed this complaint after two months.

14.     The opposite party further submitted that the complainant approached this Commission suppressing the true facts. The complainant already closed the account but not stated the same before this Commission.  The complainant  trying to build up a case  on his  whims and fancy  but the complainant failed to appreciate  the fact that mere allegation does not  hold good  or cannot be held good in any manner unless the complainant  produces  any iota  of evidence in support of  his  allegations.   Hence, the complainant does not entitled any relief and the complaint is liable to be dismissed with cost of the opposite parties. 

15.    The second opposite party filed version  denying the  entire allegations  in the complaint  and  alleged that the complainant approached  this Commission  not with clean hands  and so  deserves  to be dismissed.   The attempt of the complainant is to obtain unfair advantage and there is no loss is caused to the complainant due to the act of the opposite party as taken in the complaint. 

 16.       The  second  opposite  party  admitted  that  the  complainant  had placed an

order for a mobile phone  through the first opposite party  which is manufactured  and  marketed by  the opposite party  and the same is delivered  through the third opposite party.  The value of the handset was Rs. 73999/-. The opposite party denied the averments in the complaint  that the model ordered and delivered to the complainant  was not as  what he intended that he wanted to change the same with another model as he wish  that was informed  to first opposite party  to collect the same  but they informed  the complainant that the company  representatives  will collect same  but nobody came to collect that there was  no response  in this regard  from the opposite party  and further informed that  the opposite party will not take back the unit that the complainant contacted  the second opposite party  and  the opposite party  informed  that they could not trace out the transaction ID etc.  The opposite party submitted that the complainant is not entitled any relief as prayed in the complaint.   

17.   The second opposite party admitted that  the complainant purchased  mobile phone  through third opposite party  using the credit card facility of first opposite party  and the product is manufactured by the second opposite party.   It is submitted that the opposite party delivered a mobile phone as ordered by the complainant. Hence there is no any sort of deficiency in service and unfair trade practice on the side of opposite party.

18.     The opposite party submitted that as per the  terms of warranty policy ,  only issues  arising  within the scope of warranty alone  will be liable to  comply by the second opposite party  and in this complaint  there is no  as such allegations   has been raised by complainant  against the opposite party. The submission of the opposite party is that if at all any lapse on the part of first and third opposite parties, the second opposite party is not responsible to those lapses alleged by the complainant against first and third opposite parties.  Hence the submission of the second opposite party is that there is no any act of deficiency of service or unfair trade practice from their side and so the prayer is dismiss the complaint accordingly. 

19.     The 4^th opposite party filed version   denying the allegations in the complaint it is submitted that there is any sort of allegation against the 4^th opposite party in the complaint.  The prayer of the complainant is that  issue direction  against  the 4^th opposite party  prohibiting  honour  of the cheque presented by  first  opposite party   issued from the  account of the complainant  and  further to direct  the opposite party  charging  any amount  from the complainant  is  baseless  and unfounded.   The Statement of accounts of the complainant do not reveal issuance of any cheques in favour of the first opposite party. Even if a cheque has been issued, the complainant himself is empowered and entitled to issue instructions to the opposite party with specific cheque number and to seek stoppage of the payment. 

20.   The opposite party submitted that  the account statement of the complainant reveals that  the same is opened  on 23/12/2021  and it is also  reveals  that the complainant had given  a mandate for  Direct Debit (Auto  Debit) to Bajaj Finance. 

21.   The account statement reveals several debits to Bajaj Finance.  It is found that   direct debits on 03/04/2021, 05/04/2021 and 02/09/2021 were not successful on the ground of insufficient funds.   It is further submitted that there was 3 direct debits for Rs. 12,334/- each on 02/06/2021 or Rs. 12,549/- is also successful.   All the above  stated  successful direct debits are seen made in favour of Bajaj Finance  and  the account statements  further reveals  an amount of Rs. 356/- is collected  as return charge  for the failed Direct debits , the said amount includes service charge and GST. 

22.   The opposite party submitted that the mandate for direct debit was given to Bajaj by the complainant himself and so he could have easily withdrawn the mandate, if he had any issue with respect to the payment of subject mentioned amount in favour of the first opposite party.  Hence the submission of the opposite party is that there is no cause of action against the 4^th opposite party and so the complaint may be dismissed with cost to the opposite party.

23.       The complainant and opposite party No.1, 2, 4 filed affidavit and documents.  The documents on the side of complainant marked as Ext. A1 to A4. The documents of the first opposite party marked as Ext. B1 and documents of the second opposite party marked as Ext. B2 and B3. Ext. A1 is copy of tax invoice dated 26/02/2021.  Ext. A2 is copy of   email from the side of complainant to the first opposite party. Ext. A3 is copy of message to the complainant issued by customer service associates, Bajaj Finance Limited. Ext. A4 is copy of photo of the product pack. Ext. B1 is copy of loan account details dated 05/12/2023 with customer ID84632626. Ext. B2 is copy of power of attorney dated 13/11/2020.  Ext. B3 is copy of warranty card.   

24.   Heard complainant and the opposite parties. Perused affidavit and documents. The following points arise for the consideration:-

1. Whether there is deficiency in service on the part of the opposite parties?
2. Relief and cost?

25.    Point No.1 and 2:-

      The admitted case of the complainant is that he placed an order for a mobile phone Samsung S21 on 26/02/2021 through the first opposite party and the product was delivered to the complainant.  But the complainant was under the impression that it was Samsung S21 ultra model, but the delivered one was a phantom white model.   The complainant himself admitted that he committed mistakes in his order, but he wanted to replace the same.   The complainant immediately contacted the first opposite party through whom the complainant approached the third and second opposite parties for the purchase of mobile phone.  But there was no positive result.   The case of the complainant is that the first opposite party had assured to contact the third and second opposite parties through whom the complainant availed mobile phone.   But later all the opposite parties   failed to substitute the mobile phone of the complainant.  

26.    The opposite parties  admitted the  order of the complainant  and submitted that  they delivered  the mobile phone duly to the  complainant  as per his order  and so there is no  any sort of deficiency in service  on their side.   It is further submitted that the complainant never approached the third and second opposite parties for the substitution of the mobile phone at his pleasure.   

27.    It is a clear case that a complainant purchased the mobile phone manufactured by the second opposite party through the third opposite party.  But complainant approached the second and third opposite party through availing financial assistance of the first opposite party and the transaction was took place through the first opposite party. It is also fact that the complainant duly informed the mistake happened from his side to the first opposite party and the first opposite party had admitted to contact the second and third opposite party to resolve the issue.   So, there is no merit in the contention that the complainant did not approach opposite parties for the redressal of grievance.  At the same time it cannot be treated as a deficiency on the side of second and third opposite parties since they duly delivered the product ordered by the complainant.   The contention of the complainant is that the disputed mobile phone was delivered to the complainant on 02/03/2021 and he contacted the first opposite party’s customer care on 03/03/2021 and he was informed that the representative will collect the mobile phone within few days.   Later it was not taken back and informed that the second opposite party is not ready to replace the mobile phone.   The complainant submitted that he has not even opened the box of the disputed mobile phone. That be the fact, the complainant is entitled to replace the mobile phone at his choice and also is entitled to settle the price difference if at all during the replacement.   

28.    The case of the complainant against first opposite party is that the complainant availed financial assistance from first opposite party and agreed to repay the loan amount through instalments.   But at the time of evidence, it is brought to the notice of the commission that the complainant has paid the entire loan amount and the loan accounts stands closed.   So there is no reason to allow any prayer against the first opposite party. The complainant has not produced any details regarding the cheque delivered to the first opposite party during the loan transactions. So the Commission do not find that any order to be passed against presenting the cheque by the first opposite party for realisation of loan amount.   

29.    The contention of the first opposite party was that the second and third opposite parties delivered the mobile phone as per the order of the complainant and in the absence of cancellation of the order with due document the first opposite party cannot interfere in the loan transaction in between the complainant and the first opposite party, which is relevant one. At the same time, it is the right of a complainant/consumer to choose the product at his pleasure.  The second and third opposite parties failed to honour the interest of consumer/complainant in this complaint.   

30.   It appears the 4^th opposite party have no role in the dispute between the complainant and the opposite parties No. 1 to 3. 

31.   Hence, the light of above facts and circumstances we allow this complaint as follows:-

1. The second and third opposite parties are directed to replace the mobile phone at the choice of the complainant and the complainant is liable to settle the price difference of the new product at the time of replacement.  
2. In case, the second and third opposite parties are failed to deliver new product at the choice of the complainant, the second and third opposite parties are directed to refund the cost of the product Rs. 73,999/- (Rupees Seventy-three thousand nine hundred and ninety-nine only) and on receipt of the same the complainant is directed to return the mobile phone to the second and third opposite parties.   
3. The second and third opposite parties are directed to pay Rs. 5,000/- (Rupees Five thousand only) to the complainant as cost of proceedings.

     The second and third opposite parties shall comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled 9% interest per annum for the above entire amount from the date of order to till payment.

Dated this 27^th day March, 2024.

MOHANDASAN K., PRESIDENT

PREETHI SIVARAMAN C., MEMBER

MOHAMED ISMAYIL C.V., MEMBER

APPENDIX

Witness examined on the side of the complainant                     : Nil

Documents marked on the side of the complainant                  : Ext.A1to A4

Ext. A1: Copy of tax invoice dated 26/02/2021. 

Ext. A2: Copy of   email from the side of complainant to the first opposite party.

Ext. A3: Copy of message to the complainant issued by customer service associates,

                Bajaj Finance Limited.

Ext. A4: Copy of photo of the product pack.

Witness examined on the side of the opposite party                 : Nil

Documents marked on the side of the opposite party              : Ext. B1 to B3

Ext. B1: Copy of loan account details dated 05/12/2023 with customer ID 84632626. Ext. B2: Copy of power of attorney dated 13/11/2020. 

Ext. B3 : Copy of warranty card.  

MOHANDASAN K., PRESIDENT

PREETHI SIVARAMAN C., MEMBER

MOHAMED ISMAYIL C.V., MEMBER