BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.44 of 2018.
Date of Instt.:05.02.2018.
Date of Decision: 11.10.2018.
Indraj Suthar son of Lekhraj, resident of Satish Colony, Gali No. 2, Fatehabad.
...Complainant
Versus
- Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram West, Bengaluru, Karnataka.
- D3D Security Private Limited, Office No. B281, First Floor, Palam Extention Dawaraka, Sector 7, New Delhi.
..Opposite Parties.
Before: Sh. Raghbir Singh, President.
Sh. Jasvinder Singh, Member.
Dr. Rajni Goyat, Member.
Present: Sh. Pawan Tandi, Advocate for complainant.
Sh.Amit Soni, Advocate for OP No.1.
OP No.2 already ex-parte.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the opposite parties with the averments that the OPs are seller of electronic items including security camera. It is further submitted that the complainant purchased one camera (D3D) for a sum of Rs. 2799/- on 14.11.2017 from OPs through online vide order no. id 407-3941928-9547545. The payment was made by the complainant in cash on delivery. The OP gave a guarantee for proper functioning of the camera for one year. It is further submitted that on 17.11.2017, the camera was delivered to the complainant and after opening the box he came to know that bill of the camera was not sent along-with the camera. Thereafter, the camera was installed at his home and after installation it was noticed that the camera was not working properly. Regarding the same the complainant made communications with the OPs several times but the OPs did not listen and refused to respond on the complaint of the complainant.
2. It is further submitted that the abovesaid act on the part of OPs amounts to breach of warranty and deficiency in rendering service to the complainant. The complainant has further prayed that the OPs may be directed for making a payment of Rs. 2799/- as original cost of the camera to him along-with compensation of Rs. 41,000/- and Rs. 6,000/- as litigation charges. Hence, the present complaint.
3. On being served OP No.1 appeared through his counsel and resisted the complaint by filing a written statement wherein various preliminary objections with regard to maintainability, cause of action, jurisdiction, non-joinder and mis-joinder of necessary parties etc. have been raised.
4. In reply on merits, it is submitted that the OP no. 1 neither sells nor offers to sell any product and merely provides an online marketplace where independent third party sellers can list their products for sale. The sellers themselves are responsible for their respective products and the OP no. 1 is neither responsible for any product nor does it intervene or influence any customer in any manner. The OP no. 1 is not involved in the sale transaction between the customer and the seller. The OP no. 1 is only a facilitator and cannot be a party to any sale transaction on the website. The contract of sale of products on the website is strictly a contract between customer and the seller. Therefore, the complainant does not fall within the definition of consumer of OP no. 1 as provided under Section 2 (1) (d) of the Consumer Protection Act, 1986. It is further submitted that in the complaint the complainant has nowhere alleged any defect which points out any act of deficiency in service or unfair trade practice on the part of OP no. 1. Therefore, the present complaint is liable to be dismissed on this score alone. The main grievance of the complainant is limited to manufacturing defect in the product which is the sole responsibility of the manufacturer. The OP no. 1 had not given any assurance or warranty to the complainant regarding the quality of the product. The OP no. 1 has further prayed that the present complaint is devoid of any merits against OP no. 1 and as such the same is liable to be dismissed.
5. OP No.2 did not appear before this Forum despite proper service and as such he was proceeded ex-parte on 12.3.2018.
6. The counsel for the complainant tendered in evidence affidavit of the complainant as Annexure C-1 and closed the evidence. On the other hand, learned counsel for the OP no. 1 tendered in evidence affidavit of Rahul Sundaram, authorized representative of OP no. 1 as Annexure R1 and closed the evidence.
7. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record. It is the case of the complainant that he purchased a camera from the OPs for an amount of Rs. 2799/- on online process and the payment of the said camera was made by him to the OPs in cash and a warranty of one year regarding the proper functioning of the product was also given by the OPs. It is further the case of the complainant that the said camera was delivered to him on 17.11.2017 and the bill of the said camera was not furnished along-with the product. It is also further the case of the complaint that after installation of the camera the same was not found working and regarding the same complaints were made by him to the OPs. However, no response was given by the OPs to the complainants.
8. Vide the present complaint, the complainant has sought refund of the original cost of the camera purchased by him from the OPs on the ground that the camera in question is not functioning properly. It is a settled proposition of law that refund of a product can only be ordered in case there is a manufacturing defect in the product in question. In the present case, the onus was upon the complainant to prove that the camera in question is having a manufacturing defect. However, no cogent or convincing evidence or any other document or opinion of expert has been produced by the complainant on the file to prove that the product in question is having a manufacturing defect. Moreover, the complainant has failed to place on record any evidence or document to prove that he had approached the OPs regarding non-functioning of the camera in question. Even there is no evidence or document on the file to prove that the product in question was purchased by the complainant from the OPs.
9. In view of the aforesaid discussion, we are of the considered opinion that the complainant has not been able to prove any deficiency on the part of OPs in rendering service to him. The present complaint is accordingly dismissed. A copy of this order be furnished to the parties free of cost as provided in the rules. File be consigned to record room after due compliance.
Announced in open Forum:
Dt.11.10.2018.
(Rajni Goyat) (Jasvinder Singh) (Raghbir Singh)
Member Member President
DCDRF, Fatehabad.
