Haryana

Panchkula

CC/404/2019

ASHOK KUMAR. - Complainant(s)

Versus

CTIS (CYBER TECH INFO SYSTEMS). - Opp.Party(s)

COMPLAINANT IN PERSON.

30 May 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

Consumer Complaint No	:	404 of 2019
Date of Institution	:	09.07.2019
Date of Decision	:	30.05.2022

 

Ashok Kumar son of Shri Jai Pal, resident of House No.1350, Second Floor, Sector-19, Panchkula(Haryana)

                                                                           ….Complainant

Versus

1.     CTIS(Cyber Tech Info Systems), DSS No.305, Basement, Sector-  20, Panchkula(Haryana)-134117 through its Authorised Signatory.

2.     M/s Naaptol Online Shopping Private Ltd., H.205, Sector-63 Rd, H Block, Sector-62, Noida, Uttar Pradesh-201301 through  its authorized signatory.

2^nd address

        Naaptol Online Shopping Private Ltd., Unit No.401-406, Sigma IT  Park, 4^th Floor, Plot No.203 & 204, TTC Industrial Estate, Rabale,     Navi Mumbai-400701 through its authorized signatory. 

3.     Sky Cable Industries, Village Moginand, Tehsil Nahan, District     Sirmour(HP)-173030 through its authorized signatory.

4.     M/s  Alpha Raido, C/O DTDC Courier and Cargo Ltd., Khasra      No.1226, Rajokri Village, New Delhi-110038 through its     authorized signatory.

5.     M/s Nikon Systems Pvt. Ltd. D-98, Sector-2, Noida(UP)-201301 through its authorized signatory.

                                                                ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh.Satpal, President.

Dr.Pawan Kumar Saini, Member.

Dr.Sushma Garg, Member.

 

For the Parties:   Complainant in person.

                        OP No.1 already ex-parte vide order dated 28.08.2019.

                        Sh. Rajesh Bura, Advocate for OP No.2(Evidence closed vide order dated 14.10.2021).

                        None for OPs No.3 to 5 (Evidence closed vide order dated 14.10.2021).

ORDER

(Dr. Pawan Kumar Saini, Member)

1.             The brief facts of the present complaint are that on  the believing the assurance and advertisement of the OPs No.2 & 3, the complainant ordered  the multimedia wrist watch manufactured by the OP no.3  Model K28 watch in the month of September, 2017 with one year warranty. Thereafter, the said Multimedia Wrist Watch K28(Kall Smart Watch Mobile) bearing IMEI No.358842080119889 was supplied  by the OPs No.2 & 3 in the first week of September, 2019 vide Invoice No.846063S011622618 dated 03.09.2017 for Rs.1499/-. Beside this the Ops also charged an amount of Rs.599/- as charges of delivery and membership for free delivery for one year vide Invoice No.NTD810318 dated 03.09.2017. It is stated that immediately after its purchase the complainant noticed that the said Multimedia Wrist Watch not working properly and there was problem with regard to recording of video in the said watch besides this hanging & touch related problem.  On the advice of the OP No.2, the complainant visited the OP no.1 and deliver  the said manufactured defective watch to OP No.1 vide job-sheet No.120917LTSLASCHR028J053 dated 12.09.2017. The complainant asked that there is no time mentioned as and when he will receive the product after replacement. On this the OP no.1 disclosed that they themselves will intimate the complainant in this regard as it will take time. Thereafter, the complainant waited sufficiently but of no use, then he visited the OP no.1 time and again in this regard but every time the OP no.1 put of the matter on one pretext to another.  After about 9-10 month the complainant received a call from the OP no.2 regarding selling of other product, then he disclosed that as the earlier product sold by the OP No.2 to him was containing manufacturing defect till date the said product has not been received back to the complainant after replacement. Finding no option, the complainant again visited the office of the OPs No.1 & 2 time and again but every time they put the matter off on one pretext on another.  Due to the act and conduct of the OPs, the complainant has suffered mental agony, harassment and financially; hence, the present complaint.

2.             Notice was issued to the OP No.1 through registered post no.CH025496988IN on 17.07.2019, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notice to OP No.1; hence, it was deemed to be served and thus, due to non appearance of Op No.1, it was proceeded ex-parte by this Commission vide its order dated 28.08.2019.

                Upon notice, OP No.2 appeared through counsel and filed written statement raising preliminary objections qua the complaint is not maintainable. On merits, it is stated that OP No.2 is not working as seller of the product and providing marketing platform to the various products & brands for selling their products. It is also submitted that the complainant had placed his order after watching the advertisement. The concerned seller had dispatched and delivered a good mercantile quality, working condition product at the address of the complainant without any damage in transit. As per office record the complainant  had made only a single  complaint to customer care department that, ‘video  not working’ on which the CRM department  properly guided the complainant and also offered him the remedy for repair through service centre of concerned seller on free of cost basis, on which the complainant agreed upon it. The complainant did not inform that time that the product has ‘hanging & touch related problems. Whenever the complainant had given a call to the Customer care executive they had tried to resolve it through the troubleshoot team and also offered the complainant with the remedy of repair via service centre through the concerned seller. It is also stated that the delay in repair due to the non-availability of the required spare parts in the market. It is further submitted that the product was got repaired in the month of November itself, the service center staff thereafter called the complainant for collecting his product, but the complainant did not respond on it. The OP No.2 is working as seller of the product and has no role to send the replacement. Thus, there is no deficiency in service on the part of the Op No.2 and prayed for dismissal of the present complaint.           

                Upon notice, OPs No.3 to 5 appeared through counsel and filed written statement raising preliminary objections qua the complaint is not maintainable. On merits, OPs No.3 to 5 stated that the OP No.3 Sky Cable Industries was working as Manufacturing firm. The said firm is engaged in Manufacturing of I-kall brand exclusive for seller Ms. Alpha Radios and Ms. Nikon System Pvt. Ltd.  The Ops No.4 & 5 acts as a seller or vendor of various electronics products including the product which is the subject matter of present complaint. The nature of business of Ops No.4 & 5 is to sell and dispatch the ordered product through Post Department or Courier Services at the address of the customers as per their orders. It is pertinent to mention that the Ops NO.4 & 5 are not involved in any kind of manufacturing or production activities. It is also stated that as per office records, as soon as the complaint was registered by the complainant, the OP No.2, the CRM Department properly guided the complainant and also provided him the remedy for repair of service center on free of cost basis through the concerned seller and vendor i.e. Ops No.3 & 4, the complainant also agreed upon it. The defect would have arisen due to normal wear and tear. As per the company’s policy, if there is any damage/defect found to be present in the products then the Ops provides three types of remedies in form of repair, exchange/ replacement or refund through cash voucher or in cash amount through concerned seller/vendor. According to the condition of the product, the executive offers the remedy. It is further stated that the said product was properly  repaired by the service center and after giving several times call the complainant, he doesn’t  turn back to receive his product. It is said that the OPs tried to reach to the complainant many times but he wasn’t contactable and out of reach. The product which was delivered on 03.09.2017 to the complainant was of good and mercantile condition. After delivering the product the complainant had given call to the Customer Care Executive on 06.09.2017 that means after 03 days for registering the complaint which shows that, the product delivered to him is of good quality and it had no manufacturing defect.  Thus, there is no deficiency in service on the part of the Ops No.3 to 5 and prayed for dismissal of the present complaint.       

3.     Replication to the written statements of the OP was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the Ops No.2 to 5.

4.             To prove the case, the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1(colly) to C-2 in evidence and closed the evidence by making a separate statement. The evidence of the Ops No.2 to 5 is here by closed by court order dated 14.10.2021.

5.             We have heard the complainant and the learned counsel for the Ops No.2 and gone through the entire record available on record including written arguments filed by the complainant, minutely and carefully.

6.             Admittedly, a product namely, multimedia wrist watch was delivered to the complainant, by seller i.e. M/s Alpha Raido, i.e. OP No.4   through OP No.2, in response to his order no.39073090 in lieu of consideration of Rs.1,499/-, which was paid by the complainant by way of cash on delivery. Apart from payment of cost of Rs.1,499/-in lieu of the said product, a sum of Rs.599/- was also charged from the complainant on account of diamond membership, wherein the delivery was free for one year. It is also not in dispute that the said product immediately after its purchase was deposited with OP No.1, who is authorized service centre on 12.09.2017 vide job-sheet (Annexure C-2) on account of certain defects in it relating to video recording etc. It is also not in dispute that the said product is still lying with OP no.1. The grievances of the complainant are that despite the expiry of two years and six months since the purchase of the product in question, the Ops have neither repaired nor replaced the same or refunded its cost price to him despite his several visits to OP no.1.

7.             The learned counsel for the complainant has contended that the complainant was never offered the option of repair/replacement or refund of the cost price of the product in question as per policy of the OPs and thus, in the present complaint, refund of the cost price of the product in question amounting to Rs.1499/- with membership charges of Rs.599/- totaling Rs.2,098/- has been claimed alongwith interest. Apart from above, compensation on account of mental agony, harassment and litigation charges has also been claimed.

8.             The OP No.1 has preferred not to contest the present complaint and it was proceeded ex-parte vide order dated 28.08.2019.

9.             The OP No.2 has claimed exemption from any liability in the matter on the ground that it is just a marketing platform, wherein it has no role in the sale of the product in question. The learned counsel for the OP No.2 reiterating the averments contained in written statement contended that OPs no.4 & 5 are the sellers of the product in question and thus, no liability can be fastened upon the OP No.2.

10.            The aforesaid contentions of the OP No.2 are not acceptable as it has a close tie-up with OPs No.3 to 5 as well as OP No.1 in selling the product in question to various sellers, who approached the OP no.2 after watching the advertisement displayed on its website. Moreover, it is not the case of the OP No.2 that it is engaged in charitable activities receiving no benefits in the sale transactions qua orders placed on its website. Undoubtedly, the OP No.2 is getting huge benefits by selling/advertising the product of various manufacturers through its e-platform and thus, OP no.2 cannot claim any exemption from its liability to compensate the complainant.

On merits, the learned counsel for OP no.2 contended that the product in question was got repaired in the month of November itself, but the complainant failed to collect the product despite the several efforts made by the staff of OP No.1 asking the complainant to collect the repaired product. As per averments made in the written statement filed on behalf of the OPs No.3 to 5, there was no manufacturing defect in the product in question as averred in Para no.7 of the reply on merits in their written statement. It is further averred that the defect, if any, in the product in question was result of normal wear and tear of the product and thus, it is prayed by the learned counsel for OP No.2 that the complaint is liable to be dismissed being baseless and meritless.

11.            Pertinently, there is no documentary evidence on record on behalf of the OP No.2 as well as OP No.3 to 5, thus, the aforementioned contentions raised on behalf of the OP no.2 is not corroborated and substantiated by an documentary in support of its respective contentions. It is well settled legal proposition that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

12.            Moreover, there is no version of OP No.1 on record alongwith its documentary evidence to show that the product in question was repaired and the complainant was asked by letters, e-mails etc. to collect the same. Further, the plea of normal wear and tear causing defects in product in question is also baseless as product was deposited with OP No.1 immediately, after its purchase. However, the OP No.2 in Para no.6 of its reply, on merits, of the written statement has pleaded that in this particular matter, the concerned seller informed him that they are ready to provide replaced new product with fresh warranty to the complainant. In view of the specific averments about the replacement of the product in question with new one, the contentions raised by OP No.2 carry no weight and substance and thus, we conclude that Ops No.1 to 5 had been deficient while delivering the services to the complainant.

13.            In view of the aforesaid discussion, we have no hesitation to conclude that there has been lapse and deficiency on the part of the OPs No.1 to 5 while rendering services to the complainant; hence, the complainant is entitled to relief. Therefore, all the OPs i.e. OPs No.1 to 5 are jointly and severally liable for the deficiency in the matter.

14.            As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs No.1 to 5:-

1. To pay a sum of Rs.2,098/- to the complainant, along with interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization. 
2. To pay a lump sum amount of Rs.2,500/- to complainant on account of mental agony, harassment and cost of litigations charges.

               

15.            The OPs No.1 to 5 shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OPs No.1 to 5 failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71 of CP Act, against the OPs No.1 to 5. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

 

Announced on:30.05.2022

 

        Dr.Sushma Garg         Dr. Pawan Kumar Saini         Satpal

                Member                  Member                                President

 

Note: Each and every page of this order has been duly signed by me.

 

                                Dr. Pawan Kumar Saini

                                            Member