Chandigarh

DF-I

CC/386/2023

ASHOK KUMAR - Complainant(s)

Versus

DARSHITA AASHIYANA PRIVATE LIMITED - Opp.Party(s)

DEEPAK AGGARWAL

02 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/386/2023
Date of Institution	:	8.8.2023
Date of Decision	:	02/07 /2024

 

Ashok Kumar S/o Shri Mani Ram, House No.C-83, CSIO Colony, Sector-30 С, Chandigarh-160030.

 

Complainant

Versus

 

1. Darshita Aashiyana Private Limited, Village- Jamalpur, Gurgaon, Haryana-122503.

Registered Address: Darshita Aashiyana Private Limited, No.3, 4th Floor, Salarpuria Windsor, Ulsoor Road, Banglore - 560042, Karnataka, IN

 

2. Amazon Seller Services Pvt. Ltd.,

          Registered Office: Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar   Road, Malleshwaram (W), Bangalore-560055 (presently at New Delhi),           India.

... Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Inderjeet Singh, Advocate proxy for Sh. Deepak Aggarwal, Advocate for complainant
	:	OP No.1 exparte.
	:	None for OP No.2.

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35 of the Consumer Protection Act 2019 against the opposite parties  (hereinafter referred to as the OPs). Brief facts of the case are as under :-

1. It transpires from the averments as projected in the consumer complaint that  on 14.7.2023 after believing various assurances and projections made by OP No.1, the complainant, placed an order for purchase of mobile hand set i.e. MI 11X Pro 5G   through OP No.2 for a sale consideration of Rs.39,999/- and the OPs had given discount of Rs.2000/-  and additional discount of Rs.7999/- on the credit card  for the said product.  At the time when the order was placed,  it was assured by OP No.1 that the said mobile handset  is free from all defects  having warranty of one year and in case any defect is detected within warranty period, the said product will be  replaced through any of the authorized dealer or service centre of Xiaomi with new one  or alternatively money will be refunded.  Copy of the invoice is annexed as Annexure C-2. Soon after its purchase, the said mobile hand set started giving trouble  including internal issue, hanging and heating etc. Thereafter the aforesaid issue was brought to the notice of OPs by the complainant and request was also made to the OPs for replacement of the defective mobile handset.  Thereafter the complainant returned the said mobile handset  to OP No.2 and after few days  the OPs replaced the defective mobile handset with a new mobile handset  MI 11X 5G instead of MI 11X Pro 5G,  knowing fully well that the price of the replaced mobile was Rs.29999/- which is less in compare to the defective mobile i.e. Rs.39,999/-. On this complainant approached the Ops several times  with the request to replace the defective mobile with the same model and configuration  but nothing was done by the OPs. The aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OP  No.1  was properly served and when OP No.1 did not turn up before this Commission, despite proper service, it was proceeded against ex-parte on 9.10.2023.
3. OP No.2 resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, cause of action, concealment of fact jurisdiction. However, it is admitted that the  first mobile MI 11X Pro 5G  was purchased by the complainant by placing order  for the same from an independent third party seller i.e. OP No.1,   by making payment to the seller and the answering OP is only an intermediary and the complainant has no cause of action against the answering OP. Even the complainant had approached the answering OP  on 15.7.2023,  alleging that an old and used product was delivered.  The answering OP  being customer oriented company  conducted an internal evaluation  with the concerned team and concluded that the correct product indeed delivered to the complainant in an intact condition on 25.7.2023 and the said product is still with the complainant.   True copy of invoice dated 24.7.2023  is annexed as Annexure OP-2/4.  It is alleged that the complainant has made false allegations against the answering OP  and  as such the complaint of the complainant is not maintainable. On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
4. In rejoinder, complainant reiterated  the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their respective claims the contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the complainant and also gone through the file carefully, including the written arguments on record.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that  the complainant had purchased the first mobile handset MI 11X Pro 5G   from  OP No.1 through OP No.2  as is evident from Annexure C-2 and on finding defect in  the said mobile handset the complainant  requested the Ops for replacement of the  same and accordingly the OPs replaced the defective mobile handset with different model MI 11X 5 G, the case is reduced to a narrow compass as it is to be determined if  the Ops had not replaced the defective mobile handset with the same model and configuration as was originally ordered by the complainant and the said act of OPs is deficiency in service and indulgence in unfair trade practice and the complainant is entitled for refund of Rs.30,000/- as prayed for or if the OPs had replaced the defective mobile handset with new handset of same model and configuration and the complaint being false and frivolous is liable to be dismissed.
   2. Perusal of Annexure C-2 clearly indicates that the complainant has placed order for purchase of MI 11X Pro 5G mobile handset. Annexure C-3 further indicates that the OPs had replaced the defective mobile handset with another one.  Perusal of email Annexure C-5 (colly) with which photographs of the replaced mobile handset have been annexed by the complainant make it clear that the complainant was not delivered  mobile handset having same model and configuration as replacement, as was of the defective/original mobile handset  and  to this effect the complainant had also sent email dated 25.7.2023  intimating that the product is not of the same model  which was earlier given to him. It is also clear from the case file that the OPs had not redressed the grievance of the complainant  either before filing the complaint or  during the pendency of the complaint and the replaced mobile handset is still with the complainant regarding which he has requested the OPs to deliver the same model which was  originally ordered or refund the paid amount. As the OPs had failed to contradict the version of the complainant that he was not delivered the same model mobile handset as replacement of defective mobile handset, it is safe to hold that  the OPs had replaced the defective mobile i.e. MI 11XPro with different model i.e. MI 11X  and the said act of the OPs amounts to deficiency in service and indulgence in unfair trade practice.
   3. So far as the quantum of relief is concerned,  as the it is proved on record  that the complainant has paid Rs.30,000/-  for the handset in question after discount given by the OPs, he is entitled for the refund of the same alongwith compensation and cost of litigation  which in our mind would meet end of justice if a lump-sum amount of Rs.10,000/-  is ordered to be paid to the complainant.
4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to refund ₹30,000/- to the complainant alongwith interest @ 9% per annum from the date of institution of the present consumer complaint till onwards.
2. to pay lump-sum amount of ₹10,000/- to the complainant as compensation for causing mental agony and harassment to him;

5. This order be complied with by the OPs jointly and severally within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation.
6. After compliance of aforesaid order by the Ops the complainant shall return the mobile handset to the OPs and the OPs shall collect the same at their own risk and cost.
7. Pending miscellaneous application(s), if any, also stands disposed off.
8. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 02/07/2024 mp			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member