SRI. SAJEESH.K.     : MEMBER

    The  Complainant has  filed this complaint  under Sec.12 of the Consumer Protection Act 1986 seeking direction against the 1^st  OP  to refund  the sum of Rs.17281/- with interest @12% per annum or to direct 3^rd OP to pay sum of Rs.17281/- to 2^nd OP and to direct Ops who is found to be giving to pay Rs.5000/- as compensation and cost.

     The complainant in brief

   The 1^st complainant placed an order for purchase of HONOUR 9 Lite mobile phone with Rs.14999/- through online platform of 1^st OP on 11/5/2018, the said order was confirmed by the authorized agent of  1^st OP ie  seller  2^nd OP, vide order ID No.OD212307806154885000 and  an amount of Rs.14999/- was debited  from SB Account No.67186804069  of SBI, Panoor branch by 2^nd  complainant.  On 13/5/18 1^st complainant obtained  another e-mail communication from 1^st OP regarding  the confirmation of order as well as the receipt of the payment of Rs.14999/-. At the time of delivery of the said product 2^nd  OP insisted for the payment of Rs.14999/- by way of cash  which was given by complainant.  At the time of payment, 2^nd OP assured that they will refund the amount immediately on the verification of bank account of 2^nd complainant it is seen that an amount of Rs.14999/- deducted on 12/5/2019.  The said amount was transferred in favour of IMB Flipkart and certificate to this effect is given by 3^rd OP to complainant.  From the month of May 2018 onwards the complainant made several attempts to get refund which was  excessively collected by 1^st OP and 3^rd OP.  The complainants suffered mental agony and hardship due to the  grave deficiency in service on the part of Ops.  Hence the complaint.

      After filing this complaint the commission has send notice to all Ops and all Ops are entered appearance before the commission and filed their version accordingly.

Version of 1^st OP in brief:

   At the very outset, 1^st OP contended that complainant is not a consumer and 1^st OP is neither a trader nor a service provider and there is no privity of contract between complainants and 1^st OP.  The 1^st OP contended that they were never made any unlawful deductions that they provides only market place platform to the sellers and buyers of products to facilitate the  transaction  ie, they acts as an intermediary through its web interface.  It is further contended that the two attempts made by complainants regarding the payment as the 1^st attempt of paying through net banking transaction  had failed and COD became effective.  The net banking  payment made by complainant was a failure and 1^st OP given proper assistance with regard to the alleged grievance and was directed to contact the 3^rd OP  and 3^rd OP is  responsible for the deducting of Rs.14999/- and 1^st OP never received any excess amount from complainants.  Hence the complaint  is liable to be dismissed.

Version of 2^nd OP in brief:

   2^nd OP denied all the averments made by complainant except those admitted expressly.  The 2^nd OP is carrying the business of sale of goods manufactured or produced by other and the 2^nd OP is the registered seller on the Website”flipkart.com”.  2^nd OP contended that  complainant is  trying to defame and trying to extort  money .  2^nd  OP pertinently mentioned that there is neither  any shortage of supply  nor any deficiency  of service from  their part.  Furthermore, 2^nd OP contended that complainant has deliberately concealed that the latter made two attempts through net banking to  place the order  but failed  and later choice  cash on delivery made to effectuate  the transaction.  The complainant was given proper assistance with regard to the alleged grievance and was directed to contact 3^rd OP.  The 2^nd OP never made any wrongful deductions from complainant and  he is not  liable to refund any amount which was not received by them.  There is no deficiency in service from  their part and hence the complaint is liable to be dismissed.

Version of 3^rd  OP in brief:

    The 3^rd OP contended that 1^st complainant is not a consumer of 3^rd OP and hence complaint  is not maintainable.  The complaint relates to the online purchase of a mobile phone by 1^st complainant from 1^st OP.  The 1^st OP used the internet banking facilities of 2^nd OP which is against the terms of internet banking.  The 3^rd OP submits that on 12/5/2018 an amount of Rs.14999/- has been  debited from the account  No.67186804069 maintained by  2^nd complainant  to 1^st OP.  The relevant journal number is 90134682 and transaction No. is 1GADMWSUP7.  As per the records available with 3^rd OP that the  transaction made through2nd complainant  account was a successful one.  If any loss is suffered by complainant is entirely due to their own fault.  Moreover, Ops 1&2 are liable on receiving dual payment.  Hence 3^rd OP is not liable to be loss suffered by complainants and hence complaint is liable to be dismissed.

   Due to the rival contentions raised by the OPs to the litigation, the commission decided to cast the issues  accordingly.

1. Whether there is any deficiency in service from the part of OPs towards complainant?
2. compensation  &  cost ?

       In order to answer the issues, the commission  called for the evidence from complainant as well as Ops.   The Ops  have not adduced  any oral evidence. The complainant produced documents which is marked as Exts.A1 to A8.  Ext.A1 is the copy of  the e-mail from 1^st OP, Ext.A2 is the original tax invoice issued by 2^nd OP.  Ext.A3 is the original pass book of 2^nd complainant, Ext.A4 is the certificate dtd.3/8/2018 issued by Panoor branch manager of 3^rd OP.  Ext.A5 is the lawyer notice and Ext.A6 series  is the postal receipts.Ext.A7(series) is the acknowledgment card and Ext.A8 is the reply from 1^st OP.  There is no oral or documentary evidence from  any of the Ops.

Issue No.1

   As per the documents produced by  complainants it is seen that the averment regarding the purchase of mobile from 1^st OP by paying Rs.14999/- is deemed to be  true  because Exts.A2&A3 reveals the same ie Ext.A2 is the tax invoice issued by 2^nd OP and Ext.A3 is the pass book reveals that on 12/5/2018 ie, the date of order placement through 1^st OP platform an amount of Rs.14999/- seen as deducted to Flipkart .  Moreover, the  OPs 1&2 clearly admitted that they collected the cash from complainant personally ie, it was a cash on delivery order.  The Ops 1&2 contended that complainant’s net banking attempt towards the payment of order was a failure.  But Ext.A3 reveals that Rs.14999/- deducted to the Flipkart payment and nowhere in the other transaction pages of pass book shows the payment was credited back to the 2^nd complainant ‘s account if it was failed transaction.  The available documents before the commission speaks  about the deduction of Rs.14999/- from the account of 2^nd complainant to 1^st OP and there is a admission by  Ops 1&2 towards the purchase of mobile which lead to deficiency in service from the part of Ops 1&2.  Hence issue No.1 is answered in favour of complainants.

Issue No.2:

    The complainants are entitled to get compensation since the Ops 1&2 collected  an excessive amount of Rs.14999/- towards the purchase of mobile  and hence made them liable to pay compensation of Rs.5000/- and also liable to pay the cost of litigation of Rs.2000/ to complainants.  Hence issue No.2 is answered in favour of complainants.

        In the result complaint is allowed in part.  The opposite parties 1&2 are jointly and severally directed to remit Rs.14999/- which was collected excessively from  complainants towards the purchase of mobile phone and also directed to pay Rs.5000/- as compensation and Rs.2000/- as cost of litigation  to the complainants within 30 days of receipt of this order.  In default the amount of Rs.14999/- carries  interest @9% per annum from the date of order till realization.  Failing which complainant is at liberty to file execution application against  opposite parties as per the provisions of Consumer Protection Act 2019.

Exts:

A1- Copy of e-mail message

A2-Original tax invoice

A3- original pass book

A4-certificate issued by Panoor SBI Branch

A5-Lawyer notice

A6(series) postal receipt

A7(series) Acknowledgment card

A8-Reply notice issued by 1^st OP

  Sd/                                                             Sd/                                                  Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew.                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR