JUDGMENT

Shri A.K.Patra,President

1. The facts of the complaint in brief is that,  the complainant  has purchased  One Plus 11R 5G Mobile set having IMEI No.867735062363752 & 867735062363745  from OP No.1 (one) vide Online Order ID No.OD328799603197672100 on 04.08.2023  for an amount of Rs.44,000/-vide Tax Invoice No.FAMLS62400079944 . The complainant received the mobile set on 09.08.2023 but said product sold  to the complainant by the OPs & delivered to him 9/8/2023  was not as per specification of the order. The complainant placed order for replacement/cancelation on the same date i.e. on 09.08.2023 and said request of return of product delivered to the complainant was also approved on 24.08.2023  by issuing a credit note by the supplier but the same was rejected later on. The complainant contacted the customer care service of OP 1(one) and brought the matter to their notice but no effect and after being not getting any online customer support, the complainant served legal notice both the Ops on 18.09.2023 but they did not respond by OP 1 and notice returned back from OP 2 with postal remark of “ No such farm found at the mentioned address”. Due to the unfair and defective trade practice and deficiency in service by the Ops the complainant suffered hence this complaint
2. The complainant seeks for  a direction against the Ops to return back the cost of the mobile phone i.e Rs..44,800/-, along with litigation expenses Rs.20,000/- and prayed for for an award of compensation of Rs.5,0000/- towards mental agony.
3. On being notice, the Opp.Party  No.1 appeared through  their advocate Sri Kunal Kumar Behera and  filed their written version and OP No.2 did not appear though notice is properly served & sufficient opportunities have been given.
4. The Opp.Party No.1 submitted that,  the OP 1(one)  merely operates an online platform and all the products on the platform are sold and supplied by the independent sellers through the website of the OP 1(one) and not directly from it and the ultimate beneficiary of the transaction  is seller of the product and not this OP 1. As and when the complainant raised his grievance with a the OP 1, the same was immediately forwarded to independent third party seller  moreover, as per the information received from independent third party seller, the return request was cancelled by third party seller citing logistics constraints, the same was promptly intimated to the complainant. The OP 1 does not have any role in rejection/returned of the product, the same is done in accordance to the internal policies of third party seller. In view of the above submissions, it is evidently clear that, the complainant has no grievance against the OP 1. It is only the seller who can be held responsible for alleged non delivery of the product as per specification of the order of the complainant. Hence, in view of the above  there is no cause of action against the Opp.Party No.1rather, this complaint is liable to be dismissed.
5. The OP 1further submits that, it has not committed any unfair trade practices or deficient services, in fact there is no question of unfair trade practices on the part of the OP 1. The role of the OP 1 is limited to connecting the buyer with third party sellers and nothing more. Being just an intermediary, OP 1 was not responsible for delivering the product to the complainant. It is only the seller who supplies the product and decides whether a particular product should be returned, refunded or not, hence there is no deficiency of services on the part the Opp. Party No.1. From the above reasons, it can be established that the OP 1 is not responsible for causing any alleged mental and physical agony, any hardship or for providing any compensation to the complainant . Hence, this complaint deserves to be dismissed due to lack of cause of action.
6. Heard .Perused the material available on record. We have our thoughtful consideration on the submission of the rival parties.
7. Sec.2(11) of  C.P.Act 2019 says  that :-    “Deficiency in Service means  “ any fault, imperfection, shortcoming or inadequacy in the  quality , nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance  of a contract or otherwise in relation to any service”.
8. It is the case of the complainant that, One Plus 11R 5G Mobile set having IMEI No.867735062363752 & 867735062363745  from OP No.1 (one) vide Online Order ID No.OD328799603197672100 on 04.08.2023  for an amount of Rs.44,000/-vide Tax Invoice No.FAMLS62400079944 . The complainant received the mobile set on 09.08.2023 but said product sold to the complainant by the OPs & delivered to him 9/8/2023 was not as per specification of the order. The complainant placed order for replacement/cancelation on the same date i.e. on 09.08.2023 and said request of return of product delivered to the complainant was also approved on 24.08.2023  by issuing a credit note by the supplier but the same was rejected later on unilaterally . The complainant contacted the customer care service of OP 1(one) and brought the matter to their notice but no effect and after being not getting any online customer support, the complainant served legal notice to the Ops is not responded which caused financial loss and mental agony to the complainant. The complainant has proved these facts by filling his evidence on affidavit as prescribed under C.P.Act 2019 remain un rebutted .No rebuttable evidence is filed by the Ops.
9. The Op No 2 (two) did not contest the case and no written version is filed by the Op 2(two). The Op 1 filed their written version and simply denied his liability but failed to adduce rebuttable evidence. The Ops also failed to file their evidence on affidavit as prescribed under C.P.Act 2019 though sufficient opportunities have been given. The submission of the Op 1(one) that: “ as per the information received from independent third party seller, the return request was cancelled by third party seller citing logistics constraints, the same was promptly intimated to the complainant” is not acceptable rather it clearly proved the negligence & deficient service of the ops.
10. It is found that, after delivery of the subject product, the complainant expressed his dissatisfaction and wanted to return back the same and replacement/cancelation order was also approved on 24.08.2023  by issuing a credit note by the supplier but the same was rejected later on unilaterally. The grievance of the complainant is deliberately not heard by the Ops .Non of the  turn up to take back the subject product clearly proved   unfair trade practice & deficiency in service there on the part of the Ops which certainly caused financial loss & mental agony to the complainant cannot be denied . Therefore, the O.Ps are liable jointly liable to refund the  price of the subject product received from the complainant with interest @ 9% p.a along with  cost of this litigation  so also liable  to pay compensation for mental agony not less than Rs.5,000/- which may heal  the injuries of the complainant some extent. However, the claim of the complainant is found at higher side, hence, we allowed the complaint   partly and dispose of the matter with the following directions.

                                     ORDER

          The Opp.Parties are here by   directed to deliver  the  mobile phone as per the specifications of the order of the   complainant  vide Online Order ID No.OD328799603197672100 dt. 04.08.2023 without charging any extra amount to the complainant and get return back of the subject defective mobile phone which was delivered to the complainant or in alternate the Ops are to refund the price of the subject goods/mobile set i.e     Rs 41,824/- to the complainant with interest @ 9% P.A from 04/08/2023 till its payment and on receiving of said amount  the complainant shall return back the subject defective mobile phone set to the Ops .  Further the Ops are  directed to pay compensation of Rs.5,000/- for harassment and  mental agony  undergone by the complainant and Rs.3000/- towards  cost of this litigation expenses.  

    The Ops are further directed to comply this order within four weeks from the date of receipt of this order, failing which Ops shall liable to pay interest @18% per annum on the above amount till the date of its realization. Ordered  accordingly.

     Dictated & corrected by me.

     Sd/-               

President

                            I agree

                                                                          Sd/-

                                                                        Member

Pronounce in the open Commission today on this    18^th  day of July 2024 under the seal and signature of this Commission. The pending application if any is also disposed off accordingly.

Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. Complaint is disposed of accordingly.