Complaint under Section 12 of the Consumer Protection Act, 1986.

Before:        SH. R.L.AHUJA ………………. PRESIDENT

                   SH. ISSAM SINGH SAGWAL ……MEMBER.

                   SMT. SUKHDEEP KAUR………… MEMBER

Present:        Sh. Amit Goyal, Advocate for complainant.

Sh. Ajay Saini, Advocate for opposite party No.1.

Opposite party no.2 exparte. 

ORDER

                   In brief, the case of the complainant is that opposite party no.1 is online trading company and op no.2 is online payment safety provider/ mediator. The complainant maintains the saving account bearing no.3621207523 with Central Bank of India, Branch at Begu road, Sirsa. That complainant placed online order to purchase mobile handset model ‘Redmi Note 5 Pro’ on 7.3.2018 from Sirsa and made the payment of Rs.13,999/- through op no.2 vide booking transaction ID-P1803071200419481740632, UTR No. 806636969549 dated 7.3.2018. The payment of Rs.13,981.50 was debited for op no.1 and Rs.17.50 for op no.2 and the transaction was successful. That thereafter, the op no.1 showed the payment unsuccessful and complainant lodged complaint with op no.1 at the customer care number of op no.1 whereupon the op no.1 told the complainant that they have not received any payment. Thereafter, the complainant contacted op no.2 on the same day i.e. on 7.3.2018 and they asked the complainant to wait for eight hours but all in vain. The complainant lodged written complaint with op no.2 vide tickets dated 17.3.2018, 18.3.2018, 4.4.2018 and 28.4.2018 but op no.2 failed to solve and to refund the amount debited from the account of complainant. The op no.2 replied that payment was successful and the matter is between op no.1 and complainant as they have paid the amount to op no.1. The complainant again contacted the op no.1 but they again repeated their version that they have not received any amount. Neither the amount has been refunded nor the item delivered. Hence, this complaint.

2.                 On notice, opposite party no.1 appeared and filed reply asserting therein that complainant has suppressed true and material facts from this Forum. The op no.1 is not the seller of any product but mere an online intermediary providing a common platform to the buyer and independent third party seller. The op no.1 provides online marketplace platform/ technology and other mechanism/ services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods by and between respective buyers and sellers and enables them to deal in various categories of goods including but not limited to mobiles, camers, computers, watches, clothes, footwear, healthcare and personal products, home appliances and electronic products etc. It is further submitted that business of op no.1 falls within the definition of an “intermediary” under section 2 (1) (w) of the Information Technology Act, 2000 and op no.1 is protected by the provisions of Section 79 of the said Act. It is further submitted that grievance of complainant is with respect to a possible glitch in the banking transaction wherein the money has been allegedly debited from the complainant’s account but not received by op no.1. Op no.1 as neither the seller nor op no.1 has received any amount against the order booked by complainant and thus if at all the complainant has reasons for any grievance the same should be only against his own operative bank through which the alleged payment was done or against op no.2 whose payment gateway was chosen by complainant for completing the alleged transaction. It is further submitted that grievance of complainant pertains to glitch in banking transaction which can be explained or rectified by the bank alone and not by op no.1. The op no.1 had not received the alleged amount and hence could not confirm the order and subsequently the product was not delivered to the complainant by the seller. The complainant should now approach the concerned bank or the op no.2 for any assistance as information regarding non receipt of payment by op no.1 has already been communicated to him. Remaining contents of complaint are also denied and prayer for dismissal of complaint made.

3.                Opposite party no.2 did not appear despite notice sent through registered cover and as more than 30 days elapsed, op no.2 was proceeded against exparte.

4.                The parties then led their respective evidence.

5.                We have heard learned counsel for the parties and have perused the case file carefully.

6.                Learned counsel for complainant has contended that it is proved case of complainant that complainant had placed online order for purchase of mobile handset model Redmi Note 5 Pro from Sirsa and made payment of Rs.13,999/- through op no.2 vide booking transaction dated 7.3.2018. The payment of Rs.13,981.50 was debited for op no.1 and Rs.17.50 for op no.2. Thereafter, op no.1 showed payment unsuccessful and complainant lodged complaint with op no.1 at the customer care number whereupon op no.1 told the complainant that they have not received any payment. The complainant then contacted to op no.2 on the same day and they asked the complainant to wait for eight hours but to no effect. The complainant lodged written complaint with op no.2 vide tickets dated 17.3.2018, 18.3.2018, 4.4.2018 and 28.4.2018 but op no.2 failed to solve the grievance and to refund the amount. The op no.2 replied that payment was successful and matter is between complainant and op no.1 as they have paid amount to op no.1 whereas amount has been debited from the bank account but neither same has been refunded nor the item delivered and the complainant is entitled for relief prayed for.

7.                On the other hand, learned counsel for op no.1 has filed written arguments in which op no.1 has made submissions on the line of their plea taken in the written statement. They have denied that they have received any payment from complainant through op no.2 rather they have taken plea that either refund should be made by the bank of complainant or by op no.2 who received the payment from the complainant and did not pass same to op no.1.

8.                We have considered the rival contentions of the parties and have gone through the record as well as written submissions of op no.1.

9.                As per averments made in the complainant, the complainant had passed online order on 7.3.2018 for supply of mobile and an amount of Rs.13,999/- has been paid to op no.2 which was debited in the account of complainant. Op no.2 had passed on payment to op no.1 and op no.1 did not supply the mobile nor ops made refund of the aforesaid amount.

10.              The perusal of evidence of complainant reveals that complainant has furnished his affidavit Ex.C1 in which he has reiterated all the averments made in his complaint and has tendered copy of statement of account Ex.C2 and emails Ex.C3 to Ex.C20. The perusal of statement of account reveals that on 7.3.2018, there is debit entry of Rs.13981.50 in the account of complainant Vinay Kumar of Central Bank of India, Begu road, Sirsa. The complainant has also placed on record certain copies of emails Ex.C3 to Ex.C20 regarding correspondence with op no.1 but the complainant has not placed on record any document from which it could be presumed that complainant had paid this amount to op no.1 or op no.2 had paid the amount to op no.1 after receiving same from the complainant. So from evidence on record, it is proved on record that no payment was made by complainant directly to op no.1. There is nothing on file to show that amount which was transferred to op no.2 by complainant has been paid to op no.1. So complaint regarding refund of amount against op no.1 does not appear to be maintainable and same is hereby dismissed.

11.              Since op no.2 did not put its appearance despite notice, so evidence led by complainant goes as unchallenged and unrebutted against op no.2. Since it is proved fact on record that complainant had transferred amount of Rs.13,981.50 in favour of op no.2 by way of bank transfer which is evident from copy of statement of account Ex.C2 and op no.2 did not come forward to contest complaint and to lead any evidence against complainant or op no.1 regarding payment of amount nor has placed on record any document that this amount in dispute has been refunded by op no.2 to the complainant, which clearly amounts to deficiency in service and unfair trade practice on the part of op no.2.

12.              In view of the above, we allow this complaint qua op no.2 and direct the op no.2 to make refund of the amount of Rs.13,981.50 alongwith interest @7% per annum from the date of receipt of amount to the complainant within 30 days from the date of receipt of copy of this order, failing which the complainant shall be entitled to interest @7% per annum from the date of order till its realization. We further direct the op no.2 to pay a sum of Rs.3000/- as composite compensation and litigation expenses to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.

Announced in open Forum.     Member      Member                           President,

Dated:27.05.2019.                                                                    District Consumer Disputes

                                                                                                     Redressal Forum, Sirsa