IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Dated this the  27^th  day of  September, 2018

Present Sri. P.SatheeshChandran Nair, President

              Sri. K.N. Radhakrishnan, Member

              Smt. Renu.P.Gopalan, Member

CC No. 180/17(Filed on 03/08/17)

Between:

Sebastian Varghese,

Health Service Research(Rtd)

S/o Joseph Sebastian,

Erakkath, Muttuchira PO,

Manjoor village, Vaikom,

Kottayam.   

(By Adv. Joshy Jacob)                                                 …...Complainant

And:

1)The Flipkart Internet Pvt.Ltd

Vaishnavi Summit, No.6/B, 7^th Main

80 Feet Road,3^rd Block, Koramangala,

(By Adv. Rajesh R.Nair)

          2) The Franchisee, (Exparte)

              Blue Dart, Kooplikkattu Buidlings,

              Kaduthuruthy PO, Kottayam-686 604                           …..Opposite parties

O R D E R

 Sri. K.N. Radhakrishnan, Member

          The case of the complainant is as follows:    The complainant ordered for “Cool Pad Note 5/32 GB (Royal Gold) (Mobile phone) as an amount of Rs.11,980/- from the 1^st opposite party.  The payment was made in advance through the Norwegean Debit Card of the complainant on 25^th March 2017.  On the 1^st April 2017 at 4 p.m a parcel send by the 1^st opposite party, was served by the delivery assistant of the 2^nd opposite party and the complainant received it at the residence  address shown above.  After receiving the parcel the complainant opened it within 10 minutes and was surprised that, the parcel was not containing the said, ordered “telephone se” but something else like toys.  As soon as it was realized that, the opposite party, had not served, the ordered item but something else was delivered, the complainant had call back on the number from which the complainant was called just before serving the said parcel from the 2^nd opposite party.  The very same person, the delivery assistant of the 2^nd opposite party, who had delivered the said parcel, came back.  Then the complainant has shown the said parcel and the items really contained in the parcel to him and requested to take back the item.  The delivery assistant of the 2^nd opposite party who delivered the parcel has confirmed that the item contained in the delivered parcel, was not a telephone set, but something else.  The 2^nd opposite party was not inclined to take back the parcel, but told that to report to the 1^st opposite party.  Soon the complainant did contact the “customer support” of the 1^st opposite party and make a request, that to cancel the order and pay back the money as irresponsibly a wrong delivery was done.    That request was made on the same internet site where the order was placed.  But that was found removed after the mutual later communications.  But the 1st opposite party’s customer support, made a reply that it was not possible, because the complainant has had already received the offered item.  The complainant has told them, since the 1^st opposite party has committed the breach by not delivering the item, which was ordered, even after receiving the advance payment, the complainant wanted to cancel the order and get back the money.  But they adamantly rejected the request of the complainant.  The above said request was sent to the 1^st opposite party by e-mail.  But on the next day the 2^nd April 2017, the complainant was received a reply, that they cannot fulfill, the replacement by the seller as the courier partner had confirmed the delivery of the item to the complainant and requested to write in their “e-mail id”.  Thereafter, when it was clear that the opposite parties are not willing to correct their mistake and deliver the actual item which was ordered, the complainant lodged a petition before the Kaduthuruthy Police Station, on 6^th of April 2017.  On 19^th April 2017, another mail from the “Flipkart Customer Support”, that they have escalated the complainant’s issue to the concerned team and they assured in that e-mail that they will resolve the complainant’s problem by 21^st April 2017, by 4.30 p.m.  But thereafter the opposite parties were not resolved the problem or not even bothered to inform anything to the complainant.  There was clear deficiency in service from the sideThis Forum entertained this complaint and issued notice to the opposite parties for appearance.  The opposite party 1 entered appearance before this forum through their counsel but failed to file any version till this date.  Though opposite party 2 received notice from this forum they also did not appear before the forum.  Hence opposite party 1 also declared exparty by this forum.

          On the basis of the complaint records before us and framed the following issues for consideration.

1. Whether the complaint can be allowed?
2. Regarding the relief and costs?

In order to prove this case of the complainant, the complainant he who filed a proof affidavit in lieu of his chief examination and marked Ext. A1 to A7. He is examined as PW1.  Ext.A1 is the e-mail reply dtd 1/4/17.  Ext.A2 is the series of

e-mail communications(5 Nos).  Ext.A3 is the printout out of the SMS (4 Nos.).Ext.A4 is the copy of the petition lodged before the Police station dtd 6/4/17.  Ext.A5 is the office copy of letter sent to the 1^st opposite party dtd 14/7/17. Ext.Aa6 is the postal receipt.  Extg.A7 is the copy of the petition and the receipt for the petition lodged against the 1^st opposite party before the police station Kaduthuruthy dtd 19/7/17.  The mobile phone was also produced by the complainant and it is marked as MO1.

Point No.1 and 2

          For the sake of convenience, we would like to consider Point No. 1 and 2 together.  When we go through the proof affidavit of the complainant it is more or less as per the tune of the complainant.  It is proved that by paying Rs.11,980/- the complainant purchased a mobile phone from the 1^st opposite party and it is also deposed that on 1/4/17 a parcel had served to the complainant which contains only toys instead of mobile phone.  The 2^nd opposite party the franchisee of the 1^st opposite party delivered the same to the complainant.   In order to substantiate the contention of PW1 he produced a series of e-mail communication with opposite parties as Ext.A1 and A2.  Ext.A3 is a printout of SMS series 4 in numbers with opposite party 1.  When we verify this e-mail conversation with opposite party 1  we can understood that the above said foul play happent to the complainant and opposite party 1 expressed sorry to the complainant. The opposite party 1 also expressed his expectation for issuing a genuine mobile set to the complainant.  Ext.A4 and Ext.A7 which are related to the police petition with regard to the said events.  Ext.A5 and A7 are only copy of the letter and  postal receipt to prove the issuance of notice to opposite party 1.  On the basis of the unchallenged evidence of the complainant as PW1 we would have to give credibility on the evidence adduced by PW1.  As a bonafide purchaser the complainant paid an amount of Rs.11980/- for the purchase of a mobile phone but it is seen that the opposite party sent some toys in a tide box to the complainant.  The said act is not only a breach of deficiency in service but also a cruel or mental harassment to a person.  More over it is to be noted that though the opposite parties are duly received the notice from this forum, they purposefully evaded the process of law.  Therefore the complainant succeeded to prove his case against the opposite parties and we also found that opposite party 1 is the manufacturer of the product and opposite party 2 is the official franchisee of opposite party 1.  Hence opposite party 1 and opposite party 2 are jointly and severally liable to the complainant.  Hence Point No. 1 and 2 found in favour of the complainant.

          In the result we pass the following orders.

1.  The opposite parties are hereby directed to pay Rs.11980/- with an interest of 10% from the date of filing of this complaint ie is 3/8/17 onwards.  If the opposite parties complied the order they can receive the MO1 from the Forum if complied within one month.
2. The opposite parties are also directed to pay a compensation of Rs.7500/-(Rupees Seven thousand five hundred) along with a cost of Rs.2500/-(Rupees Two thousand five hundred) with 10% interest from date of receipt of this order onwards.

          Pronounced in the Open Forum on this the 27^th day of September 2018.

                                                                              Sd/-

                                                   Sri. K.N. Radhakrishnan, Member

Sri. P.SatheeshChandran Nair, President                 Sd/-

 Smt. Renu.P.Gopalan, Member                                      Sd/-

Appendix

Witness examined on the side of the complainant

PW1  Sebastian Varghese

Exhibits marked on the side of the complainant

A1-e-mail reply dtd 1-4-17

A2- series of e-mail communications (5 Nos)

A3-printout of the SMS(4 Nos)

A4-copy of the petition lodged before the Police Station dtd 6/4/17

A5-office copy of letter sent to the 1^st Op dtd 14/7/17

A6-postal receipt

A7-copy of the petition and the receipt for the petition lodged against the 1^st OP

       before the police station, Kaduthuruthy dtd19/7/17

MO1-Toys

By Order,

Senior Superintendent.

Copy to:

1) Sebastian Varghese,Health Service Research(Rtd)

S/o Joseph Sebastian,Erakkath, Muttuchira PO,Manjoor village, Vaikom,

Kottayam.

2) The Flipkart Internet Pvt.Ltd,Vaishnavi Summit, No.6/B, 7^th Main

80 Feet Road,3^rd Block, Koramangala, Bengaluru-560034

          3) The Franchisee, (Exparte)         Blue Dart, Kooplikkattu Buidlings,

              Kaduthuruthy PO, Kottayam-686 604

4)Stock file