Karnataka

Bangalore 4th Additional

CC/168/2018

Mr. AbhishekRotti, - Complainant(s)

Versus

Future Choice Enterprises, - Opp.Party(s)

11 Oct 2019

ORDER

Complaint Filed on:03.01.2018

Disposed On:11.10.2019

                                                                              

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

 

 

   11^th DAY OF OCTOBER 2019

 

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM - PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

                          

                      

Complaint  No.168/2018

 

 

 

COMPLAINANT	Mr.Abhishek Rotti, Aged about 21 years, S/o Venkatesh P Rotti, R/at #201, 36th A Cross, 16th A Main, 4th T Block, Jayanagar, Bengaluru – 560041.   Advocate – Sri.A.M Iktear Uddin           V/s
OPPOSITE PARTy	Future Choice Enterprises, Rep. by Mr.Prasanth Soni, Fateh Marg, Govindpuri, Delhi – 110019.   Advocate Sri.Kumar

                                       

 

O R D E R

 

SMT.PRATHIBHA. R.K., PRESIDENT

 

This complaint is filed by the complainant against the Opposite Party (herein after called as OP) under section 12 of the Consumer Protection Act, 1986.  The Complainant prays to direct the OP to refund the booking amount of Rs.65,655/- with 24% interest, to pay an amount of Rs.2,00,000/- towards harassment, mental agony and hardship, to pay costs of the proceedings and pass such other reliefs.

 

2.      The brief facts of complaint is as under:

 

The complainant submitted that the complainant received a call on 27^th September 2017 from OP Company popularly known as Digital India Deal (https://www.digitalindiadeal.com) experts from the website.  That on the call the executive from OP Company informed that as they are a new Company and as a marketing initiative they are calling about 50 people for a bumper prize offer and that they had procured this list (contact details and names of buyers) from e-commerce portals.  The complainant was asked to register on their website and buy a product from the website (http://www.digitalindiadeal.com) to be eligible, lured by the offer the complainant bought a product for about Rs.549/- and they sent him a code promising a bumper prize.

 

The complainant further submitted that the complainant received the product on the next day and OP has informed that he would get a call from another department.  Complainant got a call few days later saying that he could choose between a Samsung TV, and iPhone and a Dell Laptop, he choose the Samsung TV, for which they asked him to pay Rs.6,700/- as GST and that they would pay the other half.  Complainant made the payment through JD pay and the same was credited to the account in the name of Future Choice Enterprises bearing Account Number:348905000096 with ICICI Bank Ltd.  That after few days of constant calling and shouting the executives of the OP said prize will be dispatched and they asked the complainant to deposit another Rs.12,000/- as insurance and courier fees.  The complainant has paid said amount through JD pay and the same was credited to the above mentioned account.  That it is worth noting that the complainant was given a wrong tracking number by their customer care, which was verified by Blue Dart as not existing at all.

 

That the complainant was frustrated with their actions he had already paid Rs.19,000/- without any results.  Hence complainant started enquiring into the issue.  When he contacted the higher officials of the website through the executive the complainant was informed that his prize had been damaged during shipping and the he would receive the insurance money and some extra amount.  That the complainant paid another Rs.21,455/- as safety deposit supporting document and Rs.25,500/- for the releasing of three cheques all because of the false promises made by the company and its employees.  That on 04^th October 2017 when the complainant complained to the customer care they promised to compensate him with an amount of Rs.2,06,145/- in three installments of Rs.68,715/- each. 

 

Complainant further submitted that the aforesaid act of OP Company, it is crystal clear that a scheme was designed to dupe innocents’, consumers and buyers.  That the OP Company has obtained the contact details of several innocent consumers through web scrapping and introduced them to luring traps for duping illegally funds from them.  The OP Company has received a total amount of Rs.65,655/- in the following manner from the complainant and promised to pay back Rs.2,06,145/- after which they have been continuously evading calls from the complainant.  That the scheme employed by the Company was meant to cheat and defraud complainant.  That the complainant has been duped by the OP Company and has suffered a huge monetary loss due to the act of the above mentioned accused.

 

That the complainant has been thoroughly following up, every time the accused seek more time to repay, citing grounds of financial crisis and difficulties.  That the OP keep posting payment date, citing various reasons.  That it is highly irrational and unethical on the part of the accused to enjoy the total amount of Rs.65,655/- by taking undue and unfair advantage of trust, who gave accused the amount purely looking at the promises made by the Company.  That the conduct of OP from the aforesaid reasons for not proving the products as promised and holding the amount clearly establish the deficiency of service and unfair trade practice on the part of OP without any fault of the complainant.  That due to the deficiency and victimization attitude of the OP, the complainants has incurred loss of time, humiliation by office executive.  Hence the complainant without having any other alternative filed this complaint seeking reliefs.      

 

3. Despite service of notice, one Sri.Kumar, Advocate appeared and filed vakalath on behalf of OP but did not choose to file version.

 

4. In the course of enquiry into the complaint, the complainant has filed his affidavit evidence reproducing what he has stated in his complaint.  The complainant has produced documents along with complaint.  We have heard the arguments of complainant side and we have gone through the oral and documentary evidence of complainant scrupulously. 

 

5. Based on the above materials, the following points arise for our consideration:

 

 

1)	Whether the Complainant has proved that there is deficiency in service on the part of OP? If so, whether he is entitled for the relief sought for?
2)	What order?

       

6. Our findings on the above points are as under:

 

 

 

Point No.1:-	Negative
Point No.2:-	As per the order below

 

 

REASONS

 

 

7. Point No.1 The complainant has firmly affirmed oath in his affidavit that, OP informed that complainant got bumper prize offer and asked the complainant to register in his website and buy a product from the website.  As he choose between a Samsung TV, iPhone and Dell Laptop.  The complainant registered the website and choose to buy Samsung TV.  The OP asked the complainant to pay Rs.6,700/- as GST.  The complainant paid the above said amount through JD pay to the OP account number.  Thereafter OP asked the complainant to pay Rs.12,000/- as an insurance and courier fee.  The complainant had paid the above said amount through JD pay.

 

8. The complainant further submitted that, the OP had informed the complainant that the said item was damaged during the shipping and the complainant will receive the insured amount and extra amount for that complainant has to pay Rs.21,455/- as safety deposit supporting document and Rs.25,500/- for the releasing of three cheques.  Without any option the complainant paid the said amount through JD pay.  OP had promised the complainant that he will get an amount of Rs.2,06,145/- in three installments of Rs.68,715/- each.

 

9. The complainant further alleged that the scheme was created by OP to cheat and defraud the complainant, hence complainant suffered huge monetary loss due to the act of OP.  In the instant case the complainant alleged fraud and cheating against the OP.  In this regard the Hon’ble National Commission as well as Hon'ble State Commission held in respect of non-maintainability of the complaint based on alleged fraud, cheating in the decisions reported in:

 

1. I (1993) CPJ 88 (NC) in the case of N.Shivaji Rao vs. M/s.Daman Motor company & ors.,

Consumer Protection Act, 1986 – Sec.2(1)(c) - complaint – fraud and cheating – State Commission declined to adjudicate the complaint because of complicated questions including fraud and cheating – hence appeal.

Held: It is evident from above that it is not a case of supply of defective goods or of deficiency in rendering service. Prima facie it is a case of fraud and cheating as alleged by the appellant – Complainant himself. Consequently, the factum of fraud and cheating would have to be established first before a consumer forum can arrive at a finding of deficiency of service. We agree with the view expressed by the State Commission that the Consumer Protection Act and the machinery there under cannot be effectively utilized for determining complicated questions of the fraud and cheating. The appeal is rejected and the order of the State Commission is confirmed.

 

2. I (1996) CPJ 283 in the case of Dr.Sudhir G Rao vs. Kokila & Ors

Consumer Protection Act, 1986 – Section 2(1)(c) – complaint – fraud – complaint filed – allegations of fraud and cheating – whether investigation can be done by the Redressal forum ? – No

Held: As per the averments made in the complaint, the case set up by the Complainant is of fraud regarding which no investigation can be done by the Redressal forums.

Held further: In the present case, as referred above, deficiency of service on the part of the Ops is only incidental to the act of fraud and cheating alleged to have been committed by the Ops.

So, having regard to these facts, we are constrained to hold that this complaint is untenable.

 

3. Hon'ble Karnataka State Commission, Appeal no.1109/2011 dtd.02.08.12 in the case of M/s.Praveen Gift centre vs. Smt.Jyothi Jain, wherein it is held that:

5. The LC for the appellant has submitted that the complaint filed by the Complainant is not maintainable. The DF has no jurisdiction to entertain the complaint as the respondent/Complainant has alleges fraud and cheating played by the appellant in selling the goods for wrongful gain and to cause wrongful loss to him. He further submitted that the order passed by the DF is against the documents that have been produced by the appellant before it as the invoices were prepared in the name of a third person.

 

 

 

6. Admittedly, the Complainant/respondent has purchased four mobile handsets from the appellant/Op in all for Rs.94,150/- on 07.11.09. Admittedly, the invoices were raised in the name of Mr.Sandeep. If at all, the respondent was unaware of Mr.Sandeep she should not have accepted the bills. Moreover, both the parties agrees that the respondent has purchased the mobile sets in the name of third person. That means it creates a doubt that the Complainant/respondent has purchased 4 mobile handsets for commercial purpose and not for her own use. It is not the case of the respondent that the mobile handsets which were purchased by her are suffering from any manufacturing defects. The only grievance is that the Op/appellant has duped and cheated her. If at all, there is fraud and cheating played by the appellant as alleged by the respondent/Complainant for which she is at liberty to approach appropriate court for relief. DF has no jurisdiction to entertain the complaint. In the result, we pass the following:

ORDER

Appeal is allowed. The impugned order is set aside. The complaint filed by the Complainant is dismissed with a liberty to approach appropriate court for relief.

 

 10. Hence on the above discussions and decisions cited supra this Forum does not have a jurisdiction to entertain this complaint.  Complainant is at liberty to approach the appropriate court for his grievance.  Accordingly, we answered the point no.1 in the negative. 

 

11. Point no.2: In the result, for the foregoing reasons, we proceed to pass the following order.

 

ORDER

 

The complaint filed by the complainant is dismissed with a liberty to approach the appropriate court for his grievance.  Parties to bear their own costs.

 

          Supply free copy of this order to both parties. 

   

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 11^th day of October 2019)

 

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

 

                         
                   

 

                      

Witnesses examined on behalf of the complainant by way of affidavit:

 

Sri.Abhishek Rotti.

 

Copies of documents produced on behalf of complainant:

 

Ex-A1	Copy of website pages
Ex-A2	Copy of registration email.
Ex-A3	Copy of invoice for Rs.549/-.
Ex-A4	Copy of payment confirmation dated 28.09.2017.
Ex-A5	Copy of payment confirmation dated 05.10.2017.
Ex-A6	Copy of payment confirmation dated 16.10.2017.
Ex-A7	Copy of payment confirmation dated 27.10.2017.
Ex-A8	Copy of escalation email to the OP Company.
Ex-A9	Copy of email from JD Pay sharing account details.

 

 

Witnesses examined on behalf of the OP - Nil

 

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

 

 

 

Vln*