Complainant Dr.Ajay Kumar through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite parties be directed to pay Rs.2078/- i.e. charged by them through online payment mode of medicine alongwith interest @ 18% P.A. Opposite parties be further directed to pay Rs.50,000/- as compensation for mental tension, physical agony, harassment and inconvenience alongwith Rs.10,000/- as litigation expenses.
- The case of the complainant in brief is that he had purchased some Homeopathy medicine on 14.2.2017 through online shopping order from the opposite party no.1 who is engaged in the business of online sale of medicine vide order ID : OD170214181031142 and made full payment for the same i.e. Rs.2078/- through online payment made from Gurdaspur. The opposite party no.1 got arranged the said Homeopathy medicine from Shivam Homoeo Pharmacy and intimated to him on his email ID that the medicine has been dispatched to his address on 16.02.2017 through courier service of opposite parties no.2 and 3 vide tracking number D32487542 and also intimated that the said parcel of medicine would deliver to him within 24 hours at his doorstep but the parcel containing the medicine has not been delivered to him till date. He received a mail as well as a message on his mobile phone from the opposite party no.1 side on 24.2.2017 with a intimation that the parcel containing the medicine had been delivered at his doorstep successfully but to his utter surprise the parcel containing the said medicine was not delivered to him till date. So he enquired the matter and sent a mail on 24.2.2017 to the opposite party no.1 and informed them that the order had not delivered to him till that date and also requested to them to get delivered the same as early as possible. He has next pleaded that he purchased the said medicine from the opposite party no.1 for his mother, as the concerned doctors prescribed to his mother to take the said medicine daily and due to non delivery of the said parcel his mother was unable to take her medicine. He received a mail from the opposite party no.1 on 25.2.2017 with message that “we are extremely sorry for inconvenience caused, we confirmed with the local office they agreed they wrongly update, but your college is out of service area so you have to collect by yourself. I give you the delivery boy contact No.9888708446” He again informed the opposite party through email that at the time of booking the order, he mentioned his address on his order and opposite party no.1 has accepted the order to deliver the same at his doorstep and also the same address was mentioned on the parcel, when the said parcel was entrusted to the opposite parties no.2 and 3 to deliver the same at his doorstep, then why opposite party no.3 is refusing to deliver the same to him at his address mentioned on the parcel. He has availed the service of the opposite party no.1 by purchasing the medicine from them for his mother’s personal use and the said parcel was interested to the opposite parties no.2 and 3 for delivered the same at his doorstep and he has made full payment for the same i.e. Rs.2078/- through online payment. These illegal acts of the opposite parties are unfair trade practice and are deficiency in service on the part of the opposite parties. Due to the illegal acts of the opposite parties, he has suffered huge monetary loss and suffered mental and physical agony from the hands of the opposite parties. Hence this complaint.
3. Upon notice, the opposite party no.3 appeared through its counsel and filed its written reply taking the preliminary objections that the present complaint is false, vexatious and filed with a malafide intention with view to harass the opposite party by misusing the process of law to avail undue advantages; the complaint is neither maintainable under law nor upon facts and the same is liable to be dismissed; the complainant has not come to this Forum with clean hands; no cause of action has arise against the opposite parties; the complainant is not a consumer within the definition of Section 2 (d) of the Consumer and the complaint is false and vexatious to the knowledge of the complainant and the complaint is bad for non joining of necessary party. On merits, it was submitted that the mobile mentioned in the complaint does not belong to the opposite party no.3. After receiving the parcel from the opposite party no.1 the delivery boy of the opposite party no.3 approached the complainant at his college even it was not within service Area of the opposite party no.3. But the complainant told the delivery boy that he is busy in college lecture cannot receive at the movement. Therefore the opposite party no.3 again telephonically told that complainant has to receive the parcel from the office of the opposite party no.3. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.
4. Notice issued to the opposite party no.1 and 2 had not been received back. Case called several times, but none had come present on their behalf, therefore, opposite parties no.1 and 2 were proceeded against exparte vide order dated 17.4.2017 and 5.6.2017.
5. Counsel for the complainant tendered into evidence affidavit of complainant Ex.C1 along with other documents Ex.C2 to Ex.C15 and closed the evidence.
6. Sh.Nikhil Kumar for the opposite party no.3 tendered into evidence
his own affidavit Ex.OP-3/1 and closed the evidence.
7. We have carefully examined all the documents/evidence as made available on the complaint records (as duly put forth by the participating litigants) along with the scope of the adverse inference that may be judicially but discretionarily drawn on account of the intentional non-participation of the prime OP1 Vendor & OP2 Courier Principals instead preferring ex-parte proceedings, in the very back-drop of arguments as put forth by the learned counsels for the litigating sides.
8. We find that the Complainant had on record purchased (affidavit Ex.C1) online some Homeopathy Medicines for Rs 2,078/- (Ex.C2/ Ex.C3) from the OP1 online Vendor vide Invoice # HM1AJXG16-10313 dated 16.02.2017 to be delivered by the OP2 DTDC couriers through its local OP3 Branch Office at Gurdaspur. The above mentioned Purchase-Order was duly acknowledged/ reported by the OP1 Vendor vide Ex.C4 to Ex.C6 and its delivery was duly confirmed Ex.C7/Ex.C8. However, the ordered medicine was never delivered to the present complainant as has been evident vide the exchanged correspondence (Ex.C7 to Ex.C15) and thus prompted the present compliant.
9. We further find that the present complainant has successfully proved all his complaint-contented allegations vide his affidavit Ex.C1 and other evidentiary documents Ex.C2 to Ex.C15; and further find that the OP3 Local Courier Rep has also ratified the above complainant-stated fact(s) vide its duly deposed affidavit Ex.OP3/1; duly admitting therein of the non-delivery on trivial issue of non-availability of receiver but no repeated second visit by first confirming the receiver’s availability on the given address on records; whereas the OP1 vendor and the OP2 courier-principal preferred to be proceeded against ex-parte (by staying away from the same) has further strengthened the trite judicial presumption that an intentional absentee/ex-parte litigant has no legs to stand in the witness box to plead his defense/no cogent and acceptable defense to plead. However, we (in line with the settled law) are inclined to subject the ‘award’ to the restrictions of ‘moderation’ so as not to cause undue enrichments to the ‘awardee’ and/or to cast undue excessive ‘distresses’ to the delinquent parties.
10. In the light of the all above, we find the hue of actionable statutory merit in the present complaint to partly allow the same and thus ORDER the titled opposite parties to pay an aggregate amount of Rs.5,000/- to the complainant in lieu of the refund of the cost of undelivered medicines besides cost and compensation for the inflicted upon mental agony and harassment upon him. The opposite parties shall be jointly and severally liable to execute compliance to the instant orders within 30 days of the receipt of the copy of the same otherwise the awarded amount shall attract interest @ 9% PA from the date of medicine-invoice till actual compliance/payment.
11. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
April 27, 2018 Member.
*MK*
