Date of Filing      : 07.12.2022
                                                                                                                  Date of Disposal: 21.07.2023

 

                                         DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

                                                                              THIRUVALLUR

 

BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                   .…. PRESIDENT
                 THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                          .....MEMBER-I
                 THIRU.P.MURUGAN,M.Com.,ICWA(Inter)., B.L.,                                     ....MEMBER-II

 

                                                                                CC. No.08/2023

                                                            THIS FRIDAY, THE 21th DAY OF JULY 2023

 

Mr.G.Ashvath Kumar,
Plot No.4, Jyothi Nagar,
3rd main Road, 1st Cross Street,
Annanur, Chennai 600 062.                                                               ……Complainant.
                                                                               //Vs//

1.The Managing Director,
   Hero MotoCorp Limited,
   The Grand Plaza, Plot No.2,
   Nelson Mandela Road,
   Vasant Kunj – Phase – II,
   New Delhi 110 070.

 

2.The Managing Director,
   Ecom Express Limited,
   Ground Floor, 13/16 min, 17min, Samalka,
   Old Delhi-Gurugram Road,
   Kapashera, New Delhi 110 037.                                           .......Opposite parties.

Counsel for the complainant                             :   Party in Person.
Counsel for the 1st opposite party                    :   Exparte.
Counsel for the 2nd opposite party                   :   Mr.A.Naveen Kumar, Advocate.

                        
           

                This complaint is coming before us on various dates and finally on 13.07.2023 in the presence of complainant who appeared in person and Mr.A.Naveen Kumar counsel for the 2nd opposite party and 1st oppostie party was set exparte for non appearance and upon perusing the documents and evidences of both sides, this Commission delivered the following:

                                                                               ORDER
PRONOUNCED BY THIRU.P.MURUGAN, MEMBER-II

 

           This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the oppostie parties with regard to false assurance and to failure of delivery of orders along with a prayer to direct on the opposite parties to impose stricter penalty for their action under Consumer Protection Act 2019 apart from giving suitable compensation to him.
Summary of facts culminating into complaint:-

           The complainant has ordered multiple spare parts from eshop Hero Moto Corp.Com (formerly hgpmart.com) an ecommerce website of Hero Moto Corp. i.e.1st opposite party and there are four orders made by him for spare supply to be fitted in his motor cycle.  The total value of all orders amounting to Rs.532/-.  The details of order numbers and status;

1. Order No.1000106852 dated 31.05.2022 for Rs.310/- Payment through online mode for which material not received and order cancelled by the complainant himself and hence refund received by the complainant.
2. Order No. 1000122553 dated 25.06.2022 for Rs.117/- Payment mode through cash on delivery for which material not received.  The complainant has opted for order cancellation mode since material not received on time.
3. Order No.1000153806 dated 22.09.2022 for Rs.70/- Payment mode opted as cash on delivery.  Though ordered, the material was out of stock as per 1st opposite party.  Although ordered again through email, no use as per complainant.
4. Order No.1000157684 dated 06.10.2022 for Rs.35/- for which payment mode through online which was paid and since the material is out of stock as per 1st opposite party and refund received by the complainant.

           The allegation by the complainant is that there is no proper response on the delivery of product which he has ordered through eshopping and the attitude of the 1st opposite party and 2nd opposite party in delivery of such product even though it was very small in quantity and price.  For a customer, the orders should have been honoured and the 1st and 2nd opposite parties have to be given suitable punishment for their action under Consumer Protection Act 2019 apart from giving suitable compensation to him.
The crux of the defence put forth by the 2nd opposite party:-
The 2nd opposite party put forth that the delivery of the goods booked by the consignor/1st opposite party for any consignee/complainant and delivery as per said to contain basis only.  That is they are under no obligation to verify the description and contents of the shipments declared by the consignor/1st opposite party.  They are only engaged in delivery of the packaged item and is not in any way responsible for the contents of the said package.  They have no direct relation to the present complainant and has been implicated by the complainant only to arm-twist the opposite party to extract benefits and prayed for dismissal of the complaint. They also reiterate that the complainant is not a consumer on this case pertaining to them since 1st opposite party and the complainant only does have a sale and buy transaction.  Their role is limited as such and no deficiency of service on their part, it is prayed.  They stress that they have been included in this case where it is misjoinder of party and not a necessary party to be included in this case.
On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex.A6 was submitted.  The 1st opposite party was called absent and set exparte on 27.03.2023 for non appearance and non filing of written version within the mandatory period as per the statute. On the side of 2nd opposite party proof affidavit was filed and documents marked as Ex.B1 was submitted.
In the case of 2nd opposite party, necessary written arguments and oral arguments made defending their stand that as there is no agreement for service between them and complainant and prayed for dismissal of complaint against them.
The complainant filed written arguments and argued party in person. On scrutiny of documents filed by the complainant and 2nd opposite party this commission has come to a conclusion that the claim of complainant on the service deficiency, mental agony on said transaction does not hold good since the whole transactions of eshopping is in order and we find no fault on the side of 1st and 2nd opposite parties and therefore have come to a point that points for consideration in this case as described in detail order in below Paras.

Points for consideration:-
        Whether the complaint allegations as to deficiency in service against the opposite parties has been successfully proved by complainant?
To what relief the complainant is entitled?
Point Nos.1&2:-
On the side of complainant the following documents were filed for proving the complaint allegations;
Communication, complaint at CPGRAMS was marked as Ex.A1;
Mis-leading advertisements/Unfair practice was marked as Ex.A2;
Contact details of opposite parties was marked as Ex.A3;
Email sent to 1st opposite party for order No.1000122553 on 05.07.2022 was marked as Ex.A4;
Email sent to 1st opposite party for order 1000153806, email sent for the complainant requirements, intimation before placing order was marked as Ex.A5;

Tracking information showing estimated time of delivery and return for order 1000122553 was marked as Ex.A6;
 On the side of 2nd opposite party the following documents were filed for their defence;
Letter of Authority was marked as Ex.B1;
         The complainant has prayed that the Commission has to impose a suitable penalty on both the parties including monetary compensation for causing agony and breach of trust, as relief claimed. Also in prayer clause, the complainant prayed that this Commission may kindly be pleased to impose stricter penalty (in addition to compensation) for providing false assurance, failure to deliver orders, etc., to avoid other consumers from facing this type of problem, the commission may pass suitable orders to Hero Moto corp and Ecom Express i.e. 1st and 2nd opposite parties (which would set example to any other company doing such practices) such that they are made liable to pay compensation in addition to the price paid (even it was refunded) to the affected customers, and as an additional punishment they should be conducting consumer rights awareness programmes either through social media or some other means for a specified period as may be deemed necessary to protect interest of consumers.
Going through the complaint and perusing the documents submitted by the complainant and 2nd opposite party, since the 1st opposite party is set exparte, it is concluded that the complainant although received proper replies from both the 1st and 2nd opposite parties as per his version, has determined to drag them to appear before this commission and his only intention is to punish them by using this Consumer Protection Act, 2019, though proper refund received by him in this case and proper replies received by him from 1st and 2nd opposite parties as observed, as per his version.

                 The complainant has opted ‘epurchase’ for his motor cycle through app eshop.heromotocorp.com (formerly hgpmart.com) for spares total valued at Rs.532/- in which refund received for two items and for the balance two items payment mode is ‘on cash on delivery’.  Though proper replies received from 1st opposite party on the supplies as stated in his version the complainant put forth deficiency in service which is not proved by the complainant.  The details of complainants order and status there in on the supply is as follows.
Order No.1000106852 dated 31.05.2022 for Rs.310/- paid online.
Status of the order: No invoice was generated till 04.06.2022. 
Therefore the complainant himself has cancelled the order and refund received. But the reason stated by the complainant is no proper response from customer support of the 1st opposite party.
The complainant admits that he has cancelled the order.  No service deficiency, since the 1st opposite party has the right to generate invoice based on the availability of stocks.
Order No.1000122553 dated 25.06.2022 for Rs.117/- payment mode cash on delivery.
Status of the order:
              The item as per order was shipped by the dealer TVL Southern Motor cycles located at Vandalur on 29.06.2022, that is within 4 days of order dated 25.06.2022.  The material was sent by courier (OP2 in this case) by the supplier but not delivered until 04.07.2022.  On follow up with courier fetched a reply that due to shortage of man power it is yet to be delivered.   But on 05.07.2022 the courier (OP2) has informed that the item would be delivered on 06.07.2022 and requested to share the denial code sent to complainant’s mobile number,to enable to deliver afresh on 06.07.2022 with new entry of shipping.

            Here the complainant with such knowledge on eshop/App experience has accepted the denial code resulting cancellation of the order.  The reason put forth by the complainant that for rescheduling purpose of delivery he has chosen the denial code is not acceptable in nature.  The very purpose of ordering goods is to ripe the benefit of transaction.  The reason put forth by the complainant is not valid and not acceptable in this transaction.  Therefore the action of complainant makes the cancellation and here we find no deficiency of service proved either on the supplier of product i.e. OP1 and the delivery agent i.e. OP2.  Here the role of the delivery agent i.e. OP2 is limited to the extent of acceptance or denial of goods delivery.
Order No.1000153806 dated 22.09.2022 for Rs.70/- payment mode is cash on delivery.
Though the complainant has placed the order, the order was cancelled by the dealer stating the reason of material out of stock.  The complainant was assured by 1st opposite party’s customer care executive that the inventory would be replenished by first week of October 2022 and requested the complainant to order again and an email to that effect sent but it was no use as per complainant.  Here the dealer could not execute the order since there is no stock available for which reason where there is deficiency in service cannot be motivated by the complainant.

Order No.1000157684 dated 06.10.2022 for Rs.35/- paid on line. Refund received.
         The complainant put forth that this order was cancelled by the dealer stating that it is out of stock and the money was refunded.  The complainant states on follow up of the issue that the order quantity should be in 2 pieces as per the 1st Opposite Party but as such there is no such condition present in website at the time of booking order.  Here, it is the right of the dealer i.e. 1st Opposite Party to sell any quantity they would like to.  The size of the product and the price of the product would have such implication on business viability shouldered by them.  Therefore, the complainant failed to prove service deficiency in this transaction.
The complainant‘s version of his shopping through email with 1st Opposite Party who have accepted orders and cancelling it for the reason of out of stock and refund made subsequently  which made him unsatisfactory and the 1st Opposite Party asking for the complainant’s vehicle detail with the poor response of 1st Opposite Party’s customer care division and the response of the 2nd opposite party i.e. courier service agent, which all falls in ordinary business transaction of any individual in day to day life and does not have any significance to register a case against them. There is no particular episode where the complainant suffered mental agony.  The orders were booked, cancelled in due course, refunded ultimately and the complainant kept informed on the transactions by 1st and 2nd opposite parties (although 1st opposite party has not filed proof affidavit etc, the available record submitted by the complainant proves the communication between complainant and 1st opposite party).  Therefore the claim of the complainant as prayed is kept aside.
On the part of 2nd opposite party the role is limited as it is a job contract between 1st opposite party and 2nd opposite party.  The 1st opposite party prefers the service of 2nd opposite party when the delivery of goods to their customers wanted.  There is no contract between the complainant and 2nd opposite party in this case and therefore the allegation whatever leveled against the 2nd opposite party by the complainant does not find reason and kept aside.

             The prayer of the complainant is to “punish” the opposite party. There is no such provision under this Consumer Protection Act, 2019 to “Punish” any one.  The remedy would receive by proper claim before this commission under Consumer Protection Act 2019 against any deficiency in service, unfair trade practice and such, the relief would be interms of compensation for the mental agony and for refund if eligible, replacement of goods if proved against manufacturing defect and so on.  Therefore the complainant’s prayer cannot be considered.  This Consumer Protection Act 2019 is for social protection with limited powers and not for punishing individuals/corporates.  In other words this particular case is filed in a clear less motive and eligible to be dismissed.
In the result, the complaint is dismissed.  No order as to cost.
Dictated by the Member-II to the steno-typist, transcribed and computerized by him, corrected by the Member-II and pronounced by us in the open Commission on this the 21th day of July 2023.

 

       -Sd-                                                  -Sd-                                                                -Sd-
MEMBER-II                                  MEMBER-I                                               PRESIDENT

 

List of document filed by the complainant:-

Ex.A1 .............. Communication, complaint at CPGRAMS. Xerox
Ex.A2 .............. Mis-leading advertisements/Unfair practice. Xerox
Ex.A3 .............. Contact details of opposite parties. Xerox
Ex.A4 ............. Email sent to 1st opposite party for order No.1000122553 on 05.07.2022. Xerox
Ex.A5 .............. Email sent to 1st opposite party for order 1000153806, email sent for the complainant requirements, intimation before placing order. Xerox
Ex.A6 ............ Tracking information showing estimated time of delivery and return for order 1000122553. Xerox

      List of documents filed by the 2nd opposite party:-

Ex.B1 ............. Letter of Authority Xerox

       -Sd-                                                      -Sd-                                                     -Sd-
MEMBER-II                                         MEMBER-I                                         PRESIDENT