D.o.F:15/9/2010

D.o.O:15/7/2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                             CC.NO. 4/11

                     Dated this, the 15th   day of July 2011

PRESENT:

SRI.K.T.SIDHIQ                                    : PRESIDENT

SMT.P.RAMADEVI                              : MEMBER

SMT.BEENA.K.G                                    : MEMBER

Abdul Manas.N.A,

S/o Mohammed Kunhi,                                       

Puthige House, Old Road Arikady,                                        :   Complainant

PO.Kumbla,Kasaragod.

(in person)

1.       Homeshop 18, TV-18

Home Shopping Network Ltd,

7^th floor,FC-24, Sector-16A, Film city,                     : Opposite parties

Noida-201301-U.P.(in person)

2.       The Professional Couriers, 106,

Teeyem Complex, Old Busstand,Kasaragod.

(Adv.Shajid Kammadam,Kasaragod)

ORDER

SMT.P.RAMADEVI      : MEMBER

      The complainant Abdul Manaz filed this complaint against opposite party alleging unfair trade practice.

    The facts of the complaint in brief are as follows:

    The complainant had placed an order before 1^st  opposite party  Home shop 18,online shopping company by SMS for purchasing a mobile phone worth `1999/-.  The very next day of placing of the order the complainant had sent  Demand Draft `1999/- as directed by the 1^st  opposite party .  The Demand Draft  was sent through the 2^nd opposite party, the professional courier Kumbla.  Three days after sending the Demand Draft  the complainant on enquiry came to know that the Demand Draft  was not reached the Ist opposite arty.  Thereafter he enquired about the Demand Draft  with the courier service and he got the courier delivery receipt.  As per the delivery report the Demand Draft  was reached at 1^st  opposite party on 15/12/2010.  Eventhough the  delivery receipt shows the delivery date is 15/12/2010, the Ist opposite party  has not  admitted that the Demand Draft was received by them on 15/12/2010. At last on  22/12/2010 the complainant sent a letter to  1^st  opposite party requesting  to sent the  exact information regarding the Demand Draft .  In reply to the above letter the 1^st   opposite party informed that they have received the Demand Draft  but the same has been returned back as their courier services are not available on the address provided by the complainant for shipping  the product.  But the complainant has not received  the Demand Draft  back and hence this complaint is filed.

2.  On receipt of the notice from the forum the Ist opposite party  has not appeared before the forum but  had sent their reply by post.  In the reply  it is stated that this Forum  lacks territorial jurisdiction to try the case since the office of the Ist opposite party is located at Noida, in UP State .  Therefore the said complaint is not maintainable and liable to be dismissed against the Ist opposite party.  In order to substantiate the above contention they had sent a  court order along with  their reply.  The Ist opposite party also stated that they are unable to understand the language of the complainant.

3.   2^nd opposite party appeared through counsel and filed the version and denied the allegations made against him by the complainant and also contended that there is no consumer relationship  between the complainant and the 2^nd opposite party and the complaint is bad for misjoinder of parties.

4.  The evidence in this case consists of the evidence of PW1 the complainant and Exts.A1 to A4 documents.

5.  During evidence the complainant deposed that he is not seeking any relief against 2^nd opposite party.  Ist opposite party has not appeared or adduced any evidence.

  6. After considering the facts on record and by perusal of documents the following issues raised for consideration.

1. Whether the forum lacks territorial jurisdiction to try this complaint

2.    .Whether there is any unfair trade practice on the part of  Ist opposite party?

3.    If so what order as to compensation and costs?

7.  The specific contention raised by the Ist opposite party is that this forum lacks territorial jurisdiction to try the case.  Inorder to substantiate their contention the Ist opposite party had sent along with their reply an order issued by the District Consumer Disputes Redressal Forum Bathinda in CC.No.454/10 dt.18/11/2010.

8.  Admittedly the office of the Ist op is situated at Noida in  UP state for TV18 Homeshopping Network Ltd.  But the Ist opposite party is an online shopping company and the offer made by Ist opposite party is a general offer.  The territory of its business is all over the area where they doing their net work business.  Any person can accept the offer from anywhere in the place since it is an online shopping company.  The proposal is made and the acceptance of that proposal is completed through SMS or E mail.  In this case the complainant accepted the offer from Kasaragod and he paid the amount from Kasaragod that is within the territorial limits of this Forum.  The opposite party has not stated that they are not carrying a business or office at the place of complainant either in the advertisement or at the time when the complainant placed the order.  This is not a sale by simplicitor just like a petty merchant.  The Ist opposite party is carrying on business through online and they are bound to deliver the article to the place wherever the customer resides.  In this case after concluded contract of sale the Ist opposite party refused to deliver the article offered for sale stating that their counter services are not available on the address produced by the complainant. The said fact was nowhere made public in their advertisements The Ist opposite party could have been stated the fact at the time when the complainant accepted the offer.  The acceptance of the offer and the passing of consideration to the seller are completed from within the jurisdiction of this Forum.  That means at least  part cause of   action arose within the territorial jurisdiction of this Forum and this forum has ample jurisdiction to try the complaint.  Hence the Ist issue is answered accordingly.

9.   Then the 2^nd issue is regarding whether there is any unfair trade practice on the side of opposite party.  It is evident that after concluded contract of sale the Ist opposite party refused to deliver the article.  That itself amounts to unfair trade practice on the side of Ist opposite party.  While adducing evidence the complainant deposed that he is  not seeking any relief against 2^nd opposite party. No contra evidence is adduced by Ist opposite party. 

 10.  The 3^rd issue is regarding cost and compensation.  PW1 deposed before the forum that after filing  this complaint he has received the Demand Draft which he had sent and encashed the same and hence  he confined his prayer is for compensation for mental agony and cost of the proceedings.  Here the 1^st opposite party unnecessarily dragged the matter to this forum without returning  back the consideration which they received from the complainant.  Only on receipt of the notice from this forum the 1^st opposite party was ready to return the Demand Draft back.  Moreover the Ist opposite party has not properly answered about the receipt of Demand Draft when the complainant enquired about it. Considering the circumstances of the case even though there is unfair trade practice on the side of opposite parties we are not awarding any compensation.  But the complainant is entitled for cost of the proceedings.  Hence we  allow the complaint in part and Ist opposite party is directed to pay 2000/- towards the cost of the proceedings.  2^nd opposite party is exonerated from the liability.  Time for compliance is 30 days from the date of receipt of copy of order.

MEMBER                                        MEMBER                           PRESIDENT

Exts:

A1- copy of customers record slip

A2-copy ofcourier receipt

A3-copy of daily delivery statement

A4-22/12/10- e-letter issued by PW1 to Ist OP

PW1- Abdul Manas.N.A,-complainant

MEMBER                                        MEMBER                           PRESIDENT