The Complt. reports of deficiency of practices and fraudulent act against the O.P.s . The case involves a mobile set purchased by the Complt. online, after viewing all details provided at the website of O.P. No. 3. The Complt. paid Rs. 7,499 through Cash on delivery. After about 11 months of use, the Complt. reported sound problem in that handset and visited the authorised service centre. O.P. No.2 turned him down, and asked him to visit again after the Durga Puja. In the meantime, the Complt. also found out that the mobile was not even compatible for 4G SIM. On the next visit, O.P. No. 2 revealed the expiry of warranty period and rendered the repair services of the sound system and installation of 4G device as chargeable. Unlike the advertisement and details provided in the website of O.P. No. 3, the mobile delivered had a 3G network facility; also the sound system was defective. Repeated emails and complaint letters to the O.P.s have not been fruitful and the Complt., distressed and harassed has prayed the commission for:
- Direction to the O.P.s to replace the handset with the new one or refund the purchased amount of Rs. 7499/- with interest till its actual realisation.
- Direction to the O.P.s to pay an amount of Rs. 70,000/- as compensation to the Complt. for financial loss, fraud practice and mental agony.
- Litigation cost of Rs. 20,000/-
OP. No. 1 has contested the case by filing w.v. denying material allegations against it contending inter-alia that the Complt. had filed the case out of greed and dishonest intention. He had approached the O.P. after 11 months of purchasing the product. O.P. No. 1 has alleged that the claim made by the Complt. is false and there is no cause of action. There was no deficiency of services. The Complt. has also been accused of hiding facts from this Hon’ble Court. The Complt. had already covered the warranty period and approached the concerned authority after 11 months of using the product.
Finally, O.P. No. 1 has prayed for dismissal of the case.
The O.P. No. 3 claims that the Complt. had suppressed various facts and tried to mislead the commission. The Complt. had mentioned O.P. No. 3 as the seller of the product, which is sheer negligence. O.P. No. 3 has described himself to be an intermediary to facilitate sale transactions between independent third party seller’s and independent end customers and that the third party users are liable for advertisements and details provided in their site. After the deal between the buyer and seller, the sole responsibility to arrange the product and deliver lies with the seller. Ultimately O.P. 3 has also prayed for dismissal of the case.
It may be note that though O.P. 2 entered appearance in the case, but did not file w.v. to contest the case.
Complt. filed, evidence on affidavit in support of his case. Complt. also files questionnaire against the evidence on affidavit by O.P. 3.the Comply. has also filed reply against the Questionnaire of O.P. 3.
It may be noted that O.P.1 though filed w.v. but did not file evidence on affidavit and O.P. 1 also did not file, questionnaire against the evidence on affidavit by Complt.
O.P.3 has filed evidence on affidavit, questionnaire, against the evidence on affidavit by Complt. and reply supported with an affidavit against the questionnaire of Complt.
It is pertinent to mention that on behalf on Complt. B.N.A. has been filed and on behalf of O.P.L 3 B.N.A. has been filed.
Points for decisions
- Whether the Complt. is the consumer of the O.P.s or not?
- Whether this commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any unfair trade practice on the part of the O.P.s or there is any deficiency of services on the part of the O.P.s?
- Is the Complt. entitled to get relief/reliefs, as prayed for?
Decision with reasons
The points appear to be inter-linked with each other and such for easiness and brevity of discussion of the case, all the points are taken up conjointly.
- On close scrutiny of the materials on record, it reveals that no doubt Complt. is a consumer, under section 2(i)(d)(i)(ii) of the Consumer Protection Act, 1986.
- Complt. appears to be a resident within district Howrah, whereas the address of O.P.3 appears to be within district Howrah and the official addresses of O.P. 1 and O.P. 3 are showing New Delhi and Bangalore, respectively.
- Considering the nature of the case and the prayers of Complt. it straightway gives clear signal that the pecuniary value of the case is within Rs. 2,00,000/- that is within the limits of this Commission(formerly Forum). So, this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try this case.
- It is undisputed that Complt., placed an order of one mobile set(INTEX CLOUG 4G STAR) online, from the O.P. 3 on 17.11.2015 after going through the features of the said mobile set which was shown on their site.
- O.P. 3 delivered the said mobile set at the residence of the Complt. on 22.11.2015, after collection of purchase amount of Rs. 7499/- from the Complt.
- Now, it is the allegation of the Complt. that on 10.10.2016 Complt. came to know about sound problem of the mobile set and on search, Complt. found on internet, O.P. 2 as authorized service centre of District Howrah. It is further alleged by the Complt. that on 11.10.2016, upon appearance of Complt., O.P.2 asked him to come after Durga Puja vacation.
- It is a very crucial point to know that the Complt. has further alleged that Complt. registered for one 4G JIO SIM and on 24.10.2016 got his 4G JIO SIM. But that was not at all operative in the mobile set of Complt. Thereafter, Complt. on 25.10.2016 went to O.P.2 and in turn O.P. 2 refused to render any service to the petitioner, on the ground of expiry of warranty period. It is further alleged by Complt. that O.P.2 also disclosed that said mobile set of Complt. is not provided with the function of 4G networking system. It is further alleged by the Complt. that O.P. 2 demanded money for its service and ultimately, Complt put allegations that since 25.10.2016 he has sent several mails to O.P. 1 and O.P. 2 but he has not received any reply from them which is causing harassment to the Complt. Complt. also highlighted deficiency of service by the O.P.s and with collusion with each other O.P.s have sold the mobile in question which also includes unfair trade practice by the O.P.s and the said mobile set totally bears manufacturing defects.
- The pin-pointed main denial of O.P.1 hinges upon that Complt. himself approached O.P.2 after 11months from the date of purchase of the said mobile set. It is also agitated by O.P.2 that Complt. is guilty of ‘suppressio veri’ in as much as Complt. has deliberately concealed various material facts.
- From the version of O.P. 3, it mentions that O.P.3 is an electronic platform which act as an intermediary to facilitate sale transactions between independent third party sellers and independent customers and O.P.3 is an intermediary u/s 2(1)(w) of IT Act, 2000 and O.P.3 is protected under section 79 of IT Act. O.P.3 also highlighted that Complt. doesnot fall under the category of consumer of O.P.3 under the provision of CP Act and O.P. 3 is neither a trader or service provider and there does not exist any privity of contract between Complt. and O.P. 3.
10. It is also highlighted by O.P.3 that Complt. should have complained against the manufacturer.
11. Complt. in his evidence repeated and reiterated his allegation as he made in his original petition of complaint.
12. O.P. 3 in its evidence highlighted categorically that Complt. does not fall under consumer of O.P.3 under C.P. Act as the O.P. 3 is neither a ‘trader’ or a ‘service provider’ and O.P.3 specifically mentions that there doesnot exist any privity of contract between Complt. and O.P.3 and thus Complt. has wrongly arrayed O.P. 3 in the present case and hence the instant complaint is bad for mis-joinder of party. That apart in its evidence O.P. 3 vouched so many other points as it depicted in its w.v. and we feel that it is needless to repeat the same. From the learned counsel appearing for then Complt., highlighted that the total episode as picturised in petition of complaint clearly indicates a total gross deficiency in service on the part of O.P.s and O.P.s in collusion with each other have fraudulently sold the mobile set in question with 3G networking system by saying and/or showing the product facilitated with 4G networking system and it is a unfair trade practice of the O.P.s. and the mobile set and the mobile set has been manufactured with defects. He added that due to such illegal act on the part of O.P.s the Complt. suffered from hypertension, harassment and mental agony. Finally he argued that in all fairness Complt. prayers should be allowed.
13. On the other hand Ld. Counsel appearing for O.P. 3 mainly basing upon the contents of B.N.A. of O.P.3 has canvassed pointedly at the very beginning that the product purchased by Complt. was manufactured by O.P. 1 and sold by a third party seller i.e. M/S Golyan India LLP, listed on Flipkart platform as is evident from the invoice copy furnished by the Complt. himself. Further the beneficiary of the product under consideration is the manufacturer/seller of the product only and not the O.P. 3. He mainly traced upon that O.P. 3 does not sell any goods as its own and goods are sold by various third party sellers registered on the website and O.P. 3 is a mere intermediary, only facilitates the selling of goods between seller and buyer.
Finally, he argued that the instant case devoids of any merit and is liable to be dismissed.
Going through the materials on records and touching upon the submissions advanced by the Ld. Counsel appearing for the parties it may be noted that Complt. since the date of taking delivery of mobile set clearly crossing more than 10months detected the alleged defect in his mobile set and took necessary steps. It is also clear from the materials on record that third party seller M/S Golyan India LLP sold the product to the Complt. But record Complt. has not arrayed M/S Golyan India LLP as one of the O.P.s.
Now, a crucial point to be highlighted is that when a buyer purchases any product, obviously it is his absolute obligation to check the product and on checking if it is found not in order he/she should take necessary steps. But in the instant case we are seeing that Complt. gladly received the product and started to enjoy the said product like anything and after a lapse of considerable period(more than 10 months), Complt. raised allegations questioning on the point of 3G,4G including sound problem.
For argument sake, even we say that Complt. received the product on goo faith, but that does not legally permit him to challenge his ground on the point of 4G, 3G etc.
There is a proverb, that he who sleeps over his right cannot claim his right. In equity this Commission is bound to render equitable justice.
We cannot say that as Complt. has come with so many allegations in respect of product in question it is poor duty to appreciate such allegations. Rather, we should keep in mind that mere allegations is not at all a proof and allegations should be substantiated with cogent evidence, here on that score Complt. is lagging far behind than that of such proof.
In view of the foregoing discussion and considering the materials on record we are of the view that the instant case has no leg to stand upon and as such it is liable to be dismissed.
Hence,
It is
ORDERED
That the instant case CC/350/2016 is dismissed on contest against O.P.1 and O.P.3 and ex-parte against O.P.2 without cost.
Let a free copy of this order be given to the parties free of cost.
Dictated and corrected by me.
Sankar Kumar Ghosh
President, D.C.D.R.C.
Howrah.
Babita Chaudhuri Sankar Kumar Ghosh
Member President
D.C.D.R.C., Howrah D.C.D.R.C., Howrah
