Complainant Mohit Mahajan has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to pay back Rs.2228/- alongwith Rs.20,000/- as compensation. Opposite parties be further directed to pay Rs.20,000/- as litigation expenses, in the interest of justice.

2. The case of the complainant in brief is that he is advocate by profession. On 28.2.2016, he had placed online order at about 11.26 Pm on the website of opposite party no.1 for the purchase of provogue black shoes for Rs.2199/- vide order ID No.160228645749843 and he had paid Rs.2228/- at the time of delivery including delivery/shipping charges. The opposite party no.1 had preferred courier service of Go JAVAS for the delivery of order placed by him on 4.3.2016 at the office address and paid cash amount of Rs.2228/-. On the same day when he opened the parcel, he came to know that the shoes dispatched by opposite party no.1 were defective. He immediately contacted to the official of opposite party no.1 and also complained about the defective shoes dispatched and they advised him to send the pictures of defective shoes through email and to return the defective shoes. He has further pleaded that on next day at about 8:21 PM he got email from the opposite party no.1 that return request with request ID 27180707 had been registered and advised him to repack defective shoes and to sent the package by DTDC, First Flight and Shree Maruti to Xerion Retail Pvt. Ltd. New Dehi, then he preferred courier service of First Flight Courier Ltd. and opposite party no.2 physically checked the parcel before booking vide tracking ID No. I 91800034266 and sent the defective shoes on 9.3.2016. Thereafter one executive of opposite party no.1 called him on mobile and told that they had received wrong product as it was used and dirty product of some other brand and it was not that product which the opposite party no.1 dispatched earlier and they re-dispatched above said parcel to him on 15.3.2016 through Go Javas Courier Services When he again opened the parcel, re-dispatched by opposite party no.1, then he came to know that it was dirty and used shoes and it was not a that pair of defective shoes which he returned through opposite party no.2. So either of opposite party no.1 and 2 had replaced his shoes with dirty shoes and caused loss to him. He requested the opposite parties so many times to admit his claim but they flatly refused to admit his genuine claim. Hence this complaint.

3. Notice of the complaint was issued to the opposite parties. Opposite party no.2 appeared through its counsel and filed its written reply by taking the preliminary objections that the present complaint is not maintainable against Hon’ble Forum and the complaint is bad for misjoinder of the necessary parties. On merits, it was submitted that the opposite party no.2 has booked the parcel and sent it in a same position as it was handed over to the opposite party no.2 to deliver to the opposite party no.1. When the complainant approached the opposite party the parcel was sealed one. Opposite party no.2 did not personally check the parcel before booking it. Moreover, the opposite party having good reputation in the area and he is providing Courier Services without any complaint from any corner for the last more than ten years. It was further submitted that the opposite party no.1 might have changed the shoes and did has never opened the parcel nor it was personally checked. The role of the opposite party is just to book the parcel for delivery. The complainant has not impleaded the head office of the First Flight courier as party who is responsible for deliver the parcel. The product in question is having manufacturing defect and hence the opposite party is not liable for the same and it has been illegally made party in the present complaint. The complainant is legally bound to prove that the product in question is having any manufacturing defect or it was replaced by leading cogent evidence. All other averments made in the complaint have been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4. Opposite party no.3 appeared through its counsel and filed its written reply by taking the preliminary objections that the present complaint is not maintainable in the Hon’ble Forum; the complainant does not have any cause of action to file the present complaint; the complainant has not approached this Forum with clean hands and has suppressed the material facts from this Hon’ble Forum as such the present complaint deserves dismissal; this Forum has no jurisdiction to try and entertain the present complaint and other allegations have also been taken. On merits, it was submitted that the complaint pertains to opposite party no.1 with regard to the receiving of the email/advise and the contents of the said email/advise and they can file better reply to the same. The consignment had been booked and the complainant was bound by the terms and conditions of the opposite parties which were printed behind the consignment letter and it was only after understanding the same that the complainant had sent the said consignment to the addressee. There is no reason for the opposite parties to open the consignment and the same was sent as it is condition to the addressee at the destination point. All other averments made in the complaint have been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

5. Notice issued to the opposite party no.1 had not been received back. Case called several times but none had come present on its behalf, therefore it was proceeded against exparte vide order dated 5.9.2016.

6. Complainant tendered into evidence his own affidavit Ex.C-1, alongwith other documents Ex.C2 to Ex.C8 and closed the evidence.

7. Counsel for the opposite party no.2 tendered into evidence affidavit of Tarlochan Singh Ex.OP-2/1 and closed the evidence.

8. Sh.Kamal Kumar Distt. Messenger of opposite party no.3 tendered into evidence his own affidavit Ex.OP-3/1 alongwith other document Ex.OP-3/2 and closed the evidence.

9. We have examined all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsels for the present litigants while at the same time also taking the due judicial-notice of the opposite party’s (OP1 Suppliers) intentional absence (resulting into the ‘ex-parte’ participation) in spite of the ‘proven’ summons-service. Although, it has been a trite settled law that a titled party’s intentional absence/ex-parte participation gives rise to the judicial but discretionary presumption that the ex-parte/absentee litigant has no defense to prosecute; still, we have provided a judicious opportunity to the ex-parte participant(s) by way of a close examination and a fairly deduced ‘resume’ upon which to place/ base the resultant award under the applicable adjudicatory Act.

10. We find that the present complaint has arisen as a result of repeated supply of ‘defective’ shoes (Ex.C8) first in discharge to the ‘original-order’ and again in response to the ‘replacement-orders’ for ‘Provogue’ Brand (Size 06) Black Color Dress Shoes vide the orders (Ex.C3 to Ex.C7) placed with the opposite party 1 supplier (service provider) assisted by its designated couriers i.e., opposite parties 2 & 3 as ordered/purchased by the complainant on 28.02.2016 for an aggregate amount of Rs.2,228/- and hence the present complaint. The OP1 Vendor Supplier vide its exchange of e-mails (as exhibited on records) has expressly admitted the receipt of defective shoes by the complainant whereas the courier service providers vide its exhibited delivery details (Ex.OP3/2) do admit ‘detection’ of 11 nos of ‘possible fraud’ attempts during the course of the impugned delivery of the shoes in question and that amount to ‘admission’ of deficiency in service, itself; going by the proven trite law that incidental ‘admission’ has always been a good ‘evidence’.

11. We, further find that the complainant could not enjoy the benefits of his purchased ‘shoes’ from the OP1 vender who had naturally assured him of the manufacturers’ warranty/replacement services etc. Thus, the consumer rights of the complainant have indeed been infringed jointly at the hands of all the ‘3’ nos of opposite parties. We are not prepared to accept the OP pleadings disowning all its liabilities of supply of quality products under the alibi of simply being an ‘online web portal’ facilitating the inter-se transactions between the Buyers and Sellers. The delivery documents fairly confirm the placing of ‘purchase-order’ with the OP1 on 28.02.2016 and subsequent delivery (with replacement facility) on 04.03.2016 at cash receipt of Rs.2,228/-. Thus, all the titled opposite party suppliers/service providers shall not escape their respective as well as joint responsibility and liability of supply of the ‘quality’ product in conformation to the transacted terms. The consumer does not pay for a faulty/non-working product. It shall certainly amount to ‘unfair trade practice’ coupled with ‘deficiency in service’ and that rakes up all the titled opposite parties to an adverse ‘award’ under the Act.

12. In the light of the all above, we partly allow the present complaint and thus ORDER the titled opposite parties to refund the shoes cost in full (Rs .2,228/-) to the complainant besides to pay him Rs.3,000/- as cost and compensation. The compliance of the present award shall be the joint and several liability of the titled opposite parties and its cost may be borne between themselves as per their mutual settlement (if any) but the exercise shall, by all means be completed/exhausted within 30 days of the receipt of the copy of these orders otherwise they shall also be (jointly and severally) liable to pay interest @ 9% PA from the date of the present orders till actually paid

13. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.

(Naveen Puri)

President

Announced: (Jagdeep Kaur)

May, 22 2017 Member

*MK*