Order by:
Smt.Priti Malhotra, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that the complainant is doing immigration work as a proprietor. Further alleged that Opposite Parties sold an advertisement plan to complainant through their seller/employee namely Randeep with commitment for giving a service regarding immigration promotion with the help of Opposite Party portal/website. Complainant subscribed the services of Opposite Party for one year. Opposite Party promised complainant that they will provide data bases regular information and contact numbers about the clients, who will visit/search for information on the portal/website of opposite party and opposite party will charge for this service from complainant for Rs.14,160/- for 12 months and will collect the amount on monthly basis @ Rs. 1180/- per month and complainant was asked to deposit two installments in advance and rest will be deducted from bank account of complainant per month for next 10 months. Complainant agreed with the same. The complainant signed the contract with opposite party and deposited a cheque of Rs.2360/- as two advance installments which was duly encashed on 04-07-2022 and also given one blank Cheque and another required documents to the employee of opposite party. After paying the advance payment, which was duly encashed on 04.07.2022 did not provide any service to complainant as stated above regarding promotion of immigration. Complainant contacted to Opposite Party several times but Opposite Party has neither provided any service to complainant in this regard nor did anything as per their promise to provide any service regarding contacts/information of the clients. Even employees of Opposite Party was trying to mislead complainant by telling that complainant did something wrong with bank account, due to the said wrongness Opposite Party company become unable to collect/deduct 3rd installment, but Opposite Party clearly admitted that cheque of complainant has already been encashed on 04.07.2022 from the same. The Opposite Party did not intimate any objection raised by the bank to the complainant through email or through any other mode at any time. It is alleged that neither the Opposite Party is ready to provide any service nor ready to refund the amount. The complainant also sent a legal notice through his counsel to Opposite Party on dated 29.07.2022, but to no effect. However, complainant received an email on 24.11.2022, vide which the Opposite Party admitted regarding receiving of notice dated 27.09.2022 and also agreed to return the refund cheque to complainant, but nothing was done. Thereafter, the complainant again received an email on 24.11.2022, vide which they mentioned that "We shall not be able to perform on your request as our system couldn't identify your contact details through the sender email address. We look forward to receive request from your primary email address mentioning your registered contact details to help you quickly". Then on 29.11.2022 at 18:10 the complainant received another email from respondent in which the company requested the complainant to give suitable time then they will arrange marketing visit at office of complainant for refund the cheque. Against the said email, the complainant replied and given exact time. The complainant again received another email on 29-11-2022 at 19:10 form respondent with fact that "We have received your email and our support team will be in touch with you soon". The complainant received another email at 19:16 on 29-11-2022 (only after 6 minutes from last mail) from respondent with facts that "We shall not be able to perform on your request as our system couldn't identify your contact details through the sender email address" the respondent also requested to contact with respondent company on alternate way. The complainant did so but no effect. Further alleged that surprisingly the complainant received another email from the respondent company on 11.43 am on 06.01.2023, in which they mentioned that the business of complainant listed on Justdial (after about 6 months of receiving payment). Due to the act and conduct of the Opposite Party, the complainant suffered mental tension and harassment. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite parties may be directed to refund Rs.2360/- alongwith interest. To pay an amount of Rs.5,00,000/- as compensation on account of damages, mental tension and harassment. To pay an amount of Rs.25,000/- as cost of complaint totaling Rs.5,27,360/- alongwith interest @ 24% p.a.
b) And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite party appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the present complaint is false, frivolous and misconceived and the averments made by the complainant does not disclose any cause of action against the Opposite Party and in favour of complainant; The present Complaint is not maintainable as the present Complaint has been filed with mala fide only to defame and damage the unblemished repute, and goodwill of the Opposite Party; the complaint is not maintainable as the Complainant is not a consumer within the meaning of the Consumer Protection Act as admittedly the commercial business listing services were utilized by "Immigroup Travels", for commercial purpose. The Complainant has himself averred that he had utilized the Opposite Party's commercial/business listing service, to promote business of "Immigroup Travels", which by very nature is a commercial activity as the same is utilized for promoting the business and does not form the part of the self-employment and falls within the category of "commercial purpose". The allegations leveled in the complaint are incorrect and misleading. Further submitted that the Complainant had been informed about the various products that the Opposite Party had to offer for listing of the business. Further the Complainant was made fully aware of the terms and conditions of the contract as the same were clearly explained to the Complainant by Opposite Party's representative during their interactions. That apart, the Complainant had sufficient time to go through the contents of the terms of service that were sent to the Complainant on his registered mobile number and email id, and the Complainant agreed to avail the service only after understanding the terms and conditions of the contract.
Further submitted that the Complainant availed the listing service from Opposite Party Company in the name of Immi Group Travels, being the Contract ID P1636.1636.220630205141.U7T4 in the category of Migration Consultants for the total contract value of Rs.11, 988/- (Rupees Eleven Thousand Nine Hundred and Eighty Eight Only), exclusive GST. It is submitted that the Complainant had paid the initial amount of Rs.2,360/- (including GST) through cheque bearing No. 275931 dated 30.06.2022 and for the payment of the remaining amount he opted for ECS mode for the monthly installment of Rs.1,180/-. At the time of registration of Complainant's business listing, links for Terms of Service, has also been sent to the Complainant on his registered mobile number 7710640600 via SMS dated 30-06-2022 at 21:31 PM. Further submitted that according to the Terms of Service, the services can only be activated, once the first ECS payment is credited to the Opposite Party/Just Dial's account. Reliance is placed on Clause 9(b) of the Terms of Service which clearly states that "services shall only be activated once the first ECS/ CCSI/ NACH payment is credited on Just Dial's account as per the payment plan or the payment as received for the services/products as availed.” It is submitted that the Complainant's ECS mandate could not be verified and was rejected by the bank. Since the first ECS/CCSI/NACH payment was not honored, therefore, the Complainant's services could not be activated and this was duly intimated to the Complainant by the Opposite Party vide SMS dated 14.07.2022. Further averred that the Opposite Party being an intermediary has also appointed the Grievance Redressal Officer to redress the Grievances/disputes as per its policy. It is further submitted that the Opposite Party has appointed Grievance Redressal Officer in compliance of IT (Intermediaries Guidelines) Rules, 2021 and E-Commerce Rules, 2021 for amicable and expeditious resolution of disputes, but the Complainant has not complained about his disputes/grievances before the Grievance Redressal Officer, reason best known to him. Further averred that as a goodwill gesture Opposite Party has also offered a refund of the initial amount paid by the Complainant to the Opposite Party and the Opposite Party communicated the same vide email dated 24.11.2022. However, in response to the email dated 24.11.2022, the Complainant started making unreasonable demands of rupees 5 (five) lakhs. Despite the Opposite Party's best efforts, the Complainant being adamant kept making unreasonable demands of Rupees 5,00,000/- (Rupees Five lakhs) on one pretext or another with mala fide aim to harm and harass the Opposite Party. After failure to amicably resolve the issues, the Opposite Party, exercising its valid and legal right, terminated the contract as per Clause 25 of the agreement and refunded the total amount of Rs.2,360/- received by the Opposite Party under Contract being the bank reference no. AXISP00368882726 dated 06.03.2023, as per company refund policy. As such the present Complaint is not maintainable and is liable to the dismissed. Further averred that the Terms of Service also contains an arbitration clause, which forms a valid and binding arbitration agreement between the parties. It specifically states that in case of any disputes between the parties, the same shall be settled through the process of arbitration in accordance with an Arbitration and Conciliation Act, 1996. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. Complainant has also filed replication to the written reply Opposite Party denying the objection raised by Opposite Party in its written reply.
4. In order to prove his case, complainant has tendered into evidence his affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C11.
5. To rebut the evidence of complainant, Opposite Party has tendered in evidence affidavit of Sh.Amandeep Singh, Authorized Representative of OP Company Ex.OP1 alongwith Authority Letter Ex.OP2, copy of terms Ex.OP3 and copy of cheque Ex.OP4.
6. We have heard the counsel for the parties and gone through the written arguments submitted on behalf of Opposite Party and also gone through the documents placed on record.
7. The case of the complainant is that Opposite Party has sold an advertisement plan to the complainant through their agent for giving the service regarding immigration promotion with the help of their portal/website. The complainant subscribed the service of Opposite Party for one year and the complainant also deposited an amount of Rs.2360/- through cheque, as two advance installments. But the Opposite Party failed to provide any service to complainant as promised. Complainant contacted to Opposite Party several times but Opposite Party have neither provided any service to complainant in this regard nor did anything as per their promise. However, Opposite Party company listed the business of complainant on their website (after about 6 months of receiving payment).
8. Ld. Counsel for the Opposite Party has repelled the aforesaid contention raised by complainant stating that the complainant availed the listing service from Opposite Party Company in the name of Immi Group Travels in the category of Migration Consultants for the total contract value of Rs.11,988/- exclusive GST. The Complainant had paid the initial amount of Rs.2,360/- through cheque bearing No.275931 dated 30.06.2022 and for the payment of the remaining amount he opted for ECS mode for the monthly installment of Rs.1,180/-. At the time of registration of Complainant's business listing, links for Terms of Service, has also been sent to the Complainant on his registered mobile number via SMS. Further contended that cince the first ECS/CCSI/NACH payment was not honored, therefore, the Complainant's services could not be activated and this was duly intimated to the Complainant by the Opposite Party vide SMS dated 14.07.2022. Further averred that the Opposite Party being an intermediary has also appointed the Grievance Redressal Officer to redress the Grievances/disputes as per its policy, but the Complainant has not complained about his disputes/grievances before the Grievance Redressal Officer, reason best known to him. Further averred that Opposite Party has also offered a refund of the initial amount paid by the Complainant to the Opposite Party and the Opposite Party communicated the same vide email dated 24.11.2022. After failure to amicably resolve the issues, the Opposite Party, exercising its valid and legal right, terminated the contract as per Clause 25 of the agreement and refunded the total amount of Rs.2360/- received by the Opposite Party under Contract being the bank reference no. AXISP00368882726 dated 06.03.2023, as per company refund policy.
9. We have gone through the rival contentions of ld. Counsel for the parties and gone through the record. It is not disputed that the complainant availed the service from Opposite Party Company for the promotion of his immigration services/business through the website of Opposite Party and had paid the initial amount of Rs.2360/-. It is also not disputed that the Opposite Party failed to list the business of complainant on their website as promised, but however, they listed business of complainant on their website with a delay of approximately six months from the receiving of the payment. Perusal of written reply reveals the Opposite Party also refunded the amount of Rs.2360/- to complainant on 06.03.2023 i.e. after filing of the complaint. From the above, it is clear that grievance of the complainant qua refund of the amount paid has already been redressed, but due to the act and conduct of the Opposite Party, the complainant suffered mental tension and harassment for which, the complainant is entitled for compensation.
10. From the discussion above, we found that there is certainly a deficiency in service on the part of the Opposite Party, who failed to do the needful as promised despite being paid as per agreement. On this count, the complainant has prayed before this District Consumer Commission to pay Rs.5 lakhs as compensation for causing him mental tension and harassment and Rs.25,000/- as litigation expenses, but we are of the view that the claim for compensation to the tune of Rs.5 lakhs appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. It has also been observed that complainant was forced to indulge in avoidable litigation. In our considered view, ends of justice would be fully met if the complainant is awarded lump-sum compensation to the tune of Rs.10,000/- and we award the same accordingly.
11. Sequel to the above discussion, we partly allow the complaint of the complainant and direct the Opposite Party to pay compository amount of Rs.10,000/- (Rupees Ten Thousand only) towards compensation and litigation costs to the complainant for rendering deficient services. The compliance of this order be made by the Opposite Party within 30 days from the date of receipt of copy of this order, failing which, the Opposite Party is burdened with additional amount of Rs.5,000/- (Rupees Five Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced on Open Commission
