Prashant N Vankurde filed a consumer case on 18 May 2015 against Mack Donald Customer Support Executive.Home Shop 18 TV Home Shopping Network Ltd in the Belgaum Consumer Court. The case no is CC/103/2014 and the judgment uploaded on 19 May 2015.
(Order dictated by Smt. S.S. Kadrollimath, Member)
ORDER
U/s. 12 of the C.P. Act, the complainant has filed the complaint against the O.Ps. alleging sale of defective mobile hand set.
2) The O.P. appeared through advocate and contended that the complainant has not impleaded the manufacture of the handset. Hence it deserved to be dismissed for non joinder of necessary party. Further the O.P. contended that the present complaint is not maintainable under C.P. Act as the O.P. is neither trader nor service provider to the complainant. The complaint is bad for non joinder of material party. The present O.P.is only facilitator and he is neither trader nor manufacturer or distributor of the said goods.
3) In support of the claim of the complaint, the complainant has filed affidavit and O.P. has filed his affidavit and produced some documents.
4) We have heard the arguments of the complainant and O.P. and have perused the records.
5) Now the point for our consideration is that whether the complainant has proved sale of defective mobile handset by the O.P. as well as deficiency in service and that he is entitled to the reliefs sought?
6) Our finding on the point is partly in affirmative, for the following reasons.
:: R E A S O N S ::
7) The complainant has claimed that he purchased Zen full touch dual sim phone-P34 by ordering through on service on 7/10/2013 vide order No. 931639509. After payment of Rs.1,999/- by the complainant, the O.P. has delivered the product through Blue Dart Courier service on 11/10/2013 vide AWB No.59166447723.
After of the delivery of the said product the complainant came to know that the display screen was damaged it was display in partly. When the same was brought to the notice of O.P., they instructed to returned the product through any available means and fright charges will be paid by cheque by them. The complainant complied the instructions of O.P. on 12/10/2013 by retuning the product by professional couriers service vide C.No. PRO 750746. It is further submitted that by admitting the liability the O.P. has sent cheque vide No. 199815 dated : 26/10/2103 for Rs.230/- drawn in Yes Bank, towards refund of courier fright charges incurred by the complainant in returning to the product to the O.P. but the cheque issued by the O.P. was in wrong name i.e, instead of Vankudre it was issued by name Bankudre. Inspite of the repeated request made by the complainant the O.P. has fail to returned amount or replace the product. Hence the O.P. has committed deficiency in service on his part under the provisions of C.P. Act. Hence the complainant is constrained to file this complaint.
8) The O.P. appeared through advocate and contended that the complainant has not impleaded the manufacture of the handset. Hence it deserved to be dismissed for non joinder of necessary party. Further the O.P. contended that the present complaint is not maintainable under C.P. Act as the O.P. is neither trader nor service provider to the complainant. The complaint is bad for non joinder of material party. The present O.P.is only facilitator and he is neither trader nor manufacturer or distributor of the said goods. The O.P. further contended that there is no territorial jurisdiction to file this complaint and there is no averment in the complaint in regard to deficiency of service and that the complainant has failed to establish he has suffered monitory loss hence the prayer for compensation lack merits. The O.P. further contended that they have issued the cheque bearing No.273991 for Rs.1,999/- but the complainant return back the said cheque and again the cheque was issued through DTDC which was received by the complainant and denied that they have failed to refund the amount. The O.P. also contended that the para No.5 to 10 of the complainant need no reply and same are false and denied by the said O.P.
9) The point to be noted is that, the O.P. even is not a manufacturer of the said product but plays role of felicitator. This fact that he is the only felicitator and not the manufacturer may not be within the knowledge of the complainant but as he has purchased the said handset and being defective as return the handset by courier to the home shop 18 and at the time of argument the complainant states that the address on the box was of the O.P. and he has sent the handset to the address given on the box which he has received by Courier. The another point to be is noted that, the O.P. admittedly has paid Rs.230/- on 26/10/2013 but the cheque was not honored due to wrong mentioning of surname which was to be mentioned as Vankudre but the cheque was drawn as Bankudre but the very point to be is noted that the number of internet letters exchanged between the complainant and O.P. wherein we can very well observe that the surname is very clear as Vandkudre but not Bandkudre as the cheque issued by the O.P. It shows that knowing very well the surname of the complainant the O.P. has wrongly issued the said cheque knowing that if the same is placed for encashment could not be honored. The next point is to be noted after appearing before the forum the O.P. contention that the complaint is hit be jurisdiction cannot be accepted because the transaction between the O.P. and the complainant is through the internet and as contended by the complainant he has placed order through on line service on 7/10/2013. Therefore the question of jurisdiction does not arise in good number of cases of Hon’ble National Commission and Apex court held that transaction made through online will be counted for deciding on the point of jurisdiction. The next point to be considered that the O.P. has taken many contention denying the deficiency of service but after appearing the O.P. at come up with the cheque which before the forum and ready to comply with the order on 27/4/2015 which is after the lapse of one and half year.It can be seen that on the part of the O.P. in settling the matter of the complainant took one and half year hence there is a deficiency of service on the par of the OP. in non settling the matter the earlier. Even looking to the dates of the payment of Rs.230/- which is in the year 2013 itself. Realy the O.P. if was interested in settling the matter would have sent the cheque immediately if the said cheque for Rs.230/-. Taking contention that there is no deficiency on part of the O.P. as discussed supra cannot be accepted, and the complainant has prima facie proved the case against the O.P. with the supporting documents etc., and that the complainant has suffered mentally and also monetarily.
10) Accordingly, following order.
ORDER
Complaint is partly allowed.
The complainant is hereby directed to receive the cheque for Rs.1,999/- which is in the file of the forum.
The O.P. is hereby directed to pay Rs.1,000/- as the compensation to the complainant.
So also, The O.Ps. are hereby directed to pay a sum of Rs.1,500/- to the complainant towards costs of the proceedings.
(Order dictated, corrected and then pronounced in the open Forum on: 18th May 2015)
Member Member President.
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