Final order/Judgment 

(Judgment delivered on 26/11/2024 )

By Shri. Nitinkumar C. Swami, Hon’ble President

The complainant has filed this complaint under section 35(1) of the Consumer Protection Act, 2019 against the opposite party. The brief facts of the case are as follows:

1. As the complainant was willing to purchase one solar water heater for his house hold use, he contacted opposite party for purchase of product “200 LPD ETC Solar Water Heater”, being sold for Rs 44,000/- by the opposite party on Amazon Shopping” mobile application, platform. The opposite party offered to sale the product matching the description on Amazon, for discounted price of Rs 38,000/-. Accordingly on 24/10/2022 the complainant placed an order and transferred Rs 38,000/- from his bank account via UPI money transfer using Phone Pay mobile application to the bank account of the Opposite Party. The opposite party assured the complainant that the product would be delivered by or before 02/11/2022. But the opposite party failed to deliver the product and the invoice on that date. The complainant received the invoice dated 31/10/2022 bearing the amount of Rs 38,064/-, only after making several requests. But the opposite party was giving baseless reasons for not delivering the product. After approximately one and half month from promised delivery date, on 15/12/2022 the product was finally dispatched as shown by online tracking report. The product was delivered on 19/12/2022, but complainant was shocked to find that it was not complete product and only frame of the solar water heater had been received. It also contained an invoice dated 14/12/2022 amounting of Rs. 11,200/- inclusive of GST which explicitly mentioned the product delivered as “200 LPD ETC Solar Water Heater Frame”, indicating that it is only part of the solar water heater and not complete product as ordered. It is further alleged that, even after promptly notifying the opposite party regarding incomplete delivery of product and demanding either complete product or refund of Rs. 38,000/- paid,  by the complainant on Whats App, the opposite party has not given any positive response. Instead, he resorted to abusive language, making threatening remarks. Frustrated by the sufferings the complainant lodged a complaint on National Cyber crime Reporting Portal on 06/03/2023.  But on 01/11/2023 they informed complainant that the dispute fell under consumer jurisdiction and advised the complainant to file the consumer complaint. It is further contended that, on 29/01/2024 the complainant sent the legal notice to the opposite party and demanded complete product of Solar Water Heater or refund of entire amount of Rs 38,000/-. The said notice was returned to the complainant with postal remark as “refused”. Therefore, the complainant filed this complaint alleging that the opposite party has adopted Unfair trade practices and committed gross deficiency in services and prayed for direction to opposite party to send the complete product “200 LPD ETC Solar Water Heater” as described on Amazon Or alternatively direct opposite party to refund Rs 38,000/- with interest of 1.25% p.m. from 02/06/2024 till full refund. The complainant also prayed for compensation of Rs. 50,000/- for mental agony and physical trouble, Rs. 3,000/- towards notice charges and Rs. 10,000/- as cost of present complaint.  The complainants have filed 11 documents along with list at Exhibit 2.

2. After admission of the complaint, notice was issued to the opposite party. Despite service of the notice the opposite party failed to appear in the matter, therefore the complaint is proceeded ex-parte against opposite party.

3. After considering the complaint, evidence affidavit of the complainant, and written and oral argument made on behalf of the complainant, following points arose for determination, on which findings are given by this commission for the reasons as mentioned below.

REASONING.

4.      As to point No.1:-     

It is settled law that, though the complaint is proceeded ex parte, the complainant has to prove his case on evidence adduced by him. In present case the complainant has produced Tax Invoice dated 31/10/2022 of opposite, Tax invoice dated 14/12/2022 of opposite party, screenshot of payment receipt of Rs. 38,000/-made to the Mandhata Yadav by the complainant, Courier receipt, Courier Track report of product sent by opposite party to the complainant. All these documents are filed along with the Certificate U/s 65 B of Indian Evidence Act. These documents shows that, the complainant has paid Rs 38,000/- on 24/10/2024 to the Opposite party for purchasing “200 LPD ETC Solar Water Heater”. These facts are also mentioned in the evidence affidavit of the complainant. As the opposite party has not appeared in the matter, these facts remained undisputed. There is no contrary material on record to disbelieve the evidence adduced by the complainant. Therefore, it is proved that the complainant had paid Rs 38,000/- on 24/10/2024 to the Opposite party for purchasing “200 LPD ETC Solar Water Heater”. Therefore, we are of the opinion that, the complainant is the consumer of the opposite party. Hence, we answer the point No. 1 in Affirmative.

5.      As to point No.2 and 3 :-

The complainant’s case is that, the opposite party did not deliver the product ordered by the complainant after making full payment of the product. The documents filed on record shows that, the complainant had paid for purchase the “200 LPD ETC Solar Water Heater” but he  had received “200 LPD ETC Solar Water Heater Frame” worth of Rs. 11,200/-from opposite party . The complainant stated the same facts in his affidavit also. As this matter is proceeded ex-parte against the opposite party, these facts remained undisputed. There is no reason to disbelieve the evidence adduced by the complainant. Therefore it is proved that, the opposite party, after taking full amount of Rs. 38,000/- for the product  “200 LPD ETC Solar Water Heater”, had delivered only “200 LPD ETC Solar Water Heater Frame” worth of Rs. 11,200/-, which is part of the product ordered. This act of the opposite party amounts to unfair trade practices. Believing the advertisement on the platform, the complainant has decided to purchase the product and paid the purchase amount to the opposite party. But opposite party has duped complainant by supplying only part of the water heater which is of no use without remaining part. This clearly shows that the opposite party is involved in unfair trade practices and committed deficiency in the services provided to the complainant. Therefore, we are of the opinion that, the complainant is entitled to get product “200 LPD ETC Solar Water Heater” as described on Amazon or refund of the purchase amount of product and he is also entitled to the compensation for mental agony and physical trouble. Therefore, we answer the point No. 2 and 3 in affirmative.

6. As to point No.4 :-

          From reasoning and findings given on point no.1, 2 and 3 as above, we proceed to pass following order in answer to point No.4

ORDER

1. The consumer complaint No. CC/88/2024 is partly allowed.

2. It is declared that Opposite Party has engaged in unfair trade practices.

3. The Opposite Party shall deliver to the complainant, a new “200 LPD ETC Solar Water Heater” as described on Amazon.        

OR

Alternatively, the Opposite Party shall refund to the complainant the price of the product “200 LPD ETC Solar Water Heater” as described on Amazon,i.e. Rs. 38,000 /- (Rs. Thirty eight thousand only ) with interest of 12% per annum from date of filing this complaint till the realization of whole amount.

4. The Opposite Party shall pay to the complainant Rs. 30,000/- (Rs. Thirty Thousand) towards the compensation for physical trouble and mental agony.

5. The Opposite Party shall pay to the complainant Rs. 10,000/- (Rs. Ten Thousand) towards the cost of litigation.

6. The Opposite Party shall comply above order within 30 days from the date of receipt of copy of this order.

7. Copy of this order shall be furnished to both the parties free of   cost.
8. Two sets of file “B” and “C” shall be returned to the complainant.