MR LAXMI NARAYAN PADHI, PRESIDENT…              The story of the complaint is that, she had purchased a Combo of Ambrane A707 Android Tablet vide order No.956400529 on dt.20.10.2014, from the OP.no.1 through their network marketing which was dispatched to her vide invoice No.Del/102014/27656 dt.21.10.2014 of OP.2 and the same was received by her on dt.01.11.14 on payment of Rs.3999/-. She opened the tablet, but it never opened, she complained the matter to the OP.1, in his customer care website on dt.29.11.14, asking for replacement of the defective set. But, finding no positive response, the complainant being a primary school teacher, and without a requisite material, even after disposition other hand earned money, sustaining mental agony and harassment was constrained to file this complaint with prayer to allow it against the OP.s with heavy cost and compensation along with refund of the price of the product.

2.         The OP.s were served notice as per along with copy of complaint, but the OP.2 could not be served as the addressee could not be found.

3.         The OP.1 appeared through his counsel on dt.15.7.15 to file counter, contending that, this OP has been wrongly impleaded in the array of parties by the complainant as there was no privity of contract between complainant and concerned CEO. He further stated that a CEO of a company is a separate juristic entity in the eye of law, hence cannot be dragged into false litigation for the acts done on part of the company. No commercial or business transaction has ever taken place between the complainant and the impleaded OP.1 and it is to mention that Home Shop 18 is a brand of TV 18 Home shopping Network Ltd., hence cannot be sued separately by its name. Hence the allegation made by the complainant against this OP is all false and incorrect therefore denied. This OP is just an intermediary which provides a platform to facilitate transaction to both the buyers and sellers to buy and sell the product. The OP.1 is not the owner or manufacturer of the products, however this OP facilitates both refund and replacement in case of consumer unsatisfied with the product ordered from this OP, hence such replacement or refund of the product can be only availed within 48 hours from the delivery of the products. As thus there is no deficiency in service on the part of this OP, and all the facts and circumstances of the case the prayer of the complainant is baseless and without merit, hence the complaint is liable to be dismissed with costs in the best interest of justice.

            The complainant has filed email papers addressed to the OP, retail invoice & warranty paper of the product. The counsel for OP.1 filed written counter, affidavit along with copy of some annexure. Both parties have been heard the case at length and submissions considered.

4.         Now, the precedent in question is sold by the OP.1, i.e. Homeshop 18 network marketing company, In the TV show, it does not disclose the name of supplier, leave alone if disclose of the liability. But customers are allured by the advertisement on the TV Show and approach the TV network & get the product ordered. Now if the OP.1 otherwise have any agreement with any other company, and that the latter have any agreement or more with any other company, it was never brought to the knowledge of the complainant, prior to conclusion of contract, i.e. sale of the Tablet as above. And even in  the invoice, the OP.2 has not mentioned his correct address and the address which is given is different from the address as enumerated in the MOU purported to be executed between the O.P.1    and O.P.2 , and when the O.P.2 was noticed under the address as in the invoice of the product, it could not be delivered , nor the OP.1 to this forum has ever explained, why the service of summons to the OP.2, spectacular media marketing pvt ltd, at the address on the invoice for the tablet returned un serviced, with postal endorsement that, “left” without address’. The OP.1 even did not implead for addition of the OP.2 at present with correct address or the manufacturer of the product.

5.         In this context, we simply assume that, there is no such spectacular media marketing network, filed as OP.2, or OP.1 claiming to be in agreement with to market his product is never existed, and the OP.1 has played fraud to supply defective & useless product on payment a good amount of price.

6.         Rule 2 of order XXIX of CPC provides for all modes of service on the company, in the sense as the what is meant by service of summons on the Secretary, Managing Director, or principal officer like C.E.O., or any other person, who is actually in charge of the management of the company or whose brain works for the management of the company. Service on such managing head, who are a corporation is valid under clause (a) of rule 2 of order XXIX of CPC, since such principal officer / CEO/ Managing Director/ Secretary is held to be managing agents and it can under this rule, be service  on a juristic person. Leaving summons through registered post to the registered office of a corporate body, if it is literally interpreted, the service would be materialized by leaving the summon any where uncared for, anywhere in the registered office, which otherwise would lead to anomalous and absurd results. Hence, making the C.E.O., as a party representing as on behalf of Homeshop 18 TV network Ltd, is justifiable, and there is no wrong impleading Mr Malhotra, who was the then CEO at the placement of order for the product, and if he is later substituted, being the juristic person, the name may be substituted, but not the position of the officer and liability of the corporation.

7.         We are not convinced, if procedural provisions were not availed affording a reasonable and adequate opportunity to the delinquent officer/ employee/ body of corporation, non deviation to stride technical procedure cannot be said to automatically vitiate the proceeding or order passed. No notice, no opportunity and no hearing categories of objections, should be viewed from the point of prejudice, where here there is none as such, such objections of the OP cannot be held substantial.

8.         No complaint shall be defeated by reason of mis joinder or non joinder of parties, and the forum is empowered to deal with the matter in controversy so far as regards the rights & interests of the parties before it. In a complaint parties necessary and parties proper under defense is to the considered minutely. If parties are proper and also necessary, then there arises question of maintainability of the complaint, but if parties are proper but not necessary, complaint cannot be defeated on the ground of non joinder of parties.

9.         Furthermore, the issue of joinder or misjoinder or nonjoinder of parties were to be raised at the earliest opportunity available. Consumer Protection Act 1986, is considered as one of the most benevolent socio economic welfare legislation which not only recognizes six consumer rights but also provides time frame for settlement of consumer disputes by the forums created under it. The hearing of complaint is also time bound and every complaint shall be heard as expeditiously as possible and endeavor shall be made to decide the complaint within a period of three months.

10.       It is also a settled rule that a person is a necessary party if in his absence no effective decree can be passed. He is a proper party of whose presence is necessary for an effectual and complete adjudication of the case. It is the inherent power of the courts, that it may, either on application of parties, or suo motu on it’s own discretion if it is so satisfied that, the addition of a party is required for effectual & complete adjudication of the dispute, at any state of the case before the conclusion and order is passed in the case, take action to implead a party, without application from either party.

11.       Here the O.P.1 being the mercantile agent and immediate seller, he is the necessary parties for the suit as Complaint at present, and if on any arrangement he is having with the O.P.2, or with any other parties inadvertence to the buyer, it is under privity of the agreement, that, the parties to the parties alone are bound by that terms and conditions of the agreement and it cannot legally impound upon a third party like the present complainant.

12.       Observing whole transactions, and on physically verification, the alleged set found defect, hence in our view, the action of OP.1 is highhanded, arbitrary, unfair and the OP violated the terms and conditions of contract of sale as specified in the warranty papers with ulterior motives & gain illegally. Excluding the OP.2, the OP.1 found guilty of negligence and deficiency in service, hence the complainant is entitled for relief.

            As thus the complaint is allowed against the OP.no.1 with costs.

                                              O  R  D  E  R

i.          The opposite party no.1 supra are hereby directed to pay the price of the set i.e. Rs.3999/- (Three thousand Nine hundred & Ninety nine) inter alia to pay Rs.9,000/-(Nine thousand) as compensation and a sum of Rs.5000/-(Five thousand) towards the cost of litigation to the complainant.

ii.         All the above directions shall be complied with in 30 days of this order, failing which, the total sum will carry 12% interest per annum till its realization.

            Pronounced in the open forum on 18th day of Aug' 2015.

                    Sd/-                                       Sd/-                                        Sd/-

             MEMBER                            MEMBER                      PRESIDENT, DCDRF,

                                                                                                       NABARANGPUR.

Date of Preparation: 

Date of dispatch      :  

Date of received by                                                           

the A/A for Ops / Complainant  :

Initial of the dispatcher.