DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 106   of   2020

 

Sri Ratnadeep Sircar,

S/O- Sri Susanta Sircar,

Indranagar, Jagatpur Kalibari Road,

P.O. Abhoynagar, Agartala,

Dist- West Tripura,- 799005. ..............Complainant.

 

-VERSUS-

 

1. Mr. Brijesh Kumar D Kanai,

CEO of Power Boats Automation,

227, Maruti Plaza, Opposite Vijay Park BRTS,

Krishnagar, Ahmedabad- 382350,

Gujrat, India.

 

2. Chairman/ CEO,

India Mart,

6th Floor, Tower-2,

Assotech Business Cresterra,

Plot No. 22, Sector- 135,

Noida- 201305,

Uttar Pradesh, India. ….........Opposite Parties.

 

    __________PRESENT__________

 SRI GOUTAM DEBNATH

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

      WEST TRIPURA, AGARTALA.

 

DR (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER

DISPUTES REDRESSAL COMMISSION,

WEST TRIPURA, AGARTALA.

 

SRI SAMIR GUPTA

MEMBER,

  DISTRICT CONSUMER  

DISPUTES  REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA.

 

C O U N S E L

 

 

For the Complainant : Sri Biplab Debnath,

  Learned Advocate.

 

For the O.P. No.1.   None appeared.

 

For the O.P. No.2 : Sri Ranjan Bhattacharjee,

   Sri Kushal Deb,

   Sri Subhankar Deb,

   Learned Advocates.

 

 

 

ORDER  DELIVERED  ON:  01/03/2023.

 

F I N A L    O R D E R

1. The complainant Sri Ratnadeep Sircar has filed this Complaint petition U/S 35 of the Consumer Protection Act, 2019 against the O.P. Mr. Brijesh Kumar D Kanai, CEO of Power Boats Automation as O.P. No.1 and the Chairman/ CEO, India Mart, Uttar Pradesh as O.P. No.2 alleging deficiency in service on the part of the O.P.

2. The fact of the case in brief is that on 3rd week of January, 2020 the complainant contacted the O.P. No.2 for purchasing a generator for his residence. Accordingly O.P. No.2 suggested the name of the O.P. No.1 providing his name, address and phone number who is a dealer, supplier, importer, distributor wholesaler and retailer of Honda & Himalayan Power machine Power Pumps WB 30 X, Grass cutter, Honda Pump set etc. After conversation with the O.P. No.1 the complainant on 21.02.2020 confirmed an order for purchasing one generator of model GE-3000 P with self starter, gas chamber for Rs.35000/- and the O.P. assured that the assignment would reach the residence of the complainant within 10 days from the date of payment. Complainant agreed to pay the O.P. No.1 in his account vide no. CC- 093005503229 the value of the generator through Cash Deposit Machine on 24.02.2020. O.P. No.1 informed the complainant that they had send the generator so booked by the complainant in his address along with transport bill in the name of  transporter SAFEXPRESS dated 26.06.2020 where  price of the generator was shown as Rs.32,000/-. Though the O.P. sent the transportation bill but complainant did not receive any assignment from the O.P. No.1. It was found by the complainant on tracking the bill of transport of SAFEXPRESS vide no. 83913551 dated 22.06.2020 that no such item was delivered to his address rather it was detected that one generator was sent to Dhehradoon, Uttarkhand state by the O.P. No.1.  And the false, forged transport bill was sent to the complainant showing his address. Again he contacted with the O.P. No.1 and 2 to which the O.Ps assured that within a short time they would take necessary step to send the generator to the complainant. 

3. Finally on 02.07.2020 O.P. No.1 sent a transport bill of a generator of a courier service namely OM Logistics Ltd. vide bill no. 21860957 in which the rate of generator was shown to be Rs.28,500/-  and no facilities were available in the said generator as promised by the O.P. No.1. Complainant also sent Legal Notice to both the O.Ps demanding Rs.2 lakhs. But no reply from the side of the O.Ps. Hence, finding no other alternative this petition was filed before this Commission praying for redress claiming Rs.2,60,000/- for harassment,  mental agony and litigation cost.

4. Notice was issued to the O.P. No.1 but they failed to appear and contest the case. Hence, the case proceeded exparte against the O.P. No.1 vide order dated 11.08.2021. 

5. The O.P. No.2 resisted the claim of the complainant by filing written statement denying the allegations made by the complainant in his complaint petition. It is the contention of the O.P. No.2 that the complaint filed by the complainant is devoid of merit. The O.P. No.2  itself not involved in any sale or purchase and only facilitates technology a platform to the users to advertise their products and services just like any digital  classified  or newspaper. The O.P. No.2 did not provide any services as stipulated in Section 2(42) of the C.P. Act, 2019 nor the complainant availed any services from the O.P. No.2. The present transaction in dispute is purely commercial and business transaction between the complainant and the O.P. No.1  which is entered into by both the complainant and the O.P. No.1 with sole intention to get commercial profit by using the product  and beyond the purview of the Consumer Protection Act, 2019. It is also stated that the O.P. No.2 is an online international marketer that assist purchaser, manufacturers, suppliers and exporters to trade with each other and is mentor of O.P. No.1 as principle agent  and the O.P. No.2 being a technology platform only enables a product seller to engage in advertising their commercial goods or services to a buyer. The complainant agreed to the terms of purchasing the product  of the O.P. No.1 and made payment to the O.P. No.1. Hence, there is no deficiency in service on the part of the O.P. No.2.  Hence, they have pryaed for dismisal of the complaint.

6. Complainant submitted his evidence on affidavit as P.W.1. One Diksha Dubey, representative of India Mart Intermesh Ltd. submitted evidence on affidavit on behalf of the O.P. No.2.

 

7. On the basis of the pleadings of both the parties following points cropped up for determination:

(i) Whether there is any deficiency of service on the part of the O.Ps?

(ii) Whether the complainant purchased/ availed any services from the O.P. No.2?

(iii) Whether the complainant is entitled to get the relief as sought for?

 

DECISION AND REASONS FOR DECISION:

8. For convenience all the 3 points  are taken up together for discussion and decision.

  The case proceeded exparte against the O.P. No.1 vide order dated 11.08.2021. The O.P. No.2 has submitted written argument in the line of the written statement and evidence. The main case of O.P. No.2 is that the O.P. No.2 is not the marketeer of goods or supplier. Rather, the O.P. No.2 is only engaged in advertising commercial goods for service to a buyer. Such stand of O.P. No.2 is not tenable in view of the definition of 'Service' given in Section 2(42) of the C.P. Act, 2019 because, it is not the case of O.P. No.2 that they rendered service free of charge or under contract of personal service. Rather, it is clear from the nature of activities of O.P. No.2 that the O.P. No.2 works on the basis of commission for transaction between the purchaser and O.P. No.1, the seller. In fact this is the nature of business of O.P. No.2.

9. The argument of O.P. No.2 that criminal case in respect of the O.P. No.2 was quashed by the Hon'ble High Court as such no further proceeding is maintainable, is also not acceptable for the reason that the field of Consumer Commission is totally different from that of criminal case. In fact, Hon'ble High Court has given the finding that the present complainant is at liberty to avail other remedies against the India Mart that is the present O.P. No.2 as well as others. 

10. The O.P. No.2 has not disputed or has not been able to shake the stand of the complainant that the complainant paid Rs.35,000/- to O.P. No.1 but on the body of the generator delivered by the O.P. No.1 the price was shown Rs.28,500/- and the model of the generator was also not as per the specification promised earlier. Although the sum of Rs.35,000/- was including the transportation cost. 

11. Since the O.P. No.2 works as agent of O.P. No.1, the O.P. No.2 is liable to deliver the goods that is the generator purchased by the complainant as was  promised by the O.P. No.1. The role of O.P. No.2 was the role of Product Service Provider as defined in Section 2(38) of the C.P. Act 2019.  Hence, U/S 85 of the C.P. Act, 2019 the O.P. No.2 is liable for deficiency in service for the manner of performance which is required to be provided and also conscious withholding any information within the meaning of Section 85(b) which has caused harm to the complainant.  As such the O.P. No.2 can not escape the liability under the C.P. Act, 2019.

All the 3 points are decided accordingly.

12. In the result, it is ordered that the O.P. No.2 shall refund the sum of Rs.35,000/-(Rupees Thirty five Thousand) to the complainant and take back the generator or in the alternative shall pay sum of Rs.15,000/-(Rupees Fifteen Thousand) to the complainant as compensation. The O.P. No.2 shall pay this amount to the complainant within 2(two) months from today, failing which it shall carry interest @ 7.5% P.A. from today till the date of payment. However, the O.P. No.2 is at liberty to recover this amount from O.P. No.1, if so advised. 

The case is disposed off.

Supply copy of this Final Order to the parties free of cost. 

 

Announced.

 

 

 

SRI  GOUTAM DEBNATH

PRESIDENT,

DISTRICT CONSUMER  DISPUTES

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA

 

 

 

 

DR (SMT)  BINDU  PAL

MEMBER,

DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION,

WEST TRIPURA,AGARTALA

 

SRI SAMIR  GUPTA

MEMBER,

 DISTRICT CONSUMER DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,AGARTALA.