BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.189 of 2016
Date of Instt. 27.04.2016
Date of Decision: 04.10.2017
Nitish Agnish S/o Sh. Kulbhushan Rai, R/o 12, Dashmesh Avenue, Cantt Road, Mithapur, Jalandhar, Punjab.
..........Complainant
Versus
1. M/s Ask Me Bazar.Com, Get It Stores Pvt. Ltd., GYS Heights, Plot No.10-11, 2nd Floor, Tower-C, Sector 125, Noida, Uttar Pardesh-201301.
Through its Managing Director.
2. M/s Blue Dart Courier Services, Civil Lines, Near Sky Lark Chowk, Jalandhar-144001.
Through its Area Manager.
….… Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Sh. Parminder Sharma (Member)
Present: Sh. Sanjeev Chopra, Adv Counsel for the complainant.
OP No.1 exparte.
Sh. Dinesh Sahni, Adv Counsel for the OP No.2.
Order
Karnail Singh (President)
1. This complaint filed by the complainant, wherein stated that on 18.02.2016, the complainant purchased through online booking a mobile phone of Lenovo A 7000 Turbo, colour White and the order was placed by online booking, vide order No.AB 9778383. The said mobile phone was purchased from OP No.1. The complainant paid the entire payment of said mobile phone to the tune of Rs.9451/- through his credit card to OP No.1. On 23.02.2016, the employee of the OP No.2 company delivered a parcel at the residence of the complainant by saying that parcel contains mobile phone as per order placed by the complainant. The employee of the OP No.2 left the spot in a hurry after delivering the parcel. The complainant requested the delivery boy of OP No.2 to stop so that the parcel could be opened in his presence but he left the spot by saying that they have no such instruction from their employer. The complainant in the presence of his other family members opened the said parcel and got shocked to see that there was a stone in the said parcel and there was no mobile phone inside the said parcel as disclosed by OP's employee.
2. That the complainant lodged complaints with the OPs through email process as well as in writing. The OP No.1 replied that they have forwarded the complaint to their concerned team but later on, they closed the matter by saying that the shipment has been delivered with complete and sealed packed product. The complainant also moved a complaint to the area manager of OP No.2 by hand but they did nothing in this regard till today. In this manner, OPs have adopted unfair trade practice, which is covered under Consumer Protection Act. Before filing the present complaint, the complainant through his counsel served a legal notice dated 17.03.2016, but all in vain and as such, the instant complaint was filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the price of the mobile i.e. Rs.9451/- alongwith compensation of Rs.10,000/- and litigation expenses of Rs.5500/-.
3. Notice of the complaint was given to the OPs and accordingly OP No.1 appeared through his counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the complaint is not maintainable in view of Section 65B of Indian Evidence Act as the complainant has not filed required certificate u/S 65B of Indian Evidence Act and further alleged that the Lenovo Mobile Company is necessary party for proper adjudication of the case. The complaint is not maintainable due to non joinder of the proper party and further alleged that the OP No.1 is neither the proper party nor necessary party and therefore need to be deleted as from the array of parties. On merits, para No.1 and 2 are reply in the manner that are matter of record and accordingly para No.3 and 4 denied for want of knowledge, whereas the contents of para No.5 is admitted that the OP No.1 told the complainant that the shipment has been delivered with complete and sealed packet product but the remaining contents of this para are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.
4. Similarly, OP No.2 also appeared through his counsel and filed reply, whereby controverted the facts as detailed in the complaint and further alleged that the answering OP No.2 is in no way concerned regarding the contents of the shipment. The answering OP is to deliver the shipment in a sealed and intact condition as handed over by the OP No.1 and remaining contents of the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.
5. When the case was fixed for evidence, then neither the OP No.1 nor his representative appeared on behalf of OP No.1 and ultimately OP No.1 was proceeded against exparate, vide order dated 17.02.2017.
6. In order to prove his case, the complainant himself tendered his duly sworn affidavit Ex.CA alongwith some documents Ex.C1 to Ex.C6 and closed the evidence.
7. Similarly, counsel for the OP No.2 tendered into evidence duly sworn affidavit Ex.OP2/A along with some documents Mark OP2/1 to Mark OP2/5 and then closed the evidence.
8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
9. Although in this case, after filing written reply, OP No.1 was proceeded against exparte but in its reply the OP No.1 has not given the specific reply of the relevant para No.4 of the complaint, rather simply denied for want of knowledge, it means the facts narrated in para No.4 of the complaint is admitted. For reference sake, we like to refer para No.4 of the complaint, whereby complainant alleged that the employee of the OP No.2 left the spot in a hurry after delivering the parcel, the complainant requested the delivery boy of OP No.2 to stop so that the parcel could be opened in his presence and when, the complainant opened the said parcel in the presence of his other family members and he got shocked to see that there was a stone in the said parcel and there was no mobile phone inside the said parcel as disclosed by OP's employee. If, the OP No.1 virtually dispatched the mobile set as booked by the complainant make Lenovo A 7000, then it is the duty of the OP No.1 to disclose the number of the said mobile, which was sent to the complainant through Courier by OP No.2/Blue Dart Courier Service but simply not mentioning the number of the mobile set itself established that the OP No.1 packed a stone in the parcel and then handed over to OP No.2/Blue Dart Courier Service for delivery of the same to the complainant, after getting the price of the mobile to the tune of Rs.9451/-. OP No.2 also took a plea in the written statement that the function of the OP No.2 is only to get the shipment from OP No.1 and deliver the same to the purchaser and OP No.2 is not having any concern regarding the contents of the shipment, rather a sealed and intact condition packet was handed over to the OP No.2 for delivery the same to the purchaser and this version of the OP No.2 seems to be true and even in the agreement executed between OP No.1 and 2 itself established that there was no term and condition that the article will be handed over to the OP No.2 without packing and sealing, if so then, it is proved that the article whatsoever handed over by OP No.1 to OP No.2 for delivery the same is packed and sealed condition and as per Clause 1.4 of the agreement, it is categorically mentioned as under:-
" The consignment will be handed over to Blue Dart by the authorized Vendors of GETIT in a tamper proof packing GETIT along with the COD order form pasted on the consignment".
10. In view of the above Clause of the agreement, also established that the function of the OP No.2 is only to receive the sealed and packed consignment for delivery to the vendee and as such, they cannot be doubted upon the OP No.2 that he made any hanky panky, by changing mobile from the consignment, after putting the stone, rather if the stone is found from the parcel, then it is packed by OP No.1, who did not appear intentionally for the best known reason and further case of the complainant is established from his own affidavit Ex.CA as well as some email message and complaints made by the complainant, which are Ex.C1 to Ex.C4. So, under these circumstances, we are of the considered opinion that the liability in this complaint is to be fastened upon the OP No.1, whereas no fault or deficiency is on the part of the OP No.2
11. In the light of above detailed discussion, the complaint of the complainant qua OP No.1 is partly accepted and OP No.1 is directed to refund the price of the mobile of Rs.9451/- with interest @ 9% per annum from the date of purchase i.e. 18.02.2016 till realization and OP No.1 is further directed to pay compensation of Rs.7000/- and litigation expenses of Rs.3000/-. The entire compliance be made within one month from the date of receipt of the copy of order. Complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
04.10.2017 Member President
