SRI.SAJEESH.K.P : MEMBER
The complainant has filed this complaint U/S 12 of the Consumer Protection Act 1986 for an order directing the opposite parties to pay an amount of Rs.25,000/- as compensation towards cheating and his mental agony.
Complaint in brief:-
On 4/8/2019, complainant made an order of smart phone manufactured by 1st OP through 2nd OP based on an advertisement made by 2nd OP. The advertisement is that the smart phone INFINIX HOT-7 worth Rs.7999/- will be available for Rs.5499/- if it is exchanged with working smart phone. Moreover, the 2nd OP intimated to delete the details and unlock the phone before its exchange and complainant did the same. But when the officer came to exchange the phone, checked complainant’s phone and told that there is a scratch on the back side of his phone and he went back without delivering new phone. When complainant contacted toll free number of 2nd OP and got a message on 8/8/2019 that phone was not exchanged because the complainant had cancelled his order. Because of not delivering the phone and on the expectation of getting new phone, complainant deleted all data from his phone caused hardship to him. Hence this complaint.
After filing this complaint the commission has send notice to all OPs. The notice was deemed as duly served 2nd OP appeared before the commission and filed their version. Ops 1&3 are not appeared before the commission and not filed any version. Ultimately the commission had to hold the Ops 1&3 has no version as such in this case came to be proceed against the Ops 1&3 as exparte.
Version of 2nd OP in brief:
The OP.NO.2 contended that they are private limited company which is duly registered under the provisions of the Companies Act 1956 and they act as an intermediary to facilitate sale transaction between independent third party sellers and customers. The 2nd OP does not directly or indirectly sells any products on Flipkart platform. Moreover, no assurance in terms of warranty, price , discounts, promotional offer etc will given by OP.NO.2. Hence 2nd OP has no role in any relief sought by complainant. In short the 2nd OP contended that flipkart does not have any contract or does not determine or advise or involve itself in the offering or acceptance of contractual terms between the buyer and the seller. The 2nd OP further contended that the complainant himself cancelled the initial order and later insisted on reinstating the previous order even he was repeatedly acted to place a fresh order. Hence 2nd OP is not liable to pay any compensation or provide any other relief to the complainant and prayed to dismiss the complaint.
Due to the rival contentions raised by the Ops to the litigation , the commission decided to cast the issues accordingly.
- Whether there is any deficiency in service from the part of Ops towards complainant?
- Whether complainant is entitled to get compensation and cost to the litigation as claimed?
In order to answer the issues, the commission called for the evidence from complainant as well as Ops. The complainant produced one document which is marked as Ext.A1, the copy of order information issued by OP dtd.8/8/2019. The complainant adduced evidence through proof affidavit and examined as PW1. From the side of 2nd OP has no oral evidence but documentary evidence marked as Ext.B1.
Issue No.1:
As per Ext.A1. it is seen by the commission that an endorsement with regard to the cancellation of order request made by complainant. In the proof affidavit filed by complainant, he deposed that the order was not cancelled by complainant but delivery boy and on taking an expert opinion it will be proved but unfortunately no expert opinion was taken by complainant. Moreover, during the cross-examination, 2nd OP put a specific question that” \n§fpsS t^m¬ D]tbmKiq\yambXpsImmWv \n§Ä¡v offer In«mXncp¶Xv F¶p ]dªm “ PW1 denied but on the another question made 2nd OP “ \n§fpsS t^m¬ {]hÀ¯\£aamsW¶v ImWn¡m³ bmsXmcp \S]Snbpw FSp¯nà . PW1 remined silent. There is no steps taken by complainant to prove his case. The Ext.A1 produced by complainant points towards against his claim. Moreover, the complainant never produced his phone before the commission to prove that it is in working condition. The averment regarding the deletion of datas are laid in the statement before the commission but no documentary evidence of the loss or expert opinion taken by complainant to prove his averment. There is no clear cut evidence in front of this commission to held any deficiency in service from the part of Ops. Hence issue No.1 is answered against complainant.
Issue No.2: Since there is no deficiency in service from the part of Ops and there is no direct evidence to prove his case and hardship suffered by him ,hence complainant is not entitled to get compensation.
In the result the complaint is dismissed. No cost.
Exts.
A1- Order information.
B1-Terms of use manual
PW1- Girish.P.P-complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew. Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
