CC No.1546.2014

Filed on 02.09.2014

Disposed on 17.04.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027.

DATED THIS THE 17^th DAY OF APRIL 2017

CONSUMER COMPLAINT NO.1546/2014                                                                                                                                                                                                                                                  

PRESENT:

     Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

            PRESIDENT

                 Smt.L.MAMATHA, B.A., (Law), LL.B.

                        MEMBER

                                              V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 02.09.2014 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to refund the total sum of Rs.17,292/- together with interest @ 12% p.a. and compensation of Rs.1,00,000/-and other reliefs. 

2.    The brief facts of the complaint can be stated as under:-

In the Complaint, the Complainant alleges that the Complainant made an online purchase of Two mobile phones from the 1^st Opposite Party on 11.09.2013, and made the payment using the credit card provided by the 3^rd Opposite Party for a total value of Rs.17,292/-.  The product was shipped by the 1^st Opposite Party through the 2^nd Opposite Party and estimated delivery date was on 17.09.2013.  The product was not delivered despite several follow ups with the above parties, the 1^st Opposite Party informed the Complainant that as per their record the delivery of the goods was not initiated within a specified time and as a result the refund request was being processed with respect to the purchased products.  On 28.09.2013 the Complainant received information from the 1^st Opposite Party that the refund request was put on hold and that they would contact the Complainant for some additional information before proceeding with the request, however no personnel of the 1^st Opposite Party made any further enquiries in this regard.  In the meanwhile the 1^st Opposite Party notified the Complainant that the request for refund was rejected without informing the Complainant the reasons for this rejection.  Till such time, the credit card used for making this payment was not charged to the Complainant.  However on 16.10.2013 the Complainant noticed that his credit card was charged and he enquired with the 3^rd Opposite Party of this procedure to be told that the 3^rd Opposite Party had received confirmation from the seller of delivery of the product and therefore the payment was released in his favour. The Complainant sought details of this particular transaction, for which the 3^rd Opposite Party only provided a screenshot of the invoice with no confirmation as to the product having actually been delivered to the Complainant.  After several follow ups with the 1^st Opposite Party, 2^nd Opposite Party and 3^rd Opposite Party, the 2^nd Opposite Party gives a written confirmation to the Complainant dt.24.03.2014, officially confirming that the products had not been handed over to them for shipping by the 1^st Opposite Party and that the product did not travel on their network.  With this written confirmation, the Complainant once again raised a dispute with the 3^rd Opposite Party, requesting them to investigate the issue further based on the information shared by the 2^nd Opposite Party.  During the course of this investigation, the 1^st Opposite Party suspended the account of the Complainant from being used without assigning any reasons.  The outcome of the investigation as was informed by the 3^rd Opposite Party, to the Complainant was that the parcel was handed over for delivery by the 1^st Opposite Party to the 2^nd Opposite Party, but without there being any confirmation about the actual delivery having been made to the Complainant by the 2^nd Opposite Party, the 3^rd Opposite Party had gone ahead and released the amount in favour of 1^st Opposite Party.  With this information, the Complainant got issued a legal notice to all the Opposite Parties calling upon them to either deliver the product or refund the entire amount collected from him within 07 days from the date of receipt of the said notice.   Despite receipt of the legal notice, the Opposite Parties have remained silent and have neither issued a reply nor acted on the demand made by the Complainant.  Hence this complaint.

3. Even though the notice was served on Opposite Party No.1.  The Opposite Party No.1 failed to put their appearance.  Hence placed ex-parte. 

4. In response to the notice, the Opposite Party No.2 & 3 put their appearance through their Counsel.  But the Opposite Party No.2 fails to file their version even though sufficient time taken. 

5. The Opposite Party No.3 filed their version.  In their version pleaded that the complaint is false, vexatious, capricious, and not maintainable neither in law nor on the facts.  The Complainant cannot invoke the provision of the Consumer Protection Act, since he is not a ‘Consumer’ as defined under Sec.2(d) of the Consumer Protection Act.  This Forum has no jurisdiction to entertain & decide the alleged dispute.  The Complainant is misusing and abusing the process of law.  The Complainant availed a Credit Card bearing No.4375510813410005 from the 3^rd Opposite Party with a credit limit of Rs.1,70,000/-.  During the course of the transaction, the Complainant made online purchase of two mobile phones from M/s E Bay India Private Limited on 11.09.2013 for Rs.17,292/- through his credit card.  This transaction has been recorded and charged on 16.10.2013 by the 3^rd Opposite Party.   Subsequently, the Complainant registered his complaint through customer care of 3^rd Opposite Party disputing that the product were not delivered to him inspite of several follow ups.  The 3^rd Opposite Party registered the complaint vide request number SR301506259 and SR 312607700 dt.09.01.2014 and 28.03.2014 respectively.   Based on the inputs received towards the said complaint from the merchant by name M/s E Bay India private Limited, the 3^rd Opposite Party understand that, the goods are successfully received at the Complainant’s end.  The supporting documents provided by M/s eBay India Private Limited.  The Complainant made online purchase by using the credit card and it is the duty of the Complainant to pay the credit card due to the 3^rd Opposite Party as per the terms and conditions. It is the duty of the Complainant to pay the outstanding due amount as and when it becomes due.  As per the credit card statement dt.08.01.2014 there was a closing balance of Rs.17,412.75 paisa was due and payable by the Complainant to the 3^rd Opposite Party for which the due date was falling on 26.01.2014.  Against which, the Complainant had paid part payment of Rs.880/- on 07.03.2014 which was after the stipulated due date, against which late payment charges interest charges along with the applicable service tax have been levied on the credit card account of the Complainant.  Further, the Complainant continued to make part payments month on month against which late payment charges and interest charges are levied and accumulated on his credit card account as per the terms and conditions.  It is well within the knowledge of the Complainant that as per the terms and conditions of issue and usage of the card with reference to billing disputes resolution, in the even a card member disagree with a charge indicated in his statement, the same should be communicated in writing duly signed by him to reach ICICI Bank within 60 days of receipt of the statement, failing which it would be construed that all the charges indicated in the statement are in order.  It is not the case of the Complainant that he had not made online purchase by using the credit card.  It is an admitted fact that, the credit card was used for online purchase.  When the credit card has been used and utilized for online purchase, it is the duty of the Complainant to pay due amount to the Bank as per the terms.  Instead of paying the outstanding due amount to the 3^rd Opposite Party, the Complainant unnecessary dragged this Opposite Party into this proceedings alleging certain deficiency in service against them.   If at all the goods/mobile phones are not delivered, the Complainant has to proceed against the 1^st and 2^nd Opposite Parties for their deficiency in service and not against the 3^rd Opposite Party.  The 3^rd Opposite Party is not at all responsible for delivery of the goods/product to the Complainant, or there is no privity of contract that the 3^rd Opposite Party is responsible for delivery of goods. When such being the case, the allegations of the Complainant without there being any confirmation about the actual delivery having been made to the Complainant by the 2^nd Opposite Party, the 3^rd Opposite Party had gone ahead and released in favour of the 1^st Opposite Party is false and baseless and denied all the allegations made in the complaint and prays to dismiss the complaint.

6.     The Complainant, Sri.Arun Gopalaswami has been filed his affidavit by way of evidence and closed his side.  On behalf of the Power of Attorney Holder of the Opposite Parties, the affidavit of one Sri.Raihaan Ponnappa, has been filed.  Heard the arguments of both parties.  

7.     The points that arise for consideration are:-

1. Whether the Complainant has proves the alleged deficiency in service by the Opposite Parties ?
2. If so, to what relief the Complainant is entitled?

8.     Our findings on the above points are:-

                POINT (1):- Affirmative

               POINT (2):- As per the final Order

REASONS

9.   POINT NO.1:- As looking into the averments of the complaint and also version filed by the Opposite Party No.3, it is not in dispute that the Complainant is a Credit Card Holder of Opposite Party No.3 bearing No.4375510813410005 with a credit limit of Rs.1,70,000/-. It is also not in dispute that the Complainant on 11.09.2013 by using his credit card of Opposite Party No.3 purchased 2 mobile phones through online.  Further to substantiate this fact, the Complainant in his sworn testimony, reiterated the same and also produced Purchase History.  By looking into this document, it is very clear that on 11.09.2013 the Complainant purchased two Mobile Phones for a sum of Rs.17,292/- by using his credit card.  This evidence of the Complainant remains unchallenged, thereby it is proper to accept the contention of the Complainant that he has purchased two Mobile phones through online by using his credit card bearing No.4375510813410005 for a sum of Rs.17,292/- on 11.09.2013.

10.  It is further case of the Complainant, the product purchased by the Complainant through online by using his credit card was not delivered to the Complainant despite several follow-ups, as per their records the delivery of the goods was not initiated within a specified time and as a result the refund request was being processed with respect to the purchased products.  On 28.09.2013 the Complainant received information from the 1^st Opposite Party that the refund request was put on hold and that they would contact the Complainant for some additional information before proceeding with the request, no personnel of the              1^st Opposite Party made any further enquiries in this regard.  In the meanwhile, the 1^st Opposite Party notified the Complainant that the request for refund was rejected without informing the Complainant the reasons for this rejection.  This fact is denied by the Opposite Party No.3 in his version, it is on the burden of the Complainant to prove this fact.  In order to substantiate this fact, the Complainant in his sworn testimony, reiterated the same and produced a refund has been initiated issued by the Opposite Party No.1.  By looking into this document, it is very clear that on 25.09.2013 the Opposite Party No.1 informed the Complainant has been initiated on 26.09.2013 since their shipping partner has not confirmed pickup for your shipment from the seller within the time lines and also produced the refund request on hold.  Even by looking into this document also it is very clear that the process for refund as requested by the Complainant was put on hold by the Opposite Party No.1 and subsequently request of the Complainant was rejected by the Opposite Party No.1.   From this evidence, it is very clear that even though the Complainant purchased two Mobile phones from the Opposite Party No.1 through online by using his credit card but the said goods were not delivered to the Complainant for a sum of Rs.17.292/-was charged from his Account by the Opposite Party No.3, the Complainant after making several efforts with Opposite Parties since he has not received the goods sought for refund of the amount but his request was rejected this clearly goes to show that there is a deficiency of service on the part of the Opposite Party No.1.

11.  As looking into the evidence placed by the parties, the Opposite Party No.3 after receiving proper documents from Opposite Party No.1 the amount of Rs.17,292/- was transferred to Opposite Party No.1 Account.  Except these there is no any proper allegation or evidence to believe that there is a deficiency of service on the part of Opposite Party No.3 and even by looking into this evidence on record, it clearly goes to show that the Opposite Party No.1 if the seller has not made any shipment of goods to the Opposite Party No.2, thereby the Opposite Party No.2 is not able to delivered the goods to the Complainant.  Therefore, there is no deficiency of service on the part of the Opposite Party No.2.  On the other hand, the Opposite Party No.1 even after receiving consideration of Rs.17,292/- from the Complainant through his credit card account the Opposite Party No.3 instead of delivering the goods fails to deliver the goods to the Complainant and in this regard the Complainant lodge a complaint with Opposite Party No.1 but the Opposite Party No.1 fails to made refund and registered his prayer this clearly amounts to deficiency of service on the part of the Opposite Party No.1.   Hence, we answer point No.1 in ‘Accordingly’.  

12. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint against Opposite Party No.2 & 3 is dismissed.

The complaint is allowed holding that there is deficiency of service by the Opposite party No.1.

The Opposite Party No.1 is directed to refund a sum of Rs.17,292/- to the complainant along with interest at 12% p.a from 17.09.2013 till the date of payment.

The Opposite party No.1 is directed to pay a sum of Rs.5,000/- towards cost to the Complainant.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 17^th day of April 2017)

    MEMBER                                            PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Arun Gopalaswami, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of the Invoice dt.11.09.2013
2. Copy of the Email Dt.25.09.2013
3. Copy of the Email Dt.28.09.2013
4. Copy of the Email Dt.11.10.2013
5. Complaint lodged by the Complainant with Opposite Party No.3 Dt.16.10.2013
6. Reply Email sent by 1^st Opposite Party Dt.09.12.2013
7. Intimation from 1^st Opposite Party that the complaint has been resolved via Email Dt.10.12.2013
8. Complaintlodged with Opposite Party No.2 Dt.26.03.2014.
9. Explanaiton provided by 1^st Opposite Party for Suspension of Account Dt.08.04.2014.
10. Legal Notice Dt.06.08.2014.
11. Acknowledgement cards and Postal Receipts.

Witness examined on behalf of the Opposite Party:

1. Sri.Raihaan Ponnappa, the Power of Attorney Holder of the Opposite Parties.

  List of documents filed by the Opposite Party:

1. Copy of Power of Attorney
2. Payment Gateway
3. Blue Dart
4. ICICI Bank Credit Cards
5. Most Important Terms and Conditions(MITC)

  MEMBER                                           PRESIDENT