DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, NORTH-WEST
GOVT. OF NCT OF DELHI
CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.
CC No: 655/2015
D.No._______________ Dated:________________
IN THE MATTER OF:
Smt. BABITA SHARMA W/o SH. YOGESH SHARMA,
R/o 87, FRIENDS ENCLAVE, GALI No. 2,
NEAR RAILWAY CROSSING, SULTAN PURI,
DELHI-110086. … COMPLAINANT
Versus
SH. SUNDEEP MALHOTRA,
FOUNDER & C.E.O.,HOME SHOP 18,
7TH FLOOR, FC-24, SECTOR-16A,
FILM CITY, NOIDA,
UTTAR PRADESH-201301.… OPPOSITE PARTY
CORAM :SH. M.K. GUPTA, PRESIDENT
SH. BARIQ AHMED, MEMBER
MS. USHA KHANNA, MEMBER
Date of Institution: 06.07.2015
Date of decision: 01.03.2018
SH. BARIQ AHMED, MEMBER
ORDER
1. The complainant has filed the present complaint against the OP under section 12 of the Consumer Protection Act, 1986 therebyalleging that after seeing a luring T.V. advertising promotional placed an order on 04.10.2014 at 12:08 P.M. telephonically from Sultan Puri, Delhi on OP’s toll free no. 18002580918 for a Spice Full Touch Screen Dual Sim -M6110 mobile handset of Rs.2,199/-
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on confirmation of guaranteed taking back purchased product within 48 hrs. without any question. The complainant further alleged that the complainant after consultation with near and dear ones changed the mind & cancelled the order telephonically on the next day i.e. 05.10.2014 by calling on the same toll free no. at 9:24 A.M. and OP confirmed the cancellation of order on the same day before delivery and despite of confirmation of cancellation OP on the same day i.e. 05.10.2014, OP sent a delivery boy at the complainant’s address & forced to take delivery against the payment around 11:00 A.M. by specifically saying that if cancellation of order had taken place then very soon some other person will come and take back the delivery and company will refund the entire amount, as the concerned refund department is different from delivery department of the company and thus on the assurance of refund by representative of OP, the complainant took the delivery of the packet. Thereafter, the complainant waited entire day in anticipation of refund but nobody turned up to take back the delivered packet and the complainant without opening the delivered box once again called up on OP’s toll free no. at 6:18 P.M. on 06.10.2014 and asked for refund of money which was confirmed and assured the refund of the same. On 07.10.2014 at 11:10 A.M., OP’s executive called up the complainant through telephone no.
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0120-2441918 and refused to take back delivery and challenged the complainant.On resistance as the contract was cancelled before the delivery of goods and same was confirmed by OP and inspite of cancellation, OP’s delivery agent delivered the product and when OP was apprised on Sunday about this forced delivery, OP agreed to take back and refund the entire money on the basis of prior cancellation before delivery as soon as possible. The complainant further alleged that the complainant sent legal notice dated 03.11.2014 through his counsel to OP by speed post to take back delivery and refund the entire money within 7 days from the date of receipt of notice, however, despite of waiting several months no response was given by OP.
2. On these allegations the complainant has filed the complaint praying for direction to OP to refund the price of the mobile handset of Rs.2,199/- alongwith interest @ 18% p.a. from the date of taking money from the complainant as well as compensation of Rs.4,00,000/- for causing damages, mental agony and physical harassment and has also sought Rs.25,000/- for litigation cost.
3. OP has been contesting the case and filed written statement and in its written statement stated that OP has been wrongly impleaded in the array of party as there was no privity of contract between the complainant and CEO of TV 18 Networks Ltd. and there had never
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been any customer vendor relation between the complainant and CEO TV 18 Network Ltd. OP further submitted that OP being the CEO of TV 18 Network Ltd. is a separate juristic entity in the eye of law, hence, cannot be dragged into false litigation for the acts done on part of company and the CEO in the personal capacity cannot be sued as he is not involved in any manner related to the transaction in question and no commercial or business transaction has ever taken place between the complainant and OP. OP further submitted that as per the refund and return policy, OP shall not be liable for any mental agony, physical harassment and financial loss etc. to the complainant and as per the said refund and return policy OP shall not be liable for any loss arising due to timely delivery of the product in question to the complainant. OP further submitted that the complainant called on 05.10.2014 to the customer care to cancel the said product, OP has clearly informed the complainant that the product has already been shipped so it is not possible to cancel the order and suggested the complainant not to accept or receive the said product delivery which has been agreed by the complainant and as per the terms of OP an order can be cancelled only before the shipment of product but once the product has been shipped by OP order cannot be cancelled. In such case the purchaser has an option of not to accept the delivery of the product
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and refuse the same and claim the refund. OP further submitted that there is no deficiency in service on the part of OP and thus the complaint is liable to be dismissed.
4. The complainant filed replication and denied the version of OP.
5. In order to prove her case the complainant filed her affidavit in evidence and also filed written arguments. Thecomplainant also placed on record copy of legal notice dated 03.11.2014 sent by the complainant through her counsel to OP by speed post alongwith postal receipt, copy of complaint dated 30.05.2015 to SHO, P.S. Sultan Puri, Delhi and copy of proof of service.
6. On the other hand, Sh. Apurv Narula, Authorized Representativeof OP filed his affidavit in evidence which is as per line of defence taken by OP in the written statement. OP also filedcopy of SPA, copy of retail invoice no. NITCDRH/DRH/10/2014/2991805 dated 04.10.2014 and copy of terms & conditions of use.OP also filed written arguments.
7. This forum has considered the case of the complainant as well as OP in the light of evidence and documents placed on record. It is revealed that the complainant purchased a mobile handset for Rs.2,199/- through telephonic order. As already observed the complainant has not filed invoice/bill vide which the product was supplied to the complainant. The terms & conditions which have
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been placed on record by OP, there is no condition for cancellation of booking of order. The case of the OP is proved that the dispatch department is a different department and when a product has been dispatched, the complainant cannot order for cancellation of booking and the course available to the complainant was to refuse the delivery of the product. As the complainant has accepted the delivery of the product, the complainant cannot subsequently order for cancellation. Thus, we are of opinion that the complainant has failed to prove her case by way of any cogent evidence and there is no merits in the complaint. The complaint is accordingly dismissed.
8. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. Thereafter file be consigned to record room.
Announced on this 1stday of March, 2018.
BARIQ AHMED USHA KHANNA M.K. GUPTA
(MEMBER) (MEMBER) (PRESIDENT)
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