IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Dated this the 30^th day of November, 2019

Present:  Sri. Manulal V.S. President

Smt.  Bindhu R,  Member 

C C No. 102/2016 (filed on 18/03/16)

Petitioner                                  :         Sivankunju P.R. S/o.Kunju,

                                                          Porkallel House,

                                                          Kuravilangadu P.O.

                                                          Kaliyarthottam Kara,

                                                          Kuravilangadu Village,

                                                          Meenachil Taluk,

                                                          Kottayam.Pin – 686633.

                                                          (Adv. Siby Mathew Thakadiyel

and Adv. Arun G.)

                                                                   Vs.                            

Opposite Party                         :   1)   M/s. Naaptol Online shopping Pvt. Ltd.

                                                          S No. 85, Village Gundlapochampally,

                                                          Mandal Medchal, District Renga Reddy,

                                                          Andra Pradesh – 500014.

                                                          Rep. by its Managing Director.

                                                          (Adv. Anish Ramakrishnan)

                                                    2)   Swipe Telecom LLP,

                                                          S No.85, Village Gundlapochampally,

                                                          Mandal Medchal, District Renga Reddy,

                                                          Hyderabad, Andra Pradesh – 500014.

                                                          Rep. by its Managing Director.

                                                   3)   Swipe Technologies Pvt. Ltd.

                                                          F4 A/B/C/ Metropole Building,

                                                          Near Inbox Theatre, Pune,

                                                          Maharashtra – 411001.

                                                          Rep. by its Managing Director.

                                                      4)  Drive India Enterprise Solutions Ltd.

                                                          7^th Floor, Kamla executive Park,

                                                          Near Vazir Glass Factory,

                                                          Off Andheri Kurla Road,

                                                          Andheri East, Mumbai – 400 059.

                                                          Rep. by its Managing Director.

                                                          O  R  D  E  R

Sri. Manulal V.S. President  

          The case of the complainant is as follows.

          The complainant purchased a Swipe Konnect 4E mobile phone manufactured by the 2^nd opposite party in response to an advertisement shown in the television by the 1^st opposite party.  The 1^st opposite party collected the address of the complainant and informed that one unit will be delivered to the house of the complainant.  Each unit of Swipe Konnect 4E phone pack will contain one mobile phone, transceiver, AC power adapter, data cable, battery, head set, user manual and the warranty card.  The order No. is 18512989 and the booking was on 05/12/15.  On 02/09/16, the complainant collected a parcel after paying an amount of Rs.3,898/- in the post office Kuravilangadu.  When the complainant verified the items in the parcel, it is seen that no battery was in the box.  When the complainant informed the matter to the 1^st opposite party, the 1^st opposite party apologied for the same and informed that battery will be despatched as soon as possible.  After the lapse of 2 weeks, the complainant contacted the 1^st opposite party.  Then also the 1^st opposite party repeated their words, but the complainant did not get battery.  Then the complainant contacted the 3^rd opposite party, who is in service in charge over telephone, but the 3^rd opposite party is not cared to redress the grievances of the complainant.  Due to the act of the opposite parties, the complainant is forced to purchase another mobile phone.  The complainant is entitled to get back the entire amount paid for the mobile phone and compensation and mental agony and other expenses.                         By selling the defective phone, the opposite parties have committed unfair trade practice and deficiency in service.  Hence the complaint is filed.

          On receiving notice from this Forum, the 1^st opposite party appeared before the Forum and filed version.  Inspite of receipt of notice opposite parties 2 to 4 did not appear before the Forum and file version.  Hence opposite parties 2 to 4 are set exparte.

          The version of the 1^st opposite party is as follows.

          The complaint is not maintainable.  The 1^st opposite party is a registered company having its registered office at Azad Nagar, Thane, Maharashtra.                    The 1^st opposite party provides service to sellers and vendors to sell their product through broadcasting mediums like website, TV channels, broad band media etc.  The 1^st opposite party is not involved in any kind of manufacturing or production activities and is not working as the seller or vendor.  The 1^st opposite party is working only as a marketing platform or link between buyers and seller.

          It is admitted that complainant had bought product named Swipe Konnect 4E with dual core system and Android 4.2.2 worth Rs.3,898/- including delivery charges.  From the seller named Cosmos Mobility LLP.  The said product was delivered to the complainant on 02/01/2016.  On receipt of the complaint of the parcel delivered customer care team of the 1^st opposite party had assured the complainant that they shall arrange proper delivery through the concerned seller.  On 06/01/16, the seller had despatched the battery of the product to the complainant wide AWB No.4154, 4067,423.  On 13/01/16, the courier person tried to contact the complainant in order to effect the delivery.  Then the complainant phone was switched off and the delivery could not be affected.  Again on 04/01/16 the seller despatched the battery to the complainant wide AWB No.4154,4066,126.  And the same was also returned to the origin due to the reason the courier agency could not contact the complainant over phone.  There is no deficiency in service or unfair trade practice from the part of the 1^st opposite party.  The complainant is not entitled for any relief as claimed in the complaint.

          The complainant filed proof affidavit in lieu of chief examination and Ext.A1 and MO1 were marked from the side of complainant.  No documentary or oral evidence was adduced from the side of the 1^st opposite party.

          On the verification of complaint, version and evidence on record, we would like to frame the following points for consideration.

1. Whether there is any deficiency in service or unfair trade practice from the side of opposite parties?
2. Relief and costs?

For the sake of convenience, we would like to consider Point No.1 and 2 together.

Point No.1 and 2

     It is admitted that the 1^st opposite party has published advertisement of Swipe Konnect 4E mobile phone through television.  The complainant had booked mobile phone over telephone, which is shown in the advertisement and it was mutually agreed by the parties through the telephone, to pay the price of the mobile phone at the time of delivery.  The price was Rs.3,898/-. On 02/01/2016, the complainant received a parcel from the postal authorities after remitting Rs.3,898/- as the price of the parcel including postal charges.  An invoice, which was received by the complainant is produced and marked as Ext.A1.  On going through the Ext.A1, we can see that the article contained in the parcel was sold by the 2^nd opposite party, it is further stated in the Ext.A1, that “if undelivered please return to M/s. Naaptol Online Shopping Pvt.Ltd” ie. none other than the opposite party.  Ext.A1 proves that the article contained in the parcel is Swipe Konnect 4E with dual core Processor and Android 4.2.2 blue coloured.  The specific case of the complainant is that the opposite parties had agreed to deliver the mobile phone along with transceiver, AC power adaptor, data cable, battery, head set, user manual and warranty card.  The complainant deposed in the affidavit that in spite of the assurance given by the opposite parties, the complainant received the parcel without battery.  The parcel, which                      was received by the complainant, is marked as Ext.MO1.  On perusal of Ext.MO1, we can see that, it does not contain the battery.                           The 1^st opposite party admits that on receipt of the complaint from the complainant, they sent battery 2 times to the complainant, but it could not be delivered to the complainant on the reason that the courier agency was unable to contact the complainant.  Though the 1^st opposite party put forwarded such a contention they did not adduce any evidence to substantiate their claim.  From the above discussed evidence, we are in the opinion that there is a deficiency in service from the part of the opposite parties by selling a mobile phone to the complainant without the battery as agreed by them.  The 1^st opposite party contented in the version that they only provide service to the sellers to sell their product through the broad casting media of the Company.  They further contented that the 1^st opposite party is not involved in any kind of manufacturing or production activities and not working as a seller.  But on going through Ext.A1, we can see that there is a direction to the parcel agencies that in case of a non delivery to the addressee, the consignment shall be returned to the 1^st opposite party.  Therefore, we can infer that the article was sent by the 1^st opposite party to the complainant.  Therefore the 1^st opposite party cannot escape from the clutches of the law regarding the deficiency in service or unfair trade practice.  We are in the opinion that the complainant had suffered much loss and hardship to the act of deficiency in service and unfair trade practice by the opposite parties.  In the circumstances, we allow the complaint and pass the following Orders.

1. We hereby direct the 1^st opposite party to refund Rs.3,898/- to the complainant with 9% interest from 02/01/2016 onwards and the complainant is directed to return the mobile phone along with accessories to the opposite parties.
2. 1^st opposite party is directed to pay Rs.5,000/- as compensation and Rs.1,000/- as cost of litigation to the complainant.

The Order shall be complied with within a period of 30 days from the date of receipt of Order.

Dictated to the Confidential Assistant, transcribed and typed by her,

corrected by me and pronounced in the Open Forum on this the 30^th day of November, 2019.    

Sri. Manulal V.S. President Sd/-

Appendix

Exhibits marked on the side of the complainant

A1 :   Copy of invoice

Court Exhibit

MO1  :  A packet contain mobile phone and accessories.

                                                                                                              By Order

                                                                                                Senior Superintendent