DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Anil Kumar s/o Shri Ram Verma resident of 984, Phase II, Ram Darbar, Chandigarh.

                                      ---Complainant.

Versus

1.                 M/s Naaptol Online Shopping Pvt. Ltd., Unit No.418, Building No.2, Sector 1, Millennium Business Park, Mahape, Navi Mumbai, Maharashtra 400710, through its Director

2.                 M/s Gati Limited, Plot No.181, Industrial Area, Phase I, Chandigarh through its Director.

---Opposite Parties.

BEFORE:  SHRI LAKSHMAN SHARMA                 PRESIDENT

                   SMT. MADHU MUTNEJA                       MEMBER

                   SHRI JASWINDER SINGH SIDHU       MEMBER

Argued by:  Sh. Kamal Satija, Adv. for the complainant

                        Sh. Vipin Kaushal, Adv. for OP No.1

                        Sh. Dinesh Malhotra, Adv. for OP No.2

PER LAKSHMAN SHARMA, PRESIDENT

1.                           Sh. Anil Kumar has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following reliefs against the opposite parties :-

i)                   to pay Rs.2,299/- alongwith interest @ 12% .

ii)                to pay Rs.50,000/- as compensation for mental harassment and agony.

iii)              to pay Rs.25,000/-  as costs of litigation.

2.                           In brief, the case of the complainant is that he intended to purchase a car stereo for his car so he visited the web portal i.e. www.naaptol.com run by opposite party No.1.  Opposite party No.1 offered the car stereo with FM, MP3, USB, SD card, Support Speakers, Tweeters, 4GB branded Pen drive, Reebok Watch  inclusive of six months seller’s warranty for a sum of Rs.2,299/- including the cost of shipping.  Finding the said offer lucrative, the complainant booked the said package on 8.7.2011 with the option of paying the consideration in cash at the time of delivery of the consignment.   The complainant was assured that the consignment shall be delivered within a week. 

                   It has further been pleaded by the complainant that on 18.7.2011, he received the consignment through opposite party No.2 and paid consideration of Rs.2,299/- to the representative of opposite party No.2.  According to the complainant, when he opened the consignment, to his utter shock the stereo, the speakers and other gadgets were damaged and were not in working condition.   The complainant immediately rushed to the office of opposite party No.2 and brought all the facts to its notice. Opposite party No.2 asked the complainant to talk to opposite party No.1. Accordingly, the complainant had a talk with opposite party No.1 who assured that the amount shall be refunded and the complainant was advised to return the consignment to opposite party No.2 for being forwarded to opposite party No.1.  Accordingly, the complainant left the consignment with opposite party No.2. 

                   Thereafter, he contacted opposite party No.2 who told that the consignment has been shipped back by its office on 29.7.2011.  Thereafter the complainant made enquiries from opposite party No.1 about refund of the amount but he was told that the consignment has not been received by it and that the amount shall be refunded immediately after the receipt of consignment.  According to the complainant, despite the fact that he has approached both the opposite parties, the amount has not been refunded to him so far.

                   In these circumstances, the present complaint has been filed seeking the reliefs mentioned above.

3.                           In the written statement filed by opposite party No.1 it has been averred that the opposite party No.1 provides marketing platform for products of various companies through its website and advertisement in multiple media formats including newspaper and television channels.  It has been specifically mentioned that opposite party No.1 does not sell its products and the product offered for sale is of other manufacturing company and the warranty is issued by the manufacturer.   In these circumstances, according to the opposite party, even if the products were damaged, opposite party No.1 is not liable to refund the amount.  It has further been pleaded that, otherwise also, the consignment which was redirected by the complainant to opposite party No.1 has not been received by it so far.  In these circumstances, opposite party No.1 is not liable to refund the amount till the consignment is received back by it. 

                   The other facts regarding the sale of the package mentioned above for a consideration of Rs.2,299/- has been admitted.  It has also been admitted that opposite party No.1 has received the sale consideration for the said package.  It has also been admitted that the complainant informed it about the damage to the consignment and the goods sent to him.  However, it has been pleaded by opposite party No.1, that as the consignment of damaged goods has not been received back by it so far, so it is not liable to refund the amount of Rs.2,299/- to the complainant.

                   In these circumstances, according to opposite party No.1 the complaint deserves dismissal.

4.                           In its written reply filed by opposite party No.2 it has been admitted that the consignment was handed over to the complainant by the representative of opposite party No.2.  However, the case of opposite party No.2 is that there is no contract between it and the complainant.  So, the complainant is not a consumer qua it.  It has been averred that opposite party No.2 as a carrier/transporter has business relationship with opposite party No.1.  As a sequel thereof and by dint of written contract between opposite party No.2 and opposite party No.1, both are governed by the contractual liability.   As per this contract, opposite party No.2 is required to provide services of delivery of goods/articles/products sold by opposite party No.1 to its customers and to collect payment from the said customers on behalf of opposite party No.1.  After deducting the necessary freight and octroi etc. the payment so collected is remitted to opposite party No.1. It has further been pleaded that as per the terms and conditions if the sold goods are returned or refused to be accepted, the same are sent back to opposite party No.1 on the expenses of opposite party No.1. Thus, according to the opposite party No.2, there is no contract between it and the complainant and the complainant is not a consumer qua it.  It has further been pleaded that the consignment was delivered to the complainant on 18.7.2011.  According to the opposite party, at the time of delivery, the consignment was in good condition.  It has been averred that the consignment was returned to it on 29.7.2011 for being sent back to opposite party No.1.  It has been pleaded that the consignment remained with the complainant for the period from 18.7.2011 to 29.7.2011 and during the said period the consignment might have been damaged so the complaint suffers from the vice of supprressio vari and suggesio falsi.  According to opposite party, there is no deficiency in service on its part and the complaint deserves dismissal.

                   In these circumstances, prayer for dismissal of the complaint has been made

5.                           We have heard the learned counsel for the parties and have gone through the documents on record.

6.                           It is the admitted case of the parties that the complainant had purchased a package containing car stereo with FM, MP3, USB, SD card, Support Speakers, Tweeters, 4GB branded Pen drive, Reebok Watch  inclusive of six months seller’s warranty for a sum of Rs.2,299/- including the cost of shipping.  It is also the admitted case of the parties that opposite party No.1 sent the consignment of the said articles to the complainant through opposite party No.2.  The said consignment was received by the complainant on 18.7.2011. According to the complainant, when he opened the consignment he found the same damaged. So, he immediately approached opposite party No.2 and told it about the abovesaid fact.  Opposite party No.2 advised the complainant to approach opposite party No.1.  When the complainant approached opposite party No.1, it directed the complainant to send back the consignment to it through opposite party No.2.  Thus, according to the complainant, he returned the consignment to opposite party No.2 for sending back the same to opposite party No.1.   Opposite party No.2 has admitted of having received the said consignment.

7.                           The case of opposite party No.2 is that the products which were received by the complainant remained with him from 18.7.2011 to 29.7.2011 and there is possibility of damage of the said products during the period the same remained with the complainant. The question at this stage to be decided is not as to whether the products were damaged or not.  The deficiency in service on the part of opposite party No.2 is that despite the fact that the consignment was returned to it, for being sent back to opposite party No.1, the same was not delivered to opposite party No.1.  It was for opposite party No.1 to plead that the consignment was damaged during the period it remained with the complainant, but opposite party No.1 has not pleaded so.

8.                           The fact that the consignment was received by the complainant in damaged condition is proved from the affidavit furnished by him.  There is no rebuttal of this fact.  Even opposite party No.1 has not pleaded that the consignment was in good condition, and was damaged during the period it remained with the complainant. 

9.                           Admittedly, the consignment was received by opposite party No.2 for being sent back to opposite party No.1 and the same has not reached opposite party No.1 till today.

10.                       The complainant being beneficiary of the contract between opposite parties No.1 & 2 is a consumer. So the complaint by him is maintainable against opposite party No.2 also.

11.                       Thus, from the above discussion it is apparent that the consignment which was sent to the complainant contained damaged goods and despite the fact that the consignment was handed over to opposite party No.2 for being sent back to opposite party No.1, the same was not delivered to opposite party No.1, which amounts to deficiency in service on the part of the opposite parties. 

12.                       In view of the above discussion, the present complaint is allowed and the opposite parties are directed as under :-

(i)                to refund the amount of Rs.2,299/- to the complainant (being the price of the package in question booked by the complainant) alongwith interest @ 9% per annum w.e.f. 18.7.2011.

(ii)             to pay Rs.10,000/- as costs of litigation.

13.                       This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amount of Rs.2,299/- shall carry interest @18% per annum from 18.7.2011 till actual payment, besides payment of litigation costs.

14.                       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

24.09.2012.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER