Punjab

Ludhiana

CC/20/296

Jishu Dhir - Complainant(s)

Versus

M/s Style Hunt - Opp.Party(s)

Swati Dhir Adv.

17 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                             Consumer Complaint No:  296 dated 10.11.2020.                                       Date of decision: 17.09.2024. 

 

Jishu Dhir aged about 33 years Son of Inder Jit Dhir. Vill No.171, Eldeco Estate One, G.T. Road, NH-1, Beide Malhotra Resort, Ludhiana. (moile no.9988351507)                                                                                                                                                                                  ..…Complainant

                                                Versus

1. M/s. Style Hunt through its Managing Director/Authorized signatory A 4/1, First Floor Maya Puri Indl. Area, Phase-II, New Delhi (M:72910-24131)
2. The Managing Director/Authorized signatory of Blue dart Courier Services through its BLUE DART EXPRESS LTD 4^th FLOOR, ELEGANCE TOWER, NON HIERARCHICAL COMMERCIAL CENTRE, PLOT NO.8, JASOLA DISTRICT CENTRE, NEW DELHI-110076.
3. The Managing Director/Authorized Signatory of Blue dart Courier Services, Near general Bus Stand, Building#478, Aman Palace, Bus Stand Rd, Ashok Nagar, Ludhiana, Punjab-141002.                                                                                                      …..Opposite parties 

Complaint Under Consumer Protection Act as amended upto date.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Jishu Dhir in person.

For OP1                         :         Exparte.

For OP2 and OP3          :         Sh. Sudhir Gakhar, Advocate.

 

ORDER

PER MONIKA BHAGAT, MEMBER

1.                Briefly stated, the facts of the case are that on 12.11.2019, the complainant place an order with case on delivery through internet shopping from OP1 regarding purchased a mobile set Samsung Android ON 7 PRO (Gold, 2 GB RAM, 16 GB Storage) for an amount of Rs.2899/- vide invoice no.SHT21363 dated 12.11.2019. The complainant paid Rs.2899/- by cash on delivery dated 13.11.2019 to delivery boy of OP2 and OP3 by way of delivery receipt of waybill No.59667176332 dated 13.11.2019. The complainant stated that when he opened the courier box, he astonished to see that there was only Empty carbon box with two unwanted or non-demand wrist watch and piece of wood. He immediately called back to delivery boy of OP2 and OP3 but he did not pick up the call. Then the complainant approached OP1 who assured that they delivered the said mobile set Samsung Android ON 7 PRO as per his demand and represent mobile picture vide invoice cum order No.SHT21363 dated 12.11.2019. This shows the malafide on the part of the OPs. The complainant further stated that he sent several Emails but the OPs did not admit their fault and flatly refused to give reasonable reply. According to the complainant, he has suffered mental tension, financial losses, pain agony etc. due to deficiency in service and unfair trade practice on the part of the OPs for which he is entitled to compensation from the OPs. Even he approached the OPs time and again to replace the said defective mobile phone and to give him a fresh mobile phone but the OPs always postponed the mater on one pretext or the other. The complainant sent a legal notice dated 02.03.2016 upon the OPs through Ms. Swati Dhir, Advocate but no reply was received. Hence this complaint, whereby the complainant prayed for issuing directions to the OPs to give fresh mobile phone and to pay compensation of Rs.1,00,000/- as well as litigation expenses of Rs.15,000/-.

2.                Upon notice, none appeared on behalf of OP1 despite service and as such, OP1 was proceeded against exparte vide order dated 28.09.2021.

3.                OP2 and OP3 appeared and filed joint written statement and assailed the complaint by taking preliminary submissions and objections on the grounds of maintainability; the complainant being not their Consumer; the complaint being false, frivolous, vague and vexatious; the complaint being devoid of any material particulars etc. OP2 and OP3 stated that the complaint is not the Consumer as defined under the Consumer Protection Act as he did not obtain any services from them at any point of time. OP1 booked the consignment for its delivery to the complainant and the same was successfully delivered to the complainant on 15.11.2019 in the packed condition as received by them from OP1. No complaint was lodged by the complainant with regard to any deficiency in delivering the consignment and they have been unnecessarily dragged as party to the present complaint.

                   On merits, OP2 and OP3 reiterated the crux of averments made in the preliminary objections and submissions. However, OP2 and OP3 averred that they are carrying shipments from its vendors from the point of origin to the destination as specified. All shipments are picked up in intact/sealed condition and delivered to the consignee in intact condition. According to OP2 and OP3, they picked up the shipment in sealed condition vide waybill No.59667176332 dated 13.11.2019 from Delhi for its delivery to the complainant at Ludhiana and the shipment was successfully delivered to the complainant in sealed/intact condition on 15.11.2019. As the shipment was cash on delivery so the delivery boy collected the cash from the complainant. OP2 and OP3 further stated that the complainant did not raise any objection at the time of delivery with regard to deficiency in delivering the article. Further they were not aware when the complainant opened the box. OP2 and OP3 further stated that they are not liable to pay any amount to the complainant and if there is any liability, that is of OP1. OP2 and OP3 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

4.                In evidence, the complainant tendered his affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents i.e. Ex. C1 is the copy of legal notice dated 22.11.2019, Ex. C2/A to Ex. C2/C are the postal receipts, Ex. C3 is the copy of Email dated 12.11.2019, Ex. C4, Ex. C5 is the copy of snapshot of Email box, Ex. C5/A is the copy of order summary and closed the evidence.

5.                On the other hand, the counsel for OP2 and OP3 tendered affidavit Ex. RA of Sh. Vivek Kumar, Executive Legal of OP2 and OP3 along with documents i.e. Ex. R1 is the copy of tracking data of the product and closed the evidence.               

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement along with affidavit and documents produced on record by both the parties.        

7.                The complainant, an Advocate by profession, placed an order of Samsung Android ON 7 PRO (hereinafter called the ‘product’) on 12.11.2019 with OP1 and was set to deliver the same through its logistic partners i.e. OP2 and OP3 on 13.11.2019. But it was actually delivered on 15.11.2019 and on receipt of the courier, he found wrist watch and piece of wood in place of the ordered product. He served a legal notice ex. C1 to redress the issue but of no avail. Hence the complaint. It is imperative to refer the Consumer Protection (E-Commerce) Rules 2020 which were framed to protect the rights and interest of consumer and Section 4 of the said Rules is reproduced as under:-

“4.    Duties of e-commerce entities.- (1) An e-commerce entity shall:-

(b) appoint a nodal person of contract or an alternate senior designated functionary who is resident of India, to ensure compliant with the provisions of the Act or the rules made thereunder.”

(4) Every e-commerce entity shall establish an adequate grievance redressal mechanism having regard to the number of grievances ordinarily received by such entity from India, and shall appoint a grievance officer for consumer grievance redressal, and shall display the name, contact details, and designation of such officer on its platform.

(5) Every e-commerce entity shall ensure that the grievance officer referred to in sub-rule (4) acknowledges the receipt of any consumer complaint within forty-eight hours and redresses the complaint within one month from the date of receipt of the complaint.”

However, it is strange that the complainant did not raise any grievance or made any representation through post or through Email to any of the OPs. Although it is mentioned in the complaint that several Emails were sent by the complainant to the OPs but the complainant did not produce any copy of such Email or representation on record to substantiate his claim. In the present complaint, as stated above, the complainant should have raised any grievance under the said Rules. Even the complainant also did not place any photograph of the received items or empty box which could establish that he did not receive the product so ordered. So the complainant has failed to discharge initial onus to prove the deficiency in service on the part of the OPs by any cogent and convincing evidence.  The Hon’ble Supreme Court of India in its judgment in SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India while relying upon on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. As well as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544), has held as under:-

“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.”

8.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.   

9.                Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

 

Announced in Open Commission.

Dated:17.09.2024.

Gobind Ram.