For the O.P.No.3: Mr. Pradeep Panda, Mr. Bibhudutta Samantaray,
Advocates.
DATE OF FILING: 03.05.2016
DATE OF DISPOSAL: 22.12.2017
Dr. Alaka Mishra, Member (W):
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act 1986, alleging deficiency in service against the Opposite Parties (in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he placed an order for purchase of one Blue-Tooth through on-line on 13.06.2015 from M/s Shopclues vide Tracking Number 15228771561 for Rs. 2,239/-. In the package stated above there was availability of one charger instead of Bluetooth and the cost of the charger hardly costs Rs.500/-. Finding the same, the complainant contacted the aforesaid shopclues who admitted the same and instructed to refund the charger and agreed to refund Rs.2239/- to the complainant. The complainant therefore dispatched the Blue Tooth to the said Clues Network Plot No.653A, Palm Vihar, New Delhi, PIN-110061 through the O.P.No.1 at Berhampur on payment of Rs.160/- only towards the transportation charges. The O.Ps issued a receipt of Rs.160/- along with details. The said material was dispatched on dated 28.08.2015 at 16.30 hours. The complainant is entitled to receive Rs.2,239/- from the clues Network, New Delhi on return of the charger that was sent through the O.P.No.1. The complainant enquired the matter of receipt of the material by the Clues Net work, New Delhi many time effecting from 29.08.2015 but received negative reply of non-receipt. The O.P.No.3 is a necessary party since the materials were dispatched by O.P.No.1 on 28.08.2015. The complainant ran from Bhatakumarada to Berhampur of 40 Kms covering of 80 Kms for 18 times from September 2015 to till date to the O.P.No.1 who was promising to enquire about delivery of the material. The O.P.No.1 instructed the complainant either to forget the issue or to approach this Forum for redressal. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps for payment of Rs.2,239/- only towards the cost of the materials dispatched and lost by the O.P.No.1 and to pay Rs.3600/- only towards the expenses incurred towards journey from Bhatakumarada to Berhampur and back for approaching the O.P.No.1 and to pay compensation of Rs.30,000/- towards harassment and mental agony and litigation cost of Rs.3000/- in the best interest of justice.
3. Upon notice the O.P. No.1 & 2 filed version jointly through his advocate. It is stated that the allegations made in the complaint petition para No.1 to 3 are nothing to do with the business of O.P.No.1 & 2 and same is to put to strict proof on part of the complainant. The costs of the charger of Rs.2239/- or costs of the blue tooth is Rs.500/- is nothing to do with the business of the O.P.No.1 & 2. The complainant has independent claims against the O.P.No.3 for such doubtful recovery from O.P.No.3. The business of the O.P.No.1 & 2 is that proper delivery of an article to the receiver from the complainant. On receipt of its fees for transportation cost is Rs.160/-. Rather the O.P.No.1 & 2 never indemnified the cost of the articles inside the pocket (may it cost of Rs.1,00,00,000/- or more). The complainant never paid or insured the cost of the articles packed inside. So for the sake of argument but not admitting the fact of the liability for non-delivery of such article to the receiver will not exceed the cost paid by complainant i.e. Rs.160/-. So for the sake of argument not admitting the fact of delivery of the article through the O.P.No.3 which the complainant and O.P.No.3 are put to strict proof thereof. The allegations made in Para 4 are not true, the complainant is put to strict proof of the same in respect of the articles inside or to the knowledge of the O.P.No.1 & 2. In Para 5 to 12 are not true, and are based on misconceived facts to harass the O.P.No.1 & 2 are put to strict proof of the same by the complainant. Hence the O.P.No.1 & 2 prayed to dismiss the case because it is the transaction of supply of defective goods in between the complainant and O.P.No.3 and accordingly the Forum may dispose the same in the circumstances and in the best interest of justice.
4. Similarly, on notice the O.P.No.3 filed version through his advocate. It is stated that the O.P.No.3 is dealing with only those allegations, contentions and submissions that are material and relevant for the purpose of adjudication of the captioned dispute. It is further submitted that unless expressly accepted, the allegations/contentions/submissions would be deemed to have been denied by the answering O.P. The contents of paragraphs 1 to 4 of the complaint under reply in so far as they are matters of record, need no reply. However, it is stated that in line with its motto to keep the interests of the buyers paramount and without prejudice to its rights, the answering O.P. facilitate the refund process of the invoiced amount, provided the impugned product is returned and due investigation is conducted in line with the company’s return and refund policy. The complainant is well aware of the policy adopted by the answering O.P. qua refund and return and therefore, it is wrong for the complainant to impute deficiency in service on the answering O.P. In the scenario where the product has not reached back to the answering O.P. and the same being lost/ misplaced by the O.P.No.1 & 2 the answering O.P. is not liable for any refund of the product and is also not liable to pay any compensation as there has not been any deficiency in services by the answering O.P. The contents of paragraphs 5 &6 of the complaint under reply are denied as misconstrued. The answering O.P. on being acquainted with the grievance of the complainant initiated a return/refund process. The area where the complainant resides comes under the non-serviceable area for reverse pickup service by any of answering O.Ps courier agencies therefore the complainant was requested to self-dispatch the product. The complainant self-dispatched the product twice on 25th June, 2015 and 29th August, 2015 respectively. However, on both occasions the product was not delivered to the answering O.P. In such circumstances an exceptional arrangement was made by the answering O.P. for pick-up of the impugned product via delivery couriers. The courier company failed to pick up the product from the complainant as the complainant was not available at his address. The complainant on 6th October, 2015 raised his concern with the answering O.P. to inform the answering O.P. that the product was sent to answering Party by the complainant through O.P.No.1 & 2 and has been misplaced by the courier. The answering O.P. requested the complainant to share the pickup receipt of the same and the complainant has failed to share the same till date. It is pertinent to note herein that the said product has not reached the premises of the answering O.P. and neither the complainant has been able to provide pick up receipt. It is reiterated that in order to effectuate facilitation of refund, the product must be duly returned to the answering O.P. which is yet to happen in the instant case. In absence of return of the impugned product, it shall not lie in the domain of the answering O.P. to process refund for the impugned product. It is incumbent on the complainant to return the product to the answering O.P. and that the liability for the same cannot be fastened on the answering O.P. Furthermore, the prayer clause and is vehemently denied. The answering O.P. cannot be fastened with any liability whatsoever qua the impugned product and hence, any relief sought by the complainant against the answering O.P. is untenable. Hence the O.P.No.3 prayed to dismiss the case.
5. On the date of hearing of the consumer dispute, the leaned counsel for the complainant Mr. Kailash Chandra Mishra, Advocate is present. Mr. Sunil Kumar Behera, learned counsel for the O.P.No.1 & 2 is also presents. Mr. Bibhudutta Samantaray, learned counsel for O.P.No.3 is present. After a thorough discussion before this Forum, a joint memo of learned counsels for the complainant and for the O.P.No.1 & 2 is filed. In the said memo it was stated that the complainant has no hesitation to receive cost of dispatched material which was lost on account of O.P.No.1with full and final satisfaction and to close the case against O.P.No.1 & 2. We perused the same and allowed the memo. The O.P. No.1&2 are directed to refund a sum of Rs.2,239/- to the complainant towards lost of material dispatched through O.P.No.1 The O.P.No.3 is exonerated from the liability as per the submissions made before this Forum during the course of hearing. As agreed by all parties present, there will be no orders as to cost and compensation.
6. In the result, we direct the O.P. No.1&2 who are jointly and severally liable to refund Rs.2,239/- only to the complainant within one month from the date of receipt of this order, failing which the complainant is at liberty to recover the same under section 25/27 of the Consumer Protection Act, 19896. As discussed above, the case of the complainant is dismissed against O.P.No.3. No orders as to compensation and cost. The case of the complainant is disposed of accordingly.
7. The order is pronounced on this day of 22nd December 2017 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
