DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.341 of 2016
Date of institution: 07.06.2016 Date of decision : 23.02.2018
Arun Doble son of Ramesh Doble, resident of Quarter No.05/50/03, Ordinance Factory Ambhajhari, Nagpur, Maharashtra, presently residing at House No.1006, Phase 3B2, Mohali.
…….Complainant
Versus
1. M/s. Flipkart.com R/o No.447/B, Ist A Cross, 12th Main, 4th Block, Opposite BSNL Telephone Exchange, Koramangala, Bangalore 560034, Karnataka, India through its Managing Director/Chairman/Incharge.
2. WS Retail Services Pvt. Ltd., R/O Blocks B3 & B8, Acorn Logistics and Industrial Complex, Located at Dive Anjur Village, Opp Dive Petrol Pump, NH-3, Mumbai – Nashik Highway Bhiwandi, Bhiwandi, Maharastra, India -421302 through its Manager/Incharge.
3. Gati Limited, Plot No Survey No.86, Ph No 5-a, Mouza Suraburdi, Wadarma, Nagpur-440023, Maharashtra.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum:
Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Shri Kulwinder Singh, counsel for complainant. Shri Deep Singh, counsel for OP No.1.
OP No.2 ex-parte.
Shri Suneet Kumar, counsel for OP No.3.
Order by :- Shri G.K. Dhir, President.
Order
Complainant was aspiring to gift LED TV to his parents in Nagpur and as such he availed online services of OP No.1 for placing order on 12.04.2016 for purchasing Vu 102cm (40) Full HD LED TV. Invoice for price amount of Rs.21,989/- was issued in this respect. Payment was made by complainant through his credit card issued by ICICI Bank in Mohali on 12.04.2016 by way of EMI of Rs.1,963.29 N.P. OPs failed to deliver the above mentioned goods in time and as such complainant contacted OP No.1 on Customer Care Centre through call on 20.04.2016 for enquiring about status of delivery. Assurance was given for delivering the goods at earliest, but even after delay of 8 days, OPs failed to deliver the goods. Complainant called upon office of courier service provider of OP No.1 for collecting LED TV on 04.05.2016 i.e. after 23 days of placement of order after being called upon to do so. As complainant was in town, being on leave and as such he visited the courier office for collecting LED TV. Complainant was not permitted to open the goods before signing the receipt of goods. Complainant argued, but he was disclosed as if this is the practice to get the receipt signed, but in event of non signing he would not be permitted to take delivery. So complainant was denied the right to check safety of goods condition. Complainant was left with no option but to sign the receiving slip. When the packet of goods was opened at home, then complainant found bricks inside the box of LED TV, which were smartly affixed by means of tapes. All this was done with deceitful intention. Complainant failed to fulfill his promise of gifting the LED TV to his parents. It was OP No.1 who engaged courier service provider for delivery of the order. Above said act of OPs caused immense harassment and mental agony to complainant and also monetary loss to him. So by pleading deficiency in service and adoption of unfair trade practice by OPs, this complaint filed for seeking direction to OPs to refund the received amount of Rs.21,989/- with interest @ 18% . Compensation for mental agony and harassment of Rs.2.00 lakhs and litigation expenses of Rs.50,000/- more claimed.
2. In reply filed by OP No.1, each and every allegation of complaint denied by claiming that complainant has not approached the Forum with clean hands because he has suppressed material facts for abusing process of law. Written statement of OP No.1 is signed and verified by Mr. Satyajeet Bhattacharya, the authorised signatory of OP No.1. OP No.1 is duly incorporated under Companies Act, 1956. OP No.1 operates online through web portal known as flipkart.com and its function is to provide platform/technology/mechanism/services for facilitating the transactions connected with the sale and purchase of electronics and mobile goods. The buyers concerned searches the products through portal and thereafter purchases the same as per their desire. OP No.1 is not engaged in any manner in the sale or purchase of products, but it is just providing platform or the market place and as such it is just an intermediary as defined under Section 2 (1) (w) of the Information Technology Act, 2000. It is claimed that in view of Section 79 of Information Technology Act, 2000, OP No.1 not liable for any third party information, data or communication link made available by it. As OP No.1 is not involved in the transaction of sale and purchase and as such it cannot be fastened with contractual obligations arising out of the terms of the contract with respect to guarantee, warrantee or delivery of the goods. Allegations of complainant pertain to missing of the product in the box sold by OP No.2 and collected by OP No.3 and as such complainant has no locus standi to file the complaint against OP No.1 because he is not consumer of OP No.1. OP No.1 never took possession of the product in question at any time. Complaint alleged to be false, vexatious and frivolous. Allegation regarding receipt of bricks from the box inside of LED TV requires investigation through adduction of proper evidence and as such the same cannot be probed in these summary proceedings. Moreover the box was opened at Nagpur and as such cause of action accrued at Nagpur. No part of cause of action accrued at Mohali. This Forum alleged to be lacking territorial jurisdiction. OP No.1 has been unnecessarily arrayed as a party, despite the fact that complainant is well aware of the status of OP No.1. No consumer dispute exists because OP No.1 is neither manufacturer and nor seller of the product and nor he is to deliver the product. It is admitted that an order was placed by complainant, but it is claimed that OP No.2 was to sell the product i.e. TV. The purchase was made by Santosh Sahabraw Doble. Dispatch of goods was done by OP No.2 and delivery was made by OP No.3 and as such they only can disclose about the status of the delivered goods. As the order was placed on 12.04.2016, the invoice is dated 13.04.2016 and as such it is claimed that there is no delay in delivery of the goods.
3. OP No.2 is ex-parte in this case.
4. OP No.3 filed separate reply for claiming inter alia as if complaint not maintainable before this Forum for want of territorial jurisdiction; there is no privity of contract between the complainant and OP No.3 and as such complaint against OP No.3 not maintainable; complainant has no locus standi to file the complaint because the agreement to deliver the goods was executed between OP No.1 and delivery of LED TV was to be made at Mumbai to Santosh Sahabraw Doble. Besides it is claimed that in view of involvement of intricate questions of law and facts, matter cannot be decided by this Forum in the summary proceedings. Neither the booking was made at Mohali; nor goods were put in transit at Mohali and nor those were to be received at Mohali and as such on mere furnishing of alternative residence of complainant alone, this Forum has no territorial jurisdiction. No deficiency in service of OP No.3 pleaded anywhere in the complaint and nor OP No.3 ever contacted by complainant for redressal of grievance. Beneficiary Santosh Sahebraw Doble not impleaded as a party and complaint alleged to be merits dismissal on this ground also. Besides it is claimed that no genuine document placed on record. It is not denied that OP No.1 conducts e-commerce online retail business. LED was delivered by OP No.3 in time as soon as it got consignment for delivery. Moreover, it is claimed that despite making many calls Santosh Sahebraw Doble was not found at the given address and ultimately the consignment was taken by one Terendra Doble. Signatures of Terendra Doble are there on the receipt of delivery. Complainant has not placed on record any document to show that he was on leave for receipt of goods through courier delivery. Delivery was taken on behalf of Santosh Sahabraw Doble after opening the consignment and signing the consignment receipt after verifying the proper condition of consignment. No request for replacement was made to OP No.3 by complainant and all other averments of complaint denied one by one each.
5. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-8 and thereafter his counsel closed evidence. On the other hand, counsel for OP No.1 tendered in evidence affidavit Ex.OP-1/1 of Satyajeet Bhattacharya, authorised signatory along with copy of resolution Ex.OP-1. Counsel for OP No.3 tendered in evidence affidavit Ex.OP-3/1 of Mohit Raj, authorised signatory and document Ex.OP/2 and thereafter closed evidence.
6. Written arguments in this case submitted by counsel for the complainant alone and not by the OPs. Oral arguments heard and records gone through.
7. Bone of contention remains between the parties as to whether this Forum has jurisdiction or not. Counsel for complainant vehemently contends that payment was made from Mohali through credit card of complainant and as such part of cause of action accrued within the territorial jurisdiction of this Forum. That submission of counsel for complainant certainly has no force because after going through retail invoice bill Ex.C-2, it is made out that the bill was issued regarding sale of LED TV to Santosh Sahabraw Doble, Qr. No.05/50/03, Ordinance Factory Ambhajhari, Nagpur. Name of the seller is WS Retail Services Pvt. Ltd. with location at Mumbai. Even as per case of complainant, he placed order for purchase of LED TV through OP No.1 i.e. flipkart having office at Bangalore with desire of gifting said LED TV to his parents in Nagpur. Even if the amount through credit card may have been submitted by complainant from Mohali, but despite that the said offer of purchase was accepted at Mumbai by way of issue of retail invoice Ex.C-2 and the said LED TV was to be transported from Mumbai to Nagpur, where the box containing alleged LED TV was received and on opening of the box it was found as if the box contained bricks and as such it is obvious that virtually the contract of purchase was accepted at Mumbai with assurance of transportation of purchased article to Nagpur. As the bricks were found in the box at Nagpur and as such virtually loss to complainant or his parents detected at Nagpur. OP No.1 being intermediary provided platform for purchase of LED TV to complainant as customer and as such certainly OP No.1 cannot be fastened with liability of deficient services or of adoption of unfair trade practice. If at all by sending the bricks instead of the purchased LED TV loss suffered by complainant, then same was either due to fault of seller or courier who are OP No.2 and OP No.3. As on contact by complainant to OP No.1, he placed order with OP No.2, and after issue of invoice Ex.C-2, OP No.2 transmitted the said LED TV to complainant for destination place of Nagpur and as such if any unfair trade practice of not sending the purchased goods adopted, then same adopted by seller i.e. OP No.2 and not by courier even. Being so, certainly complaint against OP No.1 is not maintainable. Certainly unreasonable or unfair trade practice or irrational contract cannot be given effect to. As OP No.2 by sending bricks instead of LED TV adopted unreasonable and unfair as well as irrational approach and as such virtually OP No.2 allegedly adopted unfair trade practice or remained deficient in services.
8. In case titled as Spicejet Limited Vs. Ranju Aery, 2017 LawSuit (CO) 249, Hon’ble National Consumer Disputes Redressal Commission has held that part of cause of action to be deemed to have been arisen at the place, where online booking of travel tickets through internet done and the acceptance of contract was received by complainant. In view of this position, it is vehemently contended by counsel for complainant that as booking through internet of the purchased LED TV was done at Mohali and as such this Forum has jurisdiction because part of cause of action accrued within territorial jurisdiction of this Forum. That submission of counsel for complainant certainly has no force because in the above cited case it was not the booking of travel tickets alone through internet, but even conveyance of acceptance of contract to complainant was done at Chandigarh. The place where contract is entered or where acceptance of the same communicated gives rise to cause of action to the Court/Forum exercising the jurisdiction over that area. As per law laid down by Hon’ble National Consumer Disputes Redressal Commission in case DDA Vs. Parveen Kumar, II (2015) CPJ 36, in case an application form for allotment of plot/flat by DDA is filled up at Mansa, but the same submitted at Delhi and the communication qua acceptance or rejection thereof issued from Delhi, then cause of action to be taken as entirely having been arisen at Delhi and not at Mansa. Same is position in the case before us virtually because here goods were to be transported from Mumbai, order placed by complainant was accepted at Mumbai resulting in arrival of contract at Mumbai and damage to goods was found at Nagpur, station of destination and as such no part of cause of action accrued at Mohali just due to transmission of price amount through credit card.
9. Besides if the allegations of complaint as a whole taken into consideration, then this means fraud committed by OPs by handing over the box containing bricks instead of box containing LED TV for which order was placed by complainant. Detection of alleged fraud even took place at Nagpur. The box in question was not received by complainant, but the same was received by Terendra Doble, albeit same was addressed to purchaser Santosh Sahebraw Doble. Receipt of this box by Terendra Doble is established by receipt of consignment placed on record as Ex.OP-2. Perusal of delivery run sheet report Ex.OP-2 also establishes that consignment was meant for Santosh Sahebraw Doble and it was transported through OP No.3, but was received by Terendra Doble, who put his signatures. This consignment was received on 04.05.2017. Neither Santosh Sahebraw Doble arrayed as party and nor affidavit of purchaser Santosh Sahebraw Doble and nor of recipient Terendra Doble placed on record and as such virtually plea of fraud sought to be proved without producing due proof. A person who received the consignment box alone can disclose as to what was found in the consignment box received by him. There is no material produced on record that complainant after availing leave from Mohali was present in Nagpur at the time of delivery of consignment box in question. If complainant would have been present at Nagpur for receiving the box in question, then certainly he would have put signatures in token of receipt of delivered box. However, signatures of complainant are not there on Ex.OP-2, but those are of Terendra Doble and as such certainly submissions advanced by counsel for OP No.3 has force that virtually the complaint has been filed by suppressing material facts. Real facts qua condition of box, in which delivery of some bricks received, could have been brought forth either by purchaser Santosh Sahebraw Doble or by recipient Terendra Doble but neither they are impleaded as party and nor their affidavits produced on record and as such inference of receipt of box containing bricks alone cannot be drawn just on the basis of produced photographs of bricks. If really the bricks received in lieu of LED, then certainly fraud played with purchaser or the person who paid the price thereof. As and when allegations of fraud, theft or forgery leveled, then those can be adjudicated after receiving of elaborate evidence. As and when elaborate evidence required for deciding the complicated questions of forgery, fraud or theft, then Consumer Fora has no jurisdiction as per law laid down in P.N. Khanna Vs. Bank of India, II (2015) CPJ 54 (NC), Bright Transport Company Vs. Sangali Sahkari Bank Ltd., (II) 2012 CPJ 151 (NC), Oriental Insurance Company Ltd. Vs. Muni Mahesh Patel, VI (2006) SLT 436 (SC); Reliance Industries Ltd. Vs. United India Insurance Co. Ltd. I(1998) CPJ 13 (NC); M/s. Singla Swaroop Ispat Ltd. Vs. United Commercial Bank, III (1992) CPJ 50 (NC) and Ranju Devi Vs. Branch Manager State Bank of India 2015(4) CLT 13 (JHK). In view of this legal position, this Forum has no jurisdiction because of involvement of complicated questions of law and facts requiring decision on issue of commission of offence of fraud. Complainant, if advised, may approach the Civil Court of competent jurisdiction for that purpose.
10. Section 79 of Information Technology Act also provides that when a platform is provided by intermediary like OP No.1, for enabling the purchaser and seller to enter into contract through online transaction, then liability for deficiency in service or of adoption of unfair trade practice on the intermediary cannot be fastened. So in view of this also, OPs cannot be fastened with liability of alleged offence of cheating or of fraud. Had fraud been committed, then FIR or DDR would have been lodged or a complaint in the criminal court would have been filed, but nothing of such sort done and as such also it is dubious as to whether really fraud committed with complainant or purchaser of goods or recipient of goods.
11. As a sequel of above discussion, complaint dismissed for want of territorial jurisdiction of this Forum and also in view of involvement of complicated questions of law and facts, which can be got decided from Civil Court of competent jurisdiction only. No order as to costs. Certified copies of the order be supplied to the parties free of costs.
Since there is shortage of postal stamps in this Forum, therefore, the parties through their counsel are directed to receive free certified copy of the order by hand and it will be the responsibility of the learned counsel for the parties to inform them accordingly. This direction issued by following the principle laid down by Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in Consumer Complaint No.956 of 2017 titled as Partap Rai Sharma Vs. Greater Mohali Area Development Authority (GMADA), decided on 25.01.2018. File be indexed and consigned to record room.
Announced
February 23, 2018.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
