Date of Filing: 15/02/2017
Date of Order:05 -02-2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER
Tuesday, the 5th day of February, 2019
C.C.No.100 /2017
Between
Ravi Chandra.D, S/o.Eshwar.D
Age: 24 years, Occ: Pvt.Employee
R/o.H.No.234, Near HDFC bank, Main Road,
Parkal – 506164,Telangana, India
Mobile - 9052000266 ……Complainant
And
1.M/s. Shoppers Stop Ltd.,
Eureka Towers, 9th floor,
B-Wing, Mindspace, Link Road, Malad(W),
Mumbai – 400064
Ph: (022) 6129 0400 Fax: (022) 2844 5060
Rep. by its Managing Director
2. Shoppers Stop,
Plot No.1-11-251/1, Alladin Mansion,
Begumpet, Hyderabad – 500 034
Tel: (040)-44758800/02/38/39
Rep. by its Managing Director ….Opposite Parties
Counsel for the complainant : Party in person
Counsel for the Opposite Parties : Mr. P.Sri ram
O R D E R
(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint has been preferred under Section 12 of C.P. Act of 1986 seeking a direction to the opposite parties to refund an amount of Rs.1,53,091 paid by the complainant for the purchase of gold coin with interest thereon at 24% P.A form 17-12-2016 to the date of payment and for compensation of Rs.2,00,000/- for causing mental agony and inconvenience to the complainant and a further sum of Rs.20,000/- towards incidental expenses incurred by the complainant.
- The brief facts of the complaint are that on 17-12-2016 at about 02.03am complainant placed an online order from the website of the opposite parties for the purchase of Malabar Gold and Diamonds 999 purity 50Gms Rose gold coin MGRS999P50G with ID No.39420760 and said order was confirmed and registered by the opposite parties in their email sent on the same day. The complainant was informed by the opposite parties that order will be shipped within 7 working days and it will be delivered within 2 or 3 days after the shipment. On 22-12-2016 at 5.54.PM complainant received a message of dispatch from the opposite parties and the item was shipped from ARAMEX courier with tracking number E-com -157215108. On 26-12-2016 at 7.30 PM a person from E-com express courier service delivered the one packet with tracking number. On one side of the packet there was a letter ‘M’ with some unknown address printed and on the other side a paper was pasted with some address and courier information. The complainant has noticed that the information furnished to him by the opposite parties that the items was dispatched through ARAMEX courier service is incorrect but the order was sent from E.com Express an unknown courier service. On opening the packet the complainant noticed a small box with a letter as ‘M’ and the small box contained only the invoice papers of order placed . There was no gold coin which was ordered by the complainant. Having shocked he informed the same to customer support of the opposite parties over phone and complaint was registered and he was asked to share the images of the parcel in the email. The complainant opened the packet under video recording and shared with the customer support of the opposite parties.
The opposite party by not sending the product as ordered has done unfair trade practice. The opposite parties have acknowledged about the images of parcel and the Video recording of the opening shipment and sent a reply on 27-12-2016 at 8.59AM. On the same day the complainant also received call from the customer support guy Mr.Nashed asking the complainant to check whether they are any signs of tampering of packet. Then the complainant inspected the packet and noticed that it was tampered on one side in a clever manner without visible signs.. He reported the same to the opposite parties on 27-12-2016 at about 01.21PM by email along with the images of the tampering. Later he was informed by the opposite parties customer support that they are investigating with the shipping location hub and courier service by promise to get back. But the opposite parties did not fulfill the promises and kept on delaying the matter. The complainant vexed with the attitude of the opposite parties filed the complaint on social media for response but even the social media team of opposite parties did not respond and complaint continuous pending with the opposite parties for 45 days without response. The opposite parties indulged unfair trade practice and cheated the complainant purposefully and sent shipment without product. The complainant was deceived by believing the established firm and as a branded company. Non sending of product booked amounts to deficiency of service. Hence the complainant got issued a notice on 25-01-2017 asking the opposite parties to take necessary action or refund the cost of product for which he placed on line order. Having received the said notice opposite parties neither initiated steps nor responded and thereby caused a lot of tension and mental agony to the complainant. Hence the present complaint.
- Opposite parties in the common written version denied the material allegations in the complaint and further contended that the complaint is bad for non-joinder of necessary parties because M/s.E.com express courier through which product was sent to the complainant as a party to the present complaint. The consignment was dispatch through M/s E.Com express who had ultimately delivered the parcel to the complainant. Similarly the gold was procured and was packed at the office of M/s Malabar gold. The complainant had mischievously and deliberately did not impleaded both the parties as opposite parties with some hidden agenda. M/s. Malabar ultimately received orders placed by the complainant through the opposite parties. The said company on receipt of the order packed the consignment and was video graphed in a most scientific manner. Thereafter packed consignment was handed over to M/s. E.Com express on the same day and said courier company delivered the consignment to the complainant as per usual practice. Thus there is no role of the opposite party in respect of the parceling of the consignment and its delivery to the complainant. No prejudice would have been caused to the complainant if M/s. Malabar gold and M/s. E.Com express are added as parties to the complaint.
The consignment was booked on 22-12-2016 at 11.20A.M and handed over to the courier on the evening of same day. As per the information from the courier service consignment was delivered to the complainant on 26-12-2016 at the place where it was asked by the complainant. The original address given by the complainant is not the place where the consignment was asked to be delivered by him. The addresses of M/s. Malabar gold and E.Com express are legibly written on the consignment hence the complainant has full knowledge about the details of the both the companies. The allegations of the complainant that the packet contained a letter ‘M’ on one side with some unknown address printed is false. The complainant deliberately did not inform the description off the packet received by him. If there was any confusion the complainant ought to have refused to accept the consignment when it was offered to him. The complainant had taken a Video of opening of the consignment in dramatic manner. As per the video the complainant had removed the plastic bag in horizontal manner whereas the same was packed in a vertical manner. While examining the said video of opening the bag an expert from Malabar Gold opined that the complainant had committed serious fraud in manipulating the consignment. Since the complainant had committed a serious crime of the video recording be referred to crime branch or forensic lab for an expert opinion. Complainant while receiving the consignment refused to furnish his ID proof and had given only credit card number which was proved to be bogus and not germane. The version of the complainant that the packet was tampered on one side very cleverly without any visible signs is false. When the complainant himself is claiming to be an expert with HD Camera, how could he fail to check when he was video graphing the entire opening procedure. The complainant stated he had opened the packet on 26-12-2016 at 11.30 and on 27-12-2016 he came to know that the packet was tampered with one side. He did not explain why he accepted the tampered consignment. The complainant himself cleverly removed the gold coin from the packet and had carried out a drama by video graphing the same on 26/12/2016. M/s. E.Com express approached the local police with a complaint against the complainant but the complainant refused to co-operate with the police for investigation. The complainant having committed a fraud trying to get back the amount with interest. Hence he is not entitled for any of the claims made in the complaint and the complaint is liable to be dismissed.
In the enquiry stage the complainant has filed his evidence affidavit reiterating the substance of the complaint and got exhibited 22 documents. For opposite parties evidence affidavit of Mohammed Jaffer Panjwani stated to be authorized signatory is filed and the substance of the same is line with the defense version and got exhibited 8 documents. Both sides have filed written arguments and supplemented same with the oral submissions.
On a consideration of material available on the record the following points have emerged for consideration .
- Whether the opposite parties have caused deficiency of service and indulged unfair trade practice while dealing with the complainant online order placed by the purchase of Gold coin?
- Whether the complainant is entitled for the amount claimed in the complaint?
- To what relief?
Point No.1: The opposite parties in the written versions have admitted about the placing of online order through website by the complainant for purchase of 50Gms Gold coin. Similarly the complainant is not denying the delivery of sealed packet to him by a person representing to E-com express said to be a courier service. According to the opposite parties the online order placed by the complainant finally reached M/s Malabar gold who procured the gold coin and packed the gold coin which process said to have been Video graphed. Having pleaded in the written version that the video graph of the packing of the gold coin will be made available to this Forum has not file it and no attempt has been made to explain for not filing of it. On the other hand the complainant produced the photos and video graphs with regard to the process of opening the parcel delivered to him by M/s. E-com express courier service to whom M/s. Malabar gold stated to handed over for transport and delivery to the complainant. It is evident from the written version of the opposite parties itself that M/s. E.com express courier service company lodged a complaint with the concerned police against the complainant alleging that he committed serious fraud. It is further stated in written version that the complainant refused to cooperate with the police to enquire into the matter. Having said so the opposite parties have not filed either the copy of the complaint alleged to have been file with the police or copy of FIR registered on the strength of the said complaint. When a written complaint with a serious allegation of the fraud and mischief has been received by the police it is expected to register a crime for an offence of cognizable one. When a crime was registered for the offence of fraud the police concerned are expected to proceed with investigation whether the person against whom the crime was alleged will cooperate or not. Because the person against him whom crime was alleged refused to cooperate with the police they will not stop the enquiry. Failure to file any document relating to lodging a complaint with the police and further progress in the complaint itself shows the opposite parties had no material in their hands to substantiate this version. When the opposite parties specifically pleads that M/s. Malabar gold on receipt of the orders placed by the complainant packed the gold coin and the same was video graphed in a scientific manner what prevented it in filing before this forum is not explained. On the other hand the complainant has filed photos and taken for the process of opening of the said consignment but also filed a CD relating to Video graph. It is alleged by the opposite parties that complainant in a clever manner removed the gold coin from one side and Video graphed the process in a different manner and if the CD is sent for expert inspection the truth will come out. Having said so the opposite parties have not chosen to come up with an application for sending CD filed by the complainant to a forensic lab for examination and report. It is pertinent to bear in mind that the complainant shared video for process of opening the consignment with the opposite parties on the very same day of it. If the opposite parties have suspected the process of Video nothing prevented them to file the same along with the complaint to the police with a request to examine the same with the help of forensic lab report. But no attempt was made in this regard. All these facts would goes to show that the consignment was handover to M/s.E.com express without a gold coin in it to deliver the same to the complainant and thereby wash of the hands. The complainant successfully proved with the documents and CD that the consignment sent to him does not contain the gold coin for which he placed online order through website of the opposite parties and it amounts to not only unfair trade practice but also deficiency of service.
The opposite parties contending that the complaint is bad for non-joinder of M/s. Malabar Gold and M/s.E.Com courier express as parties to the complaint. There was no privity of contract between the complainant and Malabar gold or with that of M/s. E.com express as he has not placed any order of with Malabar gold for the 50GMs gold coin. Similarly he neither asked M/s.E.com to collect the consignment for the supply of the product an authorized supplier of the product to handover the consignment to said courier. As such neither M/s. Malabar gold nor E.com express are proper and necessary party to adjudicate this complaint. Hence the point is answered infavour of the complainant.
Point No.2: Payment of the amount by the complainant online towards cost of gold coin for which he placed online order is not denied. Hence the complainant is entitled to refund of the amount with interest at 18% P.a. For more than two months before lodging of the present complaint, the complainant suffered mental agony as the opposite parties who mischievously have not send the gold coin for which online order was placed thorough their website. For these reason the opposite parties are liable to pay a compensation of Rs.50,000/- . Accordingly the point is answered in favour of the complainant.
Point No.3: In the result, the complaint is allowed in part directing the opposite parties
- To refund the amount of Rs.1,53,091/- with interest at 18% P.A from 17/12/2016 to the date of payment.
- The opposite parties are further directed to pay a sum of Rs.50,000/- as compensation to the complainant
- The opposite parties are further directed to pay a sum of Rs.10,000/- towards costs of this complaint and other incidental charges incurred by the complainant.
Time for compliance : 30 days from the date of service of this order
Dictated to steno transcribed and typed by her pronounced by us on this the 5th day of February , 2019
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
PW1 DW1
Sri D.Ravi Chandra Mohamed Jaffer Panjwani
Exs. filed on behalf of the Complainant:
Ex.A1is order invoice email dated 17/12/2016 at 2.03A.M
Ex.A2 is dispatch confirmation message sent by opposite party dated 22/12/2016
Ex.A3 is shipping policy of opposite party shown on its website while placing the order
Ex.A4 & A5 are images of the external packet received
Ex.A6 image of the paper pasted on one side of packet
Ex.A7 &Ex.A8 are images of the shoppers stop packet inside
Ex.A9 & Ex.A10 are images of the small box
Ex.A11&Ex.A12 are images of the retail invoices received
Ex.A13 is video CD of opening of packet received
Ex.A14 is email sent to shopper stop along with the images of the packet received
Ex.A15 is email from the opposite party confirming the complaint registered
Ex.A16 & Ex.A17 are images of the packet showing signs of tampering
Ex.A18 is email sent to opposite party along with the images o f the packet showing signs of tampering dated 27/12/2016
Ex.A19 is return policy of the opposite party
Ex.A20 is terms and conditions of the opposite party displayed on its website
Ex.A21 is notice sent to opposite party dated 25/01/2017
Ex.A22 is postal receipts of the notice served
Exs. filed on behalf of the Opposite parties
Ex.B1 is copy of letter with regard to Malabar gold list of documents list dt.06-11-2017
Ex.B2 is print copy purchase order received from opposite party dt.19-12-2016
Ex.B3 is Malabar invoice copy of the product shipped dt.22-12-2016
Ex.B4 is original invoice copy from E.com express where the dispatch waybill is charged to us dt.31-12-2016
Ex.B5 is also invoice
Ex.B6 photocopy of the proof of delivery 26-12-2016
Ex.B7 CD
Ex.B8 original copy of E.com express ( To whomsoever it may concern) dt.7-11-2017
MEMBER PRESIDENT
