DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the  15^th   day of December 2017

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P. Member                                  Date of filing:  28/01/2015

               : Sri.V.P.Anantha Narayanan, Member

(C.C.No.89/2016)

Vishnu

S/o Krishnankutty,

Pangode House,

Kannadi,

Palakkad 678 701.                                                                   -           Complainant

(Adv.Girish.K.Nochulli)

 V/s

1.  Managing Director,

     M/s Bharati Ertail, Get the best,

     Reg.Office, L-341, 1^st Floor, Street No.1,

     Mahipalpur, New Delhi – 110 037

2.  Managing Director,

     Shop Clues Co.Ltd. Regd.Office,

     Building No.112, Sector 44, Gurgaon,

     Haryana, India,

     112 001.

(Adv.Manoj Ambat)

3.  Branch Manager,

     Express Bees Courier Palakkad Branch,

     Regd.Office, Jaya Nagar, Chandra Nagar,

    Marutharode Village, Near Suzuki Show Room,

     678 013, Palakkad.                                                                         -           Opposite parties

O R D E R

By Smt.Suma.K.P. Member,

Complainant purchased 2 numbers of Nokia -1100 mobiles from the 1^st and 2^nd opposite party, through online, as per order No.92856009 and 92856530 dated.08.06.2016, Tin No. of Retail Invoice -07656911898 which was delivered to the complainant on 13.06.2016, in the above address of the complainant, by 3^rd opposite party. The value of the above said mobile phones at the rate of Rs.927/- for each mobile phone, total Rs.1,854/- was paid to the 3^rd opposite party, at the time of delivery by the complainant.  After receiving the mobile phone, the complainant, charged the phone, and used sim card and tried to make calls, but there was no signal in the both of the mobile phones.  Complainant, used different types of sim cards like BSNL, Idea, Airtel, Aircel, but the phone was not working, and the complainant could not make calls.  As per the information received to the complainant, that the Nokia -1100 is old version phones, collected by the opposite parties and released with new panel, that is the reason for not working the phone.  The complainant several times contacted the opposite parties over telephone, to return the phone and get back the money, but the opposite parties are not ready to take back the phone and pay the money paid by the complainant.  The information now received to the complainant was that the opposite parties had cheated several other persons.  The complainant alleges that the sale of mobile phone through online, without quality products amounts to deficiency of service and unfair trade practice.  The opposite party is liable to compensate the complainant for the above act with interest and cost.  The complainant submits that he had spend an amount of Rs.5,000/- for the above issue so as to contact the opposite parties directly and over phone.  He further submits that he is entitled to get the cost of the mobile phone along with compensation of Rs.5,000/- for the mental agony suffered and also Rs.5,000/- towards the cost of this proceedings along with interest from the date of complaint till realization. 

            Complaint was admitted and notice was issued to the opposite parties for appearance.  Notice to opposite party 1 was sent in correct address but there was no reply, 2^nd opposite party entered appearance and filed their version.  3^rd opposite party failed to appear before the Forum inspite of accepting notice.  Hence he was called absent and set ex-parte.

2^nd opposite party filed version stating the following contentions.  In the present case, it was the seller/merchant who provided/sold the impugned product to the complainant and there for any liability up on the product shall be attributable to the 1^st opposite party.  The 2^nd opposite party merely acts as an intermediary and this exempt them from liability as per section 79 of Information Technology Act, 2000.  The 2^nd opposite party is not the direct seller of the alleged phones.  They are neither the manufacturer nor any service provider to the complainant.  Hence the complaint against 2^nd opposite party is not maintainable before the Forum.  The 2^nd opposite party only provides an online platform where different traders/vendors can showcase their products for consumers to purchase.  They have no role what so ever in the manufacturing of such products.  So any liability if found will lie with respect to its seller, merchant or its vendor alone.  As far as the 2^nd opposite party is concerned, the complainant herein is not a consumer since no consideration was made by the complainant to the 2^nd opposite party towards the usage of website.  The 2^nd opposite party in no manner controls the transaction between the buyer and the seller.  Hence the complaint against 2^nd opposite party may be dismissed. 

Complainant filed chief affidavit, 2^nd opposite party also filed chief affidavit.  Complainant filed application as IA-19/2017 seeking permission to cross examine 2^nd opposite party.  IA was allowed, but 2^nd opposite party was not available for cross examination.  Hence complainant was directed to file questionnaire.  Complainant filed questionnaire and 2^nd opposite party filed answers to the above interrogatories. Exts.A1 and A2 were marked from the side of the complainant.  The mobile phones was produced and marked as MO 1 & MO 2.  Evidence was closed and the matter was heard.  Both parties filed their respective notes of arguments. 

The following issues that arises for consideration are.

1. Whether there is any deficiency of service from the part of opposite parties ?
2. If so what are the relief and cost?

Issues No.1 & 2

We have perused the documents as well as affidavits filed before the Forum.  Since the 1^st opposite party remained absent and there is no contra evidence to disprove the case of the complainant the above complaint is allowed.  We direct the 1^st opposite parties to pay an amount of Rs.1854/- (Rupees one thousand eight hundred and fifty four only) to the complainant being the price of mobile phone along with Rs.2,000/- (Rupees two thousand only) for the mental agony suffered by the complainant and also to pay Rs.1,000/- (Rupees one thousand only) towards the cost of the above proceedings.  The complaint is allowed accordingly. 

Order shall be complied within a period of one month from the date of receipt of order, failing which complainant is eligible for 9% interest per annum for the whole amount from the date of order, till realization.    

Pronounced in the open court on this the 15^th  day of December 2017.

                        Sd/-

                  Shiny.P.R.

                   President 

                       Sd/-      

                   Suma.K.P.

                    Member

                       Sd/-

    V.P.Anantha Narayanan

                    Member

Exhibits marked on the side of complainant

Ext.A1 -  Photo copy of online receipts issued by opposite parties dated.07.06.2016

Ext.A2 -  Photo copy of online retail invoice Tin No. 07656911898 issued by 1^st

               opposite party to the complainant

MO1 series      -  Nokia Mobile Phone & charger

MO2 series      -  Nokia Mobile Phone & charger

Exhibits marked on the side of Opposite parties

Nil

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite party

Nil

Cost   

            Rs.1,000/-