IN THE CONSUMER DISPUTES REDRESSAL  FORUM, KOLLAM

Dated this the  1^st   Day of  April  2019

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

                   Smt.S.Sandhya Rani, BSc,LL.B, Member

                                                                                          CC No.200/16

Hari kumar                                       :         Complainant

S/o Kuttan Achary

Charuvilaputhen Veedu

Vilangara,Chepra P.O

Kottarakkara, Kollam

[By Adv.Bijeesh.S.Pillai]

V/s

1. M/s Naaptol Online Shopping Pvt.Ltd.

         S.No.85,Gundlapochampally Village

        Medchal Mandal,Ranga Reddy District

        Telangana-500014.

2. M/s Alpha Radio

         S.No.85

        Gundlapochampally Village

        Medchal Mandal,Ranga Reddy District

       Telangana-500014.

      [By Adv.M.A.Rasheed]

FAIR ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

          This is a case based   on a consumer complaint filed under Section 12 of the Consumer Protection Act  1986.  The averments in the complaint in short are as follows.

          The complainant purchased a mobile phone Brand of VOX four sim touch screen Duel Camera Mobile cum cam coder DV-20 item No.10944 for Rs.2499/-  from online shop of 1^st opposite party by placing order No.21322878 dated 30.03.2016.  The above product was received by post through VPP and complainant paid an amount of Rs.2898/- including fright charges at the time of delivery.  The product was delivered at Chepara in Kollam  by VPP vide invoice  No.839981/AP/0573605/2015-16 dated 30.03.2016.  As per the invoice

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it is revealed that the product is sold by the 2^nd opposite party.  But the item that the complainant was received is not working at the very first power on.  The matter was informed to the customer care centre of 1^st opposite party on the very same day of delivery.  As per the telephonic directions from 1^st opposite party’s customer care service centre the complainant returned the gadget to the address  given by   1^st opposite party ie, The Manager, Naaptol Ware House, Delhi-110096.  The item was delivered to the above address on 18.04.2016.  Thereafter the customer personals of the 1^st opposite party contacted  the complainant and answered that they have received the mobile phone and will   provide a fresh piece  to the  complainant within 2-3 days.  So far the 1^st opposite party has delivered the fresh mobile phone or repaired one or its value to the complainant.  The complainant  on several times contacted  the  customer care centre of 1^st opposite party by sending several E-mails.  The opposite  parties never positively responded  the complainant’s repeated requests of refund of the payments or delivery of fresh product.  This amounts to cheating and bad customer service policy and unfair trade practice.  As a result of this indefinite delay occurred on the part of opposite parties, the complainant was forced to buy a new mobile phone from other shop.  Moreover the complainant spent an amount of Rs.103/- for retuning the product to the address given by the 1^st opposite party.  The complainant sent  registered notice to the opposite partied on 03.06.2016  claiming  refund of Rs.2898/- with  interest at 12% p.a from 30.03.2016 and an amount of Rs.103/- as postal charges for the return of the faulty mobile within 15 days from the date of receipt of notice.  But even after receiving the said notices  the opposite parties were neither send any reply nor allowed the claims of the complainant.  The above acts of the opposite partied will amounts to cheating and bad customer service practice.  The   deficiency  in  service   caused   great   mental   agony  and financial loss to  the complainant for  which  the  opposite  parties  jointly and severally held liable to

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provide compensation.  The above act of the opposite parties amounts to deficiency in service and unfair trade practice.  Hence the complainant prays to direct the opposite parties to disburse  an amount of Rs.3001/- along with interest @ 12% p.a  and compensation to the tune of Rs.50,000/- for the mental agony and  physical harassment and also the costs of  the litigation.

          The  opposite parties 1&2 resisted the complaint by filing separate written version.  The contentions raised by the 1^st opposite party in its written version are as follows.

          The complaint is not maintainable either in law or on facts.  However it is admitted that the 1^st opposite party  Naaptol is a company registered under Companies Act is working as a marketing platform and a link between buyer  and seller.  The   order   placed   by   the   buyers will   be   communicated to the concerned vendors/sellers by the 1^st opposite party for selling  and delivery purpose.  Then the product will be sent/delivered to the respective buyer/customer through the post department or courier services at the given address.  On each advertisement it is clearly stated that the product and warranties are by 3^rd party vendors/sellers, so that each and every buyer/customer  will be responsible for warranty and guarantee and it also includes sale and after sale services.  The 1^st opposite party would further admit that the complainant had bought a product named “VOX 4 Sim Touch Screen Dual Camera Mobile Cum Camcorder-DV20” worth Rs.2499/- including delivery charges from the seller/vendor named Alpha Radio, the said product was delivered to the complainant on 11^th April 2016.  Opposite party No.1 had received a complaint from the complainant for the very first time on 11^th April 2016 wherein he had stated that the said product having screen issued on which customer care team had given replacement remedy to the complainant through concerned seller/vendor and in order to avail the said remedy complainant had to send back the said product for replacement purpose. On 15^th April, 2016 the

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said product was despatched by the complainant and the same was received by the vendor/seller on 22^nd April 2016.  On 18^th May 2016 the said product was Returned to Origin(RTO) i.e to the seller/vendor because the same couldn’t be delivered by the courier authority’s end.  Subsequently, inorder to deliver the replaced product to the complainant several attempts were made by the opposite party No.1 but each time despatch couldn’t be delivered successfully to the complainant due to courier authority’s end. Therefore, finally opposite party No.1 after taking the prior approval from the concerned seller/vendor had decided to give the refund to the complainant  by way of Cash Voucher Coupon Code which was generated and forwarded on 22^nd  June 2016 to   the    complainant    on    his   registered    mobile  number.  Further, without intimating anything to the opposite party No.1 and even  solving the issues of complainant yet, complainant had filed this present complaint before this forum.

It is further contented that there is no negligence, deficiency in service on the part of the 1^st opposite party.  The present  case has been filed with a view to injure the name, fame, interest and reputation of the 1^st opposite party and the complainant further prays to dismiss the complaint with costs.  If at all the complainant is having any grievance  regarding any product which should be redressed through the concerned vendor/seller.  There is no cause of action against the 1^st opposite party.  The complainant has not suffered any loss, harassment or mental agony due to any act of the 1^st opposite party.  the 1^st opposite party is not liable to  pay any damage, compensation interest or loss as claimed in the complaint.  Naaptol company is not an online shop and they are not involved in any sort of  buying, selling or manufacturing activities.  The allegation that the complainant has ordered the said product from online shop of 1^st opposite party is incorrect.

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The 2^nd opposite party  also resisted the case of the complainant by raising the very same contention of the 1^st opposite party and in addition to those contentions the 2^nd opposite party has raised the following contentions.  The opposite party  No.2 acted as  seller/vendor of various electronic products including the product which is the subject matter of the present complaint.  The nature of business of the opposite party No. 2 is to sell and despatch the ordered product through postal department or courier service at the address of the customers as per their orders.  The orders  for the products are booked either offline through telephone call or online portal through M/s Naaptol Online Shopping Pvt.Ltd. and the customer has to pay cash on delivery or online payment by using his credit/debit card etc.  The opposite party No.2 is not involved in any kind of manufacturing or production activities.  Further more as this business is based on online   shopping model, opposite party No.2 is not having any shop for the products of various manufacturers.  The complaint is not maintainable as no case of  deficiency in services is alleged against the 2^nd opposite party.  However it is admitted that the complainant has placed an order  of “VOX 4 SIM Touch Screen Dual Camera Mobile Cum Camcorder-DV20”  as claimed in the complaint  and cost of the product was Rs.2398/- only including delivery charges which was paid to the concerned vendor/seller by way of cash on delivery.  The product has one year seller warrantee.  Alpha Radios is not involved in any sort of manufacturing activities.  The 1^st  opposite party customer care team provides three sorts of remedies namely repair, replacement, refund and these remedies are to be given only after verifying the issues  faced by the customers.  The allegations of the complainant is only about the screen.  Inorder to avail the remedy of replacement the complainant had to send back the said product  by Reverse Pickup Procedure.  On 15.04.16 the said product was couriered by the complainant which was received by the 2^nd opposite party Alpha Radios on 22.04.2016.    On the next day the said  product

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was replaced and the same was  couriered  back to the complainant.  But it could not be delivered  to the complainant from the courier service till 18.05.16.  Hence returned the same to 2^nd opposite party.  The replacement of the product could not be possible  to the  complainant due to the fault of the courier service authority.  Therefore the 2^nd opposite party on 22.06.16 informed opposite party No.1 Naaptol Company to provide refund remedy to the complainant by issuing a voucher coupon code worth Rs.2898/- in favour of complainant which can be used to purchase any product through Naaptol on online shop portal.  The 2^nd opposite party had refunded the said amount through customer care team of  opposite party No.1 by was Cash voucher coupon code  which was forwarded on the registered mobile number of the complainant.  The opposite party No.2 had not received any notice from the complainant and if any such notice has received opposite party No.2 could have given  timely reply.  As opposite party No.2 have already refunded the amount of the order to the complainant no further claim of the complainant is entertainable.  The complainant is not entitled to get any relief sought for in the complaint.  As there is no deficiency in service or unfair trade practice on the part  of the 2^nd opposite party.  The 2^nd opposite party further pray to dismiss the complaint with its costs. 

In view of the above pleading the points that arise for consideration are:-

1.  Whether there is deficiency in service or unfair trade practice on the side of the opposite parties?
2. Whether the complainant is entitled to get the reliefs sought for?
3. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.P1 to P4 documents.  None of the opposite parties has adduced any evidence either oral or documentary.  Both parties have filed notes of arguments also.  Heard both  sides.

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Point No.1&2

          The specific case of the complainant is that the opposite parties have sold defective mobile phone to the complainant through VPP and the complainant had received the same by paying Rs.2898/- including freight charges.  On verification it is found that the mobile phone received by the complainant was not working  at the very first power on.  On the same day the matter was informed to the customer care  number of the opposite parties and as per the telephonic directions from customer care centre the complainant returned the gadget  to the address given to the 1^st opposite party  The Manager, Naaptol Ware House, Delhi-110096 and the item  was delivered to the  above address on 18.04.16.  Thereafter  the  customer  care  personals  contacted  the complainant and  the defective mobile phone was received and they provided a fresh mobile phone within 2-3 days.  But  so  far the complainant not received any defect free mobile phone or its value.  Inspite of repeated demand  the opposite parties have not refunded the product till date.  Hence according to the complainant there is deficiency in service and unfair trade practice on the  part of the complainant. 

          Oral evidence of PW1 coupled with Ext.P1 online  copy of invoice would establish that the 2^nd opposite party Alpha Radios has sold ‘VOX 4 Sim Touch Screen  Dual Camera Mobile cum Camcorder –DV 20’  for Rs.2499/- and the freight charges was Rs.399/-.  The total amount paid by the complainant to the 2^nd opposite party was Rs.2898/- as per Ext.A1 invoice.    The complainant has further sworn  in paragraph 2 that the mobile phone that was received by the complainant  was not  in a working condition at the very  first power on and the complainant informed the matter to the customer care centre of the 1^st opposite party on the very same day ie, on 11.04.16 and as per telephonic direction of the 1^st opposite parties customer care centre.  The gadget  to the address given to the 1^st opposite party  The Manager, Naaptol Ware House, Delhi-110096.  Ext.P2 postal receipt received would   substantiate  the above claim of the complainant. 

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Infact the 1^st and 2^nd opposite party have no dispute regarding  the sale or the defective  nature of the gadget and receiving back the defective product.  It is clear from the available materials that the defective gadget was received by the 1^st opposite party ie, on 18.04.16 and after verification they contacted the complainant   and   informed  that they have received the  defective mobile phone and will  provide a fresh mobile phone within 2-3 days.  It is also an admitted fact that  the 1^st opposite party has not given any fresh mobile phone or its value to the complainant.

The specific contention of the opposite parties in this regard is that on 23.04.16 the 2^nd opposite party has sent a new mobile phone to the complainant and the same was not delivered to  him due to the defective courier service.    PW1 denied the above suggestion  made by the learned counsel for the opposite parties  and  has also deposed  that there is no difficulty  to contact in his residential address or phone number as he has using very same residence and phone number for a long time. However as    PW1 has denied  having received  new/repaired mobile phone or its value, the  opposite party No.1&2 has to adduced  positive evidence to substantiate that it was due to the defective courier service.  There is absolutely no evidence to prove that opposite party No.1&2 have sent a defect free mobile phone or paid back its value by cash or gift coupon as contented by them.  It is also brought out in evidence that the complainant has caused to sent Ext.P3 registered lawyer notice  claiming refund of Rs.2898/-  with interest  @ 12% p.a and postal charges  and return of the defective  mobile phone within 15 days  from the  date of receipt of the notice.It is clear from the available materials that inspite of receipt of  Ext.P3 lawyer notice opposite party No.1&2  have not sent any reply  nor  repaid the price or send back  any  defect free  mobile phone to the complainant.  In the circumstance it is crystal clear that there is deficiency in service and unfair trade practice on the part of  opposite party No.1&2. 

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It is also brought out in evidence that the above act of the opposite parties have caused much mental agony  to the complainant apart from financial loss.  In the circumstance the complainant is entitled to get the amount spent by him in the deal and compensation for the mental  agony and harassment  suffered by him.  The points answered accordingly.

Point No.3

          In the result the complaint stands allowed  directing the  opposite party No.1&2 to pay Rs.3001/- to the  complainant along with interest @ 12% p.a from 30.03.2016.  They are also directed to pay Rs.5000/- as compensation and Rs.2000/- as costs of the proceedings to the complainant. 

Opposite party No.1&2 are  directed to comply with the above directions within 30 days from  the date of the complaint till realisation failing which  the complainant is at liberty to recover Rs.8001/- with interest @ 12% p.a  from the date of realisation with costs Rs.2000/- from the opposite party No.1&2  jointly and severally and from their assets.

Dictated to the  Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the   1^st    day of  April  2019.

E.M.Muhammed Ibrahim:Sd/-

            S.Sandhya Rani:Sd/-

           Forwarded/by Order

           SENIOR SUPERINTENDENT

INDEX

Witnesses Examined for the Complainant:-

PW1                     :         Harikumar.C.K

Documents marked for the  complainant

Ext.P1                  :         Invoice

Ext.P2                  :         Postal receipt

Ext.P3                  :         Copy of  Advocate notice

Ext.P4                  :         Postal receipts(2 No.s)

E.M.Muhammed Ibrahim:Sd/-

                                                                                     S.Sandhya Rani:Sd/-

                                                                                    Forwarded/by Order

                                                                                    SENIOR SUPERINTENDENT