Haryana

Bhiwani

CC/6/2016

Hari kishan Singh - Complainant(s)

Versus

Mulashop - Opp.Party(s)

Hitesh Khurana

20 Feb 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BHIWANI.

 

     Complaint Case No. : 06 of 2016

                                                                 Date of Institution    : 08.01.2016

                                                                 Date of Decision              : 20.02.2024

 

Harkiran Singh son of Shri Sudarshan Singh R/o  village Baliali, P.O. Baliali,Tehsil Bawani Khera, District Bhiwani.

                 …Complainant.

  Versus

 

1.Mulyashop.com. 1A, New Bushan Apt. Wagle East, Thane, District Maharashtra-400604 (through its Authorized Signatory).

 

2.The Manager, ICICI Bank, Zoo’s road, Meham Gate, Bhiwani Tehsil and District Bhiwani.

                                                                                …Opposite Parties.

    COMPLAINT U/S 12 OF CONSUMER PROECTION ACT, 1986.

BEFORE:     Mrs. Saroj Bala Bohra, Presiding Member.

Ms. Shashi Kiran Panwar, Member.

Present:-      Sh. Hitesh Khurana, Advocate for complainant.

         Sh. Hemant Sharma, Adv. for OP No.2.

          OP No.1 given up.

 

Saroj Bala  Bohra, Presiding Member.

 

1.                 Brief facts of the present complaint are that complainant placed an order online on 28.12.2014 for purchase of Panasonic Mobile Phone Model No.P81 for a sum of Rs.9506/- and payment was made through online banking under bank account with OP No.2. The order was accepted by the OP No.1 for delivery of the same within 3-4 days. But the mobile phone was not delivered and OP No.1 assured refund of the amount.  Complainant alleged that on 31.01.2015, Rs.9506/- was refunded in the bank account of complainant bearing no.072901503237 but the OPs in collusion with each other withdrawn the same on 05.02.2015. However, complainant requested the OPs to deliver him the mobile phone but of no use. Hence, the present complaint has been preferred by complainant to issue directions to Ops to deliver the said mobile phone or to return its price alongwith interest @ 24% per annum from the due date till realization. Also to pay Rs.50,000/- on account of mental and physical harassment besides Rs.11,000/- as litigation expenses. Any other relief to which this Commission deems fit has also been sought.

2.                 Despite repeated notices, OP No.1 could not be served. However, learned counsel for complainant vide his statement dated 09.04.2019 given up the OP No.1 being unnecessary.

3.                 OP No.2 appeared through counsel and filed reply raising preliminary objections qua estoppel, maintainability, locus standi, cause of action, suppression of material facts and bad for mis-joinder of the parties. On merits, placing of order for the alleged mobile phone, however, payment through the answering OP on 28.12.2014 has been accepted. It is denied that the answering OP withdrawn the said amount from the account of complainant illegally and unlawfully and without the consent of complainant. It is added that online transactions are made wherein customer visits the merchant website and executes the transactions.  This requires his Card Verification Value (CVV), Expiry date on his Debit Card and his personal six digit 3D Secure PIN number which are necessary for making online payments. As such, complainant should coordinate with the merchant for delivery of the product. In the end, prayer for dismissal of the complaint has been made with costs.

4.                 In evidence of complainant, his affidavit Ex. CW1/A alongwith documents Annexure C-1 to Annexure C-5 were tendered and closed the evidence.

5.                 On the other side, learned counsel for O PNO.2 tendered in evidence documents Annexure R-1 & Annexure R-2 and then closed the evidence.

6.                 We have heard learned counsel for the contesting parties and perused the record minutely. Written arguments on behalf of OP No.2 filed.

7.                 Complainant in order to prove his case has placed on record document Annexure C-1 whereby OP No.1 accepted the order placed by complainant on 28.12.2014.  As per bank account statement of complainant (Annexure C-2), the amount of Rs.9506/- was withdrawn from the account of complainant on 05.02.2015. The OP No.2 failed to clear the fact as to why they have withdrawn the amount from the bank account of complainant.  Further, they have not produced any cogent and convincing evidence on the file which could show that they are not liable for this act of negligence. In this way, we are of considered opinion that as per admission of complainant, the amount was refunded by OP No.1 and then the amount was misappropriated by the OP No.2 bank, thus it is liable to refund the amount to the complainant. Further, by such act of OP No.2, complainant has constrained to file present complaint before this Commission which filed on 08.01.2016, definitely caused him monetary loss as well as mental pains and physical harassment for such a long period of eight years.  Hence, the present complaint stands allowed and OP No.2 bank is directed to comply with the following directions within 40 days from the date of passing of this order:-

(i)       To refund Rs.9506/- (Rs.Nine thousand five hundred six) to the complainant alongwith simple interest @ 9% per annum from the date of filing of this complaint till actual realization.

(ii)      To pay a sum of Rs.5,000/- (Five thousand) to the complainant as compensation for harassment.

(iii)     Also to pay a sum of Rs.55,00/- (Rs.Five thousand five hundred) as litigation expenses.

                                                           

                    In case of default, the OP No.2 shall liable to pay simple interest @ 12% per annum on all the aforesaid awarded amounts for the period of default. If this order is not complied with, then the complainant shall be entitled to the execution petition under section 71 of Consumer Protection Act, 2019 and in that eventuality, the opposite party may also be liable for prosecution under Section 72 of the said Act which envisages punishment of imprisonment, which may extend to three years or fine upto rupees one lac or with both.  Certified copies of this order be sent to parties concerned, free of costs, as per rules. File be consigned to the record room, after due compliance.    

Announced.

Dated:20.02.2024