DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.476 of 2016
Date of institution: 11.08.2016 Date of decision : 15.06.2018
Smt. Bindu wife of Shri V.K. Arora, aged 60 years resident of 379, Sukhna Enclave, C. Block, Kaimbwala Road, Kansal, District SAS Nagar, Mohali.
…….Complainant
Versus
Naptol Service Warehouse, Naptol online Shopping Pvt. Ltd. C/o 13 PL Solution Old No.-B98, New No.B1331, New Ashok Nagar, Near Pandey Medicos, New Delhi – 110096 Phone No.09223531000.
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member.
Present: Shri S.S. Bawa, counsel for complainant.
Shri Vipin Kaushal, counsel for the OP.
Order by :- Shri G.K. Dhir, President.
Order
Complainant by trusting the TV commercial aired on OP shopping channel, saw the repeated commercial advertisements that one can easily get rid of all kinds of pests in the household through installation of small electric machine. As per that advertisement when the said electric machine switched in the electric socket, then it will produce ultrasonic rays resulting in keeping away the pests from home. As per that advertisement, the provided literature mentions as if pest problems in the house will be eradicated within 3-4 weeks. That advertisement was showing as if the pests like lizards, rats, mouses etc. leaving the place, where product was switched on. Complainant being impressed with the above said advertisement constantly shown, called on mobile No.0922353100 (as given in the commercial advertisement) and ordered for the product. That product was delivered to complainant on 22.03.2016 after placement of order dated 20.03.2016. It is claimed that fraudulent products were sold to gullible public by showing wrong and false advertisements for exploiting them. False description of the product, above referred was shown through TV advertisements in this case also. After receipt of delivery of the product, complainant was shocked to see that one electric machine out of two was not working and was defective. This machine was not in workable condition and even light in the gadget was not blinking. After finding this defect on 23.03.2016, complainant lodged complaint and thereafter on 31.03.2016, the product was collected from the house of complainant, but re-delivered again on 09.04.2016. This re-delivered product again stopped working after working for few hours only. Again complaints were lodged by complainant on 10.04.2016, 12.04.2016, 16.04.2016, 22.04.2016 and 06.05.2016. Each time executive of the OP disclosed that they will contact the complainant within 72 hours, but such contact was never made. Complainant an aged lady of 60 years was kept on waiting. Rs.2,000/- were charged from the complainant through bill provided to her. Lastly on 31.05.2016 request for refund of the amount was made to OP, but Manager of OP Company refused to refund the amount. By claiming that complainant had been cheated due to false assurance for the product, this complaint filed for claiming refund of amount of Rs.2,000/- alongwith compensation for mental harassment and agony of Rs.20,000/-.
2. In reply filed by only impleaded OP, it is claimed that complaint being misconceived is not maintainable. M/s. Naaptol Company is alleged to be a registered entity under provisions of The Companies Act, 1956. OP Company provides best services to the sellers/vendors and enables them to sell their products through broadcasting medium of company. Various merchant agreements with several vendors/sellers and brands have been entered by OP company. Advertisements of different products are made by OP Company through broadcasting mediums like website, television channels and print media. Details of the products, price, order procedure and mode of payment can be ascertained through company’s website as well as through the above mentioned advertisement mediums. Every detail offered by Company is assigned a deal code and buyers/customers can place their orders through phone call or online by referring it. The orders placed by buyers are passed on to the concerned vendors/sellers by OP for sale and delivery purpose. Thereafter the product is delivered or sent to the respective buyer/customers through post department or through courier services at the addresses of the respective buyers/customers. OP Company is not involved in any kind of manufacturing or production activities and even it is not working as seller or vendor. Rather OP Company provides marketing platform or a link between buyer and seller only. On each advertisement, it is clearly mentioned that products and warranties are by third party vendors/sellers, so that every buyer/customer may contact the concerned vendor/seller for the responsibility owned through warranty/guarantee. It is claimed that there is no negligence/deficiency in providing services by OP. Each and every other allegation leveled in the complaint denied, but by admitting that in the products or services, OP provides three sorts of remedies in the forms of repair, exchange and refund. Present complaint alleged to be filed for harming reputation of OP. No service of OP hired by complainant because the grievance, if any, regarding defective product can be got redressed from the vendor/seller. So it is claimed that no cause of action available against the OP Company. Seeing of commercial advertisement on television or some other broadcasting medium of OP by complainant is not denied. Buying options are always reserved by customers/buyers and as such no act of cheating alleged to be committed by OP. On each and every advertisement of OP it is clearly mentioned that “The Products guarantee or warranties are by 3rd Party - Vendor/seller.” So virtually the buyer is disclosed about his informed choice for buying the product. Complainant acted as per her wishes and Will for placing the order for buying the product. OP never compelled complainant to act upon the information provided through advertisements. Amount of Rs.1,898/- was paid by complainant to concerned vendor/seller by way of cash at the time of delivery. Information through advertisement was aired by OP as provided by the concerned vendor/seller. Before dispatching and delivering the product, care is usually taken by the vendor/seller for providing efficient services. After delivery of the product for the first time to complainant, a complaint was received by Customer Care Team on 25.03.2016 from complainant and thereafter replacement of the product was done successfully by OP. All proper care was taken by OP. After replacement of the product, complainant did not intimate anything to OP about defect in the product. It is also claimed that a mere complaint in the form of intimation was received from complainant as if the product is not working. However, when OP tried to contact the complainant, then the call was not received by complainant. So OP has performed all the duties diligently for assisting the complainant. In view of allegation that the replaced product stopped working after few hours, it is claimed that complainant may have used the product roughly or in a harsh way. When the product was replaced by OP, it was completely a new product. Before replacement and delivery, the product was duly checked by OP. It is claimed that none of the complaints received on the dates mentioned in the complaint after replacement of the product. On call to the complainant, her mobile became unreachable and as such OP became helpless. Cost of the product was Rs.1,898/- and not Rs.2,000/-. In case refund sought, then certainly norms are to be followed by company for evaluating each case. As three remedies of repair, exchange/replacement or refund through concerned vendor/seller are provided, but analysis of the situation is done after completing the verification process and taking necessary steps. Complainant is not a consumer of OP. Allegations leveled in the complaint are alleged to be false. Besides it is claimed that this Forum has no jurisdiction to entertain the complaint because registered office of OP situate in Maharashtra.
3. Counsel for complainant closed evidence after tendering in evidence affidavit of complainant Ex.CW-1/1 alongwith bill Ex.C-1. Counsel for OP closed evidence after tendering in evidence affidavit Ex.OP-1/1 of Arun Kumar Sinha, its Administrative Officer alongwith documents Ex.OP-1 and Ex.OP-2.
4. Written arguments not submitted by any of the parties. Oral arguments heard and records gone through.
5. Tag Ex.C-1 produced by complainant for showing purchase of the pesticide control machine. Price of the product mentioned as Rs.1,999/- inclusive of all taxes. This product in fact is a pesticide repeller. The product is marketed by E-Channel Trading Company, but this tag mentions the customer care e-mail ID as 6. Ex.OP-1 is product, payment and vendor details, showing as if Rs.1,898/- total was payable by complainant i.e. Rs.1,499/- as price of the product; Rs.399/- as shipping charges. So even if label Ex.C-1 may be showing price of the product as Rs. 1,999/- inclusive of all taxes, but actually complainant had to shell out Rs.1,898/- the amount of invoice of Ex.C-1 and mention of which also specifically mentioned in cash on delivery receipt Ex.OP-2. In Ex.OP-2 it is specifically made as if payment of Rs.1,898/- had to be made for getting delivery and as such certainly case of OP is believable that the product in question was sold for Rs.1,898/- and not for Rs.2,000/-. Complainant has not produced any material to establish that she paid Rs.2,000/- at the time of receipt of delivery of the product in question and as such case of complainant regarding payment of Rs.2,000/- as price by her is not at all believable.
7. Even if relationship of consumer and service provider exists between complainant and OP, despite that complainant unable to prove that the replaced product received by her became defective after working for few hours only because no report of expert produced and nor assistance of this Forum availed for pointing the defect in the received replaced product. Procedure for finding the alleged defect in the goods is enumerated in Section 13 (1) of the Consumer Protection Act, 1986. As complainant in this case alleges defect in the product in question and as such it was her duty to produce the product in question before this Forum for getting the same analyzed from laboratory for establishing the alleged defect. No request to this Forum submitted at any time for getting the product in question analyzed from laboratory and nor the product in question ever produced before this Forum and nor any expert report for establishing the defect, tendered in evidence and as such in view of vague and general allegations regarding replaced product also defective, it cannot be held that actually the replaced product was also defective. Only on testing of the product it could have been found as to whether defects in the product surfaced due to mishandling of product by complainant or due to its rough use or like reasons. In case use of the product takes place against the imparted instructions, then certainly seller/vendor cannot be held liable. So withholding of the product for testing purposes or non submission of report of expert certainly are circumstances leaning in favour of holding that complainant failed to establish that the defect in the replaced product took place not on account of her fault. Besides, though dates of lodging subsequent complaints mentioned in the complaint as 10.04.2016; 12.04.2016; 16.04.2016; 22.04.2016 and 06.05.2016, but OP has denied this fact specifically. So this controversial question has to be proved by complainant by mentioning mobile number from which the call made or the mobile number on which the call addressed/flashed by her. Record of call details obtained from concerned company could have been produced for establishing that actually calls through phone were made by complainant to OP or to its customer care centre on the dates referred above. That record even has not been produced and nor any attempt made to summon the witness for producing those call details and as such certainly submission advanced by counsel for OP has force that complainant in fact has never approached OP for replacement of the IInd defective product. Being so, complainant unable to establish that OP provided any deficient services or actually replaced product in question became defective without her fault or without her intervention. So on account of this, the consumer complaint merits dismissal.
8. As a sequel of above discussion, the complaint dismissed without any order as to costs. Certified copies be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
June 15, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu)
Member
(Ms. Natasha Chopra)
Member
