Date of Filing 10.10.2023

                                                                                                             Date of Disposal: 28.02.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                                               ……MEMBER-I

               THIRU.P.MURUGAN, M.Com., ICWA (Inter), BL.,                                                         ……MEMBER-II

CC.No.111/2023

THIS WEDNESDAY, THE 28^th DAY OF FEBRUARY 2024

Suchit.J/A.J.Anila,

No.1, Kamaraj Street, First Cross,

Gandhi Nagar West,

Avadi, Chennai 600 054.                                                                         ......Complainant.

                                                                       //Vs//

1.Nobroker Technologies Solution Private Limited,

    Registered Office –BREN MERCURY,

   No.835/39, Kaikonranahalli,

   Varthurhobli, Sarjapura Main Road,

   Bangaluru, Karnataka 560 035.

2.Nobroker Technologies Solution Private Limited,

    Corporate Office, 6^th Floor,

    Kaikonarnahalli, Kasavanahalli,

    Bangaluru, Karnataka 560 035.                                                      ….opposite parties.

Counsel for the complainant                                   : Party in Person.

Counsel for the opposite parties.                           :  M/s.A.Naveen Kumar, Advocate.

This complaint coming before us on various dates and finally on 12.02.2024 in the presence of the complainant who appeared as party in person and M/s.A.Naveen Kumar, Counsel for the opposite parties and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties in cancelling the booking made by the complainant along with a prayer to direct the opposite parties to refund the entire amount paid by the complainant towards Freedom and PNM (Packers and movers) plan, to refund  a sum of Rs.13,900/- the amount paid by the complainant to the shifting agent, to pay a sum of Rs.20,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.10,000/- towards cost of litigation expenses.  

Summary of facts culminating into complaint:-

2. Aggrieved by the deficient service by the opposite parties in cancelling the booking made by the complainant the present complaint was filed.

3. The complainant had purchased Freedom and PNM (Packers and movers) plan from the opposite parties on 01.04.2023 and 18.04.2023 respectively. The intra-city movement under the Packers and movers plan was scheduled at 2pm on 27.04.2023.  However, the opposite parties failed to turn up at the particular time.  In the meantime the complainant had removed Water Purifier, Water Heater, Fans, Air Conditioners and all other electrical fittings enabling for a timely shifting.  There was no written or oral information over phone from the opposite parties with regard to the cancellation of any service.  Therefore the complainant was forced to reschedule the house shifting work which caused severe hardship and mental agony not only to the complainant but also to the entire family as they have to stay on the streets for the whole day until an alternate arrangement was made for shifting the house hold articles.  The family consisting two super senior citizens and a cancer survivor and a 90% disability kid were put to severe mental agony and hardship.  Thus aggrieved by the act of the opposite parties the present complaint was filed for the reliefs as mentioned above.

The crux of the defence put forth by the opposite parties:-

4. The opposite parties filed version disputing the complaint allegations contending inter alia that the opposite party was engaged in the business of owning, managing and operating an online portal to facilitate owners, tenants, buyers and sellers to explore and identify all kinds of immovable properties including lands, building, factories, houses, flats and other residential, commercial and industrial plots and properties to enable them to carry on transaction of purchase, sale, licensing, leasing, hiring, renting or otherwise relating to moveable and immovable properties. Also the opposite party was in the business of providing transport facilities for house shifting. Jurisdiction of this commission was barred under the terms and conditions laid down on the website of the opposite party.  As per the jurisdiction clause of terms and conditions, only the Courts at Bangalore has the territorial jurisdiction to entertain the disputes, if any, arising out of the dispute. Complaint filed by the complainant does not fall within the definition of consumer dispute under the Act, as there was neither any unfair trade practice adopted by the opposite party nor any deficiency in service has been established by the complainant. Opposite party merely acts an intermediary wherein the platform was provided to the customers for booking the service related to packers and movers.  That as an intermediary, the opposite party operates in accordance with the provisions of the Information Technology Act 2000 which governs electronic commerce and digital transaction in India. Under the Information Technology Act, an intermediary is defined as a person, group, or company that acts as a middleman in facilitating the exchange of information or transactions between two parties.  Various examples of such intermediaries are online marketplaces, social media platforms and search engines etc. and the opposite party was using one of such platforms i.e., marketplace and hence it was working as an intermediary. Complainant had purchased the “Freedom” and “PNM” (Packers and movers) plan of the opposite party on 01.04.2023 and 18.04.2023 respectively.  The complainant had booked an intra-city movement under the PNM plan which was scheduled for 2pm on 27.04.2023. However, the vendor assigned to deliver such services to the complainant backed out from such booking and no substitute vendor to take over the booking could be arranged as no vendor-partners were available due to it being a busy month end period. This information was duly communicated to the complainant on 27.04.2023 and since the movement was cancelled, the token amount of Rs.413/- paid by the complainant towards the PNM plan was refunded to them vide transaction ID/RRN: refund 267821301920139.  As per the terms and conditions on the website of the opposite party it was clearly mentioned that in case it is not reasonably practicable for either party to undertake the service, the liability, if any, in such a situation shall be limited to the token amount paid by the user for the service. It was clear that the complainant had filed the present complaint out of mala fides as the opposite party had already refunded the token amount of the PNM plan to the complainant and no cause of action subsists. The opposite party was not liable in any manner for compensating the complainant any further.  In this conspectus, the claims of compensation of Rs.20,00,000/- towards mental agony and Rs.13,900/- towards forced unscheduled shifting were strictly opposed. Thus they sought for the dismissal of the complaint.

5. On the side of complainants proof affidavit was filed and documents marked as Ex.A1 to Ex A6 were submitted. On the side of opposite parties proof affidavit was filed and documents marked as Ex.B1 to Ex.B3 were submitted.

Points for consideration:-

1)    Whether the act of opposite parties in not carrying out the booking of the scheduled intra-city movement of the complainant as per the PNM plan amounts to deficiency in service and if so whether the same has been successfully proved by the complainant?

2)    To what reliefs the complainant is entitled?

Point No.1:-

6. The Party in Person/Complainant argued that due to uneventful cancellation of the scheduled plan the complainant and his family members were put to severe hardship as the family consists of senior citizens and a kid with 90% disability.  Thus he sought for the complaint to be allowed as prayed for.

7. On the other hand, the learned counsel appearing for the opposite parties argued that the complaint is not maintainable before this commission due to bar in jurisdiction and being an intermediary they could not be held liable for the fault on the part of assigned vendors.  It is their arguments that no alternate vendor could be arranged as it is month end and therefore for their fault the opposite party could not be held liable as they had received a small amount of Rs.413/- towards booking charges from the complainant.  Thus they sought for the complaint to be dismissed.

8. On appreciation of the entire pleadings and materials the factum of booking made by the complainant and that the schedule was fixed on 27.04.2023 at 2pm for the intra-city movement under the PNM plan was not disputed by either of the parties. It is the case of the complainant that he had detached all the fittings including Water Purifier, Water Heater, Fans, Air Conditioners and all other electrical fittings and removed them from their third floor flat to be shifted to the ground floor flat in another place.  However due to the   unilateral and uneventful cancellation of the opposite parties he suffered a lot as he had to bring all the detached articles from third floor flat without lift to the street and to arrange for an alternative shifting agent at the odd hours.  It is seen that the complainant did not cancel but the opposite parties had unilaterally abstained from attending the work.

Defence of Jurisdiction:-

9. It was contended by the opposite parties that as per the terms and conditions only Bangalore Courts has jurisdiction.  But as per the Consumer Protection Act 2019 the place of resident of Consumer also gives jurisdiction for filing complaint.  Hence, the defence with regard to jurisdiction could not be accepted.

Defence of Intermediary:-

10. The defence of the opposite parties is that due to the vendor who was assigned by them did not attend the complainant’s schedule they could not be held liable as they are only an intermediary.  However, the said defence of “intermediary” could not be entertained as being an intermediary/the opposite party could not absolve themselves from their liability as the complainant did not have any privity of contract with the vendor booked by the opposite parties. But he had booked the service only with the opposite parties. It is only the bounden duty of the opposite parties to see that as per the schedule fixed the works to be completed.  Merely stating that no alternate vendor was available as it was month end could not be a valid defence to absolve from their liability.

 11. We find support for our view in a recent judgment passed in Tripura State Consumer Disputes Redressal Commission, Acartala in Case No.A.172021 in Sri Animesh Baidya Vs Amazon Seller Service Private Limited dated 30.07.2021 wherein it has been held that

15. in Dinesh (supra), the Hon’ble State Commission, UT Chandigarh also consider the similar point involved in the instant appeal which is also helpful for us to decide the case. In the said case, Ed. Counsel for the appellant, Amazon Seller Services Pvt. Ltd. also contended that the appellant, Amazon Seller Services Pvt. Ltd. was only an intermediary and had not received any benefit from the complainant, as such, it could not be held liable.

16. Similar contention was rejected by the Hon'ble State Commission, UT Chandigarh in Gopal Krishan & Ors. (supra) and observed as under:

Contention of Counselfor the appellant that as per terms and conditions of sale, no liability can be fastened upon the appellant, is liable to be rejected. An agent, who sells a product, is duty bound to ensure its quality, and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, along with the manufacturer of the product. It was so held by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Emerging India Real Assets Pot. Ltd & Anr. Vs Kamer Chand & Anr.. ***

17. The Law Report cited by Mr. Das, Ld. Counsel in Jaskaran singh & Anr. (supra). is in no way help the opposite party no.1, Amazon Seller Services Pvt. Ltd, asi the said judgment, the Honble State Commission, Shimla did not consider the case of the Hon'ble National Commission in Emerging India Real Assets Pvt. Ltd. In the instant case also, admittedly, the appellant-complainant place an order for purchasing the mobile phone of Xiaomi Mi A3 through the Amazon Seller Services Pvt. Ltd., the opposite party Nno. 1 and the mobile phone was delivered by the opposite party no.2. Amazon Courier Service Hub. Thus, the Amazon is also a co-seller. Therefore, the opposite party no.l, Amazon Seller Services Pvt. Ltd. and Amazon Courier Service Hub cannot absolve themselves from the liability as the product is being stored and delivered by the opposite party no. 1 and 2. As the complainant did not place any order to the manufacturer of the mobile phone, according to us, the Xiaomi, the manufacturer and Darshita Aashiyana Private Ltd., the seller is not a necessary party so far as the complainant is concerned,

18. Taking into consideration all the facts and circumstances of the case, we are of the opinion that the learned District Commission failed to consider the evidence on record in its true sense and as such, the impugned judgment cannot be sustained in the eye of law, hence, it is liable to be set aside and the appeal should be allowed. Accordingly, the impugned judgment is set aside and consequent thereto, the complaint petition is allowed.

12. Further, above all the opposite parties did not even had taken the responsibility of informing the cancellation of booking to the complainant enabling him to find some other alternative to transport his goods at the earliest.  Though it was stated that it was informed on 27.04.2023, no evidence was produced by the opposite parties.

13. For the above reasons we hold that the opposite parties had committed clear deficiency in service and unfair trade practice which caused severe hardship and mental agony to the complainant.  Thus we answer the point accordingly in favour of the complainant and as against the opposite parties.

Point No.2:-

14. With regard to the relief to be granted as it is admitted that the booked amount of Rs.413/- has been already refunded, considering the nature of hardship and mental agony and monitory loss suffered by the complainant we award a compensation of Rs.50,000/- along with litigation cost of Rs.5,000/- to be paid by the opposite parties to the complainant.

In the result, the complaint is partly allowed against the opposite parties1 & 2 directing them jointly and severally

a) To pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant;

c) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 9% will be levied on the said amount from the date of complaint till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 28^th day of February 2024.

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MEMBER-II                                   MEMBER-I                                                   PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite parties:-

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MEMBER-II                                       MEMBER-I                                                PRESIDENT