Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor MaharanaPratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.169/04.07.2015
ShriAmit Kumar
Resident of C-29/Y-2 C-Block,
Dilshad Garden, New Delhi-110095 …Complainant
Versus
OP1. M/s NSI Infinium Global Private Ltd.
4612/17 Ansari Road, Darya Ganj, Delhi-110002
Also at – 841 NY YMCA Club,
Sarkhej- Gandhinagar Highway, Post Jivraj Park,
Ahmedabad-380051, Gujrat
OP2. M/s Sony India,
A-31 Mohan Cooperative Industrial Estate
Mathura Road, New Delhi-110044 ...Opposite Party
Date of filing:04.07.2015
Coram: Date of Order: 03.01.2024
ShriInderJeet Singh, President
Ms. Shahina, Member -Female
ORDER
InderJeetSingh , President
1.1. (Introduction to case of parties)–The complainant has grievances against OPs since he purchased Blu-Ray DVD Player of Sony brand but the box delivered was not containing the article/complete goods booked, it was short of goods and new/short article was not delivered in its place, that is why the present complaint for direction to OPs to deliver him Sony Blu-Ray DVD player, which was short of item ordered and delivered besides compensation of Rs. 10,000/- in lieu of mental torture, agony and other problems faced by the complainant because of their negligent attitude.
1.2.OP1 opposes the complaint that there was neither any defect or physical damage in the article but the same was mishandled by the complainant, while using the same vis-à-vis the article was sold and delivered on the basis of “as is basis”; the article was collected back by the OP1 but during quality check it was found that there were scratches, use and mishandling by the complainant. The OP1 is not liable for any amount.
1.3. The OP2 also opposes the complaint for other reasons, that neither there is any allegations nor any cause of action against the OP2 vis-à-vis the complainant had not purchased the article directly from OP2 or its authorized dealer but from the open market, there was no guarantee or warranty extended by the OP2 to make OP2 liable thereto. The OP2 wasmis-joined/wrongly arrayed in the complaint.
1.4 It is material to mention here that OP1 was proceeded ex-parte vide order dated 17.05.2016 but prior to it OP1 was not appearing. However, while going through the file, it is discovered that OP1 had sent by post its written statement/reply of 16.10.2015,the Registry has tagged it in the file. It appears that the same remained unnoticed while recording proceedings but no appearance was caused by OP1. The OP1 was knowing about the case and proceedings.
2.1. (Case of complainant)–Briefly, the complainant wanted to purchase Blu-Ray DVD player of Sony brand and while browsing net, he came across OP1’s website and check the products in market, he discovered Sony 3D Blu Ray home theatre BDV-E4100 black (P-HOEN-310338774791) [hereinafter as product]therein and its price tag was 26,199/-, thus he purchased the product by making payment by using his credit card, he was given order ID no. 14112177, while assuring that product will be delivered at complainant’s door step on 25.12.2014. The complainant went Goa on vacation, while ensuring with his roommate to take the delivery of article/product, however, it was not delivered on 25.12.2014. The complainant also contacted customer helpline to ascertain the status of order, it was assured that it will be delivered within a day or two days. Then finally on 02.01.2015 the article was delivered, there was delay of one week from the quoted date of delivery. The complainant came back at Delhi on 04.01.2015 at his parent house and then went to his residence on 05.01.2015. He opened the box delivered by OP1, when rug swept out of his feet and to his outer shock and surprise, the main item Blu-Ray DVD player was not there in the box delivered by OP1. He called customer care of OP1 immediately, the complaint was also registered followed by regular reminders via email but the customer care executive of OP1 took whole one month to depute its authorized person to look into the problem. On 08.02.2015, a person came from the office of OP1, he inspected the box and after formal look, he concluded and told to the complainant that the goods delivered were damaged in transit. On 14.02.2015 the complainant receives a mail from OP1 confirming that goods delivered will be taken back to be replaced with new goods, therefore, on 20.02.2015 the article delivered were picked up from the house of complainant and as per trail, the goods reached to warehouse of OP1 on 26.02.2015. Further, the complaint was informed by email that the products received by them were having some scratches on it, thus OP1 has no alternative except to redeliver the same goods to the complainant. Immediately on reading this message, the complainant contacted customer care centre and told them that the scratches would be due to damage in transit, since OP1’s authorized person had inspected the goods and the same were never used by the complainant but they were adamant and not to listen the complainant.
2.2.On 07.03.2015, the goods were redelivered to the complainant by OP1, then complainant was constrained to send a legal notice dated 26.03.2015 seeking delivery of Blu Ray DVD player, compensation of Rs. 10,000/- and legal notice charges of Rs. 5,500/-. The OP1 responded that the product sold was 'as is basis' since the same were received from OP2, OP1 has no role to play if the product suffers from damages other than physical damages. The conduct of OPs seem that customer satisfaction is nowhere in the rule book but only do business for wrongful gain to them and wrongful losses to its customers, that is why the complaint.
2.3. The complaint is accompanied with copy of legal notice, reply of OP1 with postal receipt, email exchanged.
3.1 (Case of OP1)-The complaint is opposed on various ground, some of them have already been narrated in paragraph-1.2 above. The OP1 is just online seller of branded, non-branded or manufactured products through its website infibeam.com on as is basis (that is without warranty of any kind, either express or implied). The OP always provided support and assistant to complainant in respect of product purchased from the website of respondent. However, the complaint is false and without any cause of action.
3.2. The complainant ordered the product on 17.12.2014 on the website of OP1, the order was processed and delivered on 'as is basis'. OP1 has no role if the product suffers from defect, other than physical damage with product in transit. The complainant was delivered the consignment on 02.01.2015 but the OP1 was informed after SLA period of 72 hours (i.e. service legal agreement), the same is impeccably barred by SLA limitation, para-8 of the reply reproduces terms and conditions (easy replacement) reaffirming about SLA period.
However, despite SLA, the OP1 considered the customer grievances policy, it had agreed upon and created RMA (i.e. Return Merchandise Automation) in respect of the product. However, after receiving back the product and on processing the quality check, it was discovered that reshipped through RMA, the product was found having scratches, the complainant had used it and also mishandled, while using; it which was also informed to the complainant. The product was redelivered to the complainant. The complaint is without merit and it is liable to be dismissed.
3.3.(Case of OP2)-The complaint is without cause of action against OP2, the complaint suffers from mis-joinder of OP2 and complaint ought to have been exclusively against OP1, being necessary party, since the product was actually purchased from OP1. The OP2 is a manufacturer of various electronic goods such as TVs, computer, mobile phones, etc. The OP1, being is an independent/third party vendor, purchases variety of goods in the open market and then re-sell them via its website. In the present case OP2 is nowhere in the picture. OP2 has no relationship with OP1 nor OP2 has any control on OP1.
Since the product was sourced from OP1, it was the responsibility of OP1 to deliver the goods properly, the OP2 has no role at all. The complaint is not maintainable against OP2 and it is liable to be dismissed.
4.1.(Evidence)-The complainant AmitKundu filed his detailed affidavit of evidence on the lines of complaint and documents in support thereof.
4.2. The OP2 led evidence by filing affidavit of Ms. Meena Boss, who had also authored the written statement, with the support of Board Resolution to plead and depose on behalf of OP2.
4.3 The OP1 has not led evidence, it had filed the reply by post but remained absent from the proceedings throughout.
5.1 (Final hearing)-At this stage the complainant and the OP2 have filed their respective written arguments, which are matter of record.
5.2.The parties were given opportunity to make oral submissions, the OP2 made the oral submission through Counsel Sh. UjjawalMalhotra, Advocate for OP2. There were no oral submissions on behalf of complainant. OP1 was also not presented at the time of oral submissions.
5.3. The rival contentions of the parties are not being repeated herein the same will be assessed and considered while giving the findings. The cases of parties have already been introduced.
6.1 (Findings)-The contentions of both the sides are considered keeping in view the material on record either in the form of legal objection, oral narration and documentary record.
6.2. At the outset, the OP1 had taken legal objection on the point of territorial jurisdiction of this Commission, otherwise the OP1 has not led evidence on facts mentioned in the written statement. Simultaneously, the emails exchanged between the complainant and OP1 have been proved by the complainant.
The objection on the point of jurisdiction is that the complainant and the OP1 have agreed that jurisdiction of the Court will be ofAhmadabad because of consensus of the complainant. The OP1has relied upon (in para-14 of the reply) A.B.C. Laminart Pvt. Ltd. &AnrVs. A.P. Agencies, (AIR-1989 SC 1239). However, the case of A.B.C. Laminart applies when there is concurrent territorial jurisdiction with more than one civil court and the parties agrees for territorial jurisdiction for one of such places, in case dispute arises or to be arisen. Whereas, the District Dispute Redressal Commission or Consumer Forum is creation of Statue and the parties are governed by the provisions of special legislation of the Consumer Protection Act 1986 and not by virtue of their agreement in respect of territorial jurisdiction for one place out of two places. Therefore, the jurisdiction of present Consumer Commission, Delhi is not ousted by the agreement, if any, between the parties. Otherwise, that agreement has also not been proved by the OP1.
6.3. By taking into account evidence and circumstances on other issues, the following conclusions are drawn:-
(i) There is no dispute that the complainant had purchased the product from OP1/seller by placing order on its website; theOP1 is not authorized dealer of OP2.
(ii)The OP2 is manufacturer, but there is no proof of any fact that the product was suffering from any manufacturing defect besides there is no evidence as such proved against OP2.
(iii)The written statement of OP1 is not para-wise reply to the complaint, although appearing to be filed after legal advices and brain; on plain reading of reply, it is unchallenged fact that the product was not delivered to complaint on scheduleddate 25.12.2014 but it was delivered on 02.01.2015. Is it fair on the part of OP1 to say that there was SLA period but no such binding for OP1 since it was delivered one week after scheduled date that too it was incomplete and damaged product. Otherwise, once the complaint was entertained, on recommendation of its officers, the issue of SLA does not survive.
It is also undisputed fact that the product was collected back by the OP1 after the complaint was found genuine, that too after visit of its official at the residence of complainant.
(iv)There is no evidence by OP1 that the product was actually suffering from scratches or mishandling or in what manner there were scratches and mishandling by the complainant with the product vis-à-vis the complainant has proved that on opening of the packing box, the product was found in damaged condition. Had it been the condition that the product was to be delivered 'as is basis', even then the product ought to have been in merchandise condition and for itsutility, these features are missing as per evidence of the complainant. The OP1 had not filed/proved the report of its officer, who opined for taking the goods back because that damaged condition of product.
(v) Since the product was not in proper and usual condition nor it was delivered so and the product was damaged on its first delivery to the complainant butthe productwas redelivered to the complainant, it amounts to deficiency in services. The OP1 cannot take shelter of SLA or RMA to avoid its obligation towards the complainant.
6.4 In view of the above, it has succeeded to establishthe complaint against OP1 of deficiency of services, but the complainant failed to prove the complaint against OP2.
6.5. The complainant has sought direction for delivery of the product, which was short of the item ordered, however, the order was of 17.12.2014 and it is not known nor any evidence on record whether those short items or product is available in the market or in the production chain in this year of 2024, therefore, considering the practical aspect it would not be feasible to order for delivery of product Sony Blu-Ray DVD player, which was short of the items but it would meet both ends of justice by directing the OP1 to return the price of product paid by the complainant as Rs. 26,199/- and accordingly it is ordered against OP1 to return amount of Rs.26,199/-..
6.6.1 So the complaint is allowed in favour of complainant and against OP1, while directing the OP1 to pay/return amount of Rs. 26,199/- to the complainant besides compensation of Rs. 3,000/- being determined in lieu of trauma and harassment faced by the complainant as per features of this case, payable within 30 days from the date of receipt of this order. In case the amount is not paid within the aforementioned period, then OP1 will be liable to pay interest at the rate of 4%pa on amount of Rs. 26,199/- from the date of complaint till realization of the amount. Moreover, OP1 may collect the product, in whatsoever condition, from the complainant by seeking in writing and in case OP1 does not accept/take the product within said period, it would be construed it has given up its right to receive the same.
6.6.2Further, the complaint against OP2 is dismissed.
6.6.3 No order as to costs.
7: Announced on this 3rd January, 2024 [पौष 13, साका1945].
8. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[Inder Jeet Singh]
President
[Shahina]
Member (Female)
ijs-6]
