Date of filing:06.01.2022

                                                               Date of Disposal:23.02.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 23^rd DAY OF FEBRUARY, 2023

CONSUMER COMPLAINT NO.4/2022

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Mr.Raghavendra Honnappa Hidakal,

151/1 near lee mart Shakti

Gardan Kalyn Nagar,

Bangalore-60 072.……COMPLAINANT

In person

One 97 communications

Limited B 121, (Paytm Mall),

Sector 5, Noida-201 301,

Rep by Authorized Signatory.……  OPPOSITE PARTY

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint under Section-35 of Consumer Protection Act, 2019 seeking for a direction to the opposite party to pay a sum of Rs.20,00,000/- as compensation towards deficiency of service and mental harassment and such other reliefs as this commission deems fit in the circumstances of the case.

2. The complainant has also filed an application under Section-5 of Limitation Act read with Section-35 of Consumer Protection Act, 2019 seeking to condone the delay in filing the complaint.

3. Even though the notice was served on opposite party dt.07.02.2012, he has filed the version on 21.04.2022.  In view of the circular issued by NCDRC, New Delhi the limitation was extended till 30.05.2022 on the reason of COVID-19.  Hence, the application filed by the opposite party seeking permission to file version came to be allowed by the order of this commission dt.29.10.2022.

4. It is not in dispute that the complainant had ordered a laptop from Paytm mall and he did not receive the laptop in the box alleged to have contained a laptop by the opposite party.  Further, the complained the same and he got refunded the amount paid after two months.  The amount of Rs.53,450/- was refunded on 10^th December 2018 and he had received cash back of Rs.9,450/- when he had ordered for the laptop for the price of Rs.63,000/-.

5. It is the further case of the complainant that basically the intension of ordering the laptop was to make progress in his education but somehow this incident made severe impact on his future dreams and goal of life and he was being a graduate (Mechanical Engineering) and he was very fascinated towards programing and decided to learn some programming language and get into IT field, but the above said incident flourished away his dreams.  Hence, he sought compensation. 

6. Further, initially he had filed complaint under Consumer Protection Act 1986 and as the commission has no jurisdiction to entertain the complaint he was not able to make complaint and after the act has been amended he had filed the present complaint.  Hence, there was delay in the complaint been filed. 

7. It is the further case of the opposite party that the complaint is bad for non-joinder of necessary party.  Further, the opposite party is not engaged in the manufacture and supply of the product but www.paytmmall.com provides only online marketplace platform.  Hence, the actual contract for sale was directly between the Paytm Mall and the complainant.  Further, the opposite party acts only as an intermediary between the complainant and the aggregator as defined under Section 2(w) of the Information Technology Act, 2000.  Since the complaint was filed in the year 2022, which is more than 3 years from the date of purchase i.e., 12.10.2018, the complaint is not maintainable, in view of Section-69 of Consumer Protection Act, 2019. Further, the complaint is not maintainable, since the consideration paid by the complainant has already been refunded to the complainant.  Hence, it is sought to dismiss the complaint. 

8. To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P11 documents. The opposite party did not lead evidence.

9. Heard the complainant. 

         10. The points that would arise for consideration are as under:

i)  Whether the delay in filing the complaint is to be condoned ?

ii)  Whether there is deficiency of service on the part of the opposite party ?

   iii) Whether the complainant is entitle for the 

    compensation as sought ?

    iv) What order ?

  11.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  In affirmative

Point No.3 :  Partly in affirmative

Point No.4 :  As per the final order for the following;

REASONS

12.POINT NO.1:- The complainant (PW1) has reiterated the fact stated in the complaint, in the affidavit filed in the form of his evidence in chief.  The complainant has booked for the laptop on 19.10.2018.  According to the complainant, he had received floor tile inside the box and he had taken a video clip while unboxing the box.   The said box was alleged to be contained a laptop.  Further, the complainant bought the product through Paytm Mall website i.e., www.paytm.com basically E-commerce site.

13. On perusal of EX.P7 email dt.19.10.2018 sent by the Paytm Mall, it appears that the complainant had raised query with Paytm care and made a query that he had received a floor tile instead of laptop and it is stated in email that the Paytm mall need to inquire the issue with the courier partner and sought certain documents from the complainant.  Accordingly, on 21.10.2018 the complainant had furnished the screen shots of the product sent through email.  Further, the opposite party had sent several emails and in the email dt.31.10.2018 sent by the Paytm mall care, it is stated that it would refund the amount within 14 working days.  On 10.12.2021 the opposite party had sent an email to the complainant stating that the opposite party would like to apologize for the unpleasant shopping experience that the complainant had with Paytm and they were unable to provide the compensation. 

14. According to PW1, he was not able to file the case against Paytm under Consumer Protection Act, 1986 as the act provided only to file the complaint where the seller has been residing.  Hence, he had been to consumer court at Belagavi and he was told the same.  Hence, after the consumer Protection act-2019 came into force he realized that he could file the complaint.   Further, due to Covid-19 Lockdown, he was not able to file the complaint.   Accordingly, he had filed the complaint on 06.01.2022.  Section-69 of Consumer Protection Act, 2019 provides that the complaint shall be filed within the 2 years from the date on which the cause of action has arisen.   The District Commission, the State Commission or the National Commission may entertain the complaint, if the complainant had sufficient cause for not filing the complaint within such period.  On perusal of the record, it appears that continuously the complainant was pursuing the matter for refund of the price paid.  Further, it appears in EX.P10 that the complainant was credited a sum of Rs.53,550/- to his account through NEFT on 10.12.2018 and on 12.12.2018 it was informed to the complainant through mail that he can file case in District Forum as per the procedure prescribed, for the compensation.  We feel the reason shown for condonation of delay is sufficient.  Hence, the delay could be condoned.  The application filed for condonation of delay under Section-5 of the Limitation Act is allowed.  Accordingly, we answer this point in affirmative.

15.POINT No.2:-It is the contention of the opposite party that the complaint is bad for non-joinder of necessary parties and there is no cause of action against opposite party.  Further, the manufacturer/seller who actually sold the laptop to the complainant.  Further the procedure followed in the instant case while booking the laptop was that the complainant by using the online market place platform of opposite party has placed an order for laptop.  The said order was made out through the designated merchant/seller who was at Mumbai in the present case.  Further, on receipt of the order, the said seller had packed the product and handed over to the courier agency and the courier agency had delivered the product to the complainant.  We feel since the opposite party has also been involved in the transaction, the complaint is maintainable against the opposite party.  Section-2(37) of Consumer Protection Act, 2019 contemplates that the product seller in relation to a product includes a service provider also.  Hence, there is no merit in the contention of the learned counsel for the opposite party in that aspect. 

16. It is the further contention of the opposite party that the opposite party provides only online market place platform facilities to the merchant to sell their goods which are to be purchased by the buyers as per the terms and conditions displayed in the website.  We feel for the reasons stated above, the opposite party is also a service provider.  It is further contended that since the amount has been refunded the complaint is not maintainable.  No doubt, the price paid by the complainant has been refunded but just returning of the amount does not substitute the deficiency of service.  It is the contention of the complainant that even though the incident was occurred on 19.10.2018, the opposite party had returned the amount on 10.12.2018.  The supply of a floor tile instead of laptop alleged in the box to be contained a laptop amounts to “unfair trade practice” as contemplated under Section-2(47) of Consumer Protection Act, 2019 and also “deficiency of service” as contemplated under Section-2(11) of Consumer Protection Act, 2019. 

17. The complainant claimed a sum of Rs.20,00,000/-.  It is the contention of the complainant that he was doing Mechanical Engineering.  To substantiate that in addition to his say in the sworn affidavit, he has produced EX.P2 the circular issued with regard to the examination by Visvesvaraya Technological University dt.14.11.2018 and the circular with regard to the shortage of attendance of the complainant dt.15.11.2018 and the expenditure certificate vide EX.P5 and EX.P6 the Grade Card issued by Visvesvaraya Technological University, Belagavi.  On perusal of the document, it appears that the complainant was doing his B.E.,Mechanical Engineering at Visvesvaraya Technological University, Belagavi.  According to him, he had received the amount after two months and for the said period he did not had proper food, proper sleep and used to bunk classes to enquire about the product with Paytm and was not able to tell his family.  Hence, we feel because of the deficiency of service, the complainant had undergone mental agony, since he was a student during relevant period.

18. Further, as contended by the opposite party, there may be fault on the part of courier agency.  We feel the opposite party is responsible for all those aspects as opposite party was a platform to book the laptop.  Therefore, in view of as contemplated under Section-2(37) of Consumer Protection Act, 2019 he is also liable for deficiency of service.  No doubt, Paytm care had honestly refunded the amount after several email correspondence.  By considering the delay for refunding and the mental torture and harassment sustained by the complainant, we feel over all the complainant is entitle for a sum of Rs.15,000/- towards deficiency of service and mental agony underdone.  Further, the complainant is entitle for a sum of Rs.5,000/- towards litigation cost.  Accordingly, we answer this point partly in affirmative.

19.POINT NO.3:- In view of the discussion made above, we proceed to pass the following;

The complaint is allowed in part.

The opposite party is directed to pay a sum of Rs.15,000/- towards deficiency of service and mental agony to the complainant with interest at the rate of 9% p.a. from the date of payment till realization and the opposite party shall pay a sum of Rs.5,000/- towards litigation cost. 

The opposite party shall comply the order within 30 days.   In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.5,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 23^rd day of February, 2023)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainants side:

M/s Raghavendra Honnappa Hidakal, the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Certificate u/s 65B of Indian Evidence Act.
2. Compute downloaded circular dt.14.11.2018.
3. Computer downloaded particulars with regard to shortage of attendance.
4. Computer downloaded VTU circular related to written examination.
5. Xerox copy of KLE college expenditure certificate.
6. Xerox copy of all semester marks card including bachelor degree certificate.
7. Computer downloaded Email correspondence.
8. Computer downloaded complaint made in National consumer help line.
9. Xerox copy of Aadhar.
10. Computer downloaded SMS for having credited a sum of RS.53,550/-.
11. Xerox copy of college ID.
12. CD said to have been contained the video images took while unboxing the product. 

Witness examined for the opposite party side: 

-NIL-

Documents marked for the Opposite Party side:

-NIL-

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•