Haryana

Panchkula

CC/56/2016

BIMAL SACHDEV. - Complainant(s)

Versus

ONEMOBIKWIK SYSTEMS PVT.LTD. - Opp.Party(s)

COMPLAINANT IN PERSON.

02 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                                      

Consumer Complaint No	:	56 of 2016
Date of Institution	:	10.03.2016
Date of Decision	:	02.06.2016

                                                                                          

1.       Bimal Sachdev &

2.       Arshlata Sachdev

          Both R/o House No.1714, Sector-4, Panchkula (Haryana).

                                                                                          ….Complainant

Versus

1. One Mobikwik Systems Pvt. Ltd., 2^nd Floor, Orchid Centre, Golf Course Road, Sector 53, Gurgaon, Haryana-122002.
2. Microsoft Corporation (I) Pvt. Ltd., 10^th Floor, Tower B & C, DLF Building No.5 (Epitome), Cyber City, DLF Phase 3, Gurgaon, Haryana-122002.

                                                                        ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                             Mr.S.P.Attri, Member.

 

For the Parties:     Complainant No.1 in person and authorized representative for the complainant No.2. 

Ops already ex-parte.

ORDER

(Dharam Pal, President)

1. The complainants have filed the present complaint against the Ops with the averments that they have purchased a Microsoft Lumia 640 and Microsoft Lumia 535 from Amazon India online in the month of October 2015 and November 2015. The Op No.2 had advertised that on purchase of Lumia 640 and Lumia 535 model, there would be a cashback of Rs.3600/- each to be availed at the rate of Rs.300/- per month for 12 months from Op No.1 by registering oneself through an account with Op No.1 website (Mobikwik.com). The customer was to be added Rs.300/- per month through his debit card and used promo code LUM300 and the Op No.1 would be added another Rs.300/- in customer’s account as cashback once per month. The complainant No.1 successfully availed the cashback in the month of October and November, 2015 @ Rs.300/- per month after registering his account with OP No.1 and for complainant No.2 in the month of November & December, 2015. On 01.12.2015, when the complainant No.1 tried to avail the cashback, the account was blocked by OP No.1. The complainant contacted the OP No.1 and he was told that the account could be blocked for various reasons. The complainant No.1 told the Op No.1 that he and his wife have separate Mobikwik accounts and have used the same debit card. On this, the complainant No.1 was told that not to worry and send the photo ID, address proof and bank passbook statement to Op No.1 stating that the debit card was used as it was a joint family, for verification and the grievance would be resolved within 24 to 48 hours. On 01.12.2015, the complainants sent the required documents through mail stating that they have used common debit card and requesting that the account be unblocked. Thereafter, the complainant No.1 sent various reminders to customer care of Op No.1 but every time he was told that the issue would be resolved shortly. On 06.12.2015, the complainant No.1 received an email from Op No.1 that “we recently determined that different multiple accounts may have been created to avail the LUM300 offer by you on your and associated accounts”. The complainant No.1 again contacted the customer care and asked the evidence of multiple accounts but the Op No.1 did not give any reply. The complainants asked for resolution of their issue through various emails & phone but to no avail. The complainant also sent a mail to Op No.2 who replied through mail that the procedure of availing the cashback offer which still did not indicate that the customer had to use separate debit card for each account. The Op No.1 also asked for account detail of complainant No.1 and after receiving the same, it replied on 09.12.2015 that the issue has been forwarded to the concerned department and a representative would contact the complainant within 24 hours. Thereafter, the complainant No.1 contacted the Ops through various emails but to no avail. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. Notice was issued to the Ops through registered post. But none has appeared on behalf of the Ops. It is deemed to be served and the Ops were proceeded against ex-parte vide order dated 18.04.2016.
3. The complainant No.1 and authorized representative for the complainant No.2 has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-5 and closed the evidence.
4. We have heard the complainant No.1 appearing in person & authorized representative for the complainant No.2 and have also perused the record carefully and minutely.
5. Admittedly, the complainants have purchased Microsoft Lumia 640 and Lumia 535 online in the month of October, 2015 and November, 2015 after seeing the advertisement of Op No.2 of cashback policy of Rs.3600/- to be availed at the rate of Rs.300/- per month for 12 month from Op No.1 and the customer was to be added Rs.300/- per month through his debit card by using promo code LUM300 and the Op No.1 would be added another Rs.300/- in customer’s account as cash back once per month. The complainants registered his account with Op No.1 and successfully availed the cashback in the month of October and November, 2015 @ Rs.300/- per month, thereafter, the cashback policy of the complainants was blocked by Op No.1. The complainant No.1 contacted the OP No.1 and told it that both the complainants have separate account but have used the same debit card. The Op No.1 demanded some documents from the complainant No.1 and assured him that his grievance would be resolved within 24 to 48 hours. The complainant sent the documents but to no avail. Thereafter, the complainant No.1 sent various emails and reminders to Op No.1 but to no avail.
6. After going through the case file and documents filed by the complainants, it reveals that the complainant No.1 has purchased the mobile set online with cashback policy of Op No.2 which is evident through Annexure C-1. In the complaint, it has been mentioned that the complainant No.2 has also purchased the mobile set online with cashback policy of Op No.2 but the second bill has been issued in the name of Prashant Sachdev but not in the name of complainant No.2. We are of the considered opinion that the complainant No.2 is not a “consumer” of the opposite parties within meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986. 
7. Section 2 of the Consumer Protection Act, 1986, dealing with definitions in clause (d) defines a ‘consumer’ as under:

“(d) ‘Consumer’ means any person who-

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation- For the purposes of this clause, ‘commercial purpose’ does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.”          (Emphasis added)

8. From the above facts and circumstance of the case, we are of the opinion that the present complaint deserves to be dismissed qua the complainant No.2 as the complainant No.2 is not a consumer and the same is dismissed qua complainant No.2. The present complaint is allowed qua the complainant No.1 and the Ops are directed as under:-

1. To pay Rs.3000/- (Rs.3600 – Rs.600/- already received) to the complainant No.1 for remaining months of cashback policy.
2. To pay a sum of Rs.3000/- as compensation for mental agony and harassment.

Let the order be complied with within the period of 30 days from the receipt of certified copy of this order. A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

 

Announced

02.06.2016     S.P.ATTRI              ANITA KAPOOR      DHARAM PAL

                        MEMBER               MEMBER                  PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

    

                                 

                                                         DHARAM PAL

                                                          PRESIDENT