Complainant present Lrd. Ad. Smt. Kulkarni

Opponent through M/S Marathe and Assocates

Per : Mr. V. P. Utpat, President              Place   :  PUNE

                                                     J U D G M E N T

       02/06/2014                                                                 

          This complaint is filed by the consumer against the service provider for deficiency in service under section 12 of the Consumer Protection Act, 1986.  The brief facts are as follows,

1]       The complainant is a resident of Sus Road, Pashan, Pune.  The opponent is dealing in the business of providing articles at Mumbai.  The complainant was impressed by the advertisement, which was published by the opponent as regards ‘steel bed with cradle’ and he placed order with the opponent by paying Rs. 5,999/- on 15/08/2012.  The opponent has delivered product at the residence of the complainant on 23/8/2012.  But the said product was not same, which was ordered by the complainant.  As there was only baby bed with no cradle and no mosquito net.  The product, which was supplied by the opponent is totally different that the product, which was ordered by the complainant.  Thus, the complainant informed this fact to the opponent by correspondence and requested to take back the product and refund an amount of Rs. 5,999/-.  The opponent has failed to comply the request of the complainant; hence he has filed the present complaint.  He has asked refund of Rs. 5,999/- along with interest and compensation of Rs. 25,000/- for mental harassment and physical inconvenience.

2]      The opponent resisted the complaint by filing written version.  It is the case of the opponent that there is no relation between the complainant and the opponent as ‘consumer’ and ‘service provider’.  Moreover, there is specific clause in the agreement as regards the territorial jurisdiction and as per the said agreement, if any dispute arise, the courts in Mumbai has jurisdiction to entertain the dispute.  It is also contended that the opponent has merely published the advertisement.  It is an online media company and online venue for the users to purchase the articles and it is not a vendor.  The complainant had purchased the said articles from the vendor named as “Ezdeals”.  The correspondence between the complainant and the said vendor i.e. e-mail dated 15/8/2012 is disclosing that the order was placed with the vendor and not with the opponent.  According to the opponent, as the relation between the parties is not as ‘consumer’ and ‘service provider’ this complaint is not maintainable and that must be dismissed. 

3]      After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for the determination of the Forum. The points, findings and the reasons thereon are as follows-

REASONS    :-

4]      The undisputed facts in the present proceeding are that the complainant had placed an order of the product by reading advertising, which was published by the opponent.  It is significant to note that the opponent is not a vendor and it is not selling any product.  But it provides platform for the consumers and manufacturers or service providers.  It further reveals from the correspondence that the said product was sold out by a company named as “Ezdeals”.  In such circumstances, it is the opinion of the Forum that there is no relation between complainant and the opponent as ‘consumer’ and the ‘vendor’ or ‘service provider’.

5]      The second limb of the contentions of the argument of the opponent is that this Forum has no jurisdiction to entertain the dispute between the parties, as the complainant had accepted terms and condition and he is knowing that there is clause in the agreement as regards the restrictions of the jurisdiction and as per the said clause, Mumbai courts alone has jurisdiction to entertain the dispute.  The learned Advocate for the opponent strongly relied upon the Ruling of “A.B.C. Laminart Pvt. Ltd. and another V/S A. P. Agencies.” Reported in AIR 1989 SUPREME COURT 1239.  In that proceeding, it has been observed that if parties had waived one of the jurisdiction and agreed upon another jurisdiction, that agreement is not against the public policy and it is a valid agreement.  In these circumstances, the Forum held that Pune District Consumer Forum has no jurisdiction to entertain this complaint.  It is also observed that, as the complainant has failed to establish the relation between himself and the opponent as the ‘consumer’ and ‘service provider’, the complaint can not be returned but it should be dismissed.  In the result the Forum answers the points accordingly and pass the following order.

** O R D E R **

1. The complaint is dismissed with no

order as to the costs.

                   2.       Copies of this order be furnished to

the parties free of cost.

3.       Parties  are directed to collect the sets, which were provided for Members within one month from the date of order, otherwise those will be destroyed. 

Place – Pune

Date- 06/06/2014