Date of filing : 20.02.2018
Judgment : 20.03.2019
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under Section 12 of the Consumer Protection Act, 1986 by Sanjoy Sen alleging unfair trade practice against (1) Samsung India Electronics Pvt. Ltd. (2) Samsung Shop (3) Savex Technology Pvt. Ltd.
Case of the complainant, in brief, is that the complainant being a net savvy person had been surfing the internet and entered into site of OP and being entered therein came to know that the - shop of OP i.e. Samsung Shop was offering 100% discount on a mobile phone being model/item Galaxy S7 Edge ( Silver Titanium) 32 G.B worth Rs. 38,900/- and immediately placed an order on 21.12.2017 and the OP No.2 confirmed the booking providing an order ID being No.100561636 and intimated the complainant the same through e-mail stating ‘Total Rs. 38,900/- and discount Rs.38,900/-, convenience charge 0.00 shipping and handling 0.00, total amount paid 0.00’.The complainant has further stated that confirmation call of OP No.2 stating ‘ Order is confirmed and it will reach the complainant by 2 business days’ had been received by the complainant and thereafter several communication had been made from the end of the complainant but the item had not been delivered to the complainant which was to have been delivered by 27.12.2017 as per intimation sent by OP over telephone but subsequently the OP cancelled the booking on the ground that the booking was a technical glitch in respect of which the complainant sent demand notice dated 14.01.2018 and in reply to that notice the OP levelled the claim of the complainant as illegal claim which causes harassment, mental agony to the complainant and hence this case. The complainant by filing the instant case prayed for direction upon the OPs to handover a mobile phone worth Rs. 38,900/- of Galaxy S7 Edge ( Silver titanium ) 32 G.B alternatively to pay Rs. 50,000/- towards harassment, inconvenience, to pay Rs.10,000/- towards cost of litigation and other reliefs.
The complainant annexed several e-mail including e-mails dated 21.12.2017, 05.01.2017, 09.01.2018 and 19.01.2018, an Advocate’s letter dated 02.02.2018 issued from the end of the OP.
The OP No.1 contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating, inter alia, that the OP by letter dated 02.02.2018 explained that due to ‘technological anomaly’ an erroneous Coupon Code was generated and as per terms and condition mentioned in the e-store website, the Coupon Code generated due to technical error the OP was not under compulsion to supply any item in respect of which the Coupon Code was generated.
The OP No.1 has quoted the disclaimer portion of the said terms and conditions to substantiate claim of the OP regarding non-supply of booked item and prayed for dismissal of the case.
The OP No.3 has also contested the case by filing written version stating inter alia, that the OP No.3 is only authorised dealers/distributors of Samsung Products. It is stated by the OP No.3 that the OP No.3 made sincere effort to resolve the issue but had not succeeded though no relief had been sought against OP No.3 it is further stated by the OP No.3 that he was not responsible for any harassment suffered by the complainant and accordingly prayed for dismissal of the case.
The complainant and OP No.1 adduced evidence. The complainant filed questionnaire but the OP did not file any reply.
In course of argument, the complainant has submitted that the act of the OP caused harassment.
Ld. Advocate on behalf of OP No.1 filed BNA and submitted that the complainant is not a ‘Consumer’.
Points for determination :
- Whether the complainant is ‘Consumer’ ?
- Whether there is unfair trade practice ?
- Whether the complainant is entitled to the reliefs as prayed for ?
Decision with reasons :
Point No. 1: Admittedly, the complainant while surfing the net came across the e-commerce site of the OP and going through the site found that the OP was offering 100% discount on a Galaxy S7 Edge (Silver titanium ) 32 GB mobile phone worth Rs. 38,900/- and immediately booked the same but the said mobile phone set had not been sent by the OP on the ground that Coupon Code generated against said booking was only due to technical error.
The complainant has claimed that the contact (confirmation of booking ) is binding upon the parties and by violating such contract on the ground of technical error attract the provision of Section 2(1)(r) of the Consumer Protection Act.
The OP No.1 has claimed the complainant is not a ‘Consumer’.
On perusal of Section 2(1)(d) of the Consumer Protection Act which runs as :
"Consumer" means any person who—
(i) 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
(ii) 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;
Therefore, it is clear from the definition of ‘Consumer’ as per Section 2(1)(d) of the Consumer Protection Act, 1986 that passing consideration or promise to pass the consideration is an element to be ‘Consumer’ . In the instant case the said element is absent and therefore the complainant cannot be considered as a ‘Consumer’.
Under such circumstances, it can be said that the complainant is not ‘Consumer’ under provision of Section 2(1)(d) of the Consumer Protection Act and this Forum is not empowered to adjudicate any matter other than consumer dispute and thus the case is not maintainable before this Forum.
Point no.1 is decided accordingly.
Point Nos. 2 & 3 : Since point No.1 is decided negative there is no scope to go into the merit of the case.
In the result, the consumer complaint doe not succeed.
Hence,
Ordered
That CC/76/2018 is dismissed being not maintainable.
