For the Opposite Party No.3: Mr. Jogeswar Purohit, Mr. B.K.Padhy, Advocates & Associate.
DATE OF FILING: 03.07.2014
DATE OF DISPOSAL: 27.03.2017
Dr.N. Tuna Sahu, Presiding Member
The complainant has filed this consumer complaint under Section 12 of Consumer Protection Act 1986 alleging defect in goods against the Opposite Parties (for short, the O.Ps.) and for redressal of his grievance before this Forum.
2. Brief facts of the case of complainant is that when he was watching T.V. Channel Star Utsav (O.P.No.3) at that time he came across an advertisement for sale of Sundara Sarees and also displayed on the TV screen a contact phone No.09220001111. Pursuant to the advertisement, the complainant decided to purchase a pack of nine Sarees at the cost of Rs.3990/- plus delivery charges of Rs.300/- and accordingly order was placed over aforesaid telephonic number. On 01.01.2014, the complainant received the packet of Sarees at Berhampur on payment of full amount of the product of Rs.3,990/- plus delivery charges Rs.300/- under a bill issued by O.P. No.1 vide Bill No. 51147 dated 1.1.2014. Then the complainant checked the Sarees and it was found that out of nine Sarees, two numbers of sarees in the packet are in damaged and defective conditions. Then the complainant duly informed this matter to O.Ps in the aforesaid mobile number for immediate replacement. Thereafter, it was intimated by message through mobile and subsequently by e-mail. Though it was promised over phone to replace the same it was never materialized. Waiting for more than a month the complainant issued a legal notice for replacement damaged sarees or to refund the paid amount of Rs.4,290/- with interest of 18% and for payment of Rs.1,00,000/- towards compensation for inconvenience, financial loss, mental agony and harassment. On dated 18.02.2014 the registered post with AD returned with a remark address not known from O.P.No.1. Similarly, the letter of O.P.No.2 was also returned with remark as ‘address is not known’. Thereafter the complainant thought seriously that there is a foul play by O.P.No.1 & 2 in collaboration with O.P.No.3 which is a most popular TV channel familiar in every household. The complainant also mentioned in the complaint that he purchased those Sarees on the eve of Makar Sankranti scheduled on 14.1.2014 but due to two damaged and defective sarees he could not utilized for the purpose. Finding no other alternative the complainant purchased new sarees on the eve of Makar Sankranti incurring extra financial loss. Hence, he filed this complaint in the Forum with a prayer to replace the damaged and defective sarees or to refund the amount paid i.e. Rs.4290/- with 18% interest and prayed to make payment of Rs.1,50,000/- towards compensation for the mental agony, harassment, inconvenience, financial loss along with cost of litigation in the interest of justice.
3. The case was registered in this Forum and notice issued to the O.Ps. The O.P.No.1 and 2 neither appeared nor filed any version hence the O.P.No.2 declared as ex-parte on 17.05.2016 and O.P.No.1 was set ex-parte on 22.6.2016 respectively. Hoever, the O.P. No.3 received the notice and appeared before this Forum to contest this case.
4. The O.P.No.3 appeared before this Forum on 02.11.2015 through his learned counsel Sri Jogeswar Purohit and Associates, Berhampur, Ganjam and filed his version of the case on 19.04.2016. The O.P. No.3 also filed his written argument on 10.11.2016. The O.P.No.3 in his written version/argument submitted that the complainant made against O.P.No.3 for a false and incorrect complaint. The allegations so brought by the complainant against this O.P.No.3 are baseless and irrelevant. He vehemently denied all allegations which are specifically not admitted by him. It is submitted that the O.P.No.3 Star India Pvt. Ltd. is the owner of Star Utsav. It is a fact that O.P.No.3 being a TV channel promotes sale advertisement of many products including sarees. It is further submitted that the alleged 9 pack of sarees was not manufactured, sold, stored or marketed by O.P. No.3. This O.P. has no knowledge whatever of the item said to had been purchased by the complainant from O.P.No.1. As the complainant has not purchased goods or service from O.P.No.3 hence he is not a consumer of O.P.No.3 directly and O.P.No.3 has not provided any service to the complainant directly. The present proceeding against O.P. No.3 is an abuse of process of law at the instance of the complainant and the same is liable to be dismissed against O.P. No.3 at the threshold. In view of the aforesaid fact and circumstance of the case, the O.P.No.3 prayed before this Forum to dismiss the present complaint against him in the best interest of justice.
5. On the date of final hearing, the complainant and the learned counsel for O.P.No.3 are present before this Forum. The O.P.No.1 & 2 were set ex-parte as discussed above due to their non-appearance. During the course of argument, the complainant contended that he purchased a pack of nine Sarees from O.P. No.1 as per the advertisement in Star Utsave TV channel by O.P.No.2 and received the sarees at Berhampur on payment of Rs.4,290/- which includes Rs.3,990/- towards nine Sarees plus Rs.300/- as delivery charges on 01.01.2014 vide bill No.51147. When two of the sarees found damaged/defective, the complainant informed the O.P. No.1 in the mobile number mentioned in the bill and on No.09220001111 respectively. The complainant intimated this matter to the O.Ps through aforesaid telephone numbers as well as through mobile as mentioned in the cash bill but all attempts went in vain. Thereafter, when no response was received from the O.Ps, he issued legal notices to all O.Ps. The notices from O.P.No.1 and 2 were returned un-served with the remark as ‘addressees not known’ and O.P.No.3 remained silent on the matter. The complainant also contended that O.P.No.3 admitted that being a TV channel he promoted sale advertisement is an agent. It is further submitted that if it is accepted that the sarees were in fact advertised on STAR UTSAV, the service provided by the O.P.No.3 would be that of providing advertising time/space on the channel. In this respect it is the O.P.No.3 who has opened the gates for unfair trade practices and corruption and defective goods are being supplied by O.P.No.1 & 2. To add to it, in spite of legal notice to O.P.No.3 he remained silent thereby which clearly speaks that O.P.No.3 is hand in glove with O.P.No.1 &2 so he can’t escape from his liability. The complainant had placed order on the eve of Makar Sankranti to give the sarees to his sisters and due to defective sarees supplied by O.Ps he incurred unnecessary financial loss by purchasing new sarees. The complainant finding no way filed this complaint in this Forum with a prayer to refund Rs.4,290/- with interest @ 18% from the date of payment i.e. 01.01.2014 along with Rs.1,50,000/- towards compensation for mental agony, harassment, inconvenience and negligence and for deficiency in service and cost of litigation in the interest of justice.
On the contrary, the learned counsel for the O.P. No.3 submitted that it is a fact that O.P.No.3 being a TV channel promotes sale advertisements of many products including sarees. He further submitted that the alleged purchase of nine pieces of sarees were not manufactured, sold, stored or marketed by O.P. No.3. He further contended that this O.P. has no knowledge whatever item said to had been purchased by the complainant from O.P. No1. As the complainant has not purchased goods or service from O.P.No.3, he is not a consumer of O.P.No.3 directly and O.P.No.3 has not provided any service to the complainant directly. The present proceeding against O.P. No.3 is an abuse of process of law at the instance of the complainant and the same is liable to be dismissed against O.P. No.3 at the threshold. In view of the aforesaid fact and circumstance of the case, the O.P.No.3 prayed before this Forum to dismiss the present complaint against him in the best interest of justice.
6. We have heard both parties at length who are present and submitted their case before this Forum respectively. We have also gone through the case record and verified the complaint; written arguments and relevant documents placed on the case record and also thoughtfully considered the submissions made by both parties. It is not in dispute that the complainant has purchased a pack of nine Sarees vide Bill No.51147 dated 01.01.2014 from the O.P. No.1 who is a dealer/distributor of O.P.No.2 which was advertised through O.P.No.3. It is also a fact beyond dispute that the complainant has paid a sum of Rs.4,290/- to O.P.No.1 that includes Rs.3,990/- as cost of nine number of Sarees and Rs.300/- towards delivery charges. The money receipt of Rs.4290/- received from O.P. No.1 is placed on the case record as Doc -1. It is also fact on record that the complainant issued a legal notice to O.P.No.1 on 18.02.2014 and to O.P. No.2 on 18.03.2014 respectively for exchange of two defective sarees out of nine Sarees supplied by the O.P. No.1&2. The registered postal receipts are also placed on the case record as Doc-3 and Doc-5 respectively. The complainant had also issued a letter to O.P.No.3 in the interest of public mentioning about the unfair trade practice of O.P.No.2 i.e. Sundaraa Sarees. However, the notice was returned with postal remark as ‘addressee not known’. Further, it is also a fact that in the said notice the complainant did not seek any relief from O.P. No.3 except asking for the documentary evidence of address of O.P. No.2 for serving notice. In spite of this, the notices issued by this Forum against both the O.P.No.1&2 were returned with postal remark as ‘addressee not known’ and ‘no such office’ etc. respectively. It is also an admitted fact that the O.P. No.3 neither manufactured nor sold the sarees to the complainant but for marketing purpose advertised the products of O.P.No.2 through his TV Channel Star Utsav. Hence, it is clear that the aforesaid pack of nine sarees were sold by the O.P.No.2 to the complainant through O.P. No.1 who has also received the alleged amount of Rs.4,290/- from the complainant. It is to note, in this dispute, the complainant has received seven sarees in good conditions but only two sarees found defective out of total nine sarees as admitted in his complaint and written argument. We, therefore, feel that the O.P.No.1&2 are liable to exchange only two defective sarees of the complainant or to refund the amount of two sarees proportionately to the complainant out of nine sarees. The cost of one packet of nine sarees comes to Rs.4,290/- as evident from the bill issued by the O.P. No.1 and the cost of two defective sarees approximately cost Rs.954/- only as one saree cost Rs.477/-. Similarly, in this case, the complainant has failed to produce any documentary proof regarding nexus of O.P.No.1&2 with O.P.No.3 and there is nothing placed on the case record to take such a view by this Forum. However, we would like to suggest that O.P.No.3 should always verify the veracity of the products and companies while allowed them to advertise their products through his TV Channel else it will attract legal against O.P. No.3. On careful perusal of case record, we do not find any documentary evidence regarding negligence or any deficiency of service caused to the complainant by the O.P.No.3. He failed to substantiate his case through documentary evidence and we are, therefore, not inclined to hold O.P. No.3 as liable for the supplying defective sarees to the complainant. Accordingly, the O.P.No.3 is exonerated from his liability. With regard to compensation, we would like to say that in this case, the complainant has prayed for Rs.1,50,000/- towards compensation to the paid by the O.Ps for mental agony, harassment, inconvenience, negligence and financial loss but failed to produce any documentary evidence to prove the same. Hence, we feel that the claim is on higher side and exaggerated so we are unable to accept the same. As contended, the complainant claimed that he has been harassed and faced inconvenience and has also incurred unnecessary expenditure towards purchasing two new sarees for Makara/Pongal festival but failed to produce money receipts of those new sarees hence we are unable to accept the same. However, we feel that the complainant has spent some amount on postal expenses and has also paid Rs.200/- towards court fees while filing this dispute in this Forum due to the negligence and unfair trade practice of the O.P.No.1&2. We are, therefore, inclined to allow some moderate amount towards compensation which we quantify Rs.500/- as per the fact and circumstance of the case. We would also like to allow Rs.500/- towards cost of litigation to be paid by the O. P. No.1&2 along with compensation since the complainant was forced to file this case to ensure his rights through consumer Forum.
In a sequel to the above discussion and taking into account to the peculiar fact and circumstances of the case, we partially allowed the case of the complainant against O.P.No.1&2 and dismissed against O.P.No.3 since the petitioner failed to prove allegations made against O.P.No.3 in this case.
7. In the result, we partially allowed the case of the complainant against O.P. No.1&2 who are jointly and severally liable to refund a sum of Rs.954/- (Rupees Nine Hundred Fifty Four) only to the complainant towards cost of two defective/damaged sarees. Similarly, the case of the complainant against O.P.No.3 is dismissed due to lack of merits. The O.P. No.1&2 are also directed to make payment of Rs.500/- towards compensation for harassment, mental agony and inconvenience caused along with to pay Rs.500/- towards cost of litigation. Compliance of the order shall be made within two months from the date of receipt of this order failing which the complainant is at liberty to realize said amount from O.Ps under Section 25/27 of the Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly.
8. The order is pronounced on this day of 27th March 2017 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
