Ld Advocate for the complainant is present. The facts of the complainant’s case in a nutshell are that the complainant placed an order to the OP No. 1 (Flipkart) to buy a Mi A1 (Red, 64GB) Mobile Phone Vide Model No. NAMB5957IN, IMEI/Serial No. 866410034152144, 866410034152151 for the price of Rs. 11649.00/- as per offer shown on their apps, Money being paid through Zest Money on 14.08.2019, and the date of placing Order being 14.08.2019 vide his Order Id being 0DI116263026302972000.As per order, on 19..08.2019 a typical Flipkart parcel was delivered to the complainant by the deliveryman of OP No. 2 and on opening the same on spot, in presence of the said deliveryman, the complainant got stunned to notice that, a completely broken and out of order Microsoft phone was delivered to him by the OPs. It is further mentioned here that, both the display and the back cover of the said phone was in broken condition, and the white box containing the said phone had no other papers, invoice, IMEI Tag, MRP, manuals, warranty card, charger or other accessories .Instantly the complainant informed the matter to the OP no. 1 and returned the same as per their procedure, and his Return id being given by the OP No. 1 as 12101634950312797886.Initially the OP No. 1 responded quickly with their e-mail conversations and gave the complainant assurances that they will resolve the matter very soon, viz. 22.08.2019, the OP No. 1 replied that matter will be resolved within 24.08.2019. On 24.08.2019, the complainant received an e-mail from OP No. 1 to the effect that his return request has been CLOSED, i.e. rejected, without mentioning any reason there. However a little later, another mail was received by him to the effect that matter will be resolved within 27.08.2019, 3.00 P.M.On 26.08.2019, the OP no. 1 wrote that they would resolve the matter by 29.08.2019, 9.00 P.M.; etc. however, till date, neither a new and original phone as p.er order, nor the money realized by them was returned to the complainant.
The complainant was never asked to give his consent to an FIR being lodged within 48 hours, but very surprisingly the complainant was sent an e-mail on 26.08.2019, stating that, since they haven’t got any a-mail from your complainant giving his consent to an FIR being lodged within 48 hours, the return request was cancelled. Without having any idea or about the subject matter of the said mail, the complainant instantly gave his consent to lodge an FIR, or whatever it may be, by writing YES despite that the OP No. 1 kept giving false assurances for two more days, i.e. on 27.08.2019 and 28.08.2019, but thereafter not only stopped all conversations, but also blocked the Flipkart Id of the complainant so that he may not get Anaya further details and information, even the details of his prior order. The Flipkart Id of the complainant was an utmost essential important identity of the complainant as it was linked with various other internet based business concerns like CIBLE, ZEST MONEY etc, and as the ld has been blocked, the complainant has been suffering a huge economic loss for the same. It is thus hopeless to mention that since the return of the duplicate and broken phone, the OPs took a dilatory tactics by not paying the amount, and subsequently refused to take any step to refund the money to the complainant till date.The complainant is in a hopeless condition and being a bona fide purchaser of mobile phone and consumer under the OPs, the complainant has been forced to suffer a severe loss by way of cheating , harassment, illegality and mental pain due to gross negligence and severe deficiency in rendering service by the OP. The cause of action of this case was started on 19.08.2019 since the damaged and duplicate phone was delivered to him and it continued and finally occurred on 28.08.2019, when the OP denied and evaded the return process, and blocked the Flipkart id of the complainant. Finding no other alternatives the complainant has hereby filed this Case before the Commission praying for the following reliefs; to direct the Opposite Party :-To pay the consideration/price money to the tune of Rs. 11649.00/- as per order placed by the complainant, plus interest @ 18 p.a. since 14.09.2019 till actual payment and also to direct the OPs to unblock the Flipkart ld with immediate effect , to pay a compensation of Rs. 20,000/- to the complainant by Opposite Party for negligence and deficiency in service and enormous delay , to pay litigation cost of Rs. 10000/- to the complainant for conducting this case and to pass such other orders of relief as the Commission may deem fit and proper.
Notices were duly issued and served upon the Ops. After service of notice the OP No. 1 appears before this Commission and files written notes of arguments which is on record, it has not filed any written version within statutory period. The OP No. 2 received the notice but did not appear to contest this case. Hence, the case proceeded ex-parte against the OP No. 2.
Points for determination are:
- Is the case maintainable in its present form and in law?
- Is the Complainant entitled to the relief(s) as sought for?
Decision with reasons
Both the points I and II, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
We have carefully perused the evidence on record along with all documents and written argument by the op-1.
Having regards had to the facts and circumstances of the case in the light of evidence, it is evident that there is no dispute that Complainant is a consumer having grievances against the Ops, as such the case is maintainable in its present form and in law.
On scrutinizing and evaluating the evidence and other materials on record it appears that the complainant purchased the product having features MiA1(Red colour, 64 GB). Mobile phone vide model No. NAMZB5957IN, IMEI/serial No. 866410034152144, 866410034152151 for the price of Rs. 11, 649.00/- as per offer shown on their apps money being paid through ZEST Money on 14.08.2019 and the date of placing order being 14.08.2019 vide his order Id being 0D116263026302972000 to the OP company MI through Flipkart, but when the complainant received the Flipkart parcel dated 19.08.2019 from the delivery man of OP No. 2, and opening the same on spot, in presence of the said delivery man, the complainant got stunned to notice that a completely broken and out of order Microsoft Phone was delivered to him by the Ops. It is further mentioned that both the display and back cover of the said phone was in broken condition and the whole box contained the said broken mobile had no other papers, invoice, IMEI Tag, M.R.P. manual, warranty card, charger or other accessories. Complainant attached the photographs in his evidence. The complainant informed the matter to the OP No. 1 and returned the same as per their procedure and his return id being given by the OP No. 1 as 12101634950312797886.Thereafter, OP No. 1 responded quickly through E-mail conversation and gave assurance that they will resolved the matter very soon dated 22.08.2019. The OP No. 1 replied that they will be resolved within 24.08.2019 but same date complainant received and E-mail from OP No. 1 that his return request has been closed without maintaining any reason and another mail was received by the complainant to the effect that matter will be resolved within 27.08.2019 ….3 P.M. According to him, he complainant was never asked to give his consent to an FIR being lodged within 48 hours, but very surprisingly the complainant got an e-mail on 26.08.2019, stating that, since they haven’t got any a-mail from your complainant giving his consent to an FIR being lodged within 48 hours, the return request was cancelled. Without having any idea or about the subject matter of the said mail, the complainant instantly gave his consent to lodge an FIR, or whatever it may be, by writing YES. Thereafter OP No. 1 kept giving false assurance for the complainant on 27.08.2019 to 28.08.2019 and thereafter not only stopped all conversation but also blocked the Flipkart Id of the complainant and the complainant may not get any further details information, even the details of his prior orders. The Flipkart Id of the complainant as it was utmost essential and most important identity of the complainant because as it was linked with various other internet based business concerns like CIBLE,ZEST Money etc. as the Id had been blocked the complainant have been suffering a huge economical loss for the same. The above evidence has not been challenged by filing any written version .Without filing any written version any plea of defence is baseless. The evidence of the complainant has fundamentally remained unchallenged. The cause of action arose when the OP denied and evaded the return process and blocked the Flipkart Id of the complainant. The complainant on several mails asked to the OP company to change the mobile phone but OP Company did not change the set. It is very much clear from the unchallenged evidence that the Ops caused delivery of different product with a broken Microsoft phone – instead of MIAI(RED, 64 GB) by its delivery man. The complainant had taken up the matter with the Ops without causing any irresponsible delay. It is not the case of Ops that they conducted in house investigation by checking CC TV Footage at packing and disbursing point. The Ops did take any action for conducting police investigation although the OP after getting YES e-mail on 25.08.2019.It is evident from the evidence that the complainant returned the said broken product vide return I.D. No. 12101634950312797886 dated 24.08,.2019. If we delve into the written argument filed by the OP No. 1, we find that OP-1 has not proved its contention as mentioned in paras 12 of written notes of arguments. So, delivery of different product with broken Microsoft phone instead of MIAI (RED 64 GB) by its deliveryman is an instance of unfair trade practice. The complainant has been able to bring home the elements of deficiency of service and unfair trade practice against the ops.
Now, it can not be ignored that similar product is not available for long time, with the passage of time the manufacturer launched new product with more advance phone after stopping the production of previous brand and features. Having considered the facts and circumstances of the case we think that it would be just and proper if we ask the Ops, who are jointly and severally liable, to return the purchase value of Rs. 11,649/- along with simple interest @ 10% P.A from the date of purchase i.e. 14.08.2019 till payment and to pay Rs. 2000/- as compensation for harassment and to pay Rs. 1000/- as towards litigation cost. The Ops will take necessary step for unblocking the Flipkart Id of the complainant.
Thus, points for determination are disposed of in favour of the complainant.
The case succeeds.
Hence, it is
O R D E R E D
that the CC- 453 of 2019 be and the same is allowed on contest against the op-1 allowed ex-parte against the OP- 2.
The OPs 1 & 2 , who are jointly and severally liable, are hereby directed to pay Rs. 11,649/-(Eleven thousand Six hundred forty nine) along with simple interest @ 10% per annum from the date of purchasing of product/mobile i.e. since 14.08.2019 till payment, and to pay Rs. 2,000/- as compensation and Rs. 1000/- as towards litigation cost to the complainant.
The OPs 1 & 2 , who are jointly and severally liable, are hereby further directed to take necessary step for unblocking the Flipkart Id of the complainant.
The OPs-1 & 2 will comply the above order within 45 days from the date of this order, in default, the complainant will be at liberty to put this order into execution.
Let a copy of this judgment be supplied to the complainant and Ops 1 and 2 free of cost.
