This complaint is filed by the Complainant u/S 35 of the Consumer Protection Act, 2019 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did neither bother to take back the defective bicycle from the Complainant nor refund the cost amount of the product to the Complainant till filing of this complaint.

The brief fact of the case of the Complainant is that being attracted with the advertisement given by the OPs the Complainant contacted with them through the customer care and after discussion with the representative of the OPs the Complainant wanted to purchase one bicycle through online. The Representative of the OPs had assured the Complainant that the concerned product will be dispatched to him within 24 hours from the time of payment of the consideration amount in total. Accordingly the Complainant paid a sum of Rs.34,124/- to the OPs towards the price of the said bicycle and the OPs have confirmed the said payment after receipt through their e-mail on 01.06.2020, but it was noticed by the Complainant that the confirmation e-mail contained the price of the product as Rs.33,225/-. It was stated by the OPs that the product will be delivered to him through special transport for safety and security and before sending the product they will check the quality of the same on 22 points and after being satisfied with the quality check, the OPs will ship the product to ensure no damage during transit the same, but they did not comply with their assurance. On 06.06.2020 the OP-1 informed the Complainant regarding the delivery of the bicycle, booked through internet service being CMB order ID no-CMB 32944, Invoice no-CMBI/June 20/141/32944. The Complainant received the said product from Gati KWE on 19.06.2020, but the OPs have promised that the product will be delivered within 11.06.2020. So the Complainant received the same after lapse of about 08 days from their commitment date. From the receipt of the said GATI it is clear that the OPs have booked the said product after five days instead of their commitment i.e. within 24 hours from the time of payment. The Complainant received the goods along with Tax Invoice no-CMBI/June 20/141 32944 dated 06.06.2020 including shipping and handling charge, user manual of Choosemybicycle  and free items on 19.06.2020. According to the Complainant the advertisement of the OPs is wrong and misleading as they did not follow 22 quality checking and did not deliver the product as per their advertisement. After opening the packing box the Complainant noticed that the OPs did not deliver the warranty card of the questioned goods of the Mantra Company and it was also noticed by him that the OPs have delivered him a broken bicycle. Immediately the Complainant contacted with the OPs narrating the entire episode, but no co-operation was extended from the end of the OPs. Subsequently the representative of the OPs told the Complainant to send a picture of the said broken parts through e-mail. As per direction the Complainant send the same to the OPs on 04.07.2020 and also informed that he did not get the warranty card of the said product of the Mantra Company. The Complainant also complained about the damage in the fork of the bicycle suspension. Thereafter the Complainant called Mantra Bicycle customer care and informed them the entire incident. Subsequently on behalf of the OPs one representative informed the Complainant on 10.07.2020 that the suspension was not broken at the time of shipment, but it may occur during transit. The said person offered the Complainant free voucher of Rs.500/- and wrote that the curving part is broken and this will not hinder the performance of the suspension of the fork and bicycle is safe to ride.  The Complainant has stated that there is no broken part in the box and according to the Complainant the OPs have delivered the bicycle knowing fully well that it is in broken condition. On 11.07.2020 the Complainant informed the representatives of the OPs that he is not agreed to accept the gift voucher of Rs.500/- as free voucher and requested them to replace the broken suspension fork along with providing the warranty card related to the different parts. This information was also duly intimated to the Mantra Company. On 14.07.2020 through an e-mail the OPs have intimated the Complainant that they are agreed with the request of him and the broken suspension fork will be replaced free of cost and the complainant was requested to return the damaged fork via Courier and send the tracking no as proof of dispatch of the damaged fork. On being asked by the Complainant the OPs send the dispatch address through e-mail. The Complainant was also asked by the OPs on 15.07.2020 for sending the broken fork suspension through DTDC courier or Professional Courier. The Complainant sent the said item through DTDC courier along with the track receipt. The Complainant requested the OPs to refund the courier charges and technical/mechanical charges and send the new suspension fork as early as possible. The representative of the OPs wanted to know the bank details of the Complainant for repayment of the said expenses and assured that the new suspension fork will be shipped by 16.07.2020. The bank details was duly send by the Complainant and the OPs have assured that they will reimburse his claim as early as possible, but the OPs did not comply with their commitment as they have failed either to reimburse the amount by 21.07.2020 and till date no information was given regarding shipment of the replaced fork. It was told to the Complainant by the representative that they will refund Rs.480/- within 02 days and the new suspension fork will be dispatched by 23.07.2020, but the OPs did not take any step to refund an amount of Rs.200/- as technician charges, as paid by him. But the OPs did not bother to take any step for redressal of his grievance and being dissatisfied with continuous failure to provide proper service the Complainant has made a complaint against the OPs through online, but the OPs have provide the tracking number after six days of their commitment, but they did not upload the tracking receipt for proving the genuineness of the delivery. On 27.07.2020 the Complainant told the OPs to take back the bicycle and refund the money as paid by him and after knowing the same the OPs have assured the Complainant that within 24 hours his grievance will be resolved. On 28.07.2020 the Complainant intimated the OPs that the suspension fork was not picked up by the courier agency. Being aggrieved with such inaction of the OPs finally on 05.08.2020 the Complainant had requested the OPs to refund the full paid amount and take back the bicycle from him. Finding no other alternative the complainant filed a complaint against the OP-1 before the Consumer Help Line on 24.07.2020. The said Grievance Cell had advised the Complainant to file a case against the Company before the appropriate District Commission, Barasat. Hence having no other alternative the Complainant has approached before this Ld. Commission having territorial jurisdiction of this complaint praying for direction upon the OPs to refund the entire paid amount of Rs.34,124/- along with banking interest from the date of making payment till entire realization, to pay compensation to the tune of Rs.3,50,000/- for undue harassment, mental agony and pain and to pay litigation cost for Rs.50,000/- to him.

After admission hearing of this complaint notices was issued upon the OPs through speed post with A/D. On 25.2.2021 one Ld. Advocate namely Mr. Soumen Sekhar Ghosh appeared before the Ld. Commission and undertook to file vokalatnama on behalf of the OPs . The Track Reports have revealed that the Ops have received the notices on 31.12.2020, but within the statutory period the OPs did not file any written version, hence the Ld. Commission was pleased to pass an order that the complaint will run exparte against the OPs. Subsequently the Complainant had adduced evidence on affidavit. As per the prayer of the Complainant this Ld. Commission was pleased to fix this complaint for hearing argument on 25.05.2020, but on the said as none was present on behalf of the Complainant the Ld. Commission was pleased to fix a date for delivery of the judgment upon careful perusal of the entire record and documents as also the evidence as adduced by the Complainant.

We have carefully perused the entire record and documents as available along with the evidence as adduced by the Complainant. It is seen by us that admittedly the Complainant purchased one bicycle from the OPs through online and he paid the entire consideration money for the said purchase through online payment. The OPs have sent the goods through the courier service. After receipt of the goods the Complainant opened the package and he found that the OPs did not provide him the warranty card of the said product and the suspension fork of the said bicycle is broken condition. Without wasting time the Complainant informed the OPs and on behalf of the OPs one representative told him that after repeated checking the product was given for delivery, therefore question does not arise regarding broken condition of the said product. It was also told by the OPs that during transit such broken may be happened. But in the box of the product the Complainant could not find out any broken parts of the suspension fork. Several written correspondences were made by and between the parties, ultimately the OPs were agreed to replace the broken parts of the said bicycle. Accordingly the Complainant had remitted the address where the new suspension fork will be dispatched by the OPs through courier. But inspite of commitment and assurance till filing of this complaint the OPs did not send the same to the Complainant and due to such inaction on behalf of the OPs the bicycle remains in idle condition since its purchase. As the OPs have miserably failed to redress the grievance of the Complainant, hence this complaint has been initiated by the Complainant praying for certain reliefs.

It is admitted fact that to prove the defects in goods an expert opinion is required, but in the case in hand the expert opinion is not necessary on the ground that the OPs have admitted their fault that the suspension fork of the said bicycle is in broken condition and in such condition the Complainant had to receive the same. It was promised by the OPs that they will replace the broken parts of the said goods with a new one, but inspite of their promise the OPs have failed to keep the same. So in our considered view as since inception the parts of the bicycle were in broken condition, the Complainant is not under any obligation to keep the defective goods under his custody after making payment of the entire consideration amount to the OPs. We are of the view that it will meet justice if we direct the OPs either to replace the said bicycle with a new and defect free and similar one or to refund the entire amount as paid by the Complainant to the OPs for purchasing the same. It is also an admitted fact that as the OPs have failed to redress the grievance of the Complainant, the Complainant has to approach before the Court of Law and for the instant proceeding he had to incur some expenses, for which the Complainant is very much entitled to get litigation cost from the OPs.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-CC/300/2020 is hereby allowed exparte against the OPs with cost. The OPs shall either replace the questioned bicycle with a new, defect free and similar one within a period of 30 days from the date of passing this judgment or refund the entire paid amount of Rs.34,124/- to the Complainant along with an interest there on @9% p.a. for the period from 01.06.2020 till entire realization within a period of 45 days from the date of passing this judgment in the form of compensation, in default the interest component will be 10% instead of 9%. The OPs are also directed to pay litigation cost to the tune of Rs.5,000/- to the Complainant within a period of 45 days from the date of passing this judgment, in default the Complainant will be at liberty to put the entire decree in execution as per provision of Law.

Let a plain copy of this judgment to supplied to the parties free of cost as per the CPR.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER