Consumer Complaint No.132 of 2015
Date of filing: 19.6.2015 Date of disposal: 21.4.2017
Complainant: 1. Munmun Sahu, W/o. Sri Atanu Sarkar.
2. Atanu Sarkar, S/o. Sri Sukumar Sarkar.
Both are residents of Shyamlal Road, Jhapantala, PO: Rajbati, PS. & District: Burdwan, PIN – 713 104.
-V E R S U S-
Opposite Party: 1. The Director, Anazon Seller Services Pvt. Ltd., having its office at Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram (W), Bangalore, PIN – 560 055.
2. The Proprietor, The Jain Book Agency, having its office at 1, Autobindo Place Market, Hauz Khas, New Delhi, 110 016.
3. Head Post Office at Curzon Gate, Burdwan, PIN – 713 101, represented by its Superintendent.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Appeared for the Complainant: Ld. Advocate, Debdas Rudra.
Appeared for the Opposite Party No. 1: Ld. Advocate, Md. Danish Taslim (ex parte).
Appeared for the Opposite Party No. 2: None.
Appeared for the Opposite Party No. 3: Ld. Advocate, Murari Mohan Kumar.
J U D G E M E N T
This complaint is filed by the Complainants u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice on the part of the OPs as the OPs have miserably failed to provide the questioned book ordered by them within due period.
The brief fact of the case of the Complainants is that the Complainant-1 being a law graduate used to appear in various law related competitive examinations in the month of February, 2014. The Complainant-1 with consultation with her husband i.e. Complainant-2 filled up the form for appearing in West Bengal Judicial Examination, 2014. Thereafter the Complainant-1 appeared in the preliminary examination of the same held in the month of April, 2014. In the month of June, 2014 the Complainant-1 came to know that she has been qualified in the preliminary examination and as such began to take preparation for the final examination which would be held on and from 20.07.2014. For the purpose of examination the Complainant-1 along with her husband were searching for suitable books containing recent judgments for law competitive examinations through internet. In the second week of June, 2014 the Complainants came to know the website address of the OP-1 and from there they got knowledge that the Universal Publication had launched the 7th Edition of ‘Universal Recent Judgment for Law Competition Examination’. As such the Complainants contacted with the OP-1 through online at Burdwan in the address as given in the website for books. On 19.06.2014 the OP-1 vide their e-mail informed the Complainant-2 that the cost of the book is for Rs.156=00 only and he was also intimated that if he wants to purchase the same through online payment then a sum of Rs.204=00 will be required for the same including shipping and handling charges along with service taxes. The OP-1 also assured the Complainants that they would deliver the book at the residential address of the Complainants within 10.07.2014 through post or courier service. It is pertinent to mention herein that the OP-1 through their e-mail dated 19.06.2014 informed the Complainants that the OP-2 has received the order of the Complainants and the same has been registered as order no- 4044596428-5170574 and in the status portion they mentioned that ‘…… your estimated delivery date is Sunday, June 29, 2014 to Friday, July, 11, 2014.’ By getting such assurance from the OPs the Complainant-2 purchased the above-mentioned book through online by using debit card and the amount was debited from the account of the Complainant-2 lying with SBI, Golapbag Branch, Burdwan and the OPs have received the same on 22.06.2014. The OP-1 through their e-mail dated 23.06.2014 informed the Complainant-2 that the OP-2 has dispatched the book and the Complainants will get the same within 30.06.2014 to 11.07.2014. But inspite of receiving the payment the OPs were reluctant to deliver the book at the address of the Complainants within stipulated period. On 17.07.2014 the OP-3 through its postal peon attempted to serve the book at the residential address of the Complainants at Burdwan but he could not be able to do so because in the early morning of that date the Complainants left Burdwan for the judicial examination held in Kolkata on and from 20.07.2014 and so the article was returned back to the OP as ‘door closed’. The Complainants sent an e-mail to the OP-1 requesting to refund a sum of Rs.204=00 along with compensation of Rs.50,000=00 within seven days, failing which the Complainants shall be compelled to take appropriate legal action against them. Thereafter the Complainants sent another e-mail on 21.07.2014 stating that due to non-delivery of the book in time the Complainants has purchased the said book on urgent basis and under this circumstances the said book is no more relevancy to the Complainant-1 and thereafter prayer and request was made to refund the amount of Rs.204=00 along with compensation as mentioned before within seven days, failing which legal action will be taken before the appropriate Forum. Upon receipt of such e-mail dated 21.07.2014 the OP sent a reply through e-mail on 22.07.2014 admitting their inability requested the Complainants not to take any coercive step because as a result of technical problem and human errors such situation cropped up. Though the Complainants purchased the book on urgent basis for examination but due to deficiency in service on the part of the OPs due non-delivery of the book within the stipulated time, created great mental pain, agony and harassment and as a result of which the Complainant-1 had to suffer a lot in the examination hall. For this reason the Complainant-2 through e-mail gave a notice to the OPs to refund the purchased amount along with compensation, but the OPs did not pay any heed to the request of the Complainants, which clearly indicates deficiency in service and unfair trade practice on the part of the OPs. Having no other alternative to get relief being compelled, the Complainants have filed this complaint before this Ld. Forum praying for direction upon the OPs to refund Rs.204=00, paid by the Complainant-2 towards the cost of the book including shipping and handling charges along with an interest @18% per annum on the said amount, compensation to the tune of Rs. 50,000=00 due to mental pain, agony and harassment and litigation cost of Rs. 15,000=00 to them.
After admission of this complaint notices were issued to the OPs. In the petition of complaint filed by the Complainants on 19.05.2015 the name and address of the OP-1 was written as Director, Amazon India, PR and Customer Service, having its office at Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar Road, Maleshwaram (W), Bangalore, PIN- 560 055. Upon receipt of the notice written version was filed on behalf of Amazon Seller Services Pvt. Ltd. wherein it was stated by Amazon Seller Services Pvt. Ltd. that actually it will be proper cause title of the complaint, but the Complainants has mentioned the name of the OP-1 wrongly in the cause title of complaint. Accordingly, the name was amended through an amendment petition and the Complainants have filed amended complaint. Thereafter fresh notices were issued to the OPs along with the amended name of the OP-1 but inspite of receipt of notices the OP-1 and OP-2 did not turn up. As the OP-1 & 2 chose not to appear before this Ld. Forum to contest the petition of complaint either orally or by filing written version, hence the complaint is running ex parte against the OP-1 & 2. OP-2 filed an application through speed post dated 23.07.2015 which was received by this Ld. Forum on 20.08.2015 wherein it was stated that ‘we categorically deny all such allegations levied against us as the Complainants did not dealt directly with us at all. He neither directly paid to us nor had placed any order direct to us. If the fault in delay of services is at all, it is of the Indian Postal Department, whom the Complainants have already made a party. It is also stated in the said correspondence that the OP-2 shipped the parcel within two days of receiving the order from Amazon.in on 21.06.2014 by the reputed registered postal system of the Postal Department, Govt. of India on 23.06.2014 vide its postal receipt No-RD 401203558IN. Through the said correspondence one Mr. Chandragupt Jain prayed for expunge its name and discharge him from this complaint. As the said correspondence was not filed in proper manner in view of the Consumer Protection Act, 1986 i.e. as the same was not supported by affidavit; hence we did not take any cognizance of the same as written version of the OP-2. Therefore, this Ld. Forum has been pleased to hold that the complaint will run ex parte against the OP-2.
The OP-3 has contested the complaint by filing written version stating therein that this OP has no concern with the dispute as alleged by the Complainants. The Complainants are not the consumers of the Postal Authorities and no article as alleged was delivered to this OP from RMS for delivery to the Complainants at their address. The endorsement of ‘door closed’ was not the endorsement of any postal peon as reveals from the document of the postal authority during the relevant period i.e. 17.07.2014. It is further stated by the OP-3 that the alleged address of the Complainants is situated within the delivery zone of sub-Post Office, Rajbati. From the records it is appeared that no such article was received by them for delivery to the Complainants and as the story of attempt of delivery by the postal peon is a myth. Apart from this the correspondences made by and between the Complainant-2 and the OP-1 & 2 through internet reveal that the dispute is lying with the said persons/authorities and this OP being a third party has no role to resolve the dispute of the Complainants as it has no knowledge or obligation for redressal of the dispute of the Complainants. As no cause of action arose against this OP, hence this OP cannot be blamed for deficiency in service as well as unfair trade practice as alleged. Hence, the prayer of the Complainants regarding payment of compensation and litigation cost by this OP is baseless, bogus and malafide one. The OP-3 has prayed for dismissal of the complaint with exemplary cost.
The Complainants have adduced evidence on affidavit along with several papers and documents in support of their contentions. The OP-3 has also filed some documents in support of its contention.
We have carefully perused the petition of complaint, several papers and documents filed by the contesting parties and heard argument at length advance by the Ld. Counsel for the Complainants and the OP-3. It is seen by us admittedly the book namely Universal Recent Judgment for Law Competition Examination, 7th Edition was booked by the Complainant-2 through internet from the OP-1 for the Complainant-1 as she is a successful candidate for appearing in the West Bengal Judicial Examination, 2014 (Final) which was held on and from 20.07.2014 in Kolkata. After getting such success in the preliminary examination of the WBJE, 2014 in the month of June 2014, the Complainant-1 started to take preparation for the final examination and for such preparation she thought that the book containing the recent judgments is very much necessary. For this reason she and her husband started to search for suitable books in this field and ultimately they succeeded to get the website address of OP-1, from where they came to learn that Universal Publication had launched the required book and accordingly the Complainants contacted with the OP-1 through online for the said book. The copy of the e-mail as filed by the Complainants show that on 19.06.2014 the Complainant-2 was informed by the OP-1 about the cost of the price of the book along with the shipment, handling charges and service taxes for Rs.204=00. Being agreed with the said information the Complainants have placed order for the same to the OP-1, who assured the Complainants that the concerned book will be delivered at the address of the Complainants within 10.07.2014 either through post or courier service. In the said e-mail it was further informed by the OP-1 to the Complainant-2 that the OP-2 has received the order of the Complainants and the order has been registered as no- 4044596428-5170754 and the OP-1 informed the Complainants the estimated delivery date as from 29.06.2014 to 11.07.2014. Accordingly the Complainants paid the said amount to the OP-1 for purchasing the book through online by using the debit card from the bank A/c. of the Complainant-1 lying with the SBI, Golapbag Branch, Burdwan on 22.06.2014 and the OP-1 received the same on the same date. Thereafter through an e-mail the OP-1 intimated the Complainant-2 on 23.06.2014 that the OP-1 has already dispatched the said book at the address of the Complainants and they will get the same within 30.06.2014 to 11.07.2014. But inspite of making payment of due amount as the complainants did not receive the said book within the stipulated period, being aggrieved with such inaction of the OPs, this complaint has been initiated by the Complainants praying for certain reliefs along with refund of the said amount as paid by them towards the cost of the book. It is further stated by the Complainants that on 17.07.2014 one postal peon of OP-3 had attempted for delivery of the said book at their residential address but the said articled could not be received by the Complainants because they have already left Burdwan for Judicial Examination of Complainant-1 in Kolkata and hence the said article was returned to the OP-3 as ‘door closed’. After completion of her examination several requests were made by the Complainants to refund the amount paid towards cost of the book along with compensation but neither the OP-1 nor the OP-2 paid any heed to their requests. The Complainants received an e-mail on 22.07.2014 whereby it was admitted by the OP-1 that due to technical problem and human error such situation cropped up and the Complainant-1 has failed to get delivery of the said book within stipulated period. As the grievance of the Complainants has not been redressed by the OPs hence, by filing this complaint the Complainants have prayed for certain reliefs.
It is seen by us that in the written correspondence the OP-2 has stated (though not on affidavit) that as the Complainants did not pay any amount to it, the Complainants are not the consumers of it and if there is any delay of service occurred, it is on behalf of the Indian Postal Department, not by the OP-2. It is also mentioned in the said written correspondence that after getting order from the OP-1 on 21.06.2014 within 2 days the OP-2 shifted the parcel through reputed registered postal system, Govt. of India on 23.06.2014 and OP-2 has provided the postal receipt no-RD401203558IN. Though the said correspondence is not supported by any affidavit but for adjudication of this complaint properly such averment is necessary to be mentioned. As the OP-2 casts entire liability on the shoulder of the OP-3, the OP-3 has tried its best to save itself by producing several papers and documents. From the said papers and documents it is not evident that one article was received by the OP-3 from the OP-2 in the postal receipt no- RD401203558IN, rather the documents reveal article no- as RM/RW/RT/RK/RH/RN etc. Moreover it is stated by the Ld. Counsel for the OP-3 during argument that parcel of any article cannot be dispatched as ‘RD’.
The OP-3 has filed the said documents covering the period from 03.07.2014 to 17.07.2014. After perusing the said documents we did not find the postal number as mentioned by the OP-2 in its written correspondence. Therefore, it is clear to us that in the said postal number no article (book) was dispatched from the end of the OP-2 at all, but it is an admitted fact that the OP-2 received the order for shipping the parcel at the address of the Complainants on 21.06.2014 from the OP-1. Inspite of receipt of the said order the OP-2 has failed to discharge its liability being the agent of the OP-1.
During argument the Ld. Counsel for the OP-3 has submitted that as there is no consumer-service provider relationship by and between the OP-3 and the Complainants, this complaint is not maintainable before this Ld. Forum against the OP-3. In support of such contention the Ld. Counsel for the OP-3 has further argued that no consideration amount has been paid to it by the Complainants directly and hence, consumer-service provider relationship did not develop. In this respect we are to say as the Complainants paid the cost of the book along with charges for shipment and handling along with service tax, hence the Complainants can easily be termed as consumer of OP-3 because shipment charge has already been transferred to the OP-3 indirectly by the OP-1 through the OP-2. Inspite of this we are unable to find out any deficiency in service as well as unfair trade practice on behalf of the OP-3 because there is no iota of evidence in the record that inspite of receipt of the said article (book) the OP-3 has delayed intentionally to deliver the same to the Complainants. Therefore the complaint fails in respect of the OP-3.
Now we are inclined to turn up our eyes for adjudication as to whether there is any deficiency in service as well as unfair trade practice on behalf of the OP-1 & 2 or not.
Several copies of e-mail issued by the OP-1 to the Complainants specifically to the Complainant-2 denote that the Complainant-2 had ordered for the Universal Recent Judgment for Law Competition Examination, 7th Edition to the OP-1 through online in the month of June, 2014. As per direction of the OP-1 the Complainants paid the cost of the said book for Rs.156=00 along with additional amount for shipment, handling and service charges/taxes to the tune of Rs.48=00 i.e. the Complainants paid Rs.204=00 in total for getting the said book from the OP-1. After receipt of the said amount from the Complainants the OP-1 assured the Complainants that the Complainants will receive the delivery of the said book positively from 30.06.2014 to 11.07.2014. Such information was intimated to the Complainant- 2 through e-mail dated 23.06.2014. Admittedly, the Complainants did not get the delivery of the said book within that stipulated date and the same was tried to be delivered by the postal peon of the OP-3 on 17.07.2014 at the address of the Complainants when the said book became unimportant and irrelevant to the Complainant-1 because for appearing in the final examination of the WBJS, 2014 she had already left her residence along with her husband for Kolkata and commencement of the examination was scheduled on and from 20.07.2014. For this reason the said article was returned with the endorsement ‘door closed’. Therefore, it is clear to us that the Complainant-1 has failed to receive the concerned book for her perusal within the stipulated date inspite of making payment of the entire amount as per direction of the OP-1. Be it mentioned that the Complainants were intimated by the OP-1 that order has been given to the OP-2 for dispatch of the same at the address of the Complainants and the OP-2 has already dispatched the same and the Complainants will get the book within a very short span. From this intimation it is also clear that until and unless payment is received by the OP-1 towards the cost of the book and other charges as mentioned before order cannot be given to the OP-2 for dispatching the article at the address of the Complainants. The OP-1 has further admitted that due to technical problem and human error the delivery could not be made within the stipulated period. In our view as the OP-1 has admitted its laches hence, the OP-1 is under obligation to refund the entire amount to the Complainants paid by them towards the cost of the book and other charges. The OP-2 in his written correspondence has mentioned that the Complainants are not consumer of it. Admittedly though the written correspondence has not filed on affidavit, but inspite of this we are not at one with such contention of the OP-2 because the OP-2 has acted as an agent on behalf of the OP-1 being the principal. Therefore, until and unless approved commission is received by the OP-2 from the OP-1 the OP-2 shall not act. As in the case in hand the OP-2 has stated that it has received the order from the OP-1, then it transpires that the OP-2 has got due commission from the OP-1. Therefore the certainly the OP-2 being a service provider and the Complainants are also the consumers of the OP-2. We all know that due to inaction or deficient service of the agent, principal will be liable. Hence, in this case in our view the OP-1 is liable to refund the amount as paid by the complainants to it towards the cost of the book and other charges.
It is true that as the Complainants did not get the concerned book within the stipulated period, the Complainant-1 had to purchase the said book from any other source and after completion of examination several written correspondences were made by the Complainants through e-mail with the OP-1 requesting to refund the amount as paid by them. But from the record it is evident that OP-1 did not bother to take any step in this regard. Such inaction of the OP-1 can easily be termed as deficient and for deficiency in service, OP-1 is liable to pay compensation to the Complainants. As the grievance of the Complainants has not been redressed by the OP-1 before coming to the Court of Law and by filing this complaint the complainants have to incur some expenses, in our considered view the Complainants are also entitled to get litigation cost from the OP-1. As the Complainants have succeeded to prove their case against the OP-1 by adducing cogent documents, hence the complaint succeeds against the OP-1.
Going by the foregoing discussion, hence it is
O r d e r e d
that the complaint is allowed ex parte against the OP-1 with cost and dismissed ex parte against the OP-2 without any cost. The complaint is also dismissed on contest against the OP-3 without any cost. The OP-1 is directed to refund the amount of Rs.204=00 to the Complainants along with an interest @6% per annum from 11.07.2014 till realization of the entire amount within a period of 45 days from the date of passing of this judgment, in default, Rs.204=00 shall carry penal interest @10% per annum for instead of 6%. The OP-1 is further directed to pay compensation to the tune of Rs.3, 000=00 due to mental pain, agony and harassment and litigation cost of Rs.1, 000=00 to the Complainants within a period of 45 days from the date of passing of this judgment, in default, the Complainants will be at liberty to put the entire order in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
