BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 385/2003 Filed on 25.09.2003 Dated : 16.10.2009 Complainant: Dr. P.J. Alexander, Advocate, 35-Kripa, Belhaven, Kawdiar, Thiruvananthapuram-695 003.
(By adv. Issac Samuel) Opposite parties:
The Editor, Spectrum Magazine Ltd., 9/1, Secular House, Qutab Institutional Area, Aruna Asaf Ali Marg, New Delhi- 110 067. Indira Shetty, Manager-Subscription, 9/1, Secular House, Qutab Institutional Area, Aruna Asaf Ali Marg, New Delhi- 110 067. Manager-Customer Care, City Bank Cards, P.O. Box 5265, Anna Road P.O, Chennai – 600 002.
(By adv. M.S. Nizar)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 05.12.2005, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 31.08.2009, the Forum on 16.10.2009 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT The facts leading to the filing of the complaint are that complainant is a subscriber of Design Digest Magazine. The subscription code is T 165 6487, the subscription is from February 2001 to February 2008, subscription fee was Rs. 2,995/-, the payment of subscription was through Citi Bank Card of 3rd opposite party. 1st and 2nd opposite parties are the Editor and Subscription Manager of Design Digest Magazine. The 3rd opposite party is the Manager-Customer Care of Citi Bank Card. As per the advertisement made by the Spectrum Magazine Limited, for 7 year's subscription, gift of “Corelle Dinner Set” plus Rs. 500/- discount voucher was offered. Payment was to be made through Citi Bank Card. Complainant is a Citi Bank Gold Card holder. Even after accepting the subscription, the fee Design Digest Subscription gifts were not sent by the opposite parties 1 & 2. On 11.06.2001 opposite parties delivered a parcel weighing 3 kg containing low quality electric cooker instead of Corelle dinner set to the complainant. On 18.06.2001 complainant received a letter issued by the 2nd opposite party stating that complainant is to receive a Corelle Dinner Set, but they are sending an electric cooker and it may be accepted in lieu of Corelle gift. On 19.06.2001 complainant sent e-mail to opposite parties stating that he is not happy with the substitute and it is violation of the terms of contract. Even after repeated requests opposite party did not respond to the communication. Hence this complaint to direct opposite parties to repay Rs. 2,995/- with 18% interest and to pay Rs. 50,000/- towards compensation. Opposite parties 1 & 2 did not turn up inspite of service of notice. No version filed by opposite parties 1 & 2. Opposite parties 1 & 2 set exparte. 3rd opposite party filed version contending that as per the terms and conditions in the advertisement all disputes regarding company's subscription offer or otherwise are subject exclusively and only to the jurisdiction of Delhi Courts and Tribunals. Complaint is bad for mis-joinder of parties. 3rd opposite party is not at all a necessary party in the complaint. No allegation of deficiency in service is made against 3rd opposite party. The allegation against 1st and 2nd opposite parties which is not within the knowledge of the 3rd opposite party. 3rd opposite party had not made any offer through any advertisement. Hence no claim stands against the third opposite party. There is no deficiency in service or negligent handling of service on the part of the 3rd opposite party. Hence 3rd opposite party prayed for dismissal of the complaint. The points that arise for consideration are:- Whether there has been deficiency in service on the part of opposite parties? Whether the complainant is entitled for refund of Rs. 2,995/-? Whether the complainant is entitled to get compensation and cost? If so at what amount?
In support of the complaint, complainant has filed proof affidavit and Exts. P1 to P9 were marked. Complainant has been cross examined by 3rd opposite party. Opposite parties did not file affidavit. Points (i) to (iii):- It has been the case of the complainant is that complainant is a subscriber of 'Design Digest Magazine', that subscription code is T 165 6487, that the subscription is from February 2001 to February 2008, that the subscription fee was Rs. 2,995/-and that the payment of subscription was through Citi Bank Card of 3rd opposite party. It has also been the case of the complainant, that as per advertisement made by the Spectrum Magazine Ltd. for 7 years' subscription gift of “Corelle Dinner Set” (20 pieces made in USA) plus Rs. 500/- discount voucher (that is total gifts worth Rs. 3,950/-) was offered, that even after accepting the subscription through Citi Bank Card, the free Design Digest Subscription gifts were not sent by the opposite parties 1 & 2, that on 11.06.2001 the opposite parties delivered a parcel to the complainant which was a low quality electric cooker and that on 18.06.2001 complainant received a letter issued by the 2nd opposite party dated 14.06.2001 stating that complainant is to accept the electric cooker in lieu of Corelle gift, that on 19.06.2001 complainant sent e-mail to opposite party stating that complainant is not happy with the substitute and that opposite parties did not respond to the communication, but opposite party stopped sending the magazine. Ext. P1 is the copy of 'Design Digest Magazine'. Ext. P2 is the Receipt/acknowledgement card issued by 2nd opposite party. As per Ext. P2 complainant has participated in the Design Digest Club of Elegance Offer. Subscription details are seen mentioned overleaf of Ext. P2, subscription code is T 165 6487, subscription received on 18.01.2001, subscription commenced on February 2001 and valid till February 2008, payment is Rs. 2,995/- and mode of payment Credit Card. It is seen stated in Ext. P2 that free gifts will be sent to you in 10-12 weeks from date of payment of clearance. Ext. P3 is the way bill dated 09.06.2001 wherein Spectrum Magazine Ltd. is the sender and complainant is the addressee. The weight of the parcel mentioned is 3 kg. It is further stated in Ext. P3 that the said packet is a gift to subscriber and there is no commercial activity involved in this practice. Ext. P4 is the letter dated June 14th 2001 addressed to Subscription Code T. 165 by the 2nd opposite party. It is seen stated in Ext. P4 that “As a part of the subscription offer, you are still to receive a Corelle dinner set. Due to unavoidable circumstances we have been unable to keep up our gift commitment. We are still expecting a delay in the despatch of your free gift. Since a considerable delay has already taken place, we want to despatch your gifts at the earliest. We have an equally attractive alternate gift option for you. We offer you a National Panasonic Automatic electric cooker with a food warming facility worth Rs. 1,995/-, a spectrum bag worth Rs. 795/- and a National Panasonic discount coupon worth Rs. 400/-. We shall be dispatching the cooker within three days from the date of this letter, which you may accept in lieu of Corelle gift”. It is further stated in Ext. P4 that “if you don't find it useful, you may decline the delivery of the gift. We shall, then, by making arrangements to deliver you the Corelle dinner set which we hope, shall take further two months for the delivery.” In this context, it is pertinent to point out that the substitute gift was sent on 08.06.2001 (Ext. P3), whereas the letter (Ext. P4) is seen sent on 14.06.2001, that is, according to complainant, after the acceptance of the parcel. Opposite parties have no case that they have sent any letter along with the substitute gift to complainant. Ext. P5 is the copy of the letter addressed to 2nd opposite party dated 19.06.2001 by the complainant. As per Ext. P5 complainant has informed the 2nd opposite party that he is not happy with the substitute, that the substitute was not part of the contract and it is violation of the terms of the contract. Ext. P6 is the copy of the letter dated 26.02.2003 addressed by the complainant. It is seen stated in Ext. P6 that complainant had already sent a reply dated 19.06.2001 to opposite parties and informed them that he was not satisfactory and that he would have to approach CDRF for appropriate relief. If is further stated in Ext. P6 that opposite party not only did not respond to his communication but stopped sending the magazine itself since 19.06.2001. Ext. P7 is the acknowledgement card. Ext. P8 is the letter dated 02.04.2003 sent by Citi Bank (3rd opposite party) to complainant requesting him to take up the matter with M/s Spectrum Magazine directly and obtain a refund. It is the say of the 3rd opposite party that 3rd opposite party had not made any offer through advertisement nor had the complainant pointed out any responsibility of the 3rd opposite party in the subscription of Design Digest Magazine. It is further argued by the 3rd opposite party that even the complainant's claim that he has sent the subscription to the Citi Bank, is admitted that the 3rd opposite party, like any other bank had acted as an agent or a carrier for payment of the subscription money from the customer to publisher. It is argued by the complainant that 1st and 2nd opposite parties in association with 3rd opposite party made the said offer and collected money through the 3rd opposite party's account. At this juncture it would be worthwhile to mention that as per Ext. P1, Design Digest mega subscription offer is seen advertised by Editor and publisher of Design Digest, nowhere in it is it mentioned that Citi Bank has made the aforesaid offer. Though the said offer was targetted Citi Bank card holders, there is nothing to show that such an offer was floated by the 3rd opposite party. The onus of proving that such an offer was made by the 3rd opposite party would rest on the complainant. Complainant has not established his case against 3rd opposite party. In view of the matter and in the light of evidence available on records, we are of the considered opinion that after receiving full subscription fee by opposite parties 1 & 2 from the complainant on assurance of service of sending the offered gift and periodical magazine by virtue of Ext. P1 advertisement, opposite parties 1 & 2 have acted in a most negligent manner in dealing with the complainant. The action of opposite parties 1 & 2 is unilateral and contrary to Ext. P1 advertisement. There is clear deficiency in service on the part of opposite parties 1 & 2 and they cannot escape from liability to compensate the complainant.
In the result, complaint against opposite parties 1 & 2 is allowed. Opposite parties 1 & 2 shall refund the subscription fee of Rs. 2,995/- to the complainant. Opposite parties 1 & 2 shall also pay the complainant a sum of Rs. 5,000/- towards compensation along with cost of Rs. 1,000/-. The said amounts will carry interest if not paid within two months from the date of receipt of this order.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 16th day of October 2009.
G. SIVAPRASAD, President.
BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
O.P. No. 385/2003 APPENDIX I COMPLAINANT'S WITNESS : PW1 - Dr. P.J. Alexander II COMPLAINANT'S DOCUMENTS : P1 - Copy of Design Digest Magazine. P2 - Receipt/acknowledgement card issued by 2nd opposite party. P3 - Way bill dated 09.06.2001 P4 - Letter dated June 14th 2001 addressed to Subscription Code T. 165 by the 2nd opposite party P5 - Copy of letter addressed to 2nd opposite party dated 19.06.2001 by the complainant. P6 - Copy of letter dated 26.02.2003 issued by the complainant. P7 - Acknowledgement card. P8 - Letter dated 02.04.2003 sent by Citi Bank P9 - Bill issued by Citi Bank Cards. III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS :
NIL
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | |
