Punjab

Faridkot

CC/14/112

Parjeet Singh - Complainant(s)

Versus

The Managing Director OLX India - Opp.Party(s)

Sandeep Handa

07 Apr 2015

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

 

                                                          Complaint  No.               : 112

                                                          Date of Institution            : 27.08.2014

                                                          Date of Decision             : 7.04.2015

 

Parjeet Singh s/o Comrade Kaur Singh r/o New Cantt Road, Street No. 4/L, Faridkot.                                                                                        …..Complainant

                                                Versus

1.     Managing Director, OLX India Office DLF Corporate Park, Tower 3A, Ground Floor, DLF City, Phase III, Gurgaon, Haryana, India.

2.     Amarjit Singh Batra, CEO, OLX, India & Head Asia OLX, India Private limited, A-8/21, 1^st Floor, Vasant Vihar, New Delhi, 110057, Delhi, India.

3.  Alfesh Suthar @ Ramesh Suthar, Owner of Focus Data System, G. 115, Dream Mall Bhandup West, Mumbai 400078.

              …..Opposite Parties (OPs)  

 

 

                   Complaint under Section 12 of the

                   Consumer Protection Act, 1986.

         

Quorum:      Sh. Ashwani Kumar Mehta, President,

                    Smt Parampal Kaur, Member,

                   Sh Purshotam Singla, Member.

 

Present:        Sh Sandeep Handa, Ld Counsel for complainant,                                    

                     Sh Jatinder Bansal, Ld Counsel for OP-1 & 2,

                     OP-3 Exparte.

 

(Param Pal Kaur, Member)

                             Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties for deficiency in service and for seeking directions to Ops to pay Rs 2,00,000/- as compensation for harassment and mental agony besides Rs 25,000/- as litigation expenses to the complainant.

2                             Briefly stated, the case of the complainant is that complainant is a car mechanic and runs his own motor garage and on 10^th April, 2014, complainant visited website of OP-1 and 2 i.e OLX.in for purchasing Bluetooth Module for computer scanner for cars as OP-1 and 2 are famous online shopping website and from the website of OP-1 and OP-2, complainant found the number of OP-3/Alfesh Suthar @ Ramesh Suthar and on contacting OP-3, OP-3 explained about all models of Bluetooth Modules for computer scanner for cars and complainant gave his requirement for Bluetooth for computer scanner and in reply OP-3 suggested one model Bluetooth Module for computer scanner for cars as per specifications given by complainant and assured that model of Bluetooth Module suggested by him will work properly with the computer scanner of complainant and will work with all the scanners; that on next day OP-3 called on phone of complainant and offered some discount on purchase of Bluetooth Module of computer scanner, but complainant refused to buy the same; that on next day, OP-3 called on phone of complainant and gave discount of 50% on Bluetooth Module and told that he would provide the user ID and password of Bluetooth Module of computer scanner and upon this offer, complainant prepared his mind to buy that Bluetooth Module and ordered that Bluetooth Module and thereafter, OP-3 gave his address to complainant and asked him to deposit Rs 35,000/-in his bank account and on 18.04.2014, complainant deposited Rs 35,000/- in the  account of OP-3 and after some days, complainant got parcel of that Bluetooth Module, but when complainant opened the parcel, he found that this was not that Bluetooth Module, which OP-3 agreed to send and it was in Russian language and it was all out of knowledge of complainant; that alongwith parcel, OP-3 also sent delivery challan no. FDSC/2014-15/006, dt 27.04.2014 of lesser amount than actual price; that he contacted OP-3 and told about Bluetooth module and then OP-3 said that this is only one part of Bluetooth Module, and if complainant wanted to buy 2^nd part of this Bluetooth Module, he would have to deposit Rs 30,000/- more and then, Bluetooth Module of language would be sent to him; that complainant told OP-3 that this is a cheating and deficiency in service on the part of OP-3 and on this OP-3 told him to send the said Bluetooth Module to OP-3 and assured to send another Bluetooth Module; that complainant sent back the said Bluetooth Module to OP-3 and after some days, complainant received parcel from Mumbai and opening the same, complainant was surprised to see that again this was not real Bluetooth Module, rather it was some North American System which does not work in Indian cars and this was E.O.B.D and when complainant tried to contact OP-3, OP-3 did not pick up his phone; that complainant called OP-3 from STD and when OP-3 picked his call, complainant informed about the North American System and also informed that this system does not work in Indian cars and on this OP-3 asked him to send back that system to him and assured to give another Bluetooth Module and after sending the said Bluetooth Module to OP-3, complainant contacted OP-3 and OP-3 said that he has received his Bluetooth Module and money of complainant and now, both Bluetooth Module and money of complainant are his and clearly refused to give new Bluetooth Module or to return the amount and asked complainant to do whatever he likes as both OP-1 and Op-2 are associated with him; that complainant gave an application dt 10.07.2014 to S.S.P. Faridkot; that all this has caused harassment and mental tension to complainant and it amounts to deficiency in service on the part of OPs for which he has prayed for seeking directions to Ops to provide new Bluetooth Module and to pay Rs 2,00,000/-as compensation for causing harassment and financial loss to complainant besides Rs 25,000/-as cost of litigation.  Hence , the complaint.

3                                            The Ld counsel for complainant was heard with regard to admission of the complaint and vide order dated 28.08.2014, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                               On receipt of the notice, the opposite parties appeared through Counsel and filed written statement taking preliminary objections that complainant has not sought the permission of this Forum under Section 11(2) (b) of Consumer Protection act 1986 before instituting the present complaint; that OP-1 and OP-2 merely run website allowing users to post free classified advertisement and transaction between a seller and purchaser is completely independent of Website’s involvement and answering OPs have no role in facilitating the transaction in relation to any advertisements published on website and OPs do not charge any money for posting  the advertisements nor do they receive any proceeds of transactions consummated between buyers and sellers; that complainant carries out business activities and works for gains and therefore, complainant is not the consumer of Ops and OP-3 is not agent or representative of answering OPs and therefore, complaint is liable to be dismissed; that there is no deficiency in service on the part of answering OPs; that there is no privity of contract between complainant and answering OPs and OPs is classified as an intermediary under Section 79 of the Information Technology Act, 2000 (IT Act) and being an intermediary, website does not have any means of suspecting or identifying users posting classified advertisements with any intent to defraud; that IT Act and Rules, 2011 do not require the website to check for advertisement on the website, which might be posted with an intent to defraud nor does the website have any means to suspect such advertisement and answering OPs have no control over the third party transaction between a seller and a buyer and its is akin to classified column of newspaper where people can post their advertisement and newspaper does not play any role in consummation of the transaction; that complaint involves complicated questions of law and facts, which cannot be decided in summary proceedings and detailed evidence is required, therefore, complaint is liable to be dismissed; that complaint is a gross misuse of process of law and no cause of action has arisen in favour of complaint and there is no deficiency in service on the part of answering OPs and complaint is false, frivolous and vexatious and being vague, complaint is liable to be dismissed with costs. However, on merits OP-1 and 3 reiterated that there is no deficiency in service on the part of answering OPs and asserted that complainant contacted OP-3 on his own accord, satisfied himself of the product being sold by OP-3 and in any case, transaction between seller and purchaser is completely independent of the website’s involvement and website in facilitating the transaction in relations to any advertisement published on the website; that complainant has voluntarily remitted the money in the account of OP-3 and answering OPs do not charge any money for posting the advertisement nor do they receive any proceeds of alleged transaction and answering OPs are not associated with OP-3; that there is no deficiency in service or unfair trade practice on the part of answering opposite parties. All other allegations alongwith allegation with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs against the answering opposite parties.

5.                                               Parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex.C-2 to Ex C-7and closed his evidence.  

6.                                                 In order to rebut the evidence of the complainant, ld Counsel for OP-1 and OP-2 tendered in evidence affidavit of Amarjeet Singh Batra Ex.OP-1,2/1 and then, closed the evidence on behalf of OP-1 and OP-2.

7.                                            We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Learned counsel for complainant has vehemently argued that complainant visited the website of OP-1 and OP-2 and from their website, he found the contact number of OP-3, who allured him to purchase the Bluetooth Module of OP-3 for computer scanner of his car on 50% discount and also assured to provide complainant the user ID and password of Bluetooth Module of computer scanner. Complainant fell in trap of OP-3 and on asking of OP-3 deposited Rs 35,000/- in his account vide receipt of ICICI Bank as Ex C-6 and after some days, complainant received a parcel from OP-3 and on opening the same, complainant found that this was not that Bluetooth Module, which OP-3 agreed to send him and it was in Russian language. Ld Counsel for complainant contended that the delivery challan issued by OP-3 for the sale of Bluetooth Module was of lesser amount i.e of only Rs 10,000/- than Rs 35,000/- the cost actually charged by him and when complainant complained OP-3 about this, OP-3 said that this is only one part of Bluetooth Module, and if complainant wanted to buy 2^nd part, he would have to deposit Rs 30,000/- more and Bluetooth of language would be sent to complainant. Ld counsel for complainant further contended that when complainant told OP-3 about deficiency in service and cheating on the part of OP-3, OP-3 asked him to send back the said Bluetooth Module and asked to send another Bluetooth Module and after some days, complainant received another parcel and opening the same, complainant found that it was not the real Bluetooth module again and it was a North American System, which does not work in Indian Cars and it was an E.O.B.D and when complainant again complained OP-3 that system sent by OP-3 does not work in Indian Cars, OP-3 again asked him to send the system back to OP-3 and complainant did the same returned the system to Op-3 and thereafter, when complainant contacted OP-3, OP-3 replied that he has received his Bluetooth Module and complainant’s money and clearly refused to give new Bluetooth Module and also refused to refund the money deposited by complainant. When complainant told that he would complain regarding this fact to OP-1 and OP-2, OP-3 said that complainant can do whatever he likes as both OP-1 and Op-2 are associated with him. Ld Counsel for complainant contended that complainant tried to make complaint regarding act of OP-3, but both OP-1 and 2 never gave satisfactory reply and thus, all this is a deficiency on the part of OPs and has caused harassment and mental tension to complainant and forced him to file complaint against OPs for which he is entitled to compensation and litigation expenses besides the main relief.

 8                                                       Learned counsel for the opposite party No. 1 and 2 however repelled the aforesaid contentions on the ground that complainant has not taken permission of this Forum under Section 11 (2) (b) of Consumer Protection Act to institute complaint against them and reiterated that Op-1 and Op-2 merely run website allowing users to post free classified advertisements and they have no role in any kind of transaction between purchaser and seller and moreover, OP-1 and 2 do not charge any money for posting the advertisements nor do they receive any proceeds of transactions consummated between buyers and sellers. Ld Counsel for OPs contended that there is no deficiency in service on the part of OP-1 and 2 as there is no privity of contract between complainant and OP-1 and 2 and their website does not have any means of suspecting or identifying users posting classified advertisements with any intent to defraud and if there is any deficiency, then that is on the part of the opposite party No. 3.

9                                     We have keenly considered the contentions of the learned counsel for the complainant in the light of evidence on record. On consideration of rival stand as aforesaid on the basis of record on file we have found that OP-1 and 2 have no role to play in facilitating transaction in relation to any advertisement published on website as website merely provides infrastructure, which is used by third party users for posting classified advertisements and OP-1 and 2 have not charged any money from OP-3 nor have they taken any consideration from complainant and thus transaction between buyer and seller is totally independent of involvement of OP-1 and 2 thus, there is no illegality or deficiency on the part of OP-1 and 2.

10                                      Vide his evidence led in the form of duly sworn affidavit, complainant has proved his stand as taken by him in his complaint specifically stating that he got the Bluetooth module from OP-3 vide delivery challan Ex C-2 for Rs. 35,000/- as its costs but mentioned only Rs 10,000/- on delivery challan. However, when the complainant opened the parcel, he found that it was not that Bluetooth Module, which was agreed by Op-3 and on returning the same, Op-3 sent another one, which was also not up to mark as asked by complainant and on further returning the same OP-3, did not send the new Bluetooth module as agreed between them and information by the complainant to the opposite party regarding the defect pointed out above met with flat refusal. So much so, opposite party no -3, not only refused to send the new blue tooth module to complainant, but inspite of repeated requests of the complainant, also refused to refund the money of complainant. Therefore, in our considered opinion deficiency on the part of the opposite party 3 stands clearly proved.

 11                                              As already pointed out above, despite notice to the OP-3 none came forward on their behalf and as such allegations of complainant against OP-3 and evidence led by him against OP-3 in his support by way of affidavit Ex.C-1, delivery challan Ex C-2,  copy of e-mail Ex C-3 and documents Ex C-4 to 7 have remained un-rebutted and unassailed. Therefore, in the absence of anything to the contrary the complaint filed by Prajeet Singh complainant is partly accepted with a direction to the opposite party-3 to replace the Bluetooth Module with a genuine one or refund the price of Bluetooth obtained from complainant. OP-3 is also directed to pay Rs. 3,000/- as compensation for mental tension, harassment and Rs 2000/- litigation expenses. Compliance of the order be made within the period of one month from the date of the receipt of the copy of this order. In case no compliance is made out of this order, complainant shall be entitled to proceed under the provisions of Sections 25 and 27 of the Consumer Protection Act. Copies of order be sent to the parties free of costs. File be consigned to record room.

Announced in open Forum:

Dated:7.04.2015

 

                                      Member            Member                    President                                            (P Singla)         (Parampal Kaur)          (A K Mehta)