Per Sri A. Hazarath Rao,  President:-

          The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking a direction to the 2^nd opposite party to replace the tablet PC; refund of Rs.4,500/- collected by the 2^nd opposite party twice; Rs.80,000/- towards mental agony and for costs. 

2.   In brief the averments of the complaint are these:

          The 1^st opposite party took a policy decision to provide students and general people the latest advanced technology of Ubi Slate 7C smart phone tablet with latest technology.   The 1^st opposite party had a tie up with the 2^nd opposite party to bring the smart phone tablet computer with facilities of Android, 800 processor, high quality speed, Wifi and GPRS, Multi Media Touch screen with USB port and micro SD slot options.   The 2^nd opposite party agreed to provide those personal computers on behalf of the 1^st opposite party to the desired people on payment of money.   As such, the 2^nd opposite party put the entire details of intended setting of the tablet PC and also offered to sell the same by pre booking in the website www.datawind.com.   In pursuance of pre booking option the complainant sent Rs.4500/- by way of DD No.959415 dated 29-06-12 in favour of the 2^nd opposite party through SBI, Vinukonda, Guntur district.   The complainant processed the booking through internet in Vinukonda.   The total cost of the specification PC is Rs.4299/- and Rs.199/- towards shipping charges.   The 2^nd opposite party on 16-07-12 sent a mail to the complainant stating that they received Rs.2999/- only.   The 2^nd opposite party rectified the mistake when the complainant brought to its notice.   The 2^nd opposite party neither sent the PC nor refunded the amount to the complainant inspite of several e-mails.   The 2^nd opposite party on 03-10-12 sent a mail to the complainant expressing its wish to send the upgraded product at the same cost and sought complainant’s consent.   The complainant expressed his willingness to receive the upgraded version without incurring additional expenditure.   The complainant mentioned another address at Ongole to receive the shipment as service of first flight couriers was available there.   As per the advise of one Gurmit, the executive of the 2^nd opposite party.      One Neha the Data Wind customer support executive informed that they already delivered the device on cash on delivery mode mistakenly, the complainant has to pay Rs.4299/- at the time of delivery, the amount which was paid by the complainant earlier will be refunded after receiving the device and required the complainant to send the bank account particulars.   Thus the complainant paid Rs.4500/- twice for the delivery of the same device.  On 29-11-12 complainant’s brother received a mail from refund @Datawind.com that the 2^nd opposite party need some requirements for the process of refund.   The 2^nd opposite party did not chose to refund the amount which was collected by it through DD.   The 2^nd opposite party failed to provide the goods with the above specifications and thereby caused mental agony.   The complainant sustained huge loss and could not utilize the tablet computer and thereby prevented for access.   The acts of the 2^nd opposite party amounted to deficiency of service.   The complaint therefore be allowed.

3.    The 1^st opposite party remained exparte.  

4.   The contention of the 2^nd opposite party in nutshell is hereunder:

          a) The 2^nd opposite party on 23-09-13 through post submitted a version in the form of application seeking dismissal of complaint u/s 11(2) of Consumer Protection Act contending that no cause of action arose at Guntur, place of residence of complainant did not confer jurisdiction on the Forum to decide the case relying on the decision reported in Asish Kumar Paul vs. Frontier Trading Transmission and others 2012 (1) CLT 282. 

b) Forum on 21-01-14 received para-wise remarks from the 2^nd opposite party and the averments in nutshell is hereunder:

             The complainant sent Rs.4500/- by way of demand draft and it was duly credited at Amritsar.  The 2^nd opposite party was engaged in the completion of National Level Project muted by the 1^st opposite party.   The 2^nd opposite party is always in keep in touch with its customers and sending updates from time to time.   The 2^nd opposite party is always used to contact with its customers for verification of address so that there should not be any confusion as to the address for dispatching purposes.   The customer support executive made a phone call to the complainant that a device has been sent to him and has to take delivery on payment of cash.   The 2^nd opposite party duly sent device to the complainant on 22-08-13 through Blue Dart Courier which was received by one Khadar Bhasha on 26-08-13.   The said Khadar Bhasha received the device not knowing that complainant already filed a consumer complaint.   The complainant did not suffer any damage by not using it as he filed the complaint even prior to delivery.   The 2^nd opposite party was involved in a National Level Project and the delay was neither intentional nor willful rather it was due to a bigger cause for the children of the country.   The 2^nd opposite party did not commit any deficiency of service.   There was no cause of action arose at Ongole.   The opposite party relied on the decision reported in Subodh Kumar Baheti vs. Delhi Development Authority reported in 2013 (1) CLT 279 (NC).  

5.   Exs.A-1 to A-13 on behalf of complainant were marked.   No documents were marked on behalf of the 2^nd opposite party.

6.    Now the points that arose for consideration in this complaint are:

          1.   Whether this Forum has territorial jurisdiction to entertain the                         complaint?

          2.   Whether the 2^nd opposite party committed deficiency of service?

          3. Whether the complainant is entitled for refund of Rs.4500/-?

          4.  Whether the complainant is entitled to damages?

          5.  To what relief?

7.  POINT No.1:-      The registry at the time registering the complaint itself raised the aspect of territorial jurisdiction as the opposite parties were shown as residing at New Delhi and Amritsar.   The learned counsel for the complainant relied on the decision reported in Rediff.com India Limited vs. M/s Urmila Manjul 2013 (2) CPR 522 (NC).  On perusal of the above decision and on hearing the complainant’s counsel, this Forum prima facie satisfied regarding territorial jurisdiction and took the complaint on file. 

8.      In this case the complainant is residing in Vinukonda of Guntur district where as the 1^st opposite party was located at New Delhi, and the 2^nd opposite party at Amritsar.   It is not the case of the complainant that 2^nd opposite party’s branch office was located at Guntur and some transactions took place through that branch office.   In Asish Kumar Paul vs. Frontier Trading Transmission and others 2012 (1) CLT 282 held that the District Forum, Betul (MP) had no jurisdiction to entertain the complaint filed by the revision petitioner since no part of transaction took place at Betul nor any of the respondents are having any of their office or show room at Betul and none of the respondents resides at Betul, the residence of the revision petitioner/complainant at Betul could not confer jurisdiction on the District forum, Betul.         

9.   In Subodh Kumar Baheti vs. Delhi Development Authority and another 2013 (1) CLT 279 (NC) held that the District Forum, Bilwara has no jurisdiction to entertain the complaint filed by the revision petitioner as the respondent authority did not have any office in Bilwara within the jurisdiction of the District Forum, 2^nd respondent was also located at New Delhi.  

10.  In this case the transaction took place through internet and in our considered opinion the above decisions are not applicable though the opposite parties are shown as residing at New Delhi and Amritsar.  In Rediff.com India Limited vs. M/s Urmila Manjul 2013 (2) CPR 522 (NC) it was held that business of providing services through internet portal to interested buyers and sellers by acting as a means of communication between them and bringing into existence of contract of sale and purchase of movable goods comes within ambit of the Consumer Protection Act.    In this case there was no service provider between the complainant and the 2^nd opposite party.   The 2^nd opposite party is inviting prospective applicants to purchase the device through internet transaction.   In this case the complainant sent the DD for Rs.4500/- on seeing the website of the 2^nd opposite party.  

11.  This Forum downloaded the terms and conditions of the 2^nd opposite party through www.datawind.com and are reproduced hereunder:

Terms & Conditions:

Datawind Innovations Pvt. Ltd. and their respective publishers, authors, partners, agents and employees have done their best to ensure the accuracy of all the information on this website; however, they accept no responsibility for any loss, injury, or damages sustained by anyone as a result of information or advice contained on the site. The use of information on or derived from this site with people contacted through the site is made at the user's own risk. We encourage you to verify any critical information with the relevant authorities before you make purchases.

Datawind Innovations Pvt. Ltd. and their respective publishers, authors, partners, agents and employees make no representations about the suitability of the information contained in the documents and related graphics published on this website for any purpose. All such documents and related graphics are provided ''as is'' without warranty of any kind, statutory or otherwise. Datawind Innovations Pvt. Ltd. and their respective publishers, authors, partners, agents and employees disclaim all warranties and conditions with regard to this internet site and the information contained therein, including, without limitation, all implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement. In no event shall Datawind Innovations Pvt. Ltd. and their respective publishers, authors, partners, agents and employees, be liable for any special, indirect, or consequential damages or any damages whatsoever whether in an action of contract, negligence, or other tortuous action, arising out of or in connection with the use or performance of this internet site or of the information and documents contained therein, provision of or failure to provide services, or any other information directly or indirectly available from this website.

The documents and related graphics published on this website could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Datawind Innovations Pvt. Ltd. may make improvements and/or changes in the product(s) described herein at any time. The linked sites are not under the control of Datawind Innovations Pvt. Ltd. and their respective employees are not responsible for the contents of any linked site or any link contained in a linked site. Datawind Innovations Pvt. Ltd. is providing these external links to you only as a convenience, and the inclusion of any link does not imply endorsement by Datawind Innovations Pvt. Ltd. of the site. All views expressed by individuals on this site are their personal opinions and are not necessarily those of or endorsed by Datawind Innovations Pvt. Ltd..

 12.   The 2^nd opposite party did not mention the territorial jurisdiction in case disputes arose in the terms and conditions narrated supra.  The 2^nd opposite party opted to sell the above products through internet and as such invited prospective purchasers to purchase them through website www.datawind.com.  Any prospective purchaser can view that website from his or her place through internet and the place where a purchaser viewed it and placed order in our considered opinion such place is the branch office of the 2^nd opposite party.   A purchaser cannot be made to go to the place of an opposite party who publicized its sale through internet.  If the 2^nd opposite party intends to have jurisdiction at Amritsar it ought to have mentioned the same in terms and conditions.   Even Ex.A-7 invoice did not contain any clause regarding territorial jurisdiction.   A purchaser through internet comes under the purview of consumer as per the decision reported in  Rediff.com India Limited vs. M/s Urmila Manjul 2013 (2) CPR 522 (NC).   The decisions relied on by the 2^nd opposite party on the aspect of territorial jurisdiction reported in  Subodh Kumar Baheti vs. Delhi Development Authority and another 2013 (1) CLT 279 (NC) and in Asish Kumar Paul vs. Frontier Trading Transmission and others 2012 (1) CLT 282 are not applicable to the facts of the case in question as the purchase took place through internet.   In view of the above discussion, we opine that this Forum has territorial jurisdiction to entertain the case and answer this point against the opposite parties.

13. POINTS 2&3:-      The complainant contended that the 2^nd opposite party collected twice for the Ubi Slate 7C smart phone tablet.   The 2^nd opposite party in the memo (containing written arguments) filed before this Forum (para-wise remarks) admitted that the complainant sent Rs.4500/- by way of DD and was duly credited at Amritsar.   The 2^nd opposite party in the said memo at para 5 contended as mentioned infra:

    “That para 5 is admitted to the extent that a phone call was made and it was admitted by the customer support executive that a device has been sent to the complainant but he has to pay cash on delivery.  That the OP2 has duly send the device to the complainant on 22^nd August through Blue Dart Courier AWB No.69001970523 which was duly received by Mr. Khader Basha in Ongole on 26^th August, 2013.”

14.  Ex.A-8 is the copy of courier receipt issued by First Flight Couriers Limited on 09-10-12.  In Ex.A-8 the consignee was shown as one Shaik Khadar on behalf of complainant at Ongole.   In Ex.A-8 the value of the article was mentioned at Rs.4299/-.  The 2^nd opposite party directed the First Flight Couriers Limited to deliver the consignment on payment of Rs.4299/-.   Therefore, the contention of the complainant that he paid Rs.4500/- by way of demand draft and Rs.4299/- while taking the consignment through First Flight Couriers at Ongole is corroborated by the averments of the 2^nd opposite party in its para-wise reply.   The conduct of the 2^nd opposite party in ignoring the payment it received from the complainant in a sum of Rs.4500/- by demand draft and again asking the First Flight Couriers at Ongole to deliver consignment on payment of costs of Rs.4299/- amounted to unfair trade practice which comes under the purview of deficiency in service.   The contention of the 2^nd opposite party that the complainant is not entitled for refund of price as it delivered the device.   The delivery of the device is not disputed.   As the 2^nd opposite party received consideration twice as mentioned supra    it has to return Rs.4500/- together with interest @12% p.a.  It is also the contention of the complainant that the consignment delivered at Ongole is not according to the specifications ordered.  The complainant in para 8 of memo containing para-wise remarks expressed its willingness to replace the defective produce with fresh piece with better specifications.   It can therefore be presumed that the 2^nd opposite party supplied a defective device to the complainant which also amounted to deficiency in service.  We therefore answer these points in favour of the complainant.

15.  POINT No.4:-  The complainant claimed Rs.80,000/- towards damages as he could not use the device which the 2^nd opposite party denied and contended that Mr. Khadar Basha at Ongole received the device on 26-08-13 without knowing the filing of consumer complaint.   Ex.A-7 and A-8 disclosed that the 2^nd opposite party entrusted the consignment to the First Flight Couriers on 08-10-12.   The complainant on 20-10-12 sent an e-mail to the 2^nd opposite party about it receiving the payment twice as seen from Ex.A-9.   Under those circumstances, the contention of the 2^nd opposite party about                   Mr. Khadar Basha receiving the device on 26-08-13 is devoid of merit.   The 2^nd opposite party in our considered opinion intentionally mislead the Forum on the above aspect.  The complainant filed this complaint on 24-05-13 and not using the device is only for about six months.   Purchasing a defective device which cannot be made use of definitely will cause hardship and harassment in our considered opinion.   The compensation to be claimed and awarded should commensurate with the injury complained.   Awarding a sum of Rs.10,000/- in our considered opinion will meet ends of justice.   We therefore answer this point accordingly.  

16.  POINT No.5:-  In view of above findings, in the result the complaint is partly allowed as indicated below:

1. The 2^nd opposite party is directed to return Rs.4500/- together with interest @12% p.a. from 08-10-12 till payment.
2. The 2^nd opposite party is directed to replace the device i.e., UBISLATE 7Ci within four weeks after receiving it from the complainant (with upgraded offer as mentioned in your e-mail sent to the complainant on 3^rd October, 2012).
3. The 2^nd opposite party is directed to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation and Rs.2,000/- (Rupees two thousand only) towards costs.
4. The complainant is directed to send the device under proper acknowledgement within two weeks after receipt of the order.
5. The claim against 1^st opposite party is dismissed as no relief is claimed.
6. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of the copy of the order.

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 26^th day of March, 2014.

MEMBER                                  MEMBER                                PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:    NIL

        PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.