FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the Complainant in brief, is that, the Complainant ordered Oneplus Nord CE 2, 5G (Gray Mirror, 8GB RAM, 128GB Storage) from the OP’s concern and paid online an amount of Rs.24,999/- through his Credit Card on 11.06.2022. But on 15.06.2022 the Complainant was delivered another model (Kechoda k108) by the OPs 1 & 2 which was not ordered by the Complainant. The Complainant informed the matter to the OPs 1 & 2 by mail dated 16.06.2022which was replied by the social media escalation team of the OPs 1 & 2. Thereafter the Complainant sent several mails OPs 1 & 2regarding the replacement of the said item and refunding the money to the Complainant. Finally on 29.06.2022 the OPs 1 & 2 mailed the Complainant that they have delivered correct product to the Complainant. Then the Complainant lodged a complaint to the OP3 and it was advised by the OP3 to the Complainant to sue the OPs 1 & 2 in Consumer Commission. Having no other alternative the Complainant sent a Legal Notice to the OPs through his Ld. Advocate on 25.08.2022 which was not replied by the OPs 1 & 2 till date. Hence the Consumer Complaint.
Ld. Advocate for the OPs appeared by filing Vakalatnama but no WV has been filed by the OPs within the statutory period and as such the case runs ex parte hearing against the OP. But After the statutory period the OP filed their WV but the same was rejected for not filing the WV within statutory period.
In support of his case the complainant has tendered evidence supported by an affidavit and also relied upon documents annexed with the complaint petition. We have heard argument on merit and have also perused the record.
Undisputedly the complainant ordered Oneplus Nord CE 2, 5G (Gray Mirror, 8GB RAM, 128GB Storage) on 11.06.2022 through the OP’s E-commerce platform by paying an amount of Rs.24,999/- using his Credit Card which will be paid by equal 18 EMIs of Rs.1559.56/-. Photocopy of the payment receipt adduced by the Complainant as annexure reveals that the said product was sold by one Rocket Kommerce LLP( Building No. CCU1, Mouza, Amraberia, Phase 2: ESR Warehousing Pvt Ltd, Vill: Amraberia, Rajapur, Joargori Gram Panchayet, Uluberia, Dist. Howrah, Howrah, WEST BENGAL, 711303) and the price of the product was also received by them. TheLd. Advocate for the Complainant alleged that the OPs delivered him another model i.e. KECHODA k108 on 15.06.2022. Immediately on 16.06.2022the complainant lodged the Complaint to the OPs through E-mail requesting them to replace the same. Photocopy of the said mail support this contention. Thereafter the Complainant sent several E-mails enquiring the status of his complaint. Ld. Advocate for the Complainant alleged that on29.06.2022 OPs 1 & 2 intimated the Complainantvide E-mail that they have sent the correct product to the Complainant. But no document in this regard has been annexed by the Complainant in the Complaint Petition.On perusal of the record it is found that the Complainant did not adduce any material document regarding the said received product i.e. KECHODA k108. Ld. Advocate for the Complainant argued that there was no invoice with the shipment.On the other hand, photocopies of the Transaction Detailsof the Credit Card of the Complainant showing that12 EMIs have been paid despite receiving the wrong product as alleged by the Complainant.
It is pertinent to note that despite service of notice of the Complaint, OPs did not put in appearance nor the OPs filed Written Version in response to the Complaint. As the OPs have failed to controvert the allegations in the complaint by filing Written Version, the allegations in the complaint are deemed to have been admitted as correct. Not only that,OPs 1 & 2 replied to their Grievance Cell i.e. OP3 stating that the ordered product was delivered to the Complainant “in intact condition” and accordingly “neither replacement order nor refund can be initiated”. It is also stated by the OPs 1 & 2 that:
it is submitted that our role is limited to that of they are an intermediary and we are not the seller/manufacturer, the product listed on our e-commerce marketplace are sold by independent third party sellers.
Seller of the product in question, Rocket Kommerce LLP, is a company like many others who uses the E-commerce platform of the OPs to sell their products. Said Company is not a party in this instant case. OPs are in a contracts with the said company and received the payments on behalf of them. Therefore they cannot shook off their liabilities towards the Complainant. As such we are of the opinion that the gesture of the OPs appear as utter negligence, deficiency in service and unfair trade practice.
For the reason discussed above the complaint is partly accepted with following directions:
- OPs are jointly and severally directed to refund the amount of Rs.24,999/- to the Complainant subject to handover the product as delivered, to the OPs. The whole process should be complied within 30 days from the date of this order.
- OPs are also jointly and severally directed to pay an amount of Rs.10,000/- as litigation cost together with Rs.20,000/- as compensation for mental harassment and agony to the Complainantwithin stipulated period failing which the refund amount shall attract simple interest @5% p.a.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.
