BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.63 of 2015

Date of Instt. 23.02.2015

Date of Decision :08.10.2015

Rajat Chopra son of Pawan Chopra aged about 28 years and Pawan Chopra son of Ram Lubhaya Chopra aged about 56 years, both residents of H.No.NB-266, Lakshmi Pura, Jalandhar City, Punjab-144001.

..........Complainants Versus

1. Wal-Mart India Pvt Ltd., through its Director/General Manager/ Representative/Managing Director/Nodal Officer etc, E-20, Ist & 2nd Floor, Hauz Khas, New Delhi-110016.

2. Corporate Office Walmart India Pvt Ltd., 4th Floor, Orchid Centre, Golf Course Road, Sector-53, Gurgaon-122002 (Haryana) India.

3. Best Price Modern Wholesale Store, through its Director/General Manager/Represenatative, near Hotel Grand Magestic, near Raman Mandi, Jalandhar City.

.........Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.Jatinder Sharma Adv., counsel for complainant.

Sh.Rohit Sharma Adv., counsel for OP No.1 & 2.

Opposite party No.3 exparte.

Order

Jyotsna Thatai (Member)

1. The complainants have filed the present complaint under section 12 of Consumer Protection Act, against the opposite parties on the averments that the complainant is a customer and online ordered a product tilted Haier Direct cool HRD 2105 CM BRSD B bearing item No.567556 price of Rs.9000/- on the name of Venus Ispat Udyog, Rajat Chopra Tanda Road, Shubhash Dharam Kanda, Jalandhar vide order No.59034 dated 20.2.2015 with the total order value of Rs.9035.77/. Later on customer received a call from the concerned person pertaining to show inability to come at complainant place to pick up cash and requested to the complainant to transfer the money online, then on this complainant again ordered Haier Direct cool HRD 21205 CM BRSD B bearing item No.567556 price of Rs.9000/- on the name of Venus Ispat Udyog, Rajat Chopra Tanda Road, Shubhash Dharam Kanda, Jalandhar vide order No.59502 dated 20.2.2015 with the total order value of Rs.9035.77/-. It is the duty of the opposite party to provide the product as per the commitment and specification mentioned on their web portal being a reputed and big company. Details of the product are annexed with this complaint. The act and conduct of all the opposite parties amounts to deficiency in service. On such like averments, the complainant has prayed for compensation and litigation expenses.

2. Upon notice, opposite parties No.1 & 2 appeared and filed a written reply raising preliminary objections regarding locus-standi, complainant being registered business member of Best Price Modern Wholesale Store at Jalandhar and registered business member who purchase goods exclusively for commercial purpose and/or for further sale etc is not consumer. They further pleaded that complainant as a registered business member had placed an order online through the opposite parties website on 20.2.2015 through cash pickup payment mode (i.e cash after delivery). The issue of non-availability of stock was duly communicated to the complainant, post which the order was withdrawn, no cash/money was received from the complainant as the receipt of the same was dependent upon delivery of product as per the cash pickup model. Inspite of previous communication to the complainant that the said product's stock is not available, the complainant again placed an order on 21.2.2015 through his debit card for the same model number. Due to non-availability of stock, the second order was canceled again. This second order was canceled on 23.2.2015 and the refund was initiated against this transaction on 24.2.2015. The said refund of Rs.9035.77/- as against his debit card payment was completed on 25.2.2015 through bank reference No.67168. Since the amount paid by him, second time around, has been completely refunded to him, it leaves him with no ground to proceed against the opposite parties whatsoever and this case is liable to be dismissed. They denied other material averments of the complainant.

3. Upon notice, opposite party No.3 did not appear and as such it was proceeded against exparte.

4. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CW-1/A alongwith copies of documents Ex.C1 to Ex.C6 and closed evidence.

5. On the other hand, learned counsel for the opposite parties No.1 & 2 has tendered affidavits Ex.OPA alongwith copies of documents Ex.OP1 to Ex.OP13 and closed evidence.

6. We have carefully gone through the record and also heard the learned counsels for the parties.

7. It is not disputed that firstly the complainant placed online order of Haier refrigerator with price of Rs.9000/- in the name of Venus Ispat Udyog, Rajat Chopra Tanda Road, Shubhash Dharam Kanda, Jalandhar on 20.2.2015 with the total order value of Rs.9035.77/- but later on this order did not materialized. Thereafter, the complainant Rajat Chopra again ordered the above said product online on 21.2.2015 with same order value of Rs.9035/- and made payment through his debit card. According to the opposite parties due to non-availability of the stock, the second order was canceled again on 23.2.2015 and amount was refunded on 25.2.2015. Ex.C1 is containing particulars regarding order placed on 21.2.2015 wherein product details are mentioned and it is further mentioned that ship to Rajat Chopra, Tanda Road, Shubhash Dharam Kanda, Jalandhar and further bill to Rajat Chopra, Tanda Road, Shubhash Dharam Kanda, Jalandhar. Admittedly, this order was canceled by the opposite party on the ground that the item was not available and amount was refunded to the complainant. The complainant had to purchase the refrigerator of some other model from the market for Rs.10,900/- vide retail invoice Ex.C6 dated 23.4.2015. Counsel for the opposite parties contended that best price i.e opposite party No.3 is wholesale store and sell goods to its business members only on the condition that the said goods are not purchased for personal consumption and further such purchase is for resale, commercial, business, institutional or industrial use only. He further contended that as such complainant Rajat Chpra can not be termed as consumer. The opposite parties have produced one letter dated 30.12.2010 Ex.OP8 written by Pawan Chopra wherein it is mentioned that he is member of best price and Rajat Chopra is a employee of his firm. From document Ex.C1 it is evident that the order was placed by Rajat Chopra Advocate and his email ID is mentioned as adv-rajatchopra@yahoo.com. In Ex.C1 it is also mentioned that the product be ship to Rajat Chopra and bill to Rajat Chopra. So the opposite parties have issued membership card to Rajat Chopra Advocate. The opposite parties should have made proper enquiry before issuing the membership card to him. They are issuing membership cards to individuals who are not doing any business. Rajat Chopra is practicing advocate at Jalandhar. So if the opposite parties have wrongly issued the membership card, it can not be said that he placed order for commercial purpose. He subsequently purchased Whirlpool Refrigerator vide invoice dated 23.4.2015 which is in his own name. So he placed order of refrigerator for his personal use and as such is to be treated as consumer. In case the product was not available then opposite parties should have deleted the same from its website. Advertising a product on its website which is not available with the opposite parties constitute deficiency in service and further unfair trade practice on their part. The booked refrigerator was of Rs.9035/- and whereas the complainant purchased another refrigerator at the higher price i.e Rs.10900/- vide retail invoice dated 23.4.2014 Ex.C6.

7. In view of above discussion, the present complaint is accepted and opposite parties are directed to pay Rs.5000/- as compensation and further Rs.2000/- as litigation expenses to the complainant. Compliance be made within one month from the date of receipt of copy of this order. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

08.10.2015 Member President