Per: Akatha.H.D.
JUDGMENT
The complainant has filed this complaint u/s 12 of the Consumer Protection Act – 1986 against the OP alleging deficiency of service in not returning the amount of the mobile hand set of Rs. 12,590/-. Hence prays for relief to return the amount of
Rs. 12, 590/- towards mobile hand set, along with Rs. 30,000/- towards physical and mental agony and Rs. 30,000/- towards deficiency of service and Rs. 10,000/- towards litigation and miscellaneous expenses.
Brief averments of the Complaint are as under;
2) That, the complainant purchased a mobile hand set Sony Xperia 2 ultra D 16858 through on line on 23-06-2015 in a show room. The details of the bill are receipt No. Vat/tin No: 09665713067 OD 203181563195417600. The cost of the mobile hand set Sony Xperia 2 ultra D16858 (357656054064603) is Rs. 12,590/-. The complainant alleged that after depositing the amount in the account of the OP, the OP sent a mobile hand set through parcel and the said hand set was used by the complainant. When the complainant started using the mobile hand set, after few days the mobile was getting Auto switched off. This defect was seen often in the mobile set, because there was manufacturing defect in the hand set. The complainant further alleged that he informed the Op regarding the defect in the hand set the OP asked him to send the hand set back to his address and in exchange of it he would give him a new hand set. So as per the advise, the complainant sent that hand set to the OP, but till today the OP did not send the new hand set to the complainant. The complainant many times contacted the OP asking him to send a new hand set. The OP went on delaying saying that today or tomorrow he will send the new mobile hand set. Now the complainant is facing lots of difficulties without hand set.
The complainant further alleged that he has issued a legal notice to the Op through his advocate on 09-11-2015 and the said notice is served on OP and the reply given by the Op is not satisfiable. Hence filed this complaint praying for the amount of Rs. 12,590/- towards mobile hand set along with Rs. 30,000/- towards physical and mental agony and Rs. 30,000/- towards deficiency in service and Rs. 10,000/- towards miscellaneous and litigation expenses as prayed above.
3) The forum after admitting the complaint, the notice was issued to the OP and the said notice was served upon him. The OP appeared through their counsel before the Forum and filed Vakalatnama and Written Version to the main petition and the said case was posted for the complainant evidence.
4) The main objections/written version of the Opponent.
That the OP submits that at the very outset, the instant complaint filed by the complainant is false, frivolous and untenable both in law as well as on the facts and circumstances of the case and that the same has been filed only in order to harass the OP and put undue pressure on them for illegal gains.
That the OP further submits the OP i.e., WS Retail Services Private Limited, is a company incorporated under the companies Act 1956, having its registered office at O, zone Manay Tech Park, No: ‘B’ Block, 9th Floor, Garvebhavipalya, Hosur Road Bangalore 560068. The OP is an online retail seller on the marketplace website www.flipkart.com and has acquired good market reputation for its range of products and exceptional customer support.
The OP further submits that the above complaint has been filed with malafide intentions of harassing the OP. The complainant is not maintainable either in law or on facts and is liable to be dismissed in limine. The instant Complaint is devoid of merits and averments made therein do not cover the complete facts and are made only with the intentions to defame the OP. The complaint is liable to be dismissed on this ground also.
The OP further submits that it is brought to the attention of this Hon’ble forum that the OP received two orders on 22-06-2015 and 24-06-2015 for purchase of Sony Xperia Z Ultra each costing Rs. 12,591/- each for both the orders. The delivery address was same for both the orders which were: Sarvamangala medical store; Sarvamangala Complex Halageri; goudar Chawl, near bus stand Gadag Road Koppal, Karnataka, India, Riachur-583231 Karnataka. However one order was in the name of Complainant i.e. Rajeshekhar G Patil and other was on the name of Shivarudragouda Kori i.e. Complainant’s relative. The order ID was OD203181563195417600 for Rajeshekhar G Patil and OD 103200073608150200 for Complainant’s relatives. Both the order ID’s are annexed as Annexure A and B for ready reference.
That the OP further submits that in and around July 2015 OP received a complaint for order ID OD103200073608150200 from complainant’s relative stating the product for order ID OD103200073608150200 was picked up from complainant’s address and amount of Rs. 12,591/- was refunded to the Shivarudragouda Kori i.e. complainant’s relative on 11-08-2015 at 11:05 AM hrs and the Acquirer’s Reference Number (“ARN”) generated is 74332745224522383274336. It is submitted that once the ARN is generated, the amount is processed to the issuing bank. It is further submitted that when the complainant had approached this OP regarding the issue, he was duly informed that the amount had been refunded along with the ARN Number for the product where complaint as received and product was picked up and he should approach the bank for appropriate resolution and in case of any concerns share the bank account statement with this OP but the bank account statement was not provided by the complainant. Copy of email confirmation from the bank on successful transaction is annexed as Annexure C.
That the OP further submits it is stated that for order ID OD203181563195417600 for Rajeshekhar G Patil i.e. complainant, the OP Company has never received any complaint/request for return of the product and has never picked up the product so there is no question of refunding the purchase price.
That the OP further submits it is brought to the attention of this forum that there is a 30 days replacement warranty period given by the OP Company wherein if the purchaser finds any problem with the product, he can raise request with the OP and the OP will pick up the product and thereafter refund the purchase price. For any complaint received after 30 days replacement period the purchaser has to approach the manufacturer or Authorized Service Center for repair under warranty extended by them.
That the OP further submits it is reiterated that the OP has never received any request/complaint from the is put to strict proof or averments that the complainant has even raised request for return or refund within the replacement warranty period with the OP or the OP has ever picked up the product from the complainant. Hence no amount is payable to the complainant by the OP.
That the OP further submits it is further stated that the product is still with the complainant and he is making false and baseless statements that he has returned the product to the company just to extract undue money from the OP company.
That the OP further submits it is denied that there has been any deficiency in services or unfair trade practice on part of this OP since the amount paid was refunded for the product where the return request as received and product was picked up hence the complainant is not entitled for any refund or compensation from this OP.
Therefore, under the circumstances and for the reason stated above, it is submitted that there is no dispute as contemplated under the consumer protection Act between the complainant and the OP and the reliefs prayed for is already been processed and paid, therefore the complaint is only liable to be dismissed in limine against OP since it has become in fructuous.
Para wise Reply on Merit:-
All the averments made in Para 1 to 4 are denied as false because the OP had already refunded the amount for the product where the return request as created and product as picked up. It is reiterated that no request as ever raised by the complainant regarding neither his product within the mandated 30 days replacement period nor the product was picked up from him. The complainant is put to strict proof of averments. The product is still with the complainant so the case had become in fructuous. It is reiterated that the ARNB number will be generated only if the refund is being processed and the same is communicated to the complainant’s relative. Hence, it is submitted that the complaint should be dismissed.
5) On the basis of the above pleadings, the following points that arise for our consideration are;
POINTS
1) Whether the complainant proves that there is deficiency in service in not returning the amount of the mobile hand set?
2) Whether the complainant is entitled for any relief sought for?
3) What order?
6) To prove the case of the complainant, the complainant himself examined as PW1 and has got marked documents as per Ex.A.1 to Ex.A.7 and closed their side evidence. The OP after giving sufficient time did not lead their evidence and hence it was taken as “Evidence Nil” and posted for argument.
7) Heard the arguments of the counsel and perused the records.
8) Our findings on the above points are as under;
Point No. 1: In the Negative,
Point No. 2: In the Negative
Point No.3: As per final Order for the following
REASONS
9) POINT No. 1 and 2: As these issues are interconnected each other, hence they are taken together for common discussion to avoid repetition of facts, evidence, documents and arguments.
10) On perusal of the pleadings, evidence coupled with the documents of respective parties on record, it is the case of the complainant alleging in not returning the money of the mobile hand set. There is also no dispute regarding that the mobile hand set was purchased through online shopping.
11) To prove the case of the complainant the PW1 has reiterated the complainant averments in his examination in chief and in support of his case he has produced the customer copy, bill letter, SBI letter and a letter which has been marked as Ex A1 to Ex A4. On perusal of Ex A2 it is clear that the complainant had purchased a mobile hand set through online to the tone of Rs. 12,591/-. Whereas on perusal of Ex A-3 the SBI letter the consumer name is mentioned as Shivarudragouda Kori as the customer name and he had purchased the mobile and due to defective product he had returned back to the OP and for that he has to receive the amount already paid for the product and Ex A4 also reveals the name of the Shivarudragouda Kori had complained about the amount was not refunded The OP in the written version had clearly submitted that on the date of purchase of the mobile hand set, two sets were purchased on that day one in the name of the complainant and in another name of his relatives Shivarudragouda Koori as per the Annexure A & B. which were submitted by the OP. Annexure A and B clearly reveals that two hand sets were purchased on the same day and delivered on the same address and on different names. So also on perusal of Ex A 3 and A 4 this itself clearly goes to show that the one Mr. Shivarudragouda Kori has complained that the purchased item from flip cart was a defective product there is no any specific mentioning above that the complainant was authorized to file a complainant on behalf of Shivarudragouda. The respondent as per annexure C he has produced the reported transaction refund got produced successfully however in it has been clearly mentioned that the transaction of Rs. 12,591/- is reported successfully. But to dispute the said entries in annexure C, the complainant has not produced any other cogent and corroborative evidence except putting suggestion to take, they have not paid the amount even after receiving back the mobile hand set to the OP and the said suggestions have been categorically denied by the Ops.
12) Further, the documents which have been relied by the complainant more specifically with respect to Ex A 2 and Ex A 3 which one the tax invoice bill and disputed amount of Rs. 12,591/- by SBI Gangavati where in the name of the complainant is mentioned in Ex A 2 and where as in Ex A3 the name Shivarudragouda is mentioned i.e. the relative of the complainant name is entered. This is clearly goes to show that the said complainant mobile hand set was not a defective on. Therefore when he fails to depose the reason with respect to why the complaint is given in the name of Shivarudragouda and not in his name is not told by him. Believing his version with respect to the defective mobile hand set was his as averred by him in the complaint is not justifiable one. There is also no power of attorney given by Mr. Shivarudragouda to file the complaint on behalf of him, hence his version is not believable with respect to the defective mobile hand set. But to substantiate the said deficiency of service, when there is no cogent documents has been produced by the said complainant, the question of considering that the Ops have not returned the amount of the defective hand set as deposed by PW 1 in his chief examination is not believable.
13) The Hon’ble Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal reported in 2009 (1) CPR 306, Vaishnav Gift Centre V/s Kapil Kumar and Ors.
Consumer Protection Act, 1986 – Sections 2(f), 14, 15 = Defective mobile set – Appellant dealer and respondent manufacturer jointly and severally liable to replace – Before receiving new set, respondent to deposit old set with respondent No.2.
Result: Appeal partly allowed.
The citation report in 2004 () KCCR SN 200, Supreme Court of India, Ghaziahad Development Authority V/s Balbir Singh
- CONSUMER PROTECTION ACT, 1986 – Section 11 – Jurisdiction – Consumer Protection Act has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities. Such authorities become liable to compensate for misafeasance in public office, i.e., an act which is oppressive or capricious or arbitrary or negligent, provided loss or injury is suffered by a citizen.
- CONSUMER PROTECTION ACT, 1986 – Sections 11 and 12 – Compensation – Compensation cannot be the same in all cases irrespective of the type of loss or injury suffered by the consumer.
The facts and circumstances of the case in hand and circumstances of the said citations are not applicable in this case.
14) No doubt, the opponent has not adduced any evidence but the said weakness of the Opponents cannot be made use by the complainant for his case. Therefore the complainant fails to prove the deficiency of service on part of OP as alleged.
15) On the contrary as per the oral evidence coupled with the documentary evidence the complainant failed to prove that the opponents have not returned the money of the mobile hand set and the said fact has been clearly discloses in Ex A1 and Ex A3 and Annexure A to Annexure C. Which are the invoice bills and disputed amount of Rs. 12,591/- from SBI Gangavati which have been already discussed supra.
16) Therefore on perusal of the oral and documentary evidence that though there is no evidence on behalf of the respondents and no perfect rebuttal, the complainant utterly failed to prove the deficiency of service by OP. Hence in the light of above observation the complainant failed to prove that the Opponent has committed deficiency of service in not refunding the amount of the defective mobile hand set. Hence, in the light of above observations we constrained to hold point No: 1 and 2 in the Negative.
17) Point No: 3:- Hence in the result we proceed to pass the following;
ORDER
- The complaint filed by the complainant is hereby dismissed.
- No order as to cost.
- Send the free copies of this order to both parties.
Dictated to the Stenographer, transcribed, typed by him, typescript, corrected by me and then pronounced in the Open Forum on 11th day of July, 2016.
ANNEXURE //
List of Documents Exhibited for the Complainant.
Ex. A 1 Customer copy
Ex. A 2 Invoice/Bill Date: 23-06-2015
Ex. A 3 SBI Gangavati letter Date: 04-09-2015
Ex. A 4 Letter Date: 24-08-2015
Ex. A 5 Legal notice Date: 09-11-2015
Ex. A 6 Postal receipts Date: 09-11-2015
Ex. A 7 Postal acknowledgement
Witnesses examined for the Complainant / Respondent.
P.W.1 | Sri Rajashekhargouda G. Patil, Age: 42 years,
Occ: Business, Sarvamangal Medical Stores, Koppal. |
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