By Smt.  Beena. M,  Member:

This is a complaint preferred   under Section 35 of the Consume Protection Act 2019.

2. Brief facts of the case are as follows:- On 31-05-2021 the Complainant had placed an order through MI Store Mobile application for a smart phone Redmi Note Pro Max Glacial Blue with Opposite Party No.1 and the same was sold by Opposite Party No.2, and it was sent to the Complainant through Opposite Party No.3 company from Opposite Party No.5 office at Bangalore.  The product booked by the Complainant was sent by the Opposite Party No.2 through the courier service  i.e.  Opposite Party No.4.   The Complainant received information from the Opposite Party No.6 that the consignment has reached it’s office at Sulthan Bathery and the delivery boy from the Opposite Party No.6 reached the Complainant’s residence on 04-06-2021 and delivered a package purported to be containing the smart phone ordered by the Complainant.  The Complainant paid Rs.21999/- at the time of delivery of the product.  Thereafter, the Complainant, when the package was opened, it was found that the smart phone was not there in the package. Suddenly the Complainant registered a complaint WOIN service in @ Xiaomi on 04/06/2021.  At the request of the Opposite Party No.1 to 3,              a Second Complaint was also registered for re-investigation on 13-06-2021.  The Complainant though contacted the Opposite Parties several times by e-mail and chats, refused to deliver the smart phone booked by the Complainant.   Subsequently the Complainant requested for disclosing the IME number of the phone alleged to have been packaged by the Opposite Party No.1 to 3 through Opposite Party No. 4 to 6.   But the Opposite Party No.1 to 3 failed to provide IME number as well.   The act of the Opposite Parties in not delivering the phone to the Complainant is nothing but deficiency in service on their part.  The Complainant has lost Rs.21999/-.   The Opposite Parties are jointly and severally liable to pay the said sum of Rs.21999/- to the Complainant.   The phone intended to be purchased was for the beneficial use of Complainant’s daughter, who is preparing for JAG examination of the Indian Military service.   Because of the non delivery of the phone the Complainant’s daughter has suffered mental tension and sufferings and he estimates the compensation for the sufferings at Rs.50,000/-.  Hence the Complaint.     

            3.  After the admission of the Complaint, this Commission issued summons to the Opposite Parties.  The Opposite Parties 1 and 2 not entered appearance.      Opposite Parties No. 3 to 6 entered appearance and filed version stating the following contentions. 

            4. The Opposite Parties 3 to 6 had duly delivered the product on “as-is” basis within the stipulated time period and as such there is no deficiency in service.  The Complainant himself has not mentioned anywhere in the Complaint about any mislead, deficiency on service, harassment etc on part of the Opposite Parties No. 3 to 6 and hence, the present Complaint is therefore, liable to be dismissed in limine on the grounds of Mis-Joinder of Party with exemplary costs thereto under Sec.36(2) of the Consumer protection Act, 2019. The Opposite Parties 3 to 6 further stated that the Opposite Party No.1 and 2 hired the services of them for delivery of the product to the Complainant.  They collected the parcel from the Opposite Party No.1 & 2 and the said parcel was delivered to the Complainant.     As per the terms of contract between Opposite Party No. 3 to 6 and the Opposite Party No.1 &2, the responsibility of the Opposite Parties No. 3 to 6 is to deliver the product  in the intact condition to the customers.   They have no  access to identify the products and is not even authorized or liable to open the shipment to verify the contents of the shipment, and has to deliver the product in intact conditions. Therefore the Opposite Parties No.3 to 6 prayed  for the dismissal of the complaint.

            5. On perusal of Complaint, Version and documents, Commission raised the following points for consideration:-

1. Whether there is any deficiency in service from the part of opposite parties?
2. Whether the opposite parties No.3 to 6 are necessary parties?
3. Whether the complainant is entitled to get any relieves as prayed for?

6. Point No. 1 to 3 :-  For the sake of convenience and brevity all points are considered together.

            7. The Complainant had adduced oral evidence.  He was examined as PW1 and the documents produced were marked as Ext. A1 to A8.  On the side of Opposite Parties no oral evidence was adduced.  Ext. A1 is the computer generated copy of the invoice dated 31/05/2021.  Ext. A2 is the computer generated copy of message received through e-mail as regards order of confirmation dated 31/05/2021 stating that the package has been shipped.   Ext. A3 is the computer generated copy of message received through e-mail as regards to delivery of order dated 04/06/2021.  Ext. A4 is the computer generated copy of message received through e-mail as regards to e-mail acknowledgement for the complaint dated 04/06/2021.    Ext. A5 is the computer generated copy of message sent through e-mail as regards to the complaint dated 05/06/2021and the reply from Xiaomi customer service of India dated 05/06/2021.   Ext. A6 is the computer generated copy of e-mail complaint sent by Complainant dated 13/06/2021 and the reply from Xiaomy customer service of India dated 14/06/2021.   Ext. A7 is the computer generated copy of e-mail received from customer care service dated 14/06/2021.   Ext. A8 is the computer generated copy of chats with the customer executive  dated 04/06/2021.

             8. We have gone through the documents and evidences  and seen that the Complainant had  placed an order to purchase a smart phone from Opposite Party No.1 and the same was sold by Opposite Party No.2 and it was sent to the Complainant through Opposite Parties No.3 to 6.  On perusing the documents the Complainant has placed several complaints regarding the empty box delivery.  However, the Opposite Parties No.1 and 2 had not acted or taken up the complaint put forwarded by the Complainant and after serving  the process of this Commission they not entered appearance even before this Commission.  The act of the Opposite Parties No.1 and 2 is nothing but deficiency in service.  As far as concerned the Opposite Parties No. 3 to 6, they are providing courier services and they are not required to verify the contents, quality or quantity of the item to be delivered or open the package whatsoever.  The complainant has no complaint that the product delivered by the Opposite Party No.3 to 6 as a broken or damaged condition.  From a detailed examination and discussion of all the aspects, this Commission found that, the Opposite Parties No.1 and 2 are answerable for the non delivery of the smart phone booked by the complainant and deficiency in service on their part.  This Commission is of the view that the Opposite Parties No. 1 and 2 have been negligent in delivering an empty package causing mental agony and failure to refund the amount as demanded by the Complainant.  And there is no deficiency of service on the part of Opposite Parties No. 3 to 6.    The Complainant is therefore, entitled to get the relief from  the First and Second Opposite Parties.

In the result, the Complaint is partly allowed, and

1. The Opposite Parties No.1 and 2 are directed to refund jointly and severally an amount of   Rs. 21,999/-(Rupees Twenty One Thousand Nine Hundred and Ninety Nine Only) as the price of the smart phone to the Complainant.
2.  The Opposite Parties No.1 and 2 are directed to pay Rs.25,000/- (Rupees Twenty Five Thousand only) as compensation to the complainant within one month of the receipt of this order.   Failing which the Complainant is entitled to get interest @ 6% annum for the above amount from the date of this order till the realization of the amount.
3.  The Opposite Parties No.1 and 2 are also directed to pay Rs. 7,000/- (Rupees Seven Thousand only) towards cost of the proceedings.

This  order shall comply within 30 days from the date of receipt of this

order,  failing which the same will carry 8% interest per annum, from the date of

 this order.

            Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the  11^th  day of May 2023.

            Date of filing:29.07.2021.

                                                                                                PRESIDENT:   Sd/-

                                                                                                MEMBER  :   Sd/-                                                              

APPENDIX.

Witness for the Complainant:

PW1.            Prakash. M         .                            Complainant.

Witness for the Opposite Parties:

Nil.   

Exhibits for the Complainant:

A1.    Computer generated copy of   invoice.                  dt:31.05.2021

A2.    Computer generated copy of message  received  through e-mail.       

A3.    Computer generated copy of message  received through e-mail.                 

A4.   Computer generated copy of message  received  through e-mail.                 

A5.    Computer generated copy of message  sent through e-mail.               

A6.    Computer generated copy of  e-mail complaint.    

A7.             Computer generated copy of  e-mail received  from Customer Care Service.

A8.    Computer generated copy of  chats with the Customer Executive.

Exhibits for the Opposite Parties:

Nil.            

                                                                                    PRESIDENT :   Sd/-     

MEMBER     :   Sd/-