Date of filing:12/12/2018
Date of Judgment: 22/02/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This Complaint is filed under section 12 of the Consumer Protection Act 1986 by Sri Subrajit Mondal against Opposite Party (referred as OP hereinafter) namely XIAOMI Technology India (Pvt) Ltd alleging deficiency in service and unfair trade practice on the part of the O.P.
Case of the Complainant in brief is that he placed an online order for a MI Basic Red Headphone through MI Store App over his own MI phone on 07.10.2018 and accordingly order ID No 518100755351046 was generated by O.P confirming the said order. On 10.10.2018 a package containing consignment was delivered to the Complainant against the said order by the O.P on payment of Rs 449/- only to the carrier. But soon after delivery of the sealed package, Complainant when opened the wrapper found an old used Samsung head phone in place of MI Basic Red head Phone and inside packaging was found tempered with. So Complainant immediately lodged online Complain against delivery of wrong product and to replace the same, before XIAOMI customer service. On being asked by O.P, Complainant sent vide email dt 11.10.2018 clear view of images of the article from all side. But on 15.10.2018 Complainant found one e-mail from one syed of MI India support stating about closure of investigation from their end with a finding that the product was delivered in intact condition. Complainant had never raised the question in his Complain whether delivery of the product was made in intact condition or not rather he raised complain regarding wrong delivery of product. Thus the present Complaint is filed praying to direct the O.P to replace the wrongly delivered Samsung head phone with MI Red head Phone, to pay Rs 20000/- as compensation for mental agony and pain and litigation cost of Rs 10000/-.
O.P has contested the case by filing written version denying and disputing the allegations contending inter-alia that the product was delivered in intact condition and there were no evidence regarding the wrong delivery. Demand of the Complainant in his reliefs by way of damages and costs ( total Rs 30449) has absolutely no correlation with the cost of the actual product. There has not been any deficiency or unfair trade practice on the part of O.P and thus O.P has prayed for dismissed of the case.
During the course of the trial, Complainant filed examination-in-chief on affidavit but O.P failed to file any questionnaire. However examination-in-chief on affidavit was filed by the O.P followed by filing of questionnaire by the Complainant and reply by the O.P.
So the following points require to be determined:-
- Whether there has been deficiency in rendering of service and unfair trade practice on the part of the O.P?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reason
Both the points are taken-up for a comprehensive discussions. There is no dispute that Complainant had placed an online order for a MI Basic Red head Phone on 07.10.2018 and the article was delivered on 10.10.2018 on payment of Rs 449/-by the Complainant. Dispute raised by the Complainant is that when he opened wrapper, he found old used Samsung head phone instead of MI basic Red headphone. In order to substantiate that the complain was immediately lodged, Complainant has filed the e-mail sent to him by Consumer affairs of O.P on 10.10.2018 at 1:48 p.m acknowledging receiving the complain of the Complainant. So it is evident that on the very same date after delivery of product, Complainant immediately lodged the Complain.
Only contention raised by the O.P is that in their internal enquiry they found that product was delivered in intact condition but the manner of holding of internal enquiry has not been stated and no document of alleged enquiry has been filed by the O.P.
It may be pertinent to point out that Complainant did not claim that there was tempering of package. Had there been any tempering in the wrapper or outer cover, no prudent man would take the delivery. Complainant’s specific case is that when he opened the wrapper, he found an old used Samsung head phone inside the packaging. It is an admitted fact that O.P did not verify the wrapper or packaging physically. Unless the physical verification was held it is not clear as to how O.P could close the alleged investigation with a finding that there was no tempering inside or the product which was ordered was actually delivered. Complainant even had sent the images of the wrong product immediately on being asked by the O.P. So in the absence of any document about the alleged enquiry by the O.P, claims of the Complainant that product which he had placed ordered was not delivered instead an old used Samsung head phone was delivered cannot be disbelieved especially when it is evident from the document i.e e-mail as referred to above that the Complainant had immediately lodged the complain. Complainant has also filed the said wrapper and product inside it before this commission which further establishes his claim of delivery of old Samsung head phone. So as deficiency in service or unfair trade practice on the part of O.P is well established, Complainant is entitled to the replacement of wrongly delivered head phone with MI Red head Phone. He is also entitled to the compensation and litigation cost for mental agony and being compelled to file this case.
Hence
Ordered
CC/663/2018 is allowed on contest. OP is directed to replace the Samsung head phone delivered to the Complainant with a new MI Red head phone, within 60 days from this date. O.P is further directed to pay Rs 5000/- as compensation and Rs 6000/- as litigation cost to the Complainant within the aforesaid period of 60 days. In default of payment sum shall carry interest @ 8% p.a till realization.
