SRI. SAJEESH.K.P     : MEMBER

    The  complainant  has filed this  complaint  under Sec.12 of the Consumer Protection Act 1986 seeking direction against the  OPs  to refund Rs.7990/- as  the price of mobile phone and Rs.10,000/-  as  cost of litigation   for the  deficiency in service  from the part of OPs.

  Complaint in brief:-

    On 12/9/2019  and 14/9/2019, the complainant had ordered 3 items from 1^st OP’s online platform among one is a  mobile phone and the items were delivered on 17/9/19.  The complainant ordered for Samsung Galaxy M10 and  at the time of delivery the package was improperly packed and the thickness of the package was only 2-3 centimeters and the information provided on the cover was “wireless” instead of mobile.  The complainant made the order through her husband’s Amazon ID and on the very same day complainant’s  husband contacted “Delivery couriers” as well as OP’s customer  service since complainant got a  delivery  updation  with regard to the delivery of mobile  even though it was not delivered.  On seeing the description as wireless complainant contacted Savex Technologies Pvt Ltd to know about the description made on the cover and they mentioned that they write full description of the items over the cover.  All the details were intimated to Amazon customer service and courier agency through SMS and calls.  On 30/10/19 the complainant came to know through  e-mail that OP will not be giving  any replacement or refund towards the order made by  complainant.  Hence this complaint.

   After filing this complaint, the commission has send notice to  OP and  OP has entered appearance and filed their version accordingly.

Version of 1^st OP in brief:

   According to the version, complainant is not a consumer since the product has been ordered from the email ID of her husband.  The OP contended that the product was delivered to the customer and it was confirmed by seller.  The averments regarding the missing of product from original factory packed phone is denied by OP .  The product was shipped in its original factory sealed condition and with an additional tamper evident packaging and missing of product is impossible.  The complainant never took any measures to approach law enforcement agency regarding the missing or non-delivery of the product.  The OP contended that they does not sell or offer to sell any  products to the buyers but only provide market place to 3^rd party sellers.  The OP is reluctant to  refund the  said product  since  the  product delivered by the seller which were  subject  of the fraudulent transaction and such payment deposited in the nodal account which was received by 3^rd party seller and hence OP has not liable to issue any refund  to complainant.  Hence  the OP prayed to dismiss the complaint.

   Due to the rival  contentions raised by the  OPs to the litigation , the commission decided to cast the issues accordingly.

1. Whether  there is any deficiency in service from the part of  OPs towards complainant?
2. Whether  the complainant is entitled to get compensation and cost to the litigation as  claimed?

  In order  to  answer the issues, the commission called for the evidence from complainant as well as OP.  The complainant produced documents which is marked as Exts.A1 & A2.  Ext.A1 is the tax invoice dtd.15/9/2019.  Ext.A2 series is the copy of  E-mail send by OP to complainant.  The complainant adduced evidence through proof affidavit  and  examined as PW1.  No oral and documentary evidence in the  side of OP.

   According to the   OP’s version the liability of  not delivering the product is on the seller and the address of the seller was mentioned  by OP and thereby the commission sent notice twice to the seller and it was returned with an endorsement “No such addressee found in the  locality”. Hence the complainant deleted OP.NO.2 in the case.

  Issue No.1:

   On the perusal of Ext.A1  it is seen that Samsung Galaxy Mobile worth Rs.7990/- of seller viz Savex Technologies Pvt Ltd purchased by complainant from OP’s online platform.  The dispute arise with regard to the delivery of the product .  As per the  complaint, the product was not delivered only a size cover with   “wireless”.  The complainant got a message of delivery updation on 17/9/2019 and on 28/9/2019 e –mail from OP produced by complainant which was marked Ext.A2 series.  On the basis of  contents the OP conducted an investigation regarding the missing of the product and it is seen that OP replied that they are not able to refund for the product.  The OP clearly admitted through the Ext.A2 series e-mails dtd.28/9/2019,29/9/19,30/9/19,4/10/19 that they understood the mobile was not received by complainant and OP conducted investigation and replied that they are not able to  replace or refund towards the order placed by complainant.  But in the Ext.A2 series OP never mentioned  the details of investigation or the reason of denial.  The OP’s contention with regard to their non-liability towards the non-delivery of product, on a mere statement made by   OP ie, they are only a online platform and not a seller.  Moreover, the commission had issued notice to the seller on the  address which was given by OP’s and  found that there is no such addressee.  The admission of knowledge  with regard to the non-delivery of product and not stating  any valid  reason to deny the claim of replacement or refund of product  by OP made them liable  to the loss incurred by complainant.  From the point of view, there is a cause deficiency in service from the part of OP.  Issue  No.1 is answered in favour of complainant.

  Issue No.2:

   The complainant is entitled to get compensation for the loss suffered and deficiency in service from the part of OP.  The commission is directed to OP to pay compensation of Rs.3000/- and cost of the litigation of Rs.2000/- to complainant.  So the issue No.2 is answered in favour of complainant.

    In the result  the complaint is allowed in part.  The opposite party is  directed to refund  Rs.7990/-  as the cost of  undelivered  Samsung Galaxy M10 mobile phone and also pay Rs.3000/- as  compensation and Rs.2000/- as the cost of litigation to the complainant within  30 days of receipt  of this order. In default the amount of Rs.7990/- carries 9% interest  per annum  from the date of order till realization.     Failing which the   complainant is at liberty to  execute  the  order as  per the  provisions  of Consumer Protection Act 2019. 

Exts:

A1- Tax invoice dtd.15/9/2019

A2 series- copy of  e-mail issued by OP

PW1-Deepa.C.K-complainant

Sd/                                                                  Sd/                                                            Sd/

PRESIDENT                                                MEMBER                                         MEMBER

Ravi Susha                                          Molykutty Mathew.                                      Sajeesh K.P

eva           

                                                   /Forwarded by Order/

                                                    ASSISTANT REGISTRAR