Haryana

Panchkula

CC/338/2019

KSHITIJ RAJAN MISHRA. - Complainant(s)

Versus

DROOM TECHNOLOGY PVT .LTD - Opp.Party(s)

COMPLAINANT IN PERSON

25 Oct 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

                                                              

Consumer Complaint No	:	338 of2019
Date of Institution	:	13.06.2019
Date of Decision	:	25.10.2021

 

 

Kshitij Ranjan Mishra son of Shri Kavindra Kumar Mishra, age 24 years, resident of house No.1855, Sector 21, Panchkula,

                                                                        ….Complainant. 

 

Versus

Droom Technology Private Limited, 40A/Chandan Nagar, Sector-15, Part-2, Gurugram-122001, Haryana (India) through its Authorized Signatory)

….Opposite Party

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:                Sh.Satpal, President.

Dr.Pawan Kumar Saini, Member

Dr.Sushma Garg, Member

 

For the Parties:    Complainant in person.

                           Shri Devender Thakur, Advocate, counsel for the OP.

ORDER

(Satpal, President)

1.               The brief facts of the present complaint are that the complainant duly paid the opposite party with an amount of Rs.9310/- as a token amount for purchase of used car i.e. Hyundai Grand i10 ASTA 1.1 CRDI 2014 DLID; 1417408858, through Credit Card of HDFC Bank dated 9^th April, 2019. OP is an online auto marketplace for the buying and selling new and used automobiles. OP has assured the complainant on call and thereafter through mail regarding the refund of token amount prior to payment of the same. Further the opposite party has assured the complainant that they will refund the token amount without any question in case the deal is not finalized with the seller of concern car. Complainant was informed by the OP’s senior analyst Mr. Chandan Kumar, upon call, contact No.08178754425, that the complainant will be provided with five day time period to purchase the car and in case the deal does not finalize this time period can be extended and also the token amount can also be transferred to any other purchase of car. For assurance the complainant received a mail from Mr. Chandan Kumar about their policy. Further the complainant was made assured by Mr. Chandan each time he had words with him during telephonic call. On payment of token amount, OP confirmed the order of complainant and provided the receipt dated 09^th April, 2019. Complainant contacted the seller to fix the time of meeting and to inspect the concern car, but the seller was out of station for four days and therefore the meeting was finalized on 5^th day i.e. on 14^th April at 6:00 P.M. The deal was not finalized and therefore the complainant visited the online portal of the OP on 15^th April to ask for the refund of the token amount, but the complainant was shocked and surprised when the website showed that the transaction is completed and the token amount could not be refunded. Complainant contacted the OP upon its consumer care No.1800407070707 to raise a complaint for the token amount, but the complainant was unable to call upon the said number through his registered mobile No.08739076050. However, when complainant realized that his number is blocked, he called upon the OP party through his other No.08696564484 and thereafter the complainant was informed about their policy of raising dispute within 120hrs, which got expired on 14th April, 2019 at 4:53 P.M., and in case of absence of dispute they were not liable to refund the paid token amount and thus forfeited the amount. Further when the complainant asked the OP that such policy wasn’t informed to him, the OP informed that it had made a call and mailed the complainant on 14^th April, but neither the call was received by the complainant nor the mail was read till 15^th April by the complainant, thus the complainant was not informed with such a policy prior to expiry of 120hrs and forfeiting of token amount. The complainant asked them to transfer the token amount to another car, but the OP did not paid any heed to genuine request of the complainant. Mr. Chandan, Senior Analyst of OP also denied for any kind of support or assistance in resolving the issue as per their policy. Due to the acts and conduct of the OP, the complainant has suffered a great mental agony, harassment and financial loss. Hence the present complaint.

2.               Upon notices OP appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being false and frivolous; no cause of action; not approaching before this Commission with clean hands; concealment of true and material facts. On merits, the learned counsel for OP stated that complainant being well aware about the refund policy of the OP and also having been asked by the OP to check the same carefully was under an obligation to fix a meeting with the seller at earliest and close the deal and to seek refund within 120 hours as per refund policy, if transaction is not fructified. Complainant never contacted the seller and be put to strict proof regarding the said averments. Complainant never contacted call center of OP within 5 days after placing the order or contacted the representative of OP as alleged. OP vide its E-mail dated 09.04.2019 had specifically requested the complainant to check the refund policy and also vide its email dated 14.04.2019 asked it to close the transaction quickly as the time period of 120 hours is getting expired. Further denying rest of allegations made by the complainant in his complaint prayed for dismissal of the present complaint with costs.

3.               To prove his case, complainant has tendered his affidavit as Annexure C/A along with documents Annexure C-1 to C-11 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP tendered affidavit of Shri Vaibhav Tyagi son of Shri Jitendra Tyagi, working as Lead-Legal in the OP company having its office at 77A, Iffco Road, Sector-18, Gurugram, Haryana, 122015, India along with documents Annexure R-1 and R-2 and closed the evidence.

4.               We have heard learned counsel for the parties and gone through the record carefully.

5.               The dispute in the present complaint is whether the opposite party is entitled to forfeit a sum of Rs.9310/- as received by it as token amount in connection with the sale/purchase of car Hyundai Grand i10 ASTA 1.1 CRDI 2014 DLID; 1417408858 by Sh. Harvinder Singh to the complainant for a sum of Rs.3,50,000/-. Admittedly, the transaction of sale/purchase of the car in question did not mature and thus, the complainant claimed the refund of sum of Rs.9,310/- from the opposite party. It is contended by the complainant that he was assured by Shri Chandan Kumar, Senior Analyst on behalf of opposite party vide email  dated 09.04.2019, Annexure C-4 that token amount i.e. Rs.9,310/- was liable to be refunded, if the deal in question did not mature. It is submitted that the owner/seller of the car in question i.e. Sh.Harvinder Singh was out of station for 4 days and the meeting with him was finalized on 5^th day i.e. on 14.04.2019 at 6:00 P.M. It is submitted that the sale and purchase of the car could not be finalized with the aforementioned seller and the opposite party was duly informed on its online portal on 15^th April, 2019 asking for the refund of the token amount.

6.               The opposite party has denied the refund of the aforesaid token amount of Rs.9310/- on the ground that as per its refund policy, refund is permissible within 120 hours unless the transaction is not completed. The ld. counsel on behalf of the Opposite Party contended that the complainant was cautioned vide E-mail dated 14.04.2019 (Annexure C-8) that the time for refund was going to expire after the expiry of 24 hours and thus, was asked to complete the transaction. It is submitted that the complainant was well aware about the terms and conditions of the refund policy and thus, not entitled to refund.

7.               We have minutely perused the email Annexure C-4, as well as Annexure C-6. As per order confirmation conveyed vide Mail Annexure C-3, the complainant was asked to contact the seller i.e. Harvinder Singh and to pay the remaining amount of Rs.3,40,690/- to complete the transaction. As per mail Annexure C-4 sent by Shri Chandan Kumar to the complainant, it is clear that the token amount was completely refundable, in case, there was any issue with the vehicle before its delivery. It is the specific and categorical assertion of the complainant that the seller of the car i.e. Shri Harvinder Singh was out of station for 4 days and thus meeting was finalized on 5^th day i.e. 14^th April at 6:00 P.M. No lapse can be attributed on the part of the complainant in connection with the delay accrued. The opposite party has not been able to disprove the aforementioned assertions of the complainant by bringing the cogent and adequate evidence, on record, by way of adducing the documentary evidence of the seller. It is not the case of the opposite party i.e. Shri Harvinder Singh, seller of the car was not out of station for 4 days or that he was at Chandigarh or Panchkula during the period from 09.04.2019 to 13.04.2019. Therefore, we have no plausible reason to disagree with the complainant that meeting could not be held with the seller of the car till 6:00 P.M. on 14.04.2019. Apart from above it is pertinent to mention here that the amount in question i.e. Rs.9,310/- has been mentioned as token amount vide affirmation order Annexure C-3 and the aforesaid amount has been denoted as security with receipt Annexure C-2. The opposite party has claimed it to be a token amount and as a part of the total price i.e. Rs.3,50,000/-. We do not agree with the aforesaid contention of the opposite party that it was the part of the total sale price of the car. In fact, the amount of Rs.9,310/-, which is alleged as token price was the commission/brokerage of the opposite party. As per usual settled practice, brokerage/commission is payable to a service provider only after the sale transaction or the deal is matured or finalized.  In the present case, the transaction was not matured for which no lapse can be attributed on the part of the complainant and hence the opposite party has no right to forfeit the said amount.  

8.               In view of the aforesaid discussion, we conclude that there has been lapse and deficiency on the part of OP while delivering services to the complainant; hence, the complainant is entitled to relief.

9.               As a sequel to above discussion, we partly allow the present complaint with the following directions to the OP:-

1.      The OP is directed to pay an amount of Rs.9,310/- to the complainant alongwith @9% per annum w.e.f. the date of filing of the complaint till its realization.
2.      To pay a lump sum amount of Rs.5,000/- to the complainant on account of mental agony, harassment and litigation expenses.

10.             The OP shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OP failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

Announced:25.10.2021

         (Dr. Sushma Garg)     (Dr. Pawan Kumar Saini)         (Satpal )

             Member                                  Member                        President

 

Note: Each and every page of this order has been duly signed by me.

 

                                              Satpal                                            

President