Haryana

Panchkula

cc/78A/2016

AVINASH KUMAR - Complainant(s)

Versus

HOMESHOP 18 - Opp.Party(s)

COMPLAINANT IN PERSON.

22 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.             

                                                                  

Consumer Complaint No	:	78 of 2016
Date of Institution	:	07.04.2016
Date of Decision	:	22.03.2017

                                                                                          

 

Avinash Kumar S/o Late Sh.Gulzari Lal Nanda, R/o H.No.308, P.W.D. Colony, Sector-14, Panchkula, Haryana.

 

                                                                                        ….Complainant

Versus

 

1.       Homeshop 18, 7^th Floor, FC-24, Sector-16A, Filmcity, Noida, (U.P.) 201301.

2.       Shital Fibres Ltd., A-17, Focal Point Exten., Punjab, Jallandhur-144004.

3.       Aramex, Krishangarh, I.T.Park, (U.T.) Chandigarh.

                                                                                        ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

 

For the Parties:     Complainant in person. 

                             None for the Op No.1.

                             Op No.2 already ex-parte.

                             Mr.Arvind Chauhan, Adv., for the Op NO.3.

 

ORDER

(Dharam Pal, President)

 

1. The complainant has filed this complaint against the Ops with the averments that he purchased a Shetal mink double layered blanket online from the Op NO.1 vide order No.983515159 for an amount of Rs.2498/- (Rs.2399/- + Rs.99/-) with an offer of buy 1 get 1 free which was delivered on 27.12.2015 by the Op NO.2. The name of complainant was written Abhinesh Shedev instead of Avinash Kumar in the order. After opening the packet, the complainant was shocked to see that the blanket was single layered and there was no tag of Shetal. The complainant requested the OP No.3 telephonically to take back the blankets and refund the amount paid by him without any delay. The complainant contacted the OP No.1 telephonically and told the Op No.1 that the blanket was single layered & did not have any tag and requested for refund of his money. Upon this, the OP NO.1 stated that it was not their policy to return the product and refund of amount. The Op No.1 further told that the complainant could send the product back through OP NO.3 and after checking the quality of product, the cheque would be sent in his name. Thereafter, the Op NO.1 sent the OP No.2’s delivery boy without the consent of complainant. But the complainant tried to communicate and wanted to exchange the blanket hand to hand to avoid any inconvenience but to no avail. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. The Op No.1 appeared before this Forum and filed written statement by taking some preliminary objection and submitted that the product in question was delivered through courier by Op NO.2 on 27.12.2015 and the Op No.1 is neither the seller nor the manufacturer of the product in question. The role of the OP NO.1 is restricted to providing a service of offering the Homeshop 18 Portal i.e. a platform to enable various sellers to showcase their products in India. It is submitted that the Op No.1 offered both refund and replacement in case the consumer/complainant is not satisfied with the product ordered and booked through the digital platform of OP No.1 which was mentioned both on the website/TV and the Invoice. It is submitted that the replacement or refund of the product could be only availed within 48 hours from the delivery of the product and when the product has been shipped back by the complainant/consumer to the seller i.e. OP No.2. It is submitted that the product was supplied by the seller and manufacturer of the product i.e. M/s Shital Fibers Ltd. (OP No.2). The Op No.1 duly informed the complainant that in case of refund and as per its policy, the Op would arrange the pickup of the product through courier and after the product has been picked up, refund of the product amount would be sent through cheque to the complainant but the complainant refused to return the product to the courier agency. It is submitted that the complainant contacted on 30.12.2015 telephonically and sought hand to hand replacement. The Op No.1 duly informed the complainant that refund/replacement would not be possible unless the complainant sent back the product. The Op No.1 needed to verify that the product had been received back and only then refund/replacement could be made as per terms and conditions of the replacement/refund policy of the Op No.1. It is submitted that the complainant called the Op No.1 on 08.01.2016 and sought hand to hand replacement.  The complainant again called the Op No.1 on 11.01.2016 and 20.01.2016 and agreed to return the product and accordingly the OP NO.1 again arranged to get the product picked up from the complainant but the complainant refused to return the product to the courier agency on 23.01.2016. Thereafter, the complainant has never called or contacted the Op No.1 whereas the Op No.1 again tried to contact the complainant from 22.01.2016 to 27.01.2016 for return of the product but to no avail. It is submitted that this Hon’ble Forum has no territorial jurisdiction as the registered office of OP NO.1 is located at First Floor, Empire Complex, 414, Senapati Bapat Marg, Lower Parel, Mumbai and no relief has been sought against the Op No.1. It is submitted that the Op No.1 operates an integrated technology platform/ecommerce marketplace under the brand name ‘Homeshop 18’ which comprises of a website ‘www.homeshop18.com’, a mobile site m.homeshop18com, mobile applications and a 24 hour home shopping television channel “Homeshop 18”. The company is a service provider and merely provides a service of offering the Homeshop18 Portal to enable various sellers to showcase their product in India. Thus, there is no deficiency in service on the part of the Op No.1 and prayed for dismissal of complaint.
3. Notice was issued to the Op No.2 through registered post. But none has appeared on behalf of the Op No.2, it is deemed to be served. The Op No.2 was proceeded against ex-parte vide order dated 16.05.2016.
4. Initially, the OP No.3 did not appear and was proceeded ex-parte vide order dated 11.08.2016. Thereafter, the Op No.3 has filed a revision petition No.81 of 2016 before the Hon’ble State Commission for setting aside the ex-parte order dated 11.08.2016. The Hon’ble State Commission vide order dated 23.11.2016 set aside the order dated 11.08.2016 passed by the District Forum  and gave an opportunity to Op No.3 to file written statement before this Forum. The Op NO.3 filed written statement by taking some preliminary objection and submitted that the complainant neither bought any goods against consideration nor availed any services of the Op No.3. It is submitted that the Op No.1 is neither proper nor necessary party in adjudication of the present complaint and they are entitled to be deleted from the array of parties under order 1 Rule 10(2) read with section 151 CPC as nothing has been imputed against the OP NO.3. It is submitted that the complainant is not seeking any relief against the Op No.3. It is submitted that the Op No.1 is seller of product and for the purpose of delivery of its various products against the booking they have taken the services of OP NO.3. It is submitted that a service agreement dated 01.04.2015 was executed between the Op NO.1 and OP No.3. It is submitted that the Op No.3 has delivered the consignment in terms of the service agreement dated 01.04.2015 and to complete satisfaction of the complainant.  It is denied that the product delivered by Op NO.3 was non-branded and should be liable for the product. It is submitted that the Op No.3 is neither the manufacturer of the product brand Shetal nor it was sold and marketed by them. Thus, there is no deficiency in service on the part of Op No.3 and prayed for dismissal of complaint with costs.
5. Replication to the written statement of Op No.1 has been filed by the complainant.  
6. The complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-5 and closed his evidence. On the other hand, the Op No.1 has tendered the evidence by way of affidavit Annexure R1/A alongwith documents Annexure R1/1 to R1/5 and closed the evidence. The Op No.3 has tendered the evidence by way of affidavit Annexure R3/A alongwith documents Annexure R3/1 & R3/2 and closed the evidence.
7. We have heard the complainant appearing in person and learned counsel for the OP No.3 and have also perused the record.
8. It is evidence from Annexure C-1 that the complainant purchased a cozy Mink Blanket buy 1 get 1 Shital Blue + Brown Blanket online through OP NO.1. The allegation of the complainant is that the product sent to him by OP No.2 through Op NO.3, was single layered and there was no tag of Shital. As per the case of the complainant, he requested the OP NO.3 telephonically to take back the blankets and refund the amount. The complainant also contacted the OP No.1 telephonically and requested for refund. The email dated 09.01.2016 (Annexure C-3), the relevant contents thereof have been reproduced hereunder, which clinches the matter in dispute:-

“Dear Customer,

Greetings from Homeshop 18!

In regards to your query, this is to inform you that we have escalated your concern to our respective department. They will update you with the status of your request within next 48 working hours. We will keep your complaints open with us for the time being.

Your Complaint number is 151174463

At the outset, please accept our sincere apologies once again for the inconvenience this may have caused to you. We appreciate and thank you for the patience reposed and generosity displayed while addressing this issue.”

9. However, despite abovesaid commitment, the Ops No.1 and 2 did not make any refund or replaced the product till date. This act of Ops No.1 and 2 put the complaint under immense mental agony and physical harassment and forced him to file the instant complaint.
10. The stand taken by the Op No.1 is that it is neither the seller nor the manufacturer and hence not liable for any deficiency in service. Still the Op NO.1 in their reply has submitted that “without prejudice it is further stated that Op No.1 is again ready and willing to refund the product amount subject to product being in unsued and new condition”.
11. After going through the documents on record and keeping in view the pleadings of the parties, it is clear that on the one hand, the OP No.1 is saying that it being neither seller nor manufacturer is not liable for any deficiency in service and contrary to it, on the other hand, it is offering to the complainant the refund of the product amount. This dual conduct of the Op No.1 proves that it is certainly indulged in unfair trade practice, which has caused immense mental and physical harassment to the complainant.
12. Moreover, the Op No.2 did not appear to contest the claim of the complainant and preferred to proceed against ex-parte, which draws an adverse inference against him. The non-appearance of the Op No.2 despite notice shows that he has nothing to say in his defence or against the allegations made by the complainant. Therefore, the assertions made by the complainant go unrebutted and uncontroverted.
13. Had the Op No.1 and 2 resolved the grievance of the complainant earlier, in the first instance, there was no occasion for the complainant to approach this Forum. As the problem of the complainant could not be resolved by the Ops No.1 and 2, he was ultimately compelled to file the present unnecessary litigation before this Forum. Therefore, we are of the view that there is sufficient evidence on record alongwith offer of refund during the pendency of the case by the OP No.1, which in itself point out towards deficiency in service on the part of the Op No.1.
14. From the above discussion, we are of the opinion that there is no deficiency in service on the part of the Op No.3 as there is no privity of contract between the complainant & Op No.3 and also no relief has been claimed by the complainant against the Op No.3. Hence, the complaint qua the Op No.3 stands dismissed.
15. In the light of above observations, we are of the concerted view that the present complaint of the complainant deserves to be allowed qua the Ops No.1 and 2 and the same is accordingly allowed and the Ops No.1 and 2 jointly and severally directed as under:-

1. To refund the amount of Rs.2498/- to the complainant alongwith interest @ 9% p.a. from the date of filing of complaint i.e. 07.04.2016 till realization. The complainant is also directed to return back the blanket to the Ops.
2. To pay an amount of Rs.5,000/- as compensation for deficiency in service, causing mental & physical harassment and cost of litigation.

16. Let the order be complied with within the period of 30 days from the receipt of certified copy of this order. A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

 

 

Announced

22.03.2017                     ANITA KAPOOR                            DHARAM PAL

                                                MEMBER                               PRESIDENT

 

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

 

 

                                          

                                                         DHARAM PAL

                                                          PRESIDENT