Complainant through Adv : MR. S. K. ANKAR
Opponent : Ex-Party
PER :- Hon’ble President, Shri. B. B. YOGI
Place :- Gondia
-: ORDER :-
( Passed on dated 07th Jan, 2019 )
1. The present complaint filed U/s 12 of the Consumer Protection Act, 1986 against the Opposite Party -company is filed for not transferring the exchanged money to the Advertising company with whom the complainant is doing business of allotting web slots (space) by bidding depending upon the space in the web page which is the source of earning livelihood for him.
Brief facts of the complaint are as under:
2. The complainant is resident of Gondia and is doing software related work for earning his livelihood. The complainant used to purchase slots (space) of advertisement by bidding depending upon the space in the web page. The space purchased by the complainant is then used for promoting other online products which in turn generate revenue for the complainant. Thus the said purchase of the advertisement space and renting it for online advertisement is the source of earning livelihood for the complainant.
3. The opposite party is a service provider, who provides platform for conversion of different currencies into a Bit Coins and other related services. Bitcoin is a crypto currency, a form of electronic cash. It is a decentralized digital currency without a central bank or single administrator, where bit coins could be sent from user to user on the peer-to-peer Bit coin network without the need for intermediaries. They can be exchanged for other currencies, products, and services. The Bit coins are the convertible exchange media for the online purchasing so that all international currencies are exchangeable at one exchange.
4. The complainant used to deposit money from his bank account to the Bank Account of the opposite party for purchase of Bit Coins and later used these Bit coins for transaction and used to earn his livelihood. Thus the complainant used and availed the services of the opposite party for consideration and therefore he is consumer within the definition of consumer.
5. As per complainant, on 30.11.2015 the complainant had transferred amount of Rs. 10,000/- from his Axis Bank Account at Gondia to the Account of the Opposite party and the same was received by the opposite party. As the amount is deposited from the Bank Account of the Complainant at Gondia, the cause of action also arose at Gondia and this Hon'ble Forum is having jurisdiction to adjudicate the present matter.
6. The Complainant further states that despite transfer of money, BITCOINS are not transferred and complainant could not get the same credited for his use. Thus in absence of the currency in the form of Bit coins, the complainant could not purchase / bid for the advertisement space on the website and consequently the complainant could not use the same for earning his livelihood.
7. The opposite party in various emails and responses, copy of which are annexed with the complaint, admitted that bit coins could not be transferred as requested by the complainant.
8. The complainant could have easily earn at least Rs.1,00,000/- by renting the advertisement space on the web, but due to failure of the opposite party to provide bit coins as requested and paid for, the complainant could not bid for the space for advertisement and had suffered the loss.
9. Thus the opposite party had committed deficiency in providing services, because of which the complainant had suffered the loss. Therefore, the opposite party is liable to repay the amount of Rs. 10,000/- along with interest from the date of deposit till its realization. Similarly, the opposite party is liable to compensate the loss suffered by the complainant by paying Rs 1,00,000/- towards loss caused to the complainant along with interest 18/% per annum. The opposite party is also liable to pay damages of Rs 500/- per day from the date of deposit of the amount.
10. The opposite party served with the notice of the complaint however failed to appear before the forum. Therefore looking to the fact and circumstance narrated hereinbefore, the complainant prays that the complaint of the complainant is required to be allowed.
11. After admission of the complaint notice dated 31/01/2017, sent through this forum via email is received to the Opposite Party and in response they have replied through e-mail to this forum on 01/02/2017 stating that as “This is outside of your jurisdiction and clear violation of terms and conditions to which this person has agreed. He has clearly agreed to allow Hong Kong as the jurisdiction no matter what. He has further agreed to arbitration process before any court process. As such, we will not be attending this. Refer to the website for terms and conditions. This complaint must be closed immediately or the legal cost will be deducted from this customer’s account.” Since the Opposite party has not filed any written version under section 13 (2) of the Consumer Protection Act, 1986 within maximum 45 days their right to file any written version/written statement is automatically forfeited.
12. We have heard the arguments of the Ld. Advocate S. K. Ankar for complainant and our finding with reasons are as under:
FINDINGS
13. In view of the Hon’ble Supreme Court Judgments in case of Sangramsinh P. Gaekwad & others V. Shantadevi P. Gaekwad (Dead) through LRs. & others. [Appeal (Civil), 6359 of 2001] Judgment Dated- 20/01/2005 the effect of an admission in the context of section 58 of the Indian Evidence Act has been considered, wherein it was categorically held that the Judicial admission by themselves can be made the foundations of the rights of the parties and admission in the pleading are admissible Proprio vigore -by its own force against the maker thereof. Equally an admission in pleading means the admission of an averment by the Opposite party. But, denials, in general terms imposes on the plaintiff a specifically alleged by a party in a plaint and are not denied by the other party, the party who fails to deny is deemed to have admitted the facts, which are alleged in the plaint. Order VIII, Rule 5 of CPC says that every allegation of facts in the plaint, if not denied specifically or by necessary implications should be taken to be admitted except as against persons under disability. In the present case the Opposite Party has not filed any written version as required under law, but if we consider the wordings of the reply to the notice, the opposite party had objected for jurisdiction on the basis of agreement. No other grounds are taken nor any facts of transaction is denied more so from the documents filed by the complainants it is proved that Rs. 10,000/- has been transferred in the opposite party bank account and also in the email they admits that there is delay on their part to transfer the Bit- coin in the desired account. Thus the facts are admitted and not denied specifically are admissible under section 58 of the Indian Evidence Act.
14. On 30.11.2015 the complainant had transferred amount of Rs. 10,000/- from his Axis Bank Account at Gondia to the Account of the Opposite Party and the same was received by the Opposite Party. As the amount is deposited from the Bank Account of the Complainant at Gondia, the part of cause of action also arose at
Gondia and this Forum is having jurisdiction to adjudicate the present matter under section 11(2)(c) of the Consumer Protection Act. In this regard The State Consumer Disputes Redressal Commission, Meghalaya in First Appeal No.7 of 2007 "MD Air Deccan versus Sh. Ram Gopal Aggarwal decided on 7th of December 2013 after elaborately discussing the provisions of the Consumer Protection Act, Contract Act and IT Act came to a conclusion that when a ticket is booked through Internet and that it is sent by email, the booking request would be an offer and email from seller acceptance. So the contract of purchase of the ticket would be taken to be made at the consumer's place of residence where acceptance of contract is communicated. Similarly, Hon'ble Supreme Court in "Trimex International FZE ltd. Dubai versus Vedanta Aluminium Ltd." India (2010) 3 SCC 1, (Arbitration Petition No 10 Of 2009) has held that e-mails exchanged between parties regarding mutual obligations constitute a contract. Section 16 (3) of Indian Contract Act provides that where a person proposes certain terms to the other and other party accepts the same by clicking on it, it is bound by all terms so proposed by the proposer. In online transaction party offering is in a position to dominate the will of another party and such a transaction appears on the face of it to be unconscionable. In online purchasing, sales proposal and acceptances are made on computer sitting at their respective places. The jurisdiction at both the places is to be considered, so that consumer can easily approach the Consumer Forum/State Commission under the C.P. Act. While dealing such issues under CP Act, the jurisdiction of the Fora is to be decided keeping in view where the cause of action arose. This is the only rational approach to the concept of jurisdiction over the transactions made through Internet.
It may be stated here that the CPA 1986 is a benevolent legislation, the main object of which is not only to protect the consumers but also to provide them a speedy and simple dispute redressal mechanism, free from hassle. We are bound by the law laid down by the Apex court and statutory provisions hence the defence of the Opposite Party is rejected summarily.
15. In view of findings in Para 13 & 14, we proceed to pass the following order.
ORDER
(1) Consumer complaint is partly allowed.
(2) It is hereby declared that the opponent is deficient in rendering service to the complainant.
(3) The opponent is directed to refund Rs. 10,000/- along with interest @ 8 % P.A. from 06/10/2015 to the complainant within 30 days from date of receipt of the order.
(4) The opponent do pay an amount of Rs.2000/-, [Rupees. Two Thousand only] to the complainant towards compensation for mental pain and agony.
(5) The opponent do pay an amount of Rs.2,000/-,[Rupees Two Thousand only] towards costs of litigation
(6) Certified copies of this order be furnished to the parties forthwith.
