DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 30^th day of December, 2023                                                                                                

                          Filed on: 01/01/2018

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member

Smt.Sreevidhia.T.N                                                                 Member                                                        

CC NO. 7/2018

Between

COMPLAINANT

Anoop Joy, Joy Paul, Jewel Bay View, E-9, Vyttila 682019

VS

OPPOSITE PARTY

1. Luxury Droom, H-501, Opp. CID Colony, Park Royal, Pune 411021
2. Delivery Express, 37/406I, Moon Arcade, Temple Road, Kadavanthra, Kochi 682020.

(Rep. by Adv. Denny Varghese, T.D. Road, Ernakulam, Cochin 682011)

FINAL ORDER

Sreevidhia T.N., Member:

1. A brief statement of facts of this complaint is as stated below:

The complainant had purchased a ROLEX OYSTER PERPETUAL EVEROSE  watch from the site of opposite party on 13/11/2017 as cash on delivery mode. Opposite party had advertised in their site that there was discount sale of costly watches like Rolex, Rado, Tissot etc. Discounted price for the particular watch purchased by the complainant is given as Rs.13,990/- against the original price of Rs.68,990/-

The complainant had received the watch from the courier agency of Delivery Express at Kadavanthra, Kochi on 17/11/2017. When the complainant unwrapped the pack he was shocked to see a duplicate watch against the promise they made in the site. Moreover the plating of the watch got peeled of when the complainant removed the plastic protection of the plated portion. The complainant rushed into the courier agency to get the refund showing the watch. The courier agency advised the complainant to go through the customer care of the site. The customer care also advised the complainant to call on the next day.

Next day the customer care of the opposite party requested the complainant to send the photo of damaged portion through whatsapp and the complainant did so. The complainant told to the opposite party that he don’t want duplicate item and requested for refund of the product. The opposite party agreed that the refund will be done through NEFT within 6-7 working days as per their policy and they will arrange courier to take back the product. The complainant has not received the amount and hence the complainant.

Reliefs claimed by the complainant:

1. Amount to refund: Rs.13,990/-
2. Deficiency of service from the opposite party: Rs.15,000/-
3. Mental agony and harassment: Rs.25,000/-
4. Cost of litigation: Rs.10,000/-
5.  

2. Notice :

Notice was issued to the opposite parties from this Commission and the case posted for the return notice of opposite parties to 08/02/2018.

On 08/02/2018 when the case was taken, opposite party No. 2 seen served. 2^nd opposite party not appeared before the Commission and called absent and set as ex-parte. Notice to 1^st opposite party seen served as ‘left’. Complainant has furnished the e-mail id of 1^st opposite party on 09/03/2018 and notice was issued to 1^st opposite party through their e-mail address.

1^st opposite party not appeared before the Commission and consequently set as ex-parte on 24/05/2017 2^nd opposite party appeared and filed petition to set aside the ex-parte order against them and also filed petition to accept the version of 2^nd opposite party as I.A. 250/2018 and I.A. 251/2018. Heard and I.A. 250/2018 & 251/2018 allowed. Version of 2^nd opposite party accepted.

3. Written version of 2^nd opposite party

The complainant had ordered a discounted Rolex watch from 1^st opposite party and the same was delivered to him on 18/11/2017 through 2^nd opposite party. It is the allegation of the complainant that he discovered that the said product was duplicate, and the plating got peeled off and he allegedly tried to contact 1^st opposite party on phone. The 2^nd opposite party submits that the 2^nd opposite party is neither the manufacturer nor the seller of the above mentioned product. The services of the 2^nd opposite party were engaged by the 1^st opposite party and as per the directions of the 1^st opposite party, the 2^nd opposite party collected the product from the 1^st opposite party and delivered the same to the complainant. The 2^nd opposite party is not permitted and is neither concerned with quality of the product as the responsibility of the 2^nd opposite party is merely to pick up the product and deliver the product in packed condition to the purchaser ie. the complainant in the present case. Hence the 2^nd opposite party is not accountable for the complainant’s grievance. It is further submitted that there is no privity of contract between the complainant and the 2^nd opposite party as the complainant has not engaged the services of the 2^nd opposite party and neither the 2^nd opposite party has received any consideration from the complainant. It is as such submitted that there is no deficiency in service on the part of the 2^nd opposite party. The complainant is not a consumer qua the 2^nd opposite party.

4.  Evidence:

Evidence in this complaint consists of the proof affidavit filed by the complainant and the documentary evidence filed by the complainant which were marked as Exbt. A1 to A9. Opposite party No. 2 has not filed evidence before the Commission.

Heard.

5. Issues:

1. Whether any deficiency in service or unfair trade practice is proved from the side of opposite parties towards the complainant?
2. If so, reliefs and compensation?

For the sake of convenience we have considered issue No. (a), and (b) together. Exbt. A2 is the copy of photograph showing the condition of the watch when it was unwrapped. Exbt. A3 is the electronically generated invoice received from the 1^st opposite party and related e-mails. Exbt. A4 is the whatsapp conversation between the complainant and the 1^st opposite party regarding the refund of the above product. As per Exbt. A4 the opposite party has agreed to the complainant that “if not satisfied with the product, they are ready for a refund”. The opposite party also requested to the complainant to provide the bank account details of the complainant. The complainant has provided the bank account details to the opposite party. As per Exbt. A5, the e-mail address of the 1^st opposite party is shown as support@luxurydroom.com. Notice was issued to the 1^st opposite party through the above e-mail address on 01/09/2018. 1^st opposite party not appeared and hence set as ex-parte. The Commission observed that even after accepting notice (e-mail) from this Commission, the 1^st opposite party has not appeared before the Commission. The opposite party is not interested to contest the case by filing their version and by adducing their evidence to prove their innocence. This is an act of admission from their side substantiating the allegations raised by the complainant. The Hon’ble National Commission on its order cited 2017 (4) CPR page 590 (NC) held a similar stance.

Exbt. A6 is the copy of the Rolex model watch purchased by the complainant. Original price is shown as Rs.68,990/- and the product was sold to the complainant for Rs.13,990/- as discounted price. Exbt. A7 is the terms and conditions and refund policy of the opposite party, mentioned in the website of the opposite party. As per Exbt. A7 policy, refund will be done through NEFT within 5-7 working days. Exbt. A8 is the original Rolex watch specification published in the internet.

On evaluation of the evidence on record and the facts submitted by the complainant, version filed by 2^nd opposite party, the Commission observed that the opposite parties have committed deficiency in service and unfair trade practice towards the complainant. The opposite parties are failed and neglected to honour their promise, commitment and assurances and had committed serious deficiency in service and unfair trade practice towards the complainant. The complainant had to suffer severe mental agony, pain and other hardships due to the acts of the opposite parties.

2^nd opposite party argued that “there is no privity of contract between the 2^nd opposite party and the complainant had paid no consideration to the 2^nd opposite party. The 2^nd opposite party also argued that the 2^nd opposite party is only to deliver the product to the complainant as entrusted by the 1^st opposite party. 2^nd opposite party is neither the manufacturer nor the seller of the product. 2^nd opposite party is not concerned with the quality of the product.”

We have analyzed the version of 2^nd opposite party in detail and also verified Exbt. A3 e-mails. Even though 2^nd opposite party is only the delivery partner of the product and since they have handled the cash for the 1^st opposite party (as is evident from Exbt. A3), the 2^nd opposite party is also liable to give reliefs to the complainant.

At the time of hearing the complainant had produced the material object and the Commission observed the defects mentioned in the complaint. The Commission observed that the golden plating at the strap of the watch is seen peeled off and the material object (watch) returned to the complainant after careful examination of the product.

The Commission also observed severe faults from the part of 1^st opposite party. On verification of Exhibits (5, 6, 7) filed by the complainant.

1. They have made misleading advertisement in the social media.
2. They have not refunded the value of the product even though they have made advertisements relating to the refund of the product in their website.

Considering the above factors the Commission is of the considered opinion that opposite parties have committed serious deficiency in service and unfair trade practice towards the complainant. Issue No. (a) and (b) are found in favour of the complainant. In the result the following orders are passed.

1. The 1^st opposite party shall refund Rs.13,990/- (Rupees thirteen thousand nine hundred ninety only) to the complainant towards the price of the product.
2. The 1^st opposite party shall pay a compensation of Rs.30,000/- (Rupees thirty thousand only) to the complainant for the deficiency of service and unfair trade practice.
3. The 1^st and 2^nd opposite parties shall jointly and severally pay an amount of Rs.10,000/- (Rupees ten thousand only) as cost of proceedings to the complainant.

The opposite parties are liable to comply this order within 30 days from the date of receipt of a copy of this order, failing which the amount ordered in (1) and (2) above shall attract 9% interest per annum from the date of order till the date of realization.

Pronounced in the Open Commission this the 30^th day of December,2023.

Sreevidhia.T.N, Member

D.B.Binu, President

Forwarded/by Order

Assistant Registrar

Appendix

Complainant’s evidence

Exhibit A1: Copy of screenshot

Exhibit A2: Copy of invoice dated 13/11/2017

Exhibit A3: Copy of screenshot

Exhibit A4: Copy of screenshot

Exhibit A5: Copy of brochure

Exhibit A6: Copy of the Rolex model watch

Exhibit A7:  Terms and conditions and refund policy of the opposite party

Exhibit A8: original Rolex watch specification published in the internet.

Exhibit A11: Copy of sms

Opposite party’s evidence

Nil

Despatch date:

By hand:     By post                                                  

kp/

CC No. 7/2018

Order Date: 30/12/2023023