SMT.MOLYKUTTY MATHEW : MEMBER

       This is  a  complaint filed by the complainant under sec.35 of the Consumer Protection Act 2019 , for an order directing the opposite party  to pay the compensation of Rs.50,000/- to the complainant for the non delivery of phone along with cost for the deficiency of service on the part of OP.

  The case of the complainant in brief:-

    The complainant in order to  gift a birthday  present  to his sister, the complainant had purchased an Apple I Phone SE(Red 64GB)order ID OD 119964193812987000 from OP’s website(Flipkart) on 16/10/2020 sold by the seller super com net during the Big Billion day sale at an offer price of Rs.20,849/- after exchange of his old phone for  Rs.5250/- at the time of delivery.  The complainant paid the total consideration of Rs.20,849/- through SBI credit  card belonging to his wife on 16/10/2020 and the  payment was  credited to the account of the OP  on 20/10/2020.  The OP promised the complainant that his order will be delivered to the  address of the complainant on or before  19/10/2020 and it was also intimated to the  complainant that his order has been shipped through the delivery  agent of the OP ie ,E Karts and also provided him with tracking ID.  The complainant was eagerly waiting  for his delivery by 19/10/2020 that he could gift his  sister  with a brand new mobile phone.  But his order was not delivered on the promised day.  Hence the complainant  on 19/10/2020 by using the tracking ID given by the OP tracked his order and found that it has not even  moved from its origin point at Bangalore.  Therefore the complainant contacted the customer care support of the OP on the very same day and raised a complaint regarding the non-delivery of the product.  On registering the  complaint and contacting the customer care support many times no positive response was given to complainant by OP.  Moreover on 24/10/2020 the OP sent a mail to the complainant  saying that the courier service provider(E Karts) won’t be able to deliver  the said  order and asked complainant to cancel his order.  But on 28/10/2020 the OP cancelled the order without obtaining the complainant’s permission and informed the complainant that the refund for his order will be credited with 9/11/2020.  The refund was credited back to the bank account of the complainant’s wife on 28/10/2020.  On 28/10/2020 itself the complainant contacted customer service provider of the OP and informed them  the same and the customer service executive informed that the cancellation was made by the seller himself and there is no option to re-instate the above said order.  The failure to provide the delivery of the order and cancellation of the same without the complainant’s permission have caused much hardship and mental agony to the complainant.  Then the complainant send a registered lawyer notice  to the OP on 31/10/2020 and no reply send by op. So there is deficiency of  service  and unfair trade  practice on the part of OP.  Hence the complaint.

   After filing the complaint, notice  was issued to opposite party.   OP  received the notice and not appeared before the commission and  not filed version. The  commission had to hold that the OP has no version as such this case came to be proceed against the OP as exparte.

    Even though the opposite party  has remained ex-parte, it is for the complainant to establish the allegation made by him against the  opposite party.  Hence the  complainant was called upon to produce evidence in the form of  affidavit and  documents.   Accordingly the complainant has  chosen to  produce his affidavit along with 6  documents marking them as Exts.A1 to A6 and complainant was  examined as PW1.  So the  opposite party  remain absent in this case.  At the end the Commission  heard the case on merit.

       Let  us have a clear glance at the  relevant documents  of the  complainant.  Ext.A1 is the  purchase details dtd16/10/20.  Ext.A2 is the product tracking  records and Ext.A3(series) are the conversation made between the complainant and OP through e mails and official app. Ext.A4 is the bank account statement.  Ext.A5 is the copy of  lawyer notice dtd.30/10/2020 and Ext.A6 is  the  acknowledgment card.  According to the complainant the failure to provide the delivery of the mobile phone in time and cancellation of the order without the complainant’s permission have caused much mental agony and hardships to the complainant. There is deficiency of service and unfair trade practice on the part of the op.  Under this circumstances, we are of the  considered view that the opposite party is  directly  bound to  redress the grievance caused to the complainant.  Therefore, we hold that the opposite party is   liable to pay Rs.10,000/- as compensation and Rs.3000/- as litigation cost. 

            In the result, the complaint is allowed in part directing the opposite to pay Rs.10,000/- as compensation and Rs.3000/- as litigation cost  to the complainant within  30 days of  receipt  of this order,  failing  which  the complainant  shall be at  liberty to execute the order as per the provisions of Consumer Protection Act 2019.   

Exts:

A1- purchase details dtd16/10/20

A2- product tracking  records

A3(series) - conversation  between the parties through e- mails andwhats app

A4 – bank account statement

A5- copy of  lawyer notice dtd.30/10/2020

A6- Acknowledgment card

PW1-Dr.Sanel Sunny-complainant.

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PRESIDENT                                      MEMBER                                                  MEMBER

Ravi Susha                      Molykutty Mathew.                     Sajeesh K.P

eva

/Forwarded by Order/

SENIOR SUPERINTENDENT