DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM

Dated this the 19^th day of July, 2024

Filed On: 09.11.2023

PRESENT

Shri. D.B. Binu -                                 President
Shri. V. Ramachandran -           Member
Smt. Sreevidhia T.N. -                        Member

C.C. No. 818/2023

COMPLAINANT:
Deveesh Haridas, S/o Haridas, Chilkha Apartments, Room No. C, Near Karingachira LP School, Irumpanam, Trippunithura P.O., Ernakulam Pin: 682301

(Adv.Mishal M.Dasan, Flat No.55/2332, Cheruparambath Apartments, Matalil Temple Road, Kadavanthra P.O., Ernakulam, Pin-682 020)

V/s

OPPOSITE PARTY:
Sangeetha Mobiles Pvt Ltd, Reg. Office: #1183, 22nd 'A' Cross, Banashankari 2nd Stage, Bengaluru, Pin: 560 070.

                                             F I N A L   O R D E R
D.B. Binu, President.

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

The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The complainant intended to purchase a new black smartwatch to wear at his cousin's wedding in October 2023. He was impressed by the "Watch R (Black) Dizo" advertised on the opposite party's website and decided to buy it. Following the opposite party's instructions, the complainant transferred Rs. 3,999/- via G-pay on 07-10-2023. The opposite party assured the complainant that the watch would be sent through courier.

However, the complainant received a pink smartwatch instead of the black one he ordered. An unboxing video of the incorrect delivery was recorded. The complainant informed the opposite party about the issue via email but received no response. Another email was sent but still, there was no reply.

The complainant then raised the issue on the opposite party's Instagram page. Only after this did the opposite party's office respond, stating they would resolve the issue within 24 hours. However, no action has been taken to date. The complainant alleges that the opposite party engaged in deceptive and unfair trade practices, showing a deficiency in service, and causing him severe mental agony and hardship. He seeks compensation of Rs. 30,000/- for loss and damages, and Rs. 10,000/- as the cost of proceedings, with an interest rate of 12% from the date of payment until realization.

2. Notice

The commission sent notice to the opposite party. However, they did not submit their version, and as a result, the case was set to proceed ex parte.

3. Evidence

The complainant submitted an ex-parte proof affidavit along with 4 documents, marked as Exhibits A1 to A4:

• Exhibit A1: Printout of the screenshot of the G-pay payment.
• Exhibit A2: Tax invoice issued by the opposite party.
• Exhibit A3: Email communication sent by the complainant to the opposite party.
• Exhibit A4: Email communication sent by the complainant to the opposite party.

4. Issues for Consideration

The main points to be analyzed in this case are as follows:

1. Whether the complaint is maintainable?
2. Whether there is any deficiency in service or unfair trade practice from the side of the opposite party?
3. If so, whether the complainant is entitled to any relief?
4. Costs of the proceedings, if any?

              We have meticulously considered the detailed submission and thoroughly reviewed the entire record of evidence.

5. Analysis and Legal Reasoning

i) Maintainability of the Complaint

In the present case, as per Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant, having entered into an agreement with the opposite party and made payments, is thus a consumer as defined under the Act. The printout of the screenshot of the G-pay payment and the tax invoice issued by the opposite party, along with the receipt evidencing payment to the opposite party (Exhibits A1 and A2), supports this. Hence, the complainant is a consumer as defined under the Consumer Protection Act, 2019.

ii) Deficiency in Service and Unfair Trade Practice

The complainant initiated legal action to seek redress for the deficiencies in service and the engagement in unfair trade practices by the opposite party. The complainant had wanted a new black colour smartwatch to wear for his marriage scheduled in October 2023. While seeing the advertisement for "Watch R (Black) Dizo" black colour on the website of the opposite party, the complainant was impressed and decided to purchase the same. The complainant had communicated his intention to purchase the above-said watch with the opposite party. As per the instruction of the opposite party, they had a stock of the black colour of the above-said watch. For the purchase of that, as per the instruction of the opposite party, the complainant had sent the cost of the above-said watch of Rs. 3,999/- through G-pay on 07-10-2023. The screenshot of the above-said payment is taken as printed out and produced as Exhibit A1. The opposite party informed the complainant that the above-ordered watch would be sent by courier. Believing that the complainant waited for "Watch R (Black) Dizo." But to the total dismay of the complainant, the watch sent by the opposite party through the courier was a pink-coloured one, which was not ordered by the complainant. The unboxing video of the courier sent by the opposite party was recorded by the complainant. The tax invoice issued by the opposite party is produced as Exhibit A2. The complainant had informed the opposite party about the above problem through e-mail. The said e-mail communication is produced as Exhibit A3. But there was no reply from the side of the opposite party. After that, the complainant sent another e-mail stating that the product ordered was not delivered by the opposite party. The printout of the above-mentioned e-mail is produced as Exhibit A4. For that e-mail also, there was no response from the side of the opposite party. Then the complainant raised his complaint on the Instagram page of the opposite party. Only after that did the office of the opposite party respond, stating that they would resolve the problem within 24 hours. But still, no steps have been taken by the opposite party to solve the problem. The opposite party has adopted deceptive and unfair trade practices. There is a deficiency in the service of the opposite party. Due to the negligence of the opposite party, the complainant has suffered severe mental agony, loss, damages, and hardship.

1. Deficiency in Service:

• As per Section 2(11) of the Consumer Protection Act, 2019, "deficiency" means any fault, imperfection, shortcoming, or inadequacy in the quality, nature, and manner of performance which is required to be maintained under any law for the time being in force, or has been undertaken to be performed by a person in pursuance of a contract or otherwise to any service.

B.Unfair Trade Practice:

• According to Section 2(47) of the Consumer Protection Act, 2019, an "unfair trade practice" means a trade practice which, to promote the sale, use, or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the practices listed under the section.

Analysis and Application to the Present Case:

In the present case, the opposite party advertised a "Watch R (Black) Dizo" smart watch and accepted payment for the same. However, they delivered a pink smartwatch instead. This constitutes:

                      Therefore, under the Consumer Protection Act, 2019, the actions of the opposite party in this case are both a deficiency in service and an unfair trade practice. The complainant is entitled to relief, including compensation for the inconvenience and financial loss suffered, as well as costs for the proceedings.

iii) Relief Entitlement

The evidence presented included an ex-parte proof affidavit filed by the complainant, and it was unchallenged by the opposite party. Therefore, the complainant's claims were considered credible and supported by the evidence. The opposite party's conscious failure to file their written version despite having received the Commission’s notice amounts to an admission of the allegations levelled against them. The case of the complainant stands unchallenged by the opposite party. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).

The complainant had intended to purchase the black smartwatch to wear at his cousin's wedding in October 2023, and the incorrect delivery caused significant inconvenience and disappointment during an important family event. The Commission acknowledges the substantial mental distress, hardship, and financial losses suffered by the complainant due to the negligence and deceptive practices of the opposite party. Therefore, the Commission holds the opposite party liable for compensation and the costs of proceedings.

                      We determine that issue numbers (I) to (IV) are resolved in the complainant's favour due to the significant service deficiency and the unfair trade practices on the part of the opposite party. Consequently, the complainant has endured considerable inconvenience, mental distress, hardships, and financial losses as a result of the negligence of the opposite party.

In view of the above facts and circumstances of the case, we are of the opinion that the opposite party is liable to compensate the complainant.

Hence, the prayer is partly allowed as follows:

1. The opposite party shall pay compensation of ₹20,000 (Rupees Twenty Thousand Only) for the loss and damages suffered due to negligence, unfair trade practice, and deficiency in service on the part of the opposite party.
2. The opposite party shall also pay the complainant ₹10,000 (Rupees Ten Thousand Only) towards the cost of the proceedings.

The opposite party is liable for the fulfilment of the above orders, which must be executed within 45 days from the date of receipt of this order. Failure to comply with the payment orders under point 1 will result in interest at the rate of 9% per annum from the date of filing the complaint (09-11-2023) until the date of full payment realization.

Pronounced in the Open Commission on this 19^th day of July 2024.

Sd/-

                                                                             D.B.Binu, President

Sd/-

V. Ramachandran, Member

Sd/-

Sreevidhia.T.N, Member

Forwarded by Order

Assistant Registrar

APPENDIX

• Exhibit A1: Printout of the screenshot of the G-pay payment.
• Exhibit A2: Tax invoice issued by the opposite party.
• Exhibit A3: Email communication sent by the complainant to the opposite party.
• Exhibit A4: Email communication sent by the complainant to the opposite party.

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