Hdfc Standard Life Insurance vs Avtar Kaur Sandhu on 5 December, 2019

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State Consumer Disputes Redressal Commission

Hdfc Standard Life Insurance vs Avtar Kaur Sandhu on 5 December, 2019

                                          2nd Additional Bench

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
             PUNJAB, CHANDIGARH.
                First Appeal No.377 of 2019
                            Date of Institution :    24.06.2019
                            Reserved on         :    26.11.2019
                            Date of Decision :       05.12.2019

HDFC Standard Life Insurance, Banga Road Nawanshahr District
SBS Nagar, through its Manager.

presently the appeal has been filed through Sh. Arpit Higgins,
Manager (Legal), HDFC Standard Life Insurance Co. Ltd., first &
second floor, SCO No.149-151, Sector 43-B, Chandigarh.

                                  .....Appellant/opposite party no.1
                         Versus

1.   Avtar Kaur Sandhu d/o Sh. Jaimal Singh, resident of Village
     Jethu Majara, Tehsil Nawanshahr, District SBS Nagar,
     present residing at Birmingham United Kingdom, through
     attorney Harmesh Singh son of Parkash Singh R/o Village
     Auliapur, Tehsil Balachaur, District SBS Nagar.

                                .....Respondent no.1/complainant

2.   HDFC Bank Branch Nawanshahr, Banga Road Nawanshahr,
     District SBS Nagar, through its Manager.

3.   The Regional HDFC Bank House Senapati Bapat Marg,
     Lower   Parel,   Mumbai-400013,       through     its    Regional
     Manager.

                 Proforma respondents/opposite party nos.2 & 3
                         First Appeal against order dated
                         16.05.2019 passed by the District
                         Consumer         Disputes           Redressal
                         Forum,      Shaheed        Bhagat      Singh
                         Nagar.
Quorum:-
     Ms. Kiran Sibal, Presiding Member

 First Appeal No.377 of 2019                                       2



Present:-
      For the appellant        : Sh. Pawan Kumar, Advocate
      For respondent no.1      : Sh. Harjeet Savra, Advocate

............................................ Kiran Sibal, Presiding Member:

This appeal has been preferred by the appellant against the order dated 16.05.2019 passed by District Consumer Disputes Redressal Forum, SBS Nagar (in short, "the District Forum"), whereby the complaint filed by respondent no.1/complainant, under Section 12 of the Consumer Protection Act, 1986, was disposed off by directing OPs to pay surrender value, as per Regulation (Linked as well as Non-linked).

2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.

Facts of the Complaint

3. Brief facts, as averred in the complaint are that complainant filed complaint through her attorney Sh.Harmesh Singh. She was suffering from cancer and under advise of doctor she visited India to change the atmosphere in September 2011. She visited the office of OP no.1 for making fixed deposit of foreign currency in her name. It was told to her that her deposit would be doubled in five and half years. As per advice of dealing person of OP no.1, she deposited her foreign currency in the office of OP no.1, which was about 400 pounds. OP no.1 obtained her signature on the blank forms on 13.09.2011 and she was told that First Appeal No.377 of 2019 3 passbook, FDR and receipt would be sent on her postal address. She left for abroad. She number of times made telephone calls in the office of OP no.1 and continuously demanded her passbook, FDR and receipt, but to no effect. She also told that she is a cancer patient and cannot travel, but OP No.1 paid no heed towards her requests. On 31.01.2017, when her doctors advised her that she can travel and visited India then she went to office of OP no.1 but to utter surprise that nobody was ready to attend her and advised her to visit their regional office situated at Senapati Bapat Marg Lower Parel Mumbai/OP no.2. Despite her repeated requests, she was only provided photocopy of receipt no.A4254476 dated 13.09.2011, which was of HDFC Savings Insurance Plan, which meant as initial deposit towards the proposal to which she never agreed nor she was physically fit to taking the insurance policy, as she is a cancer patient and was getting her treatment in U.K. She was neither asked for insurance nor she ever opted for the same. She was only waiting her maturity benefits, which she has been deprived and she has been cheated by OP No.1. Despite this, she was advised to purchase another policy for which she refused. OP cheated her by issuing HDFC saving insurance plan instead of fixed deposit. She only came to know the act of OPs in February 2017, when she visited the bank for collecting the FDR maturity. Therefore, she has filed the present complaint through her attorney and prayed that OPs First Appeal No.377 of 2019 4 be directed to pay the maturity amount of Rs.7,20,000/- and Rs.1,00,000/- as damages to her.

Defence of the Opposite Parties

4. Upon notice, OP nos.1 and 2 appeared and filed written reply and contested the complaint of the complainant vehemently by raising preliminary objections that complainant is barred by her act and conduct and long silence to file the complaint. The complainant made false and fabricated allegations in the complaint. The complaint is time barred. The complainant has invested her funds with HDFC Standard Life Insurance Company at her own sweet will. On merits, it was averred that Harmesh Singh was having no authority to file the complaint. It was denied that complainant was suffering from cancer or she was ever advised to tour India by any doctor. She never approached OPs for fixed deposit and no bank official took her signatures on blank papers. She never contacted telephonically to OPs with regard to any FDR or passbook, but she gave telephonic calls to OPs for inquiry of balance in her account. OP nos.1 and 3 denied the other averments of the complainant and prayed for dismissal of the complaint.

5. OP no.3 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable and is liable to be dismissed, as no cause of action ever arose in favour of complainant. The complainant has created a false story in their First Appeal No.377 of 2019 5 complaint to misled this Forum. Before filling up the proposal form, the contents of proposal/application, illustrations and addendum forms were read and explained to complainant in the language best known to her. After understanding all the terms and conditions, the proposal form was signed by her. On the basis of proposal form, policy was issued to her. The complainant signed the most important document wherein term of the policy was clearly mentioned along with amount of premium along with frequency of the premium. She also filled in a document namely KYC Addendum wherein she had filled all her details including source of her income. As per terms of the policy, free look period was provided to her of 15 days within which she could have returned the policy to OP no.3 by stating reason thereof. The act and conduct of complainant in not returning /surrendering the policies within given time signified her acceptance of the terms and conditions mentioned in the said policy documents. The said option has not been exercised by complainant within stipulated period of 15 days. OP no.3 denied any deficiency in service and unfair trade practice on its part and prayed for dismissal of the complaint.

Evidence of the parties and finding of the District Forum

6. In support of her case, complainant tendered in evidence The attorney Harmesh Singh tendered his affidavit Ex.CW-1/A along with copies of documents Ex.C-1 to Ex.C-12 and closed the evidence.

First Appeal No.377 of 2019 6

7. To rebut the above evidence of complainant, OP nos.1 and 2 tendered in evidence affidavit of Punit Joshi HDFC Bank as Ex.OP-1/A.

8. OP no.3 tendered in evidence affidavit of Sh.Aprit Higgins as Ex.OP-3/A along with copies of documents Ex.OP-3/1 to Ex.OP-3/6.

9. The District Forum, after going through the record and hearing learned counsel on their behalf, disposed off the complaint, vide impugned order. Hence, this appeal.

10. The appeal was admitted against respondent no.1/complainant only. Accordingly, the notice was issued to respondent no.1 only, as respondent no.2 and 3 are proforma respondents only in this case.

Contentions of the Parties

11. I have heard learned counsel for the appellant and respondent no.1 and have carefully gone through the record of the case.

12. Ld. counsel for the appellant contended that the District Forum failed to appreciate the evidence, terms and condition produced by respondent and wrongly and illegally decided the complaint by directing appellant/OPs to pay surrender value, as per IRDA Regulations 2013 within a period of one month from the date of receipt of copy of order. The findings of the District Forum is based on mere surmises, conjectures, wrong reasons and assumptions and is not tenable in the eyes of law. First Appeal No.377 of 2019 7 The complainant herself purchased HDFC Savings Assurance Policy (traditional & non unit-linked policy). This policy had no link with the share market and hence, Insurance Regulatory & Development Authority (Linked Insured Products) Regulation, 2013 are not applicable to the said policy. The complainant paid only one premium and had not paid the subsequent premiums, therefore, the policy got lapsed due to non-payment of premiums and nothing was payable as far as surrender value is concerned. The District Forum failed to appreciate that the cause of action accrued in the year 2011 on the issuance of policy documents, but complainant was filed on 03.10.2017 after a gap of six years. He prayed for setting aside the order of the District Forum with regard to surrender value.

13. On the other hand, respondent no.1/complainant, who appeared in person contended that the District Forum has rightly passed the order on merits. Averring on the similar lines, as prayed in complaint, he prayed for dismissal of the complaint. Consideration of Contentions

14. I have given thoughtful consideration to the contentions raised by the learned counsel for the parties.

15. First of all I would like to deal with the objection raised by the appellant that complainant is not entitled to surrender value, as per order of the District Forum. To decide this point, I have perused the order of the District Forum dated 16.05.2019, wherein it has been observed in para no.11 as under:-

First Appeal No.377 of 2019 8

Moreover, the complainant has failed to avail the period of 15 days of free look period within which the policy holder has a right to reconsider the decision after the receipt of the policy documents. The complainant could have approached the OPs, in case she did not receive the policy documents soon after the premium payment. Complainant never raised any question of non-receipt of the policy documents to the OPs which proves fatal to her. Thus, she cannot wriggle out of the contract between her and the OPs. So, the claim for the refund of the amount deposited by the complainant under the terms of the policy is unsustainable in the eyes of law. The District Forum directed OPs to pay surrender value, as per Regulation (Linked as well as Non-Linked) within a period of 30 days. I am of the view that District Forum wrongly directed OPs to pay the surrender value, as per Regulation (Linked as well as Non-Linked) within a period of 30 days, as this policy had no link with the share market, as such the complainant is not entitled to any surrender value. I am of the view that she received the policy documents and she was in the knowledge of the terms and conditions of the policy and she purchased the said policy with her own sweet will by filling up the proposal form Annexure A-2, illustrations of future benefits dated 13.09.2011 Annexure A-4 and Customer- Addendum, which were not blank documents.

She failed to avail the free look period as well. I have also First Appeal No.377 of 2019 9 read the terms and conditions of the said policy Ex.R-3. As per clause 4 of it, zero bonus will be payable in respect of premiums paid in the first year. As per clause 5 of it, if any premium remains unpaid 15 days after the due date and your policy does not have a surrender value, the basic benefit will lapse and no benefit will be payable to you. The terms and conditions of the policy are binding on the parties, who sign the same and District Forum also held that complainant is not entitled to refund of the deposited amount, under the terms of the policy. In this case, the complainant paid only first premium and thereafter she defaulted in making the payments of regular premiums due to which her policy had already lapsed. As such in my view she is not entitled to any surrender value as well, as per clause 4 of terms of the policy.

16. The next objection of the appellant is that complaint was not filed by the complainant within time and was beyond the period of limitation. The District Forum overlooked this point. I have perused the record of the case and find that once the District Forum held that complainant received the policy documents, she had not exercised the free look period of 15 days to cancel the policy and furthermore the complainant has not filed any appeal against the findings of the District Forum. The complainant purchased the policy on 13.09.2011 as per her pleadings and after purchasing it, she remained silent for six years and had not First Appeal No.377 of 2019 10 agitated the matter by sending any e-mail or by sending her representative to the OP-bank with regard to the payment. She also failed to produce on record any cogent evidence in support of her pleas. She filed the complaint in October, 2017 after six years from the date of accrual of cause of action and the District Forum failed to appreciate this point. As per above discussion, there is no specific and cogent evidence led by the complainant which establishes that she had contacted or represented her grievance with the OPs from September 2011 to October 2017. In the absence of the same and since cause of action arose in 2011 itself, the complaint is certainly beyond the period of limitation.

17. In view of my above discussion, I find that the District Forum wrongly directed OPs to pay the surrender value to complainant without appreciating the evidence on the record and without perusing the terms and conditions of the policy. Accordingly, the appeal is allowed and the order of the District Forum is set aside. Resultantly, the complaint is also dismissed.

18. The appellant/opposite party No.1 had deposited a sum of Rs.25,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, be remitted by the registry to the appellant after the expiry of 45 days.

(KIRAN SIBAL) PRESIDING MEMBER December 05, 2019.

MM STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.

Consumer Complaint No.642 of 2019 Date of institution : 29.08.2019 Date of decision : 29.11.2019

1. Ravinder Kaur W/o Sh. Amarjot Singh, age 49 years, resident of House No.3061, Sector 20-D, Chandigarh.

2. Ritvik Singh s/o Sh. Amarjot Singh, age 26 years, resident of House No.3061, Sector 20-D, Chandigarh.

....Complainants Versus

1. C & C Towers Ltd., Site Office: C & C Towers, ISBT-cum-

Commercial Complex, opposite Verka Milk Plant, Gate No.5, Phase-6, (Sector-57), Mohali, through its Managing Director/ Director/ Manager/ Authorized Representative.

2. C & C Towers Ltd., Corporate Head Office, Plot No.70, Sector 32, Gurgaon, Haryana-122001, through its Chairman/ Managing Director/ Director/ Manager/ Authorized Representative.

3. Chairman/ Managing Director/ Director/ Manager/ Authorized Representative, C & C Towers Ltd., Site Office: C & C Towers, ISBT-cum-Commercial Complex, opposite Verka Milk Plant, Gate No.5, Phase-6, (Sector-57), Mohali.

4. General Manager (Commercial), C & C Towers Ltd., Site Office:

C & C Towers, ISBT-cum-Commercial Complex, opposite Verka Milk Plant, Gate No.5, Phase-6, (Sector-57), Mohali.

....Opposite Parties Consumer Complaint under Section 17 of the Consumer Protection Act, 1986.

Quorum:-

Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President

1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No

2) To be referred to the Reporters or not? Yes/No

3) Whether judgment should be reported in the Digest? Yes/No Present:-

For the complainants : Sh. A.K. Batra, Advocate For the opposite parties: Ex parte.

Consumer Complaint No.642 of 2019 2

JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The complainants have filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), against the opposite parties (in short 'OPs), seeking following directions to them:

i) to hand over the possession of the office space immediately and upon failure OPs may be directed to refund ₹29,94,638/-

alongwith interest at the rate of 18% per annum from the date of its deposit till the date of actual payment;

ii) to pay an amount of ₹7,13,752/- on account of assured return from July 2017 till August 2019 alongwith interest @18% per annum from the date of its deposits till the date of actual return.

iii) to deposit TDS with the Income Tax Authorities from April 2016 till August 2019 on the assured return.

iv) to pay ₹3,50,000/- on account of mental agony, physical harassment, apart from other financial loss;

v) to pay ₹31,000/- as litigation expenses to complainants. Facts of the Complaint

2. Brief facts, as set out in the complaint, are that OPs issued various advertisements in newspapers, marketing e-mails and telemarketing with regard to launching of their integrated project for modular office space in the commercial complex under construction as part of Bus terminal-cum-commercial complex, Sector 57, Mohali having salient features, as given in brochure Ex.C-1. Being allured by the said advertisement, the complainants applied for purchasing a office space, exclusively for the purpose of creating the source of livelihood by means of self-employment, as complainant no.2 was pursuing his Bachelor of Technology in Computer Science Branch and Consumer Complaint No.642 of 2019 3 had planned to run a software development and consulting office alongwith complainant no.1, who has experience in administration and management. On 08.11.2011, they deposited an amount of ₹29,94,638/- with OPs, vide cheque no.457382 & 013651 (₹14,97,319/- each) drawn at ICICI Bank (Ex.C-2). On 28.11.2011, OPs allotted unit no.03, Tower C, Floor 14th having super area of 467 square feet, as office space, vide allotment letter dated 28.11.2011 Ex.C-3 with terms and conditions regarding construction, payment schedule etc. They opted for 11% assured return payment plan, as per Annexure A-1 of the allotment letter, which is as under:

"The concessionaire/licensor shall pay assured return @11% per annum on this amount of ₹5412/- per square feet. The said return shall be payable monthly till the time of the possession, by way of account payee cheques to be periodically handed over in advance by the Concessionaire/Licensor to the licensee."

and Annexure A-2 is reproduced as under :

"The concessionaire/licensor shall pay assured return @11% per annum on this amount of ₹1000/- per square feet. The said return shall be payable monthly till the time of the possession, by way of account payee cheques to be periodically handed over in advance by the Concessionaire/Licensor to the licensee."

The complainants paid ₹29,94,638/-, being 95% of the total cost of office space i.e. ₹31,52,250/- and the remaining amount of 5% was to Consumer Complaint No.642 of 2019 4 be payable at the time of handing over the possession. Thereafter, the complainants received an amount of ₹24,706/- after deduction of TDS of ₹2746/- (total ₹27452/-) on account of assured return @11% on ₹29,94,638/- for the period from December 2011 to June 2017. OPs failed to deposit the TDS from April 2016 to June 2017. The OPs have also failed to pay the assured return @₹24,706/- after deduction of TDS of ₹2746/- to complainants since July 2017 till date. It is further averred that OPs started receiving the sale consideration from complainants, against receipts, ignoring the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short "PAPRA"). The OPs agreed to complete the construction of the unit within 48 months from the date of compliance i.e. 16.12.2009 (clause 1.3.3 of Ex.C-3). The construction was to be completed by 15.12.2013, but OPs failed to complete the project in time. No development was started at the site and the work is still abandoned by the OPs. Vide Ex.C-4 letter dated 07.05.2015 sent to one of the allottee, OPs stated that construction would restart by July 2015 and the project would be completed by mid of the year 2017, but OPs failed to complete the same in time. Due to this reasons, complainants could not start their business. Vide Ex.C-5 letter dated 21.11.2017 by OPs to complainants, OPs conveyed that the company would refund the deposits of the investors alongwith interest, as per the conditions of the allotment letter. The refund of principal and interest would be made in six equated monthly installments (PDC's) from 01.04.2018. The PDCs would be issued within 30 working days of receipt of refund application. In the last they Consumer Complaint No.642 of 2019 5 stated that all investors who want to stay invested with us would be given interest @8.8%. They came to know through public notice in the newspaper that OPs served with a notice by GMADA due to non- completion of construction and also about the cancellation of the agreement. Vide letter Ex.C-6 dated 06.06.2018, OP no.3 requested for extension of time till 30.09.2018 for fulfilling the promises, as mentioned in letter dated 21.11.2017. Vide letter dated 06.07.2018, Ex.C-7, GMADA has issued termination notice on 04.04.2016 to OPs, but OP no.1 sought extension of time for completion of the project. The complainants have alleged deficiency in service and unfair trade practice on the part of OPs on above counts. Hence, the present complaint.

3. Upon notice, opposite parties No.1 to 4 did not appear, despite their service and, as such, they were proceeded against ex parte, vide order dated 13.11.2019.

Evidence of the Complainants

4. To prove their claim, the complainants, along with the complaint, filed affidavit of complainant no.1 and copies of documents i.e. Brochure Ex.C-1, provisional receipt dated 08.11.2011 Ex.C-2, Letter of Allotment dated 08.11.2011 Ex.C-3, letter dated 07.05.2015 Ex.C-4, letter dated 21.11.2017 Ex.C-5, letter dated 06.06.2018 Ex.C-6 and letter dated 06.07.2018 Ex.C-7.

Contentions of the Complainants

5. I have heard learned counsel for the complainants and have gone through the record carefully.

Consumer Complaint No.642 of 2019 6

6. Learned counsel for the complainants has vehemently contended that the complainants purchased the unit, in question, from OPs by paying a sum of ₹29,94,638/-, vide receipt Ex.C-2 (colly). The complainants purchased the said unit exclusively for the purpose of creating the source of livelihood by means of self-employment. It was further contended that as per clause 1.3.3 of allotment letter, the construction of the unit was to be completed within 48 months from the compliance date i.e. 16.12.2009, after obtaining necessary approvals and sanctions. OPs received a sum of ₹29,94,638/- from the complainants towards the price of the unit, in question, but they failed to complete the project, in question, within the said stipulated period, without disclosing any cogent reasons. No development was carried out at the site of Commercial Complex. Therefore, the complainant sought refund of the amount deposited from them. OPs committed deficiency in service and unfair trade practice, by not honouring their commitments, as per the allotment letter. Accordingly, learned counsel for complainants prayed that complaint be allowed and all the reliefs, as prayed for in the complaint, be awarded in favour of the complainants.

Consideration of Contentions

7. I have given my thoughtful consideration to the contentions raised by the learned counsel for the complainants.

8. At the outset, it is relevant to mention that the merits of the present complaint are squarely covered by the earlier verdicts given by this Commission in following cases:

Consumer Complaint No.642 of 2019 7

i) Consumer Complaint No.343 of 2016 (Sharanjeet Kaur v.

C and C Towers Ltd. & Ors.) decided on 02.06.2017;

ii) Consumer Complaint No.314 of 2017 (Indu Laroia & Anr. v.

C and C Towers Limited & Ors.) decided on 07.11.2017;

iii) Consumer Complaint No.99 of 2018 (Dharam Pal Nanda v.

C & C Towers Ltd. & Ors.) decided on 19.07.2018;

iv) Consumer Complaint No.825 of 2018 (Harpreet Singh v. C & C Towers Ltd. & Ors.) decided on 20.02.2019; and

v) Consumer Complaint No.183 of 2019 (Darshan Singh v. C & C Towers Ltd. & Ors.) decided on 15.05.2019.

So, I proceed to dispose of this complaint, in view of the decisions given in the above noted cases.

9. As per version of the complainants, they purchased the unit, in question, exclusively for the purpose of creating their source of livelihood by means of self-employment by paying a sum of ₹29,94,638/-, vide receipt Ex.C-2 (colly.). Thereafter, vide letter of allotment dated 28.11.2011 (Ex.C-3) OPs allotted unit No.3, Tower C, 14th Floor, measuring 467 sq.ft.(approximately) to complainants in their above said project. Total consideration of the unit was ₹31,52,250/-. As per clause 1.3.3 of the Letter of Allotment, the construction of the unit was likely to be completed within 48 months from the date of lease period i.e. 16.12.2009 after obtaining all the necessary approvals and sanctions, subject to force majeure circumstances. Therefore, the construction of the unit, in question, was to be completed and possession was to be delivered up to 15.12.2013. Consumer Complaint No.642 of 2019 8 The complaint has been filed on 29.08.2019 i.e. after about 6 years therefrom. OPs failed to complete the construction of project/unit within the stipulated period, without any sufficient cause, so as to deliver possession of the unit, in question, to the complainants. It is also relevant to mention that OP wrote letter dated 21.11.2017, Ex.C-5, to the complainants, vide which they offered to pay interest at the rate of 8.8% per annum on their deposited amount along with other applicable conditions. This letter clearly proves that OPs failed to complete the project within the stipulated timeframe, that is why they offered aforesaid rate of interest on the deposited amount of the complainant.

10. In Harpreet Singh's case (supra), it was held as under:

"It is also relevant to mention that one another allottee sought information under RTI Act from GMADA. GMADA, vide letter dated 29.09.2016, Ex.C-7, supplied the requisite information to her, informing that no licence of construction was granted to the opposite parties, nor any agreement was entered into by the opposite parties with the Government. Still further, as per letter dated 11.03.2016, Ex.C-9, issued by GMADA, the process for cancelling the agreement of the opposite parties had already been initiated, due to non-completion of the project within the stipulated period. It is also mentioned therein that the reason for delay in completing the project was disclosed by the opposite parties to be paucity of funds. In such circumstances, the complainant cannot be made to wait for an indefinite period of time for the completion of the project and delivery of the space/unit in question. This certainly amounts to deficiency in service and adoption of unfair trade practice on the part of the opposite parties."

Consumer Complaint No.642 of 2019 9

From perusal of aforesaid observations made by this Commission in the aforesaid case, it is clear that OPs failed to complete the project within the stipulated period due to paucity of funds with them and GMADA had initiated process for cancellation of their licence.

11. The whole purpose of pleadings is to give fair notice to each party of what the opponent's case is and to ascertain with precision the point(s) on which the parties agree and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. For the sake of repetition, it is relevant to mention that OPs failed to appear before this Commission, despite their service and, as such, they were proceeded against ex parte. Thus, all the averments made in the complaint are deemed to have been admitted by them and the evidence led by the complainants stands unrebutted, for which an adverse inference is to be drawn against them. Since these OPs are ex parte, so no evidence has come on record, whether they have obtained the requisite approvals and permissions from the competent authorities, before launching their project.

12. Keeping in view the above circumstances, I hold that OPs have failed to comply with the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). As per Section 3 (General Liabilities of Promoter) of the PAPRA, the OPs were required to make full and true disclosure of the nature of their title to the land, on which such project is developed or such building is constructed or is Consumer Complaint No.642 of 2019 10 to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. They were also required to give inspection on seven days' notice or demand of the layout of the colony and plan of development works to be executed in a project, as approved by the prescribed authority in the case of a project. However, they failed to comply with Section 3 of the PAPRA.

13. As per Section 5 (Development of land into Colony) of PAPRA, OPs were liable to obtain permission from the competent authority for developing the project, but they failed to produce on record any such valid permission. So, they also violated Section 5 of PAPRA.

14. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats/commercial space/unit, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. As such, OPs also violated Section 9 of the PAPRA.

15. The Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainants have made payment of substantial amount to OPs with the hope to get the possession of the unit in a reasonable period. The circumstances Consumer Complaint No.642 of 2019 11 clearly show that they made false statement of facts about the goods and services i.e. allotment of unit and delivery of possession in a stipulated period. The act and conduct of OPs is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not invested their money with them, they would have invested the same elsewhere. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot/unit/flat/space within a reasonable period. The complainants cannot be made to wait indefinitely to get possession of the unit booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that OPs i.e. builders knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the complainant to book the unit, due to which the complainants have suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The builder is bound to compensate for the loss and injury suffered by the complainants for failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, the complainants have to wage a long drawn and tedious legal battle. As such, the complainants were at loss of opportunities. Consumer Complaint No.642 of 2019 12

16. In view of our above discussion, I hold that the OPs are liable to deliver physical possession of the unit, in question, complete in all respects, along with agreed facilities and amenities with Completion/Occupation Certificate, subject to payment of balance sale consideration by complainants, without any interest and penalty thereon and to execute the Sale/Conveyance Deed in favour of the complainants. The complainants specifically pleaded that OPs failed to pay the assured return since July 2017 till date. For delay in delivery of possession, the OPs are liable to pay the agreed assured return @11% on the amount of ₹29,94,638/- from July 2017 till the date of delivery of possession to complainants, as observed above. However, if the OPs will not be able to deliver possession of the plot, in question and to execute the Sale/Conveyance Deed, then in the alternative they shall refund the entire amount deposited by the complainants, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA. It is made clear that the assured return amount received by complainants shall be adjusted from the refundable amount. Besides this, the complainants are also entitled to suitable litigation expenses and compensation for the mental agony and harassment suffered by them.

17. Accordingly, the complaint is allowed and following directions are issued to the OPs:

i) to deliver actual and physical possession of the plot, in question, complete in all respects, along with agreed facilities and amenities with Completion/Occupation Certificate, subject to Consumer Complaint No.642 of 2019 13 payment of balance sale consideration, without any interest and penalty thereon and to execute the Sale/Conveyance Deed in favour of the complainants;

ii) to pay the agreed assured return @11% on the amount of ₹29,94,638/- from July 2017 till the date of delivery of possession, as ordered above; and

iii) to pay composite litigation expenses and compensation for the mental and harassment suffered by the complainant to the tune of ₹40,000/-.

18. In case the opposite parties fail to comply the directions, as ordered above, then in the alternative, they shall:

i) refund the entire amount deposited by the complainants i.e. ₹29,94,638/-, along with compensation in shape of interest @12% per annum from the date of respective deposit till realization, as per Rule 17 of PAPRA. It is made clear that the assured return amount received by complainants shall be adjusted from the refundable amount; and

ii) pay ₹40,000/-, as compensation for the harassment and mental agony suffered by the complainants, including cost of litigation.

19. The compliance of this order shall be made by the opposite parties within a period of 45 days of the receipt of certified copy of the order.

(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT November 29, 2019.

MM 2nd Additional Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.

First Appeal No.377 of 2019

                            Date of Institution :    24.06.2019
                            Reserved on         :    26.11.2019
                            Date of Decision :       05.12.2019

HDFC Standard Life Insurance, Banga Road Nawanshahr District SBS Nagar, through its Manager.

presently the appeal has been filed through Sh. Arpit Higgins, Manager (Legal), HDFC Standard Life Insurance Co. Ltd., first & second floor, SCO No.149-151, Sector 43-B, Chandigarh.

.....Appellant/opposite party no.1 Versus

1. Avtar Kaur Sandhu d/o Sh. Jaimal Singh, resident of Village Jethu Majara, Tehsil Nawanshahr, District SBS Nagar, present residing at Birmingham United Kingdom, through attorney Harmesh Singh son of Parkash Singh R/o Village Auliapur, Tehsil Balachaur, District SBS Nagar.

.....Respondent no.1/complainant

2. HDFC Bank Branch Nawanshahr, Banga Road Nawanshahr, District SBS Nagar, through its Manager.

3. The Regional HDFC Bank House Senapati Bapat Marg, Lower Parel, Mumbai-400013, through its Regional Manager.

Proforma respondents/opposite party nos.2 & 3 First Appeal against order dated 16.05.2019 passed by the District Consumer Disputes Redressal Forum, Shaheed Bhagat Singh Nagar.

Quorum:-

Ms. Kiran Sibal, Presiding Member First Appeal No.377 of 2019 2 Present:-

      For the appellant        : Sh. Pawan Kumar, Advocate
      For respondent no.1      : Sh. Harjeet Savra, Advocate

............................................ Kiran Sibal, Presiding Member:

This appeal has been preferred by the appellant against the order dated 16.05.2019 passed by District Consumer Disputes Redressal Forum, SBS Nagar (in short, "the District Forum"), whereby the complaint filed by respondent no.1/complainant, under Section 12 of the Consumer Protection Act, 1986, was disposed off by directing OPs to pay surrender value, as per Regulation (Linked as well as Non-linked).

2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.

Facts of the Complaint

Defence of the Opposite Parties

Evidence of the parties and finding of the District Forum

6. In support of her case, complainant tendered in evidence The attorney Harmesh Singh tendered his affidavit Ex.CW-1/A along with copies of documents Ex.C-1 to Ex.C-12 and closed the evidence.

First Appeal No.377 of 2019 6

7. To rebut the above evidence of complainant, OP nos.1 and 2 tendered in evidence affidavit of Punit Joshi HDFC Bank as Ex.OP-1/A.

8. OP no.3 tendered in evidence affidavit of Sh.Aprit Higgins as Ex.OP-3/A along with copies of documents Ex.OP-3/1 to Ex.OP-3/6.

9. The District Forum, after going through the record and hearing learned counsel on their behalf, disposed off the complaint, vide impugned order. Hence, this appeal.

10. The appeal was admitted against respondent no.1/complainant only. Accordingly, the notice was issued to respondent no.1 only, as respondent no.2 and 3 are proforma respondents only in this case.

Contentions of the Parties

11. I have heard learned counsel for the appellant and respondent no.1 and have carefully gone through the record of the case.

14. I have given thoughtful consideration to the contentions raised by the learned counsel for the parties.

First Appeal No.377 of 2019 8

Moreover, the complainant has failed to avail the period of 15 days of free look period within which the policy holder has a right to reconsider the decision after the receipt of the policy documents. The complainant could have approached the OPs, in case she did not receive the policy documents soon after the premium payment. Complainant never raised any question of non-receipt of the policy documents to the OPs which proves fatal to her. Thus, she cannot wriggle out of the contract between her and the OPs. So, the claim for the refund of the amount deposited by the complainant under the terms of the policy is unsustainable in the eyes of law. The District Forum directed OPs to pay surrender value, as per Regulation (Linked as well as Non-Linked) within a period of 30 days. I am of the view that District Forum wrongly directed OPs to pay the surrender value, as per Regulation (Linked as well as Non-Linked) within a period of 30 days, as this policy had no link with the share market, as such the complainant is not entitled to any surrender value. I am of the view that she received the policy documents and she was in the knowledge of the terms and conditions of the policy and she purchased the said policy with her own sweet will by filling up the proposal form Annexure A-2, illustrations of future benefits dated 13.09.2011 Annexure A-4 and Customer- Addendum, which were not blank documents.

(KIRAN SIBAL) PRESIDING MEMBER December 05, 2019.

MM 2nd Additional Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.

First Appeal No.544 of 2019

Date of Institution : 20.08.2019 Reserved on : 18.11.2019 Date of Decision : 03.12.2019 Amazon Seller Services Private Limited, Registered Office at Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram (W), Bangalore-560055, India through its authorized Signatory Shri Rahul Sundaram.

.....Appellant/opposite party no.1 Versus

1. Vishwajit Tapia S/o Sh. Lalit Moihan Tapia, R/o Tapia Street, Bhikhi More, Nabha.

.....Respondent no.1/complainant

2. Motorola Solutions India Pvt. Ltd., Motorola Excellence Centre, 415/2, Mehrauli, Gurgaon Road, Sector-14, Gurgaon-122001.

.....Respondent no.2/opposite party no.2 First Appeal against order dated 19.07.2019 passed by the District Consumer Disputes Redressal Forum, Patiala.

Quorum:-

Ms. Kiran Sibal, Presiding Member Present:-

For the appellant : Sh. Yugaush Siwach, Advocate For respondent no.1 : Sh. Vishwajit Tapia, in person For respondent no.2 : Ex-parte ............................................ Kiran Sibal, Presiding Member:

This appeal has been preferred by the appellant against order dated 19.07.2019 passed by District Consumer Disputes Redressal Forum, Patiala (in short, "the District Forum"), whereby the complaint filed by respondent no.1/complainant, under Section 12 of the Consumer Protection Act, 1986 was allowed and the appellant/opposite party no.1 was directed to pay compensation of First Appeal No.544 of 2019 2 ₹3000/- as costs of litigation and further directed to refund Rs.11,750/- i.e. price of the mobile set to respondent no.1/complainant.

2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.

Facts of the Complaint

3. Brief facts, as averred in the complaint, are that complainant purchased a mobile phone MOTO G 3rd generation (black 16 GB), through agency of OPs, vide Annexure A-1. After receiving the amount of Rs.11750/-, the said mobile set was dispatched by agency of OPs on 03.09.2016, which was received on 07.09.2016. When the packet containing the mobile was opened, complainant was surprised to see that packing and seal of both packing and mobile looked old. Still the complainant believing it to be a new one, connected it to the charger, received with mobile set, but the mobile did not charge. Even after plugging it to the charger for more than five hours, it did not work. Complainant continued this process for five or six days with the hope that the same would be charged, but to no effect. Finding no solution, he contacted OP telephonically but he was told that OP had closed its return window. The complainant could not obtain the services from Motorolla i.e. the maker of the mobile. He was told that the guarantee period had already been expired, as earlier this phone was sold by the company from the site of Flipkart, one year back. He served legal notice upon First Appeal No.544 of 2019 3 OP on 28.09.2016, vide Annexure A-6, but to no effect. The OPs refused to replace the same. He alleged deficiency in service and unfair trade practice on the part of the OPs. He prayed that OPs be directed to replace the defective mobile with new one and to pay costs of Rs.25,000/-with interest @12% per annum to him. Defence of the Opposite Parties

4. Upon notice, none appeared on behalf of OP No.2. Hence OP No.2 was proceeded against exparte. OP No.1 appeared through counsel and filed reply by raising preliminary objections that M/s Amazon Seller Services Private Limited (ASSPL) is the owner of the website. On the application its name was corrected in the head note of the complaint. OP neither sells nor offers to sell any product. It provides online marketplace where independent third party sellers can list their products for sale. The sellers themselves are responsible for their respective listings and products of the website. OP no.1 neither responsible for the products that are listed on the website by various third party sellers nor intervene or influence in the sale transaction between the customer and seller. OP no.1 is only a facilitator and cannot be a party to control in any manner any sale transaction on the website. The contract of sale of products on the website is strictly a bipartite contract between the customer and the seller. The complainant does not fall within the definition of consumer under the Consumer Protection Act. Complainant has not bought any goods from OP no.1 and has not paid any amount directly against any such goods or services. The goods have been First Appeal No.544 of 2019 4 bought by the complainant from an independent third party seller, which selling its products on the website operated by OP No.1. OP No.1 is merely provided online marketplace. It is neither a necessary nor a proper party in the complaint. Complaint is liable to be dismissed due to mis-joinder of parties. The complainant wrongly approached the Forum qua OP No.1 on a misunderstanding that he is a consumer of it. The "Conditions of Use" as applicable at the time of registration on the Website as a buyer was accepted by him, which state that OP No.1 is not and cannot be a party to control in any manner, any transaction between the users at the Website. There is no occasion for the complainant to approach the Forum seeking redressal of his grievance against OP No.1. OP No.1 also extracted some conditions of the contract, the repetition of which is not considered to be relevant at this stage. It controverted the other averments of the complainant and prayed for the dismissal of the complaint.

Evidence of the parties and finding of the District Forum

5. In support of his case, complainant tendered in evidence his affidavit Ex.CA, copy of details of order Ex.C1, copy of wrapper of cardboard Ex.C2, copy of specifications Ex.C3, copy of the picture of mobile Ex.C4, copy of statement Ex.C5, copy of legal notice Ex.C6 and postal receipt Ex.C7.

6. To rebut the above evidence of complainant, OP tendered in evidence affidavit of Rahul Sundram Ex.OPA, copy of First Appeal No.544 of 2019 5 authority letter Ex.OP1, copy of resolution Ex.OP2, copy of terms and conditions Ex.OP3, copy of reply to legal notice Ex.OP4, copy of postal receipt Ex.OP5.

7. The District Forum, after going through the record and hearing learned counsel on their behalf, partly accepted the complaint, vide impugned order. Hence, this appeal. Contentions of the Parties

8. I have heard learned counsel for the appellant and Sh. Vishwajit Tapia respondent no.1/complainant and have carefully gone through the record of the case.

9. Ld. counsel for the appellant contended that the District Forum failed to appreciate the evidence, terms and condition produced by respondent and wrongly and illegally decided the complaint, which is beyond its jurisdiction, as per condition 22 of the "conditions of Use" of the website, as per which the parties have vested exclusive jurisdiction to the Courts at Delhi. He further argued that complainant made online purchase and the delivery was received by his mother/brother. Complainant got checked the said mobile from Motorolla service centre, but he did not place on the record any evidence to show that a job card was issued to him regarding any defect in the said mobile set. There is also no evidence to the effect that any communication was made to OP no.1/appellant in the form of any e-mail or otherwise and no feed back was received by the appellant. The complainant could have given his feed back under 15 days return window, but he did not do First Appeal No.544 of 2019 6 so. It was further contended that the complainant went to the service centre of respondent no.2/OP no.2 for the replacement of the charger and not for the mobile phone. He further contended that appellant is neither a manufacturer nor a seller of the product in question. The said product was sold by an independent third party seller i.e. 'Gizmo Bazaar', which has not even been impleaded as a party. He further argued that the said mobile set is still lying with the complainant and he did not deposit the same with OP no.1. The said mobile set was purchased by the complainant out of his own will and choice and the appellant acted as an 'intermediary' only, as such, appellant is not liable on any count. The appellant is the owner and operates the website www.amazon.in and the mobile application called 'Amazon', which is an online shopping website/application based upon the "marketplace model". The appellant website is only a platform where independent sellers sell their products to independent buyers without any influence of the appellant. The appellant has been granted permission to conduct business as a marketplace based model of e-commerce specifically stipulated, in Schedule 1 at entry 16.2.3 of the Regulation. The District Forum failed to appreciate the above fact and that the appellant cannot have control regulation and liability over the standard, quality and performance of the product. Averring on similar lines as in the appeal, the counsel prayed for dismissal of the complaint.

10. On the other hand, respondent no.1/complainant, who appeared in person contended that the District Forum has rightly First Appeal No.544 of 2019 7 passed the order on merits. He further stated that he is ready to deposit the mobile in question with OP no.1.

Consideration of Contentions

11. I have given thoughtful consideration to the contentions raised by the learned counsel for the appellant and respondent no.1/complainant in person.

12. First of all I would like to deal with the objection raised by the appellant that as per condition 22 of the conditions of use of the website the Courts at Delhi have the exclusive jurisdiction to entertain the complaint. In this regard, it is relevant to mention that the grievance of the complainant is that old mobile was sold to him by OPs and delivered it on his address i.e. Vishwajeet Tapia, Tappian Street, Bhikhi Mor, Near Patiala Gate, Nabha, Punjab- 147201 (India). The complainant booked the mobile by the using the site of OP no.1 at Patiala and OPs delivered the same at the given address. So, I am of the view that District Forum Patiala has the territorial jurisdiction to entertain the complaint, as per Consumer Protection Act, 1986 and the District Forum has rightly decided the complaint having territorial jurisdiction.

13. The next objection of the appellant is that the District Forum has overlooked the fact that the appellant is an intermediary, as defined under Section 2(1)(w) of the IT Act. It is neither a manufacturer nor a seller of the product in question. No doubt, the role of appellant/opposite party no.1 is that of intermediary in the present case, but it cannot be said that it has no role to play in the First Appeal No.544 of 2019 8 harassment and loss caused to the complainant due to supply of old mobile hand set, vide Ex.C-1. Online market place Company earns revenue each time a consumer clicks and visits on its website. Moreover, the same is being done as per the terms and conditions between the online portal company and the sellers for a consideration. It is the duty of the intermediary that it should verify the bona fides of the seller, who sells the articles and products. Intermediaries are entities and provide service enabling delivery of online contents to the end user. "Intermediary" has been defined in Section 2(w) of the Information Technology Act, 2000 and thereafter the guidelines have been issued in the form of the Information Technology (Intermediary Guidelines) Rules, 2011. For providing protection to the intermediaries, general conditions have been framed as Safe Harbour Protection subject to restrictions mentioned in Sub-Sections (2) and (3) of Section 79 of the Information and Technology Act, 2000.

14. Section 79 of the Information and Technology Act, 2000, is a safe harbour provision subject to restrictions imposed in sub- sections (2) and (3) thereof. If an online intermediary has specific knowledge or has reasonable belief based on information supplied by the right holder about the contents and the intermediary fails to act despite such knowledge, online intermediary can be held liable for infringement. To prove actual knowledge obviously is very difficult. E-commerce portal is required to identify and report infringement. Suppose the HP informs an intermediary that it does First Appeal No.544 of 2019 9 not manufacture and sell mobile covers, thus, all products on its portal are counterfeit and must be removed. On that basis e- commerce portal/intermediary can insist that it must provide specified URL to act upon the request. Internet Protocol (in short, "I.P.") owner will need to put resources to constantly monitor online space and to report to the intermediary seeking its removal. Amazon has become a place where we can get everything quickly and have it delivered in 2 days. The products are coming from third-party sellers i.e. products sold on Amazon marketplace merchants. Amazon marketplace serves as a sort of newspaper classified advertisements section, connecting potential consumers with the sellers in an efficient, modern and in a streamlined manner. Amazon places products on its shelves to the stream of commerce. Now a days, the brands are warning consumers against purchasing products online.

15. Admittedly, users carry out activities on market place platform of the portal. Thus, they play an active role in facilitating the infringement conduct. Apparently, online marketplace operator portals appear to be responsible for infringements carried out by the users on their platform. It is a very crucial and debatable issue. The liability and exemption of the e-commerce portal acting as hosting service provider, in relation to posting of information provided by the recipients of its services, needs to be examined in the light of statutory provisions and the facts of present appeal arising from the First Appeal No.544 of 2019 10 consumer complaint. The following point arises for consideration:-

Whether online marketplace operator/portal can be held liable for the infringement that occurred on its platform, if so, then to what extent?

16. In the present case, the complainant placed the order through Amazon for purchase of said motorola mobile set from opposite party No.2. The receipts came from Amazon-opposite party No.1, vide Ex.C-1 and C-5. So, Amazon is a co-seller. Laws need to catch up with reality. It is worth noting that the product is a part of 'fulfilled by Amazon' program which means that the product is being stored with Amazon and delivered by it. Amazon should ensure that product being sold on its marketplace by the seller is genuine. It cannot be presumed that all products sold through it by the sellers are genuine. The portal has to certify that the products shipped are inspected before sending to the buyers. The sellers sell products on Amazon in two ways:-

i) The sellers-who list, pack, ship and deliver directly to consumers;

and

ii) The sellers-who opt to list on Amazon using "Fulfilled by Amazon" (in short "FBA") service.

In the present case, seller opted to list on Amazon and used 'fulfilled by Amazon' (FBA) service. In such cases, Amazon does not break open the seal of the products but it has mechanism in FCs to ensure that the products are genuine and they take photographs of the product before dispatch. Amazon must have taken photographs with weight. The packing must have been video-recorded, but no such evidence had been placed on record.

First Appeal No.544 of 2019 11

17. Opposite party no.2 chose not to appear before the District Forum despite service and was proceeded against ex parte, therefore, the averments made in the complaint deemed to have been admitted by it. The Amazon-opposite party no.1 has not placed on record the terms and conditions or any Agreement, which must have been executed between it and opposite party no.2 for allowing its marketplace/portal to opposite party No.2-seller for selling the products and in the absence of the same, an adverse inference is to be drawn against opposite party no.1 and the benefit of safe harbour protection subject to restrictions as provided under Sub-Sections (2) and (3) of Section 79 of the Information and Technology Act, 2000 cannot be given to appellant/opposite party No.1. As such the plea of the appellant that the complaint is bad for non-joinder of necessary parties i.e. 'Gizmo Bazaar' is not tenable.

18. The definition of "delivery" has been given in Sub-Section (2) of Section 2 of the Sale of Goods Act, 1930, which means voluntary transfer of possession from one person to another. The liability of marketplace e-commerce Company arises from the concept of secondary/contributory infringement. In case in hand Amazon facilitated infringement by OP no 2-Seller and provided a space for sale of infringing product. Amazon had actual or constructive knowledge of such infringement and has reason to believe that an infringement had occurred at its place as the product was packed in its box and delivered by it to the complainant. As such, it is also personally and jointly liable. Amazon is not a neutral First Appeal No.544 of 2019 12 or passive, instead it optimizes, promotes and offers for sale and its duties are in the nature of pro-activeness.

19. Perusal of evidence on record clearly establishes that OP no.1 is not a mere broker or intermediary as considered in the commercial world. I have no doubt, whatsoever, that it was acting as a representative or agent of OP no.2 during the negotiation. All transactions routed through OP no.1 and contract also concluded between the complainant and OP no.2 through it. The delivery of product to the complainant was also through it. In view of this, OP no.1 is personally answerable for the supply and delivery of goods and would also be liable for the consequences arising out of the breach of contract.

20. As far as the contentions raised by the learned counsel for the appellant during the course of final arguments that no evidence has been placed by the complainant regarding the issuance of job card, receipt of e-mail regarding the feed back etc. are concerned, it is relevant to mention here that these contentions are not part of the pleadings before the District Forum as well as in the appeal filed before this Commission. Therefore, in the absence of specific pleadings the above contentions are rejected.

21. In identical circumstance, State Consumer Disputes Redressal Commission, U.T., Chandigarh in First Appeal No.27 of 2017 (Amazon Sellers Service Private Limited v. Gopal Krishan and others) decided on 17.2.2017 while holding Amazon Sellers Service Private Limited liable has held as under:- First Appeal No.544 of 2019 13

"8. Contention of Counsel for the appellant that as per terms and conditions of sale, no liability can be fastened upon the appellant, is liable to be rejected. An agent, who sells a product, is duty bound to ensure its quality, and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, alongwith the manufacturer of the product."

It was so held by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as "Emerging India Real Assets Pvt. Ltd. & Anr. Vs Kamer Chand & Anr. Revision Petition No.765 of 2016 decided on 30.3.2016" that it was bounden duty of the facilitator to ensure that goods sold through any individual are manufactured as per quality standard. If the goods purchased through online are found not up to the mark, online portal through which goods were purchased, cannot escape its liability.

22. In the light of above discussion, I hold that the appellant/ OP no.1 was agent and co-seller of OP no.2 and is not merely an intermediary. So, OP no.1 is also held personally and jointly liable for the deficiency in service and harassment caused to the complainant.

23. In view of my above discussion, I do not find any merit in this appeal and the same is hereby dismissed by affirming the order of the District Forum, Patiala dated 19.07.2019 with some modification to the effect that appellant/OP no.1 is at liberty to send his representative to the house of complainant to collect the said First Appeal No.544 of 2019 14 mobile set. The complainant will hand over the said mobile set to the representative of OP no.1 against proper receipt.

24. The appellant/ OP no.1 had deposited a sum of Rs.7375/- at the time of filing of the appeal. It deposited another sum of Rs.7375/-, vide receipt dated 26.09.2019 in compliance with order of this Commission. Both these sums, along with interest which has accrued thereon, if any, be remitted by the registry to the District Forum forthwith. The complainant may approach the District Forum for the release of the above amounts and the District Forum may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.

(KIRAN SIBAL) PRESIDING MEMBER December 03, 2019.

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Hdfc Standard Life Insurance vs Avtar Kaur Sandhu on 5 December, 2019