State Consumer Disputes Redressal Commission
Niserg D Toliya vs Flipkart Internet Pvt Ltd on 21 July, 2022
Details DD MM YY
Date of Judgment 21 07 2022
Date of filling 16 03 2020
Duration 05 04 02
IN THE CONSUMER DISPUTES REDRESSAL
COMMISSION, GUJARAT STATE AT AHMEDABAD.
Court-2
APPEAL NO. 205 OF 2020
Nisarg Dharmeshbhai Tolia
202-Shyamalraj Apartment,
Government Employees' Society Main Road
Near Raiya Circle
Rajkot-360 005 ...Appellant
Vs.
1. Flipkart International Pvt. Ltd.
Vaishnavi Summit No. 6/B
7th Main, 80 Feet Road, 3rd Block
Bangalore-560 034(Karnataka)
2. Tech- Connect Retails Pvt. Ltd.
505-503, 5th Floor,
Prospect Chambers,
Dr. D.N. Road, Fort
Mumbai - 400 001 ...Respondents
Appearance: Party in person Mr. Dharmeshbhai
Tolia himself.
Coram: Shri M. J. Mehta, Judicial Member
Ms. P. R. Shah, Member Order by Shri M.J. Mehta, Judicial Member
1. Being aggrieved and dissatisfied with the judgment and order dated 14.02.2020 passed by the DCDRC, Rajkot(main) in Complaint Case No. 337 of 2019, the appellant has preferred instant appeal on the grounds that the impugned order is arbitrary, perverse and bad in law.
B.H.Gadhavi A-20-205 Page 1 of 52. The parties will be referred as per their original nomenclature for the sake of convenience.
3. Brief facts of the present case are as under: The complainant has purchased Lenovo Idea Pad Core I5 8th Gen (8 GB/1TB HDD/DOS/2GB graphics) 330-15IKB Laptop on 10.08.2018 through Flipkart by making payment of Rs. 37,990/ - through Credit Card from Rajkot. It is the case of the complainant that due to carelessness on part of Tech-Connect Retail Pvt. Ltd., the Laptop of HP company worth Rs. 24,990/- has been delivered to the complainant instead of Lenovo Ideapad Core I5 8th Gen (8 GB /1TB HDD/DOS/2 GB graphics) 330-15IKB Laptop ordered by the complainant. After receiving delivery of Laptop of HP Company the complainant informed the opponents through e - mail and on telephone about delivery of wrong Laptop to the complainant, but every time it was assured to the complainant that Laptop which was ordered by the complainant will be received by the complainant within 2-3 days. But till date complainant has not received the Laptop for, which he placed the order, which shows negligence on part of the opponents and the complainant was constrained to file present complaint praying to return the ordered laptop with necessary warranty and guarantee, Rs. 10,000/- for mental agony and Rs. 7500/- for the cost of the complaint.
B.H.Gadhavi A-20-205 Page 2 of 54. Other side appeared before the District Commission and submitted that wrong product was delivered to them was not established by any evidence neither through documentary nor oral. So there is no deficiency in service on the part of the Opponents or unfair trade practice.
5. Further District Commission considered the pursis filed by the power of attorney holder at Exh. 25, declaring that at present complainant is utilizing the questioned laptop. Therefore, District Commission was inclined to award only the difference of amount between the amount paid for Lenovo laptop and the cost of the received HP Laptop from the Opponent without interest.
6. Today heard Mr. Dharmeshbhai Toliya the power of attorney holder remained present and submitted before us that District Commission has not ordered to replace the Laptop in question and only ordered refund without interest, so order of the District Commission is not tenable in eye of law and submitted that replacement of the questioned Laptop by opponents would be proper.
7. Considering this aspect there are no remedies ordered in favor of complainant, that's why being aggrieved he submitted that complainant has ordered Lenovo Idea Pad Core I5 8th Gen (8 GB/1TB HDD/DOS/2GB graphics) 330-15IKB B.H.Gadhavi A-20-205 Page 3 of 5 Laptop of Rs. 37,990/ - and instead of that the Laptop of HP company worth Rs. 24,990/- is delivered so the wrong laptop was delivered to the complainant, and submitted that he should get the laptop which he actually ordered from the opponent.
8. It is very well accepted and thereby such order can be passed by the competent forum but here the District Commission has observed that the complainant has prayed for supply of laptop as order placed by him but as per the written pursis by complainant at Exh. 25 declaring that at present he is utilizing the Laptop of HP company delivered to him. Keeping that in view District Commission has ordered that only the difference amount Rs. 13,000/- is required to be refunded to the complainant. District Commission has not thought fit to replace the laptop as prayed.
9. Here today party in person Mr. Dharmeshbhai Toliya insisted to set aside the order of the District Commission and order to replace the laptop.
10. At this juncture we endorse our view with the District Commission and only the difference amount should be refunded to the complainant. because once electronic article is used then sanctity of changing the article under such circumstances cannot be sustained because the packing of the article should be intact as packed B.H.Gadhavi A-20-205 Page 4 of 5 from the delivering agency. Hence this suggests that the complaint waived his right by his own act utilizing the laptop delivered to him and therefore award of refund of the difference in amount in between both the laptops is just, fair and reasonable as order passed by the District Commission and not required to be interfered with.
11. At this juncture we are not inclined to interfere with the order passed by the District Commission.
FINAL ORDER
i) Appeal No. 205 of 2020 Dismissed at admission stage.
ii) The order and judgement passed by the DCDRC, Rajkot(main) in Consumer Complaint No. 337 of 2019 is confirmed.
iii) No order as to cost here in appeal.
iv) Registry is directed to send certified copy of this judgment to the parties, and send a copy this judgment to the DCDRC, Rajkot (main) through E-mail in PDF format for taking necessary action.
Pronounced in the open court on 21th July,2022.
(Ms. P. R. Shah) (M.J. Mehta)
Member Judicial Member
B.H.Gadhavi A-20-205 Page 5 of 5