State Consumer Disputes Redressal Commission
Arvind Moudgil vs Living Media India Ltd. on 1 April, 2010
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U
STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
UNION TERRITORY,
CHANDIGARH.
Appeal case No.583/2009
Date
of institution: 7.10.2009
Date of decision :1.4.2010
Arvind Moudgil, S/o Late Maj. S.P. Moudgil,
advocate, Punjab & Haryana High court, 1102, Sector-36-C, Chandigarh.
Appellant
Versus
Living Media India Ltd.
India Today Book Club, B-47, Indira Enclave, Neb Sarai, New Delhi through its
Managing Director.
...Respondent
Appeal U/s 15 of Consumer Protection Act,1986 against
order dated 11.9.2009 passed by Consumer Disputes
Redressal Forum-
I, U.T. Chandigarh.
Argued by: Sh.Sanjiv
Dhaiya,advocate for the appellant.
None for
respondent.
BEFORE : Honble
Mr.Justice Pritam Pal, President
Maj.Gen.S.P.Kapoor (Retd.),Member
Mrs. Neena Sandhu,Member
JUDGMENT
1.4.2010 Justice Pritam Pal, President
1. This appeal by complainant is directed against the order dated 11.9.2009 passed by District Consumer Forum-I, U.T.Chandigarh whereby his complaint bearing No.553/2009 was dismissed being merit less.
2. The parties hereinafter shall be referred to as per their ranking before the District Consumer Forum.
3. In nutshell, the facts culminating to the commencement of this appeal may be recapitulated thus ;
The complainant who is a practicing advocate since,1993, after reading an advertisement in the newspaper gave order on telephone from Chandigarh for 19 musical CDs which had an offer of free Reebok Tracksuit and gift voucher for Rs.5000/- for a holiday and discount on diamond purchase. The said order was confirmed by OP vide e-mail dated 5.2.2009 and a sum of Rs.2499/- was debited from his credit card. On 28.2.2009 he was informed of a VPP parcel for the aforementioned items and was directed to pay an approximate sum of Rs.2,600/- in cash which amounted to realizing the payment twice. On 28.2.2009 itself he complained to the OP regarding above said unfair trade practice. The OP through mail dated 1.3.2009 sought copy of the HSBC credit card statement which was forwarded on the same day and the OP vide mail dated 2.3.2009 informed that his complaint has been forwarded to the concerned department.
Thereafter, the complainant sent reminders dated 5.3.2009, 8.3.2009 and legal notice dated 13.3.2009 but neither the ordered items alongwith gifts were delivered, nor any reply was received. Hence, alleging deficiency in service on the part of OP, the complainant filed complaint before the District Consumer Forum.
4. Before we proceed further it is pertinent to mention here that the respondent/OP did not appear before the District Forum despite due service, so it was proceeded against ex parte .
5. The District Consumer Forum after going through the Ex parte evidence and hearing the complainant came to the conclusion that the complaint was merit less and accordingly dismissed the same. This is how feeling aggrieved, complainant has come in this appeal.
6. We have heard learned counsel for the appellant/complainant and gone through the file carefully.
The noticeable point of contention raised on behalf of the complainant is that the District Forum has committed an error while not believing the ex parte evidence and then passing undesirable comments on his (complainants) conduct.
7. We have given our thoughtful consideration to the above submissions putforth on behalf of the appellant and find that the first part of the above limbs of his arguments against the observations and findings given by the District Forum qua the genuineness of the complaint are baseless, inasmuch-as foundation of the complaint in this case was based upon terms and conditions incorporated in the advertisement published in the newspaper. In fact it was the advertisement from which the complaint had emanated. But for the reasons best known to the complainant, the said advertisement published in the newspaper was never brought on file. Thus, District Forum has rightly drawn the adverse inference that had the same been placed on file that could have gone against him (complainant). No doubt, here in the instant case OP was proceeded against ex parte but at the same time the onus was upon the complainant to base his complaint on sound footing. Further, it is also apparent that in the e.mails annexures C-3,C-5, C-7 & C-8 the address of OP is mentioned as India Today Book Club and the annexure C-9 was also sent to India Today Book Club. But it is interesting to note that the complaint was not filed against India Today Book Club, rather it had been filed against Living Media India Ltd. In this view of the matter, it was incumbent upon the complainant to explain as to which of the two had issued the advertisement or who was liable to pay compensation for deficiency in service. Thus, the complaint, in our view filed before the District Forum was vague and in the absence of record of advertisement it makes no head and tail for passing an appropriate order. Therefore, no interference is called for in the impugned order passed by the District Forum.
8. However, before parting with this order, we feel that in the given facts and circumstances of the case and in the absence of any specific material against the complainant, it was not desirable to condemn his conduct by the District Forum, so, that observations qua conduct of the complainant, who has been having a standing of almost 16 years at the bar, are expunged. The appeal is disposed of accordingly.
Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.
Sd/-
Announced ( Justice Pritam Pal)(Retd.) 1st April,2010 President Sd/- (Maj.Gen.S.P.Kapoor )(Retd.) Member Sd/-
(Mrs.Neena Sandhu) Member *Js