State Consumer Disputes Redressal Commission
Today Retail Network Pvt. Ltd. vs Balwinder Pal Singh on 10 June, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL No.595 of 2014
Date of Institution: 26.05.2014
Date of Decision : 10.06.2015
Today Retail Network Pvt. Ltd., Khasra No.371, Sant Ram Road,
Fatehpuri Beri, Opp. Harswroop Colony, Bus Stop, Delhi- 110074
Correct Address : Bagit Today, F-26, First Floor, Connaught Place, New
Delhi, through its Directors/Partners.
.....Appellant/Opposite Party
VERSUS
Balwinder Pal Singh son of S. Satnam Singh, resident of # 183-R, Janta
Enclave Adj. Dugri Phase-2, Ludhiana -141013
.....Respondent/Complainant
First Appeal against the order dated
27.12.2013 passed by the District
Consumer Disputes Redressal Forum,
Ludhiana.
Quorum:
Hon'ble Mr.Justice Gurdev Singh, President
Sh. Baldev Singh Sekhon, Member
Present:
For the appellant : Ms. Ruchi Sekhri, Advocate
For the respondent : Sh. Balwinder Singh, In person
BALDEV SINGH SEKHON, MEMBER
This appeal has been filed by the appellant-opposite party against the order dated 27.12.2013 passed by the District Consumer Disputes Redressal Forum, Ludhiana (in short "District Forum"), vide which the complaint filed by the respondent/complainant was allowed and opposite party (in short 'OP') was directed to make refund of Rs.36,797/- to the complainant after receiving the diamonds, in 2 F.A. No. 595 of 2014 question, from him within 30 days from the date of receipt of copy of the order. OP was further directed to pay him compensation to the tune of Rs.3000/- on account of mental tension, agony and harassment suffered by him alongwith litigation cost to the tune of Rs.2000/-.
2. Briefly stated, the facts of the case are that the complainant, Balwinder Pal Singh, bought a holiday package from OP on 31.8.2013, vide order No.33211709 on payment of Rs.3999/-, through his credit card. It was pleaded that on 13.9.2013, he received a phone call from Ms. Ria of OP Company from Phone No.66668989 asking him about some promotional scheme launched by OP company during the festive season, which included a 'combo pack of diamonds' with some other freebies to be supplied 'free of cost'. This scheme was for the selected few who booked holiday packages. She also informed him that he would have to fulfil some obligations regarding payment, and the payment made by him would be returned to him later on. He reluctantly agreed to the said scheme. On 17.9.2013, he received another call from one Samir Malhotra, from the banking department of the OP. He claimed himself to be to be an RBI authorized person with RBI code No.455-BDM-RBI/12, and explained him the procedure for reversal of the payment made against his order No.33247915 and asked him that he (the said agent) would have to use his credit card details to place another 'dummy order' for the same amount, and, thereafter, full amount of Rs.32,798/- would be transferred back in the account of complainant with in 72 hours. On the assurance given by said Samir Malhotra, complainant agreed and placed another order No.33257825 using his credit card details in their office using OTP. Thereafter, the said agent left the office of OP. Then, he received a 3 F.A. No. 595 of 2014 phone call from one Rajiv Chaudhry, who confirmed that the complainant was selected for the said promotional scheme, under which, all products were to be given 'free of cost'. He received the products against order No.33257825 containing three diamonds having MRP Rs.30,000/-, along with some freebies. But, he was shocked to know that these diamonds were of 0.3 carats whereas at the time of placing the order, representative of the company stated that the weight of the diamonds would be of 30 carats ( 3 diamonds 10 carats each). When he got evaluated these diamonds from the market, he found the same worth Rs. 3000/- only against the MRP of Rs.30,000/-. Sensing the activities of OP to be fraudulent, he got his order No. 33211709 and 33247915 cancelled and asked OP to transfer the amount of both the transactions in his credit card account. He also expressed his willingness to handover all the products received by him. However, the OP refused to do so and rather stated that they were giving him 'shopping credits' so that he could do shopping in future. The complainant refused the said proposal and insisted that cash be transferred in his account. A legal notice was also sent twice to OP but no reply was received. Alleging deficiency in service and unfair trade practice on the part of OP, he filed complaint before District Forum seeking refund of Rs.36,797/- alongwith interest @ 36%. A compensation to the tune of Rs.2 lacs on account of harassment, besides Rs.10,000/- as litigation costs, was also prayed.
3. Notice of the complaint was sent to OP by the District Forum through registered post on 05.11.2013, but the same was not received back and, as such, it was proceeded ex-parte after expiry of period of 30 days, vide order dated 17.12.2013.
4F.A. No. 595 of 2014
4. The complainant led his evidence in ex-parte proceedings and learned District Forum, after going through the same, allowed the complaint in aforesaid terms holding that since OP did not appear and contest the complaint, so the evidence adduced by complainant went un-challenged and un-rebutted.
5. Aggrieved by this order, OP has come up in appeal on the ground that it is a company incorporated under the Companies Act, 1956 having its registered office at 1st Floor, F-26, Connaught Place, New Delhi-110001 and that it does not operate from the address provided by the complainant in the complaint. Infact, the address provided in the complaint is that of their warehouse. Since, its correct address was not furnished, the summons issued by the District Forum could not reach its concerned department. As such, they were not aware of the ex-parte proceedings. It was only after it received notice in the execution proceedings that they came to know about the impugned order dated 27.12.2013.
6. On merits, it was submitted that their 'telesales agents' offered a Gemcraft Jewellery Institute (GJI) and Gemological Laboratory certified diamonds of 30 cents (0.30 carats) having MRP of Rs.30,000/- (printed on the product) to the complainant for just Rs.16,399/- in both the orders under a promotional scheme. The telesales agents categorically informed him that the diamonds were of 30 Cents and not of 30 Carats. It was further submitted that the complainant placed two orders for diamonds, vide order Nos.33247915 and 33257825. The said orders were made by the complainant of his free will. Upon placing the order, he was given all the details of his order as per the specifications 5 F.A. No. 595 of 2014 mentioned on the product. It was further submitted that the complainant was never offered said diamonds alongwith freebies 'free of cost' as claimed by him. The procedure adopted by 'Bag It Today' for tele-sales is as follows :
(i) Bag it today/Appellant operates a website "bagittoday.com"
on which it offers various products for sale.
(ii) Customer chooses a product and pays for it online.
(iii) If a customer is unable to complete the transaction online via the website, a customer care operative/agent telephonically contacts the customer to assist in the completion of the transaction. The customer care operative calls only if the customer has submitted his telephone number on the website.
(iv) After confirming with the customer whether he wishes to purchase the product or not, the customer care operative also asks the customer if he wishes to learn about other products being promoted by 'bag it today' and the special offers available in the said product.
(v) If the customer is willing to proceed, then he is explained about the products and the offers available.
(vi) If the customer wishes to purchase the product the amount for the product is received in the same call towards the sale and the customer is informed that he will receiving an email and/or sms confirming his purchase.
(vii) When the product is ready for dispatch, the customer is once again contacted to confirm his order. In this verification call, all the required information/terms and conditions regarding the 6 F.A. No. 595 of 2014 orders e.g. order details in terms of order value and related items, customer's mailing address and delivery window etc. are explained to the customer.
(viii) If the customer does not wish to make the purchase, the order placed is cancelled and the amount is subsequently refunded to the customer within a reasonable period.
It was further submitted that verification call was made to the complainant as per the procedure and proceeded with the purchase. Upon confirmation from him, OP despatched the diamonds at the address given by him. The products were duly received by him against order No.33257825 but since the correct address of the complainant was not mentioned by him, products were received back against order No.33247915. He, vide his e-mail dated 8.12.2013, addressed his grievance with it and OP vide its mail dated 15.10.2013, informed him that in relation to the order No.33257825, the product had already been delivered to him and same could not be cancelled at that stage. As regards the order No.33247915, the product was despatched by OP on time but the same was received back un-delivered and hence a 'shopping credit' was given in his 'Bag it today account'. Accordingly, he was requested to provide his login ID to process his order of refund in terms of the 'score credit'. However, he refused the same. Under the arrangement, complainant could place any order on 'Bag it today' website against the store credit without making any payment. Despite offering best services, District Forum allowed the complainant. Acceptance of the appeal and setting aside of the ex-parte order dated 27.12.2013 was prayed.
7F.A. No. 595 of 2014
7. The complainant, who was present in person, submitted that there was no merit in the appeal and the same be dismissed.
8. We have thoroughly gone through the pleadings of the parties and have carefully perused the evidence on record.
9. Admittedly, the complainant placed three orders upon the OP- company through teleshopping, by using his credit card at its site 'bagittoday.com'. Though, he has not clearly specified the details of the various orders placed by him, but it can be gathered from the documents placed on record by him and the OP that he firstly bought a 'holiday package' from OP on 31.8.2013 vide order No.33211709 on payment of Rs.3999/-. The copy of the same has neither been placed on record by the complainant nor by the OP. Apparently, this order was placed by him of his free will. He has also not pleaded any deficiency in service in respect of this order. But, the learned District Forum, while deciding the complaint, also allowed the refund of Rs. 3999/-, which is against the facts of the case and the same is, therefore, set aside.
10. The second order No.33247915 dated 13.9.2013 was placed by him by making payment of Rs.16,999/- through his credit card, allegedly on receipt of a phone call from Ms. Riya of OP in which she informed him about the promotional scheme launched by the OP-Company during the festive season, under which 'combo pack of diamonds' alongwith some other 'freebies' were to be supplied. The complainant has contended as per the assurance given by Ms. Riya, these were to be given 'free of cost' under the scheme and the amount paid against same was to be refunded later on. Similarly, the third order No.33257825 was placed by him on 17.9.2013 for the same 'combo pack of diamonds'. He made payment of Rs.16,999/- with his credit 8 F.A. No. 595 of 2014 card details using OTP. This transaction was allegedly made at the behest of Mr. Malhotra, who reportedly promised him that the amount of this order, as well as of the previous order No.33247915, would be transferred back into his account within 72 hours.
11. The OP has clearly denied having given any such assurance by their telesales agents. It has rather contended in its grounds of appeal that the orders were made by the complainant of his free will. Its tele agents offered him Gemcraft Jewellery Institute (GJI) and Gemological Laboratory Certified diamonds of 30 cents (0.3 carats) having MRP of Rs.30,000/- alongwith other free-bees for Rs.16,399/-. Upon confirmation of the orders, the complainant was given all the details of his orders before despatch as per the specifications mentioned on the product. The complainant has not placed on record any document to show if any promise was given by either Ms. Riya or Mr. Malhotra in respect of the orders No.33247915 and 33257825. Otherwise also, it can not be believed that any company would give such an offer, as diamonds weighing 30 carats would be worth lacs.
12. Admittedly, that the products against order No.33257825 were duly delivered to the complainant. He has contended that three diamonds received by him through this order were of 0.3 carats, whereas, at the time of placing the order, representative of the company stated that the weight of the diamonds would be 30 carats (3 diamonds of 10 carats each). It is further contended by him that when he got evaluated these diamonds in the market, he found the same to be worth Rs.3000/- only against the MRP of Rs.30,000/-. The complainant himself has proved on record copy of the retail invoice, issued against order No.33257825 dated 17.9.2013; scrutiny of which, reveals that 9 F.A. No. 595 of 2014 ZIA, SD P 30 C (telesales) having MRP of Rs.30,000/-, alongwith four other products were sold to him for Rs.16,399/- only. The total MRP of all the items of the combo-pack sent to him was Rs.45,887/-. The OP has placed on record copy of the certificate issued by GJI as annexure A-3, in which, it is clearly mentioned that the weight of the three diamonds was 0.30 carats and not the 30 carats as alleged by the complainant. Even the specification of diamonds has been mentioned in the invoice as 'ZIA SD P 30 C' indicating that the weight of diamonds was 30 C i.e. 30 Cents and not of 30 carats. Contention of the complainant that the weight of diamonds was 30 Carats is not supported by cogent and reliable evidence. Oral evidence is not sufficient to substantiate such facts.
13. Learned District Forum has believed the version of the complainant without referring to any documents showing that products were to be supplied free of cost by OP. Similarly no document confirms that tele agents of OP promised to supply to complainant diamonds weighing 30 Carats. It has wrongly been held that since OP did not appear to contest the complaint, the evidence adduced by complainant goes un-challenged and un-rebutted. As per Section 13 (2) b (II) of Consumer Protection Act, in ex-parte proceedings, the dispute is to be settled on the basis of evidence produced by complainant. The case of complainant cannot be considered as automatically proved just because OP is not present to rebut the same.
14. The complainant has contended that as he sensed fraud played by OP, so he cancelled both these orders, including the order No.33257825 against which products were received by him. He expressed his willingness to return the said products. He took up the 10 F.A. No. 595 of 2014 matter with the OP through his various e-mails for the refund of amount paid by him. OP, vide its e-mail dated 15.10.2013 addressed to the complainant (Ex.C-12), explained the position against these two orders as under :
"Order No. 33247915 We would like to inform you that your order has return us back to us undelivered. In order to avoid any further delay, we have arranged store credit in your Bagit Today account through store credit you can place any order from our Bagit Today website instead of money hence we request you to kindly provide your login id at the Bagit today website to process your order for refund in terms of store credit, once we receive the confirmation from your end then we shall able to arrange the refund in store credit. We also request you to kindly do not share your password to any human interface as this is strictly confidential. Validity of store credit- 6 months from the date of issue.
Order No. 33257825 We would like to inform you that your order has already been delivered at your doorstep. Further, we would like to inform you that as per our process, we do arrange a verification call to the customers giving them all the required information/ T&C's regarding their orders, e.g. order details in terms of order value and related items, customer's mailing address and delivery window etc. In case, a customer is not satisfied with any of the conditions, he is free is get the cancellation of the order during the verification call itself. "11
F.A. No. 595 of 2014
It is evident that from above referred documents, that the products against both the orders were to be supplied at concessional rates under the promotional scheme and not completely free. Since the products against the order No. 33257825 were duly received by the complainant and he has failed to prove that these were to be supplied free by OP, this order stood fully complied with. It is not in dispute that OP has received back products against the order No.33247915 and now the complainant is no more interested in the same. But, instead of refunding the amount, OP has asked the complainant to place another order on "bag it today.com" worth Rs.16,399/-without any further payment. No such condition has been placed on record by OP under which amount of products received back by it undelivered, is not to be refunded. It cannot retain both the amount as well as the products.
13. In view of the above findings, the appeal is partly allowed and the order of the District Forum is modified. Instead of Rs.36,797/-, the OP is directed to refund Rs.16,399/- to the complainant, without receiving the diamonds, in question, from him.
14. A sum of Rs. 21,000/- was deposited by the appellant at the time of filing of the appeal before this Commission. Another amount of Rs.21,000/- was deposited by it vide receipt No.136835 dated 03.07.2014 as per directions of this Commission. Out of these amounts, Rs.16399/- alongwith compensation and litigation charges of Rs.5000/- as awarded by the District Forum be remitted to the complainant by way of a crossed cheque/demand draft and the remaining amount, alongwith interest which has accrued on the total amount of Rs.42,000/- shall be 12 F.A. No. 595 of 2014 remitted by the registry to the appellant/opposite party by way of a crossed cheque/demand draft after the expiry of 45 days.
15. The arguments in the case were heard on 28.05.2015 and the order was reserved. Now, the order be communicated to the parties.
16. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER June 10, 2015 KK 13 F.A. No. 595 of 2014