Delivery of used and torn products instead of new ones constitutes a deficiency in service and unfair trade practice under the Consumer Protection Act, 2019, justifying the award and potential enhancement of compensation for mental harassment.

ORDER

PER MS.SHAILA WANDHARE, HON’BLE MEMBER

1. This appeal is preferred by the appellant/original complainant, Moohsin Ahmad Muqeem Ahmad Khan, being aggrieved by the order passed on 21/10/2022 in Consumer Complaint No.CC/659/2021 (for short as “impugned order”) by the learned District Consumer Disputes Redressal Commission, Nagpur (for short as “learned District Commission”), vide Section 41 of the Consumer Protection Act 2019.

2. The parties of the appeal are hereinafter referred to by their original nomenclature as complainant and opposite parties respectively for better appreciation.

3. The facts that emerge from the present case are that the complainant purchased a pair of shoes, namely “Compus Ree-Flect (N) Black Running Shoes” of size 09, worth 1,888/- on 03/10/2021 through the online platform of the Opposite Parties (O.Ps.). On delivery dated 15/10/2021, the shoes supplied were found to be used and torn instead of new which was duly recorded by the complainant by way of a video. Despite repeated complaints made to the customer care of the O.Ps. and to the National Consumer Service Centre, no redressal was provided. Such conduct of the O.Ps. amounts to deficiency in service and unfair trade practice. Hence, the complainant seeks refund of 1,888/- with interest and compensation of 4,55,411/- towards mental and physical harassment and litigation expenses.

4. The Opposite Party (O.P.) failed to appear before the learned District Commission instead duly served upon the notice of complaint. Therefore, the learned District Commission had proceeded the complaint exparte against O.P. and thereby, denied the O.P. an opportunity to defend the case.

5. After considering the evidence of the complainants and their documents filed in support thereof, the learned District Commission with its impugned order dated 21/10/2022 in Consumer Complaint No.CC/659/2021 ordered to be partly allowed the consumer complaint and ordered the O.P. to pay a sum of 3,000/- towards compensation and cost of 2,000/-. Being aggrieved by the impugned order, the O.Ps. preferred this appeal on the grounds that the learned District Commission wrongly proceeded with the complaint and arrived at an incorrect decision. The impugned order passed by the learned District Commission is erroneous and not in proportion to the alleged loss particularly insofar as it grants compensation of 3,000/- for mental and physical harassment and 2,000/- towards costs without proper appreciation of facts and law. Thus, the appellant prayed for modification of the impugned order to the extent of compensation and costs with a further prayer to grant appropriate relief in terms of the prayer clause.

6. We have heard the oral arguments advanced by the appellant/original complainant in person. No argument for the respondents/original O.Ps. We have also taken into account the written submissions filed on record by the appellant. We have further carefully perused the entire record and proceedings in the present appeal.

7. On the contention of the parties, the following points arise for our determination and we have recorded our findings against each of them as follows;

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REASONS

AS TO POINT NOS.1 TO 3:

8. On careful consideration of the material on record, it is seen that the complainant come with the specific case that he booked the shoes named as “Compus Ree-Flect (N) Black Running Shoes” of O.P.No.2 through the online platform of the O.P.No.1 and paid a sum of 1,888/- against the complainant received after paying the purchase price but found to be used and torn shoes instead of new ones. The notice of this complaint was duly served upon with the O.Ps. However, they failed to appear before the learned District Commission which were resulted to proceed the complaint ex parte against them. As such, the pleadings and material produced by the complainant remained unchallenged and unquestioned by the O.Ps. In the absence of any rebuttal, the factual version placed by the complainant