Adv. For the Complainant: - Sri S.B.Sahoo and others
Adv. For O.Ps :- Sri S.K.Mohanty
Date of filing of the Case :- 22.03.2022
Date of Order :- 24.02.2023
JUDGMENT
Fact of the case in nutshell-
(1) The complainant had placed the order to the NAAPTOL No- 11 Conopus Kabra Galaxy Star 1CHS, Brahmand, Azad Nagar, Thane West -400607, Maharashtra Email (1) th October 2021.
On 29th October ‘2021 . OP No1 Naaptol delivered the product parcel packet through his agent with a payment of Rs.1000/- towards its cost and found the same was damaged , So the complainant lodged a complaint to Naaptol to send him another in good condition and returned the damaged
-2-
packet. On 24th November’2021 Naaptol delivered a packet to the complainant where there is only the energizing scalp serum. So again the complainant made complain regarding the non- availability of Black Magic Shampoo After receiving the complainant Naaptol on 8th December’ 2021 naaptol sent another parcel packet where the complainant found there is no Black Magic Shampoo but the energizing scalp serum only. Again the complainant made complain on dt.22.12.2021 where after receiving the parcel packet the complainant found Natural Brown Colour sampoo instead of Black Magic Hair energizing sampoo against the description order of the complainant. The complainant tried his level best to requested the OP.No.1 as well as OP No.2 for sending of the same but neither OP No. 1 nor OP No.2 delivered the product or responding the correspondence and massage sent by the complainant through whatsapp and keep silent till date. Hence this case.
(2) To substantiate his case the complainant relies on the following documents.
(1) The delivery parcel Photo copy (Xerox)
(2) Delivery and cancellation of order 29 nos from time to time (Xerox copy)
(3) Reverse pickup sheet customer copy (Xerox)
(4) Correspondence and massage on whatsapp 44 nos. from time to time (Xerox copy)
(3) Having gone through the complainant it’s accompanied documents and on hearing the complainant prima facie it seemed to be a genuine case hence admitted and notice to the Ops were served and in response they appeared through their counsel and filed their version.
(4) The rival contention the OPs denied the allegation that naaptol is an intermediary to promote the digital sale so exempted from any liability . Naaptol company is a facilitator thus any contract between buyer and seller for sell is bipartite contract between buyer and seller. The company only provides an online platform where different registers sellers sell their product and visitors purchase these product at their own wish The product return policy is strictly in terms of the agreement agreed online. OP No. 1 is not under any obligation to return the product as the claim is not made within the time i.e.(48 hours) as such the complaint is liable to be dismissed.
(5) After going through the allegation in the complainant written version filed by the OPs. evidence and documents brought and found on the record. Heard the complainant and perused the materials on record with submission and vehement denials of the learned advocate for the OPs with arguments.
(6) In the aforesaid fact and circumstances after scrutinized the evidence on record this commission observe and found that the complainant use the E-entity platform for purchase of his choice able good which advertised by the OP No.1 the service provider.
In this case the first delivery was returned due to the damaged product. The second time the complainant received only the energizing scalp serum without the Black Magic hair sampoo.
-3-
The third time also the service provide repeat the same by sending the energing scalp serum only lacking the Black Magic hair sampoo . On the fourth delivery OP No.1 send a parcel packet contain the Brown Colour Sampoo instead of Black Magic hair colour sampoo and became silent as if he finished his service according to the satisfaction of the complainant but not. As such first we have to go through the E-commerce entity Rule’ 2020 .
Rule 3 sub rule (b) of E- commerce entity defines E- commerentity as follows. ‘’ a person who owns operates or manages digital or electronic facility or platform for electronic commerce but does not include a seller affording his goods or service for sale on a market place E-commerce entity. Sub rule (k) defines seller means the product seller as defined in clause (37) of Sec 2 of the Act 2019 and shall include any service provider. Rule 4 sub Rule (10) states the duties where every E- commerce entity shall effect all payments towards accepted refund on request of the consumer . as prescribed by R.B.I of India or any other competent authority under any law for the time being in force within a reasonable period of time or as prescribed under applicable law. Rule 4 sub rule (3) states no e-commerce entity shall adopt any unfair trade practice whether in the course of business on its platform or otherwise.
Rule 5 sub rule (2) of e- commerce says every market place e- commerce entity shall require sellers through an under taking to ensure that description, images , and other context pertaining to goods or services on their platform is accurate and correspond directly with appearance. nature ,quality , purpose and other general features of such goods or services.
Rule 7 sub rule (3) states every inventory e- commerce shall ensure that the advertisement for marketing of goods or service are consistent with the actual characteristic accuracy and usage condition of such goods and services.
Rule 7 sub rule (4) speaks no inventory e-commerce entity shall refuse to take back goods or withdraw or discontinue service purchase or agreed to be purchased or refuse to refund consideration if paid if such goods or service are defective , deficient spurious or if the goods or services are not of the characteristics of features as advertised or as agreed to. Rule 7 – sub rule (5) states any inventory e-commerce entity which explicitly or impliedly vouches for the authenticity of the goods or services sold by it or guarantees that such goods or services are authentic. Shall bear appropriate liability in any action related to the authenticity of such goods or services.
(7) In the instant case the complainant by seeing the advertisement on OP No.1’splatform for the product in dispute attract towards the product and purchase the same and due to damage product return the same and hope for the best to his satisfaction but after harassment the complainant received a packet containing natural Brown colour instead of Black Magic hair sampoo which violate the norms and condition of the contract as well as the character prescribed in the advertisement more over OP No.1 did not take any action of returning of the cost of the product paid by the complainant which violate the norms of Rule 7 sub rule (4) as well as Sec 35 of the C.P Act 2019.
-4-
As such OP No.1 failed to perform his part regarding the feature of the goods ordered nor responded to the correspondence of massage on whats app more over as because the consumer paid the product cost to the agent of OP No.1 and not to the seller and no step taken by OP No.1 and remain silent which amounts to deficiency of service on the part of OP No.1 . As such we give our thoughtful consideration in favour of the complainant who deserves the remedy. Hence order.
ORDER
The OP No.1 (Naaptol) is directed to pay a sum of Rs.1000/- the product cost @10% interest P.A. from the first date of delivery i.e 29th October ‘2021 and Rs.20,000/- towards mental agony and Rs.3000/- towards litigation expencesses. Within one month from the date of order failing which the OP No.1 liable to pay the entire amount @ 12 % interest P.A from the date of filing of the case till realization.
No award as to cost.
PRONOUNCED IN THE OPEN COMMISSION TODAY I.E DATED 24th DAY OF FEBRUARY’2023
Sd/- Sd/-
(J.MISHRA) (R.K.TRIPATHY)
MEMBER. PRESIDENT(I/C)
