Punjab

Amritsar

CC/16/28

Harpal Singh - Complainant(s)

Versus

CEO Paytm Shekhar Sharma - Opp.Party(s)

01 Nov 2016

ORDER

 

Order dictated by:

Sh.S.S.Panesar,President.

1. Harpal Singh complainant has filed the present complaint under section 12  of the Consumer Protection Act on the allegations that complainant gave an online order to opposite party vide order No. 1148420019 on 6.8.2015 for the purchase of Micromax LED TV Model No. 50B0200 50 inch the payment of which has been paid by the complainant. Opposite party received payment of Rs. 37500/- for supplying LED TV model No. 50B0200 FHD 50 Inch (127 cm screen size), where the opposite party intentionally supplied another model No. 50C0200 FHD having 124 cm screen size. The complainant many times requested the opposite party to make delivery of LED TV model No. 50B0200 FHD 50 inch but the opposite party put off the matter under one pretext or the other . The complainant also served legal notice dated 15.11.2015 upon the opposite parties  but the same has not been replied by the opposite parties. The complainant has sought for the following reliefs vide instant complaint :-

1. Opposite parties be directed to make delivery of LED  TV model No. 50B0200 FHD  50 inch by taking back delivery of model No. 50C0200 FHD wrongly supplied to the complainant.
2. Compensation to the tune of Rs. 50000/- may also be awarded to the complainant.
3. Opposite parties be also directed to pay litigation expenses to the tune of Rs. 10000/-.

Hence, this complaint.

2.       Upon notice, opposite party No.1 appeared and filed written statement taking preliminary objections therein inter alia that the brand ‘Paytm’ includes the website www.paytm.com and the ‘paytm’ mobile application is owned by one 97 communications Ltd, who is engaged in the business of providing an online market place on the website located at the abovesaid URL i.e. w.w.w.paytm.com which acts as an online platform for different sellers to sell their products ; that One 97 communications Ltd. is a separate legal entity having a separate and distinct corporate personality, therefore, the case of the complainant against the CEO of the company is not maintainable ;  that opposite party does not maintain any inventory and do not control the items which are sold by the sellers. The ownership of the goods bought by the customer transfers directly from the merchant to the buyer  and at no point of time ownership of the goods is transferred to opposite party No.1 ; that as per the terms and conditions enumerated on the Paytm website, it is stated in clear terms that ‘paytm is not linked with any warranty, guarantee, post sale claims, genuineness of products or brand  as it is just a platform that facilitates sales for its merchant partners. Paytm will make best efforts to assist customers in issue resolution including refund or arranging replacement but it will not bear the risk from legal claims for any misrepresentation or selling of wrong product ; that the instant complaint is frivolous in nature and based on false and concocted claims. It was submitted that the complainant made a formal return request to opposite party No.1 only on 24.8.2016 i.e. after 10 days of receipt of the product, whereas as per return policy duly published on the website  of the opposite party alongwith other terms governing the said sale transaction, a return request could be made by a buyer within 7 days of the receipt of the product. Since the complainant had failed  to make the request within the stipulated time, opposite party No.1 was unable to process the return and his request was cancelled on 26.8.2015. While denying and controverting other allegations prayer for dismissal of complaint was made.

3.       Opposite party No.2 sent written version through post and it was submitted that due to various defects and technical problems in the  50B0200FHD the Micromax company converted the old model into improved model No. 50C0200 FHD with  additional facilities of Analog Tuner, Audio Visual, Entertainment Architecture, Sleep Timer, 5 Band equalizer. The cost of the improved model is  Rs. 40900/- after discount. The answering opposite party on the same price of Rs. 37500/- supplied the better and improved model. It was denied that the size of the screen of new model has been reduced to 3 cms. Hardly there is a difference of less than 1 cm in the screen. It was denied that present model is inferior to the desired model. The complainant did not file any expert opinion regarding the inferior quality of the supplied LED TV. While denying and controverting other allegations, dismissal of the complaint was made.

4.       Opposite party No.3 did not opt to put in appearance, as such it was ordered to be proceeded against ex-parte.

5.       In his bid to prove the case complainant stepped into the witness box and tendered his duly sworn affidavit Ex.C-1 alongwith documents Ex.C-2 to E x.C-15 and closed the evidence.

6.       To rebut the aforesaid evidence Sh.G.S.Nagra,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Sh.M.Sivakumar, authorized representative Ex.OP1/1 copy of document naming ATM Market Place Ex.OP1/2 and closed the evidence on behalf of opposite party No.1.

7.       Opposite party No.2  sent written version by post and thereafter did not opt to put in appearance , as such opposite party No.2 was ordered to be proceeded against ex-parte.

8.       We have heard the complainant and ld.counsel for opposite party No.1 and have carefully gone through the record on the file as well as written synopsis of arguments submitted by opposite party No.1.

9.       It is not disputed that the complainant booked an online order with opposite party No.2 for supply of LED TV model No. 50B0200FHD 50 inch (127 cm screen size) . Opposite party No. 1 is a website for providing sale on behalf of opposite party No.3. Opposite party No.3 is the manufacturer of the LED in dispute. However, opposite party No.3 intentionally supplied another model No. 50C0200FHD having 124 cm screen size on payment of Rs. 37,500/-. It is the case of opposite party No.2 that model supplied to the  complainant by opposite party No.3 was of a superior quality and the same was  of the value of Rs. 40900/- while a sum of Rs. 37500/- only was charged from the complainant. But in our considered opinion it amounts to unfair trade practice because opposite parties cannot be a judge  in their own cause. Because the complainant had made an order for supply of specific LED alongwith screen size as well as model & it was the duty of opposite party No.3 to have supplied that very gadget to the complainant. The act of opposite party No.3 falls with the mischief of unfair trade practice. Section 2(1)( r) of the Consumer Protection Act defines unfair trade practice as under:-

“Unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair deceptive practice  including any of the following practices, namely;—

(1)   the practice of making any statement, whether orally or in writing or by visible representation which,—

(i)   falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;

(ii)  falsely represents that the services are of a particular standard, quality or grade;

(iii)  falsely represents any re-built, second-hand, reno­vated, reconditioned or old goods as new goods;

(iv)  represents that the goods or services have sponsor­ship, approval, performance, characteristics, accesso­ries, uses or benefits which such goods or services do not have;

(v)   represents that the seller or the supplier has a spon­sorship or approval or affiliation which such seller or supplier does not have;

(vi)  makes a false or misleading representation concern­ing the need for, or the usefulness of, any goods or services;

(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof;

      Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;

(viii)makes to the public a representation in a form that purports to be—

(i)   a warranty or guarantee of a product or of any goods or services; or

(ii)   a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or prom­ise is materially misleading or if there is no reasonable prospect that such warranty, guaran­tee or promise will be carried out;

(ix)  materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;

(x)  gives false or misleading facts disparaging the goods, services or trade of another person.

Explanation. - For the purposes of clause (1), a statement that is— 

(a)  expressed on an article offered or displayed for sale, or on its wrapper or container; or

(b)    expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or

(c)     contained in or on anything that is sold, sent, delivered, transmit­ted or in any other manner whatsoever made available to a member of the public,  shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained; 

(2) permits the publication of any advertisement whether in any news­paper or otherwise, for the sale or supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement.

Explanation .—For the purpose of clause (2), "bargaining price" means—

(a)     a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or

(b)     a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold; 

(3)   permits—

(a)     the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;

(b)     the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;

(4)   permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, fin­ishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods;

(5)   permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or services.

 (2)        Any reference in this Act to any other Act or provision thereof which is not in force in any area to which this Act applies shall be construed to have a reference to the corresponding Act or provision thereof in force in such area.

 

10.     From the perusal of section ‘supra’, it becomes amply clear that opposite party No.3 is guilty of supplying another model of LED TV to the complainant which did not correspond to the  order booked on behalf of the complainant and as such, opposite party No.3 is guilty of unfair trade practice. Opposite parties No.1 & 2 are only facilitators  and have nothing to do with the goods supplied on the basis of the order booked by opposite party No.2 on behalf of opposite party No.3. Opposite party No.3 has willfully proceeded against ex-parte despite due service . The evidence adduced by the complainant in support of his case has gone unrebutted on record  against opposite party No.3, which amounts to implied admission of the allegations made in complaint as well as affidavit Ex.C-2. As such, we hold that it is opposite party No.3, which is deficient in service. Consequently, we direct opposite party No.3 to replace LED model No. 50C0200FHD having 124 cm screen size with model No.50B0200FHD 127 cm screen size to the complainant within 30 days of the receipt of copy of this order. The complainant is also awarded compensation to the tune of Rs. 5000/- while litigation expenses are assessed at Rs. 2000/-.  Complaint against opposite parties No.1 & 2 fails and the same is ordered to be dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

 

Dated: 1.11.2016.