By Smt. PREETHI SIVARAMAN.C, MEMBER
1. The complaint in short is as follows:-
On 22/05/2020 complainant ordered one superb quality iPhone 6 64GB worth Rs. 11,499/- through 2GUD.com. After receiving the product he realised that he had got a low quality and defective phone and complainant applied for return of the product also. Once the technician came to check the phone but unfortunately complainant was not in station and that application was cancelled. Thereafter he again applied for checking of the phone and on 10/06/2020, he was informed that the technician will come on that day. But technician not came and the product return time also over.
2. Complainant suffered a lot due to the deficiency in service and unfair trade practice on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant .Hence this complaint. Complainant received the alleged defective product instead of the ordered product.
3. The prayer of the complainant is that, he is entitled to get a full refund of Rs. 11,499/- the cost of the iPhone, Rs. 3,000/- as compensation on account of deficiency in service and unfair trade practice on the part of opposite parties, Rs.15,000/- as compensation for the mental agony, physical hardships and sufferings to the complainant and Rs. 5,000/-as cost of the proceedings.
4. On admission of the complaint notice was issued to the opposite party No.1 and notice served on them and they appeared before the Commission through their counsel and filed version. Thereafter complainant filed one IA 80/2022 to implead Carbon Entertainment Private Limited, Gurgaon the seller of the product as supplemental opposite party No.2 and that petition allowed. Thereafter notice sent to opposite party No.2 also, but they did not appear before the Commission and not filed version. Hence they set exparte.
5. In their version, opposite party No.1 denied all the allegation levelled by complainant against them those which are admitted there under. They stated that complainant might have mistakenly considered opposite party No.1 as the seller of the product. But they are not the seller of any product. They are mere an online intermediary and they only provide common platform to the buyer and independent third party seller. They stated that the grievance of the complainant pertains to receiving of alleged defective product instead of ordered product. But that product was purchased from the third party seller that means Carbon Entertainment Private Limited through 2GUD and they had sold the product to the complainant and they supplied through third party logistic service provider. So they never came in possession of the actually ordered product or the alleged defective product at any point of time. Any grievance which the complainant has only against the seller or the manufacturer of the product and it is the responsibility of the seller or manufacturer to provide refund or replacement and other after sales service.
6. They again stated that, they escalated the grievance of complainant to the seller and tried to resolve the grievance of the complainant by giving proper resolution of the same as much as they can do in their intermediary capacity. The seller intimated to this opposite party that he has duly arranged the expert technician visit to the address of the complainant and the expert technician has confirmed that the right product in intact and working condition has been delivered to the complainant. Hence the seller of the product rejected the return request of the complainant. There is no cause of action against them. They are the online market place, e-commerce entity as defined under Consumer Protection Act-2019. The 2GUD platform is electronic market place model E-commerce platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent customers. They again submitted that these sellers are separate entity being controlled and managed by different persons. So for any act of the seller, the market place E-commerce platform cannot be held liable.
7. Any kind of assurance, whether in terms of warranty on products, prices, discounts, promotional offers, replacement/refund after sale services or otherwise are offered and provided by the third party seller of the product sold on 2GUD platform. The seller of the product provides 10 days replacement policy on its product wherein the buyers can claim replacement for the product if the product qualifies the quality check test arranged by seller from the expert technicians. The service of them are similar to a shopping mall where various shops are rented out to different sellers who independently carry out sale proceedings with the customer of the shopping mall and in case of any defect in the goods sold by such sellers in the shopping mall , it is the shop owner who is held liable for the consequences and not the owner of the shopping mall where such shops are situated. Hence complaint may be dismissed.
8. In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext. A1 to A6. Ext.A1 is the copy of email sent by opposite party to complainant regarding the visit of Technician on 10/06/2020. Ext.A2 is copy of the emails showing that complainant contacted the opposite party several times on 10/06/2020 regarding non-arrival of the technician and the reply of opposite party. Ext.A3 is the copy of e-mail sent by complainant to opposite party and reply received by complainant. Ext. A4 is the copy of e-mail sent by opposite party to complainant that “Call Me back” option is not available. Ext. A5 is the copy of email showing that the return request for an item from order has been automatically closed dated 17/06/2020. Ext.A6 is the copy of Tax invoice given by opposite parties to complainant dated 23/05/2020. Thereafter complainant submitted a report from an expert dated 02/03/2023 and which is marked as Ext. C1. Thereafter opposite party No.1 also filed affidavit and documents that is marked as Ext. B1 & B2. Ext. B1 is the copy of Press note No.3 (2016 series) regarding the guidelines for Foreign Direct Investment on E-commerce issued by Department of Industrial Policy and Promotion. Ext. B2 is the copy of terms of use for online Web portal.
9. Heard complainant and opposite party No.1. Perused affidavit and documents. The following points arise for consideration:-
- Whether there is any deficiency of service and unfair trade practice on the part of opposite parties.
- If so, reliefs and cost
10. Point No.1 & 2:-
The grievance of the complainant pertains to receiving of alleged defective product instead of ordered product. But opposite party No.1 stated that complainant had purchased the product from a third party seller ( in this case opposite party No.2) through 2 GUD who had sold the product to the complainant and supplied it through third party logistics service provider.
11. As per Ext.A6 it is clear that complainant had purchased the product from opposite party No.2 through opposite party No.1. As per Ext. A1 it is seen that
2GUD.com informed complainant that the technician visit already scheduled, that means complainant had informed the defect of the item to the opposite parties and the Company scheduled the time of technician visit and informed the complainant. As per Ext.A2, A3 and A4, the company said sorry to complainant that they are unable to sent the technician to complainant’s house due to the current nationwide lock-down. In that document complainant always enquired to the opposite party about the non arrival of technician, not received any call from technician and he said to opposite party through mail that technician is not came. As per Ext.A5 company informed the complainant that the return request for an item from the order of complainant has been closed. As per that document complainant requested for return of the item on 07/06/2020 and company closed that return request on 17/06/2020 From the above documents we are on the opinion that the seller has been closed the return request of the product submitted by complainant without informing him and without fulfil his request for return of the item without any reason.
12. In this matter opposite party No.2 , the seller did not appear before the Commission and did not file version and affidavit. Hence they set exparte. Opposite party No1 simply washed off their hands by saying that they are not the seller of any product . They merely an online intermediary providing a common platform through its website www.2GUD.com to the buyer and independent third party seller. They again stated that they are online market place e-commerce entity as defined under Consumer Protection Act 2019.They again stated that they only provides a medium to various sellers all over India to offer for sale and sell their products to the users of 2GUD and Flipkart platform. They did not directly or indirectly sells any products on 2 GUD platform.The product purchased by the complainant has not been sold by them and they have no role in supply/delivery of the product sold by independent sellers through the 2 GUD platform of them, nor liable to provide after sales service. They again stated that the seller of the product is responsible for delivery of goods to the customers the warranty/ guarantee of goods and services, customer’s satisfaction and post-sales. They again stated that when they escalated the grievance of the complainant to the seller and tried to resolve the grievance of the complainant by giving proper resolution of the sale as much as opposite party can do in its intermediary capacity. But the seller intimated back to them that they had duly arranged the expert technician visit to the address of the complainant and the expert technician confirmed that the product in intact and working condition has been delivered to the complainant. Thus the seller of the product rejected the return request of the complainant.
13. From the above arguments of opposite party No.1, we are on the opinion that, opposite party No.1 is trying to escape from their liability. In one point of view it is seen that they are not responsible. As per their version, affidavit and argument note they stated that they duly informed the seller about the complaint of complainant , but the seller intimated back to them that they had duly arranged the expert technician and the technician visited complainant’s house and confirmed that the product intact. But opposite party No.1 did not produce any document to prove their contentions. They can easily produce documents about the conversation between them and opposite party No.2 regarding this issue. Moreover they did not provide the correct address of opposite party No.2 even though they know them directly. Opposite party is the registered seller in the market place of opposite party No.1. So it is the duty of opposite party No1 to provide the contact address of opposite party No.2 to complainant and to the Commission.
14. We are on the opinion that, they cannot easily washed off their hands from the liability. The common man always attracted to the brand name of the market place like Flipkart. The details of the products, offers and warranty details are always providing by the so-called market places and customer always searching in the offers and product details in flipkart. A common man did not know about the seller or the manufacturer of the product especially the seller. They know the seller only when they got the product and the tax invoice along with the product. Opposite party No.1 admitted that they are an intermediary and a facilitator between buyer and seller. Then as per our opinion opposite party No.1 should know the details about the product marketed and sold through their platform. Before registering the so-called sellers in their platform opposite party No.1 should confirm the reliability of the product sold by this sellers through them. In Ext. B1 document Ministry of Commerce and Industry, Department of Industrial Policy and Promotion stated some guidelines for FDI on E-commerce. So opposite party No.1 should follow that directions and should act according to that direction. From the above points we are on the opinion that opposite party No.1 is also liable to compensate the complainant for the deficiency of service from their side.
15. In this matter opposite party No.2 absent, hence set exparte. As per the version and affidavit of opposite party No.1, they stated that for the settlement of the issue they informed opposite party No.2 about the issue of complainant and opposite party No.2 informed them that their technician inspected the product and expert technician confirmed that the product in intact and working condition has been delivered to the complainant. But opposite party No.2 did not appear before the Commission and did not file version and affidavit. As per the documents produced by complainant Ext A1 to A4 it is seen that, opposite party No.2 said sorry to complainant and they again stated that they are unable to sent a technician to complainant’s house due to the current nationwide lock-down and they are operating their works with reduced staffing. In that documents complainant always stating that no technician came here and not checked the product, where is the technician, why the technician is not coming etc. From that documents we are on the opinion that technician not visited complainant’s house and not checked the product. In between the chats among complainant and opposite party No.2, on 17/06/2020 they sent a message to complainant that the return request for the item from complainant’s order has been closed. It is a clear cheating. But as per the complaint, complainant stated that once the technician came to check the phone but complainant was not in station and that application was cancelled. As per the averments of opposite party No.1, they stated that they contacted opposite party No.2 and they replied for the queries of opposite party No.1. But opposite party No.2 did not receive the notice sent from this Commission and did not appear before the Commission and not filed version and affidavit.
16. From the version of opposite party No.1, it is seen that both opposite parties contacted each other and opposite party No.2 informed them that their expert technician inspected the product. The expert of opposite party No.2 reported that there is no defect to the iPhone and opposite party No.2 closed the complaint request sent by complainant to them. From the above statements we are on the opinion that it is a clear cheating from the side of opposite party No.2. There is no document to prove that opposite party No.2 visited the complainant and checked the iPhone. But as per the complaint, complainant stated that once the technician came to check the phone but complainant was not in station and that application was cancelled. So he filed another complaint and without informing him opposite party No.2 cancelled the return request. It is also clear that opposite party No.2 wants to suppress some material facts from the Commission. Hence they did not appear and did not file version. Hence opposite party No.2 is liable to compensate the complainant for sending alleged defective product instead of the ordered product. Moreover as per Ext. A6 document the above product has 12 months seller warranty. Complainant identified the defect within the warranty period. Complainant identified the product he received having low quality on the first day itself.
17. As per Ext.C1, the report of an Expert submitted by complainant before the Commission clearly shows that “the phone has a battery complaint’’. The expert Mr. Yasir.P has a Diploma in Electronics from Government Polytechnic College, Perinthalmanna and he submitted his certificate from the State Board of Technical Examinations before the Commission. The expert again stated that after thoroughly examined the phone, the main issue is regarding the faulty battery. He again suggested that the battery needs to be replaced to restore the phone in its normal working condition. From the report of the expert we came to a conclusion that the phone had defects. Its battery is not in a working condition. Moreover opposite party No.1 did not file any objection against the report submitted by the Expert. The act of opposite party No.2 is a clear deficiency in service and unfair trade practice from their side. So opposite party No.2 is liable to refund the cost of the iPhone to complainant and also the compensation and cost of the proceedings. Opposite party No.1 is also liable to compensate the complainant for the deficiency in service from their side. Hence we allow this complaint holding that opposite parties are deficient in service.
18. We allow this complaint as follows:-
- The opposite party No.2 is directed to refund Rs 11,499/-(Rupees Eleven thousand four hundred and ninety nine only) the cost of the iPhone to complainant and complainant is directed to return the defective iPhone to opposite party No.2 after payment made by opposite party No.2.
- The opposite party No.1 and 2 are directed to pay compensation of Rs.10,000/-(Rupees Ten thousand only) to the complainant on account of deficiency in service on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant.
- The opposite party No.1 and 2 also directed to pay Rs. 3,000/- (Rupees Three thousand only) as cost of the proceedings.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite party No.1 and 2 are liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 14th day of June , 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A6
Ext.A1 : Copy of email sent by opposite party to complainant regarding the visit of
Technician on 10/06/2020.
Ext.A2 : Copy of the emails showing that complainant contacted the opposite party
several times on 10/06/2020 regarding non-arrival of the technician and the
reply of opposite party.
Ext.A3: Copy of e-mails sent by complainant to opposite party and reply received by
complainant.
Ext.A4: Copy of e-mail sent by opposite party to complainant that “Call Me back”
option is not available.
Ext.A5 : Copy of email showing that the return request for an item from order has
been automatically closed dated 17/06/2020.
Ext.A6 : Copy of Tax invoice given by opposite parties to complainant dated
23/05/2020.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 & B2
Ext. B1: Copy of Press note No.3 (2016 series) regarding the guidelines for Foreign
Direct Investment on E-commerce issued by Department of Industrial Policy
and Promotion.
Ext. B2 : Copy of terms of use for online Web portal.
Ext. C1: Expert report dated 02/03/2023 .
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
