By: Sri. Sri. Mohamed Ismayil. C.V., Member

The grievance of the complainant is as follows:-

1.         The complainant purchased a refurbished dell Laptop through online from 2Gud platform which acts subsidiary of first opposite party. The above said product was ordered on 02/07/2020 and received on 10/07/2020. The complainant paid Rs.18,050/- as the price of the product to the opposite party  . According to the complainant the received product was faulty one as its body was broken, hanging, battery was not working properly, and charger was not in a working condition. So the complainant registered a return option. Then the technician of the opposite parties approached the complainant for verification   of faulty product. On 05/08/2020 the complainant received a SMS stating that the second opposite party was accepted the return of laptop and it will be taken back on 25/08/2020.  On 12/08/2020 the second opposite party cancelled the return request as policy does not allow to receive the product. The complainant contended that the first opposite party delayed the pick of the product to cover the sellers return policy.  So the complainant approached this Commission alleging deficiency in service.  According to the complainant  he lost many working days because of faulty laptop and suffered mental agony and hardship.   The complainant prayed for a direction to the opposite parties to refund Rs.18,050/-  as the price of the laptop collected from the complainant   by the opposite parties , and to pay another 1,00,000/- rupees as compensation for mental agony and hardship.

2.         The complaint is admitted on file and issued notices of the opposite parties. The first opposite party appeared and filed version. But the second opposite party turned down and so set exparte.

3.         In the version, the first opposite party stated that the complainant suppressed truth and material facts and hence complaint is not maintainable.  According to the first opposite party, 2Gud platform is electronic marketplace model E-commerce platform which acts as intermediary to facilitate sale transaction between independent third party sellers and independent end customers. The sellers are separate entity being controlled and managed by different persons/stake holders. It is further stated that Consumer Protection (E- Commerce) Rules, 2020 has clearly distinguished marketplace E-commerce platform from the seller of the goods.   So according to the first opposite party, for any act of sellers, the marketplace E –Commerce platform or its operating entity cannot be held liable.   According to the first opposite party its business falls within the definition of intermediary under section 2(1) (w) of the Information Technology Act, 2000. The first opposite party further claimed protection under section 79 of Information Technology Act, 2000.  The first opposite party also claimed exemption that R.5 clause (1) of Consumer Protection (E-Commerce) Rules, 2020 provides exemption to marketplace E- Commerce entity under sub section (2) and (3) of that section. The first opposite party does not directly or indirectly sells any products on 2Gud platform. All the products on 2Gud platform are sold by third party sellers, who avail of the online marketplace services provided by the first opposite party on terms decided by the respective sellers only. The first opposite party neither offered nor provided any assurance and offers pick up or refund facility to the end buyers of the product.  The product purchased by the complainant   had not been sold by the first opposite party and no role in providing warranty of the product  sold by an independent seller  through the 2Gud platform of the first opposite party .  As an intermediary, the role of the first opposite party is limited in providing a facilitation platform for interaction of buyers and sellers and is not liable for any representation, warranty or any other liability arising out the product.  No relief can be granted against the first opposite party in these proceedings as the product was sold by the second opposite party.  According to the first opposite party its services are similar to a shopping mall where various shops are rented out to different sellers, who independently carry out sale proceedings with customers of the shopping mall and in case of any deficiency in service related to the goods sold by such shop owners /sellers in the shopping mall, it is the shop owner seller, who is liable for the consequences and not the owner  of the mall where such shops are situated. It is further submitted that user of 2Gud platform is bound by Terms of Use enumerated on the 2Gud platform which clearly state that the contract of sale is a bipartite contract between the buyer and seller only and first opposite party is not a party to it. According to the first opposite party it has provided a disclaimer on its websites and it has not charged complainant any amount of consideration for the use of online platform and no privity of contract existed. The first opposite party contended that independent sellers listed on the platform usually provide 10 days replacement policy to the end buyer in case of any defect in the product.  According to the first opposite party when the complainant has raised his grievance    stating   product is defective and having battery issue, same was communicated to the third party seller as soon as the grievance was received by the first opposite party.  According to the first opposite party, the complainant is making false stories in this case.  The first opposite party is not responsible for delivery / return / replacement of the product since it never came in to possession of the product any point of time during the entire transaction.  The first opposite party contended that it has provided every possible assistance and promptly escalated the grievance of the complainant to the third party seller.  However, as per information received   from the seller when it tried to arrange technician visit the complainant himself was unavailable every time.   Consequently his request had to be cancelled by the seller.  It is stated in the version that the first opposite party is not liable for   any deficiency in service   on the part of the seller or the manufacturer and so the complaint is liable to be dismissed.  The second opposite party tried to reach out   to the complainant over call and email, but the second opposite party was unable to contact   and there was no response from the complainant.  The first opposite party vehemently denied that there was any deliberate delay by it and in fact the complainant is trying to get benefit from his own negligent act. So the first opposite party prayed for dismissal of the complaint with compensatory cost.

4.         The complainant and first opposite party filed affidavits.  The first opposite party also filed notes of argument. No documents filed from the side of the first opposite party.  The documents produced by the complainant is marked as Ext. A1 to  A5. Ext. A1 document is the copy of tax invoice dated 02/07/2020 issued by the second opposite party to the complainant. Ext. A2 document is the copy of e mail communication dated 12/08/2020 stating cancellation of refund request by the opposite party. Ext. A3 document is the copy of communication stating the acceptance of return request. Ext. A4 document is the copy of return request. Ext. A5 document is the copy of field service report issued by the second opposite party to the complainant. 

5.         Heard both parties in detail. Perused documents and affidavits.  The points arisen for the consideration of the commission are:-

1. Whether the opposite parties committed any kind of deficiency in service or unfair trade practice as alleged in the complaint?
2. If yes, then what is the relief and cost?

6.         Point No.1 and 2

            The complainant stated that he purchased a Laptop from the second opposite party by using the online platform of the first opposite party .   According to  the complainant, he paid Rs.18,050/- as the price of the Laptop.  The complainant produced Ext. A1 document to prove the payment made to the opposite parties.   The product was received on 10/07/2020 and same was in a faulty condition.  It is alleged by the complainant that the product was suffered defects like broken body, hanging, improper functioning of battery and defaulted charger.  So, the complainant registered for product return option.   Consequently, the technician of the opposite party approached and verified the product.  On 05/08/2020, the complainant received a SMS stating that the second opposite party accepted the return of Laptop and will be taken back on 25/08/2020.  The complainant produced Ext. A3 document to prove the acceptance of the return of product by the second opposite party.  But on 12/08/2020 the complainant received email letter from the first opposite party stating the return option is cancelled.  The complainant produced.  Ext. A2 document to that effect. According to the complainant , he again contacted  with the Grievance Officer of the  first opposite party  and Ext. A4 document  produced by the complainant shows the transaction took place between them.  But the  first opposite party  contended  that 2Gud platform is electronic marketplace  model  E –commerce platform which acts an intermediary to  substantiate sale transaction between independent third party seller and independent  end customer . So the market place e-commerce platform or its operating entity cannot be held liable. The first, opposite party further contended that they did not sale any products on 2Gud platform.   According to the first opposite party, the complainant had purchased the laptop from the second opposite party and there was no privity of contract between the first opposite party and complainant.

7.         When analyzing the evidences available in this case, it can be seen that the  first opposite party admitted  fact of defects found in the Laptop received by the complainant.   The very case of the complainant is that he received a defective Laptop from the opposite party on 10/07/2020.  In the affidavit it was stated by the complainant that on the very same day he registered for return of product. This contention was not denied by the first opposite party. As per the provision contained in the Consumer Protection (E. commerce) Rules, 2020 a liability is cast upon the  first opposite party to address the   grievance of the complainant. In this case, according to the complainant, he registered a return option on the very same day he received the product, as it was found defective.   This contention was not denied by the first opposite party. As per the pleadings in the version, it can be seen that independent sellers like second opposite party listed on the platform usually provide 10 days replacement policy to the  end customer in case of any defect in the product. Ext. A3 document  produced by the complainant  shows that the opposite parties  are accepted the return  of product  by Tuesday August 25, 2020 and also promised to  refund within one  business day of the of the pickup. This document is stands proved as the opposite parties neither denied the content nor adduced evidence contrary to that effect. The complainant contended that both opposite parties are liable to the deficiency in service by selling out a defective Laptop.   According to the complainant  as per Rule 6(3) of the Consumer Protection  (E-commerce) Rules, 2020 no seller offering  goods or services through  a marketplace  e-commerce  entity shall refuse  to take back goods or withdraw or discontinue  services purchased  or agreed to be purchased  or refuse to refund consideration , if paid , if such goods or services are defective , deficient or spurious , or if the goods  or services are not of the  characteristics or features as advertised or agreed to . This contention of the complainant is not properly answered by the first opposite party.  So the Commission finds that cancellation of refund by the opposite parties as per Ext. A2 document is illegal and against the provisions of the Consumer Protection   (E- commerce) Rules 2020.   Ext. A5 document produced by the complainant shows the defect of Laptop. Moreover, as per Rules 4(4) and 4(5) of the Consumer Protection (E- commerce) Rules, 2020 some duties are there under taken by the first opposite party . R.4(4) says that every e-commerce entity shall establish an adequate grievance redressal mechanism having regard  to the  number  of grievances ordinarily  received by such entity from India, and shall  appoint a Grievance Officer  for consumer grievances redressal and shall display the name,  contact details , and designation  of such  officer  on its  platform.  R.4 (5) adds that   every e- commerce entity shall ensure that the Grievance Officer referred to in sub-rule (4) acknowledges the complaint within one month from the date of receipt of the complaint.  So above provision of the rules clearly cast a duty upon the first opposite party to resolve the grievance of the complainant herein.  In this case no evidence is adduced by the first opposite party to show that it has complied the above stated provision the Rules.  At the same time the first opposite party alleged in the version that there was no response from the complainant when the second opposite party was tried to reach out to the complainant over call and email.  But no evidence was adduced by the first opposite party with regard to action taken by the second opposite party.   In this context the withdrawal of the second opposite party from the proceedings before the Commission strengthened the contentions raised in the complaint. The contention of the first opposite party that the opposite party is not liable for any deficiency in service on the part of the seller or the manufacturer cannot be taken into account by this Commission. So the exemption pleaded in the version on the ground intermediary as defined in Information Technology Act 2020, has no Implications in this case. Moreover the contention under S.79 of Information Technology Act, 2020 is not applicable in this case as the transaction took place between  the  complainant and  the opposite parties  clearly comes under the head of deficiency in service.   The complainant succeeded in proving his case by adducing sufficient   evidence in this case.  This Commission finds that the opposite parties committed deficiency in service towards the complainant by selling a defective Laptop.  So the complaint is allowed in the following manner.

1. The opposite parties are directed to refund Rs.18,050/- to the complainant as the price of laptop received by the opposite parties from the complainant.
2. The opposite parties are directed to take back the laptop from the complainant after the refund of its price..
3. The opposite parties are also directed to pay Rs.25,000/- to the complainant as compensation for the mental agony and hardship suffered by the complainant  due to deficiency in service committed by the opposite parties .

4. The opposite parties are  directed to pay Rs 10,000/- as the cost of the proceedings to the complainant.

The opposite parties shall comply this order within one month from the date of receipt of this order; otherwise the entire amount shall bear 9% of interest per annum from date of order till realisation.

Dated this 14^th   day of November, 2022.

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 A5

Ext.A1: Copy of tax invoice dated 02/07/2020 issued by the second opposite party to

  the complainant.

Ext.A2: Copy of e mail communication dated 12/08/2020 stating cancellation of refund

   request by the opposite party.

Ext A3: Copy of communication stating the acceptance of return request.

Ext A4: Copy of return request.

Ext A5: Copy of filed service report issued by the second opposite party to the

complainant.

Witness examined on the side of the opposite party: Nil

Documents marked on the side of the opposite party: Nil

Mohandasan  K., President

PreethiSivaraman C., Member

     Mohamed Ismayil C.V., Member

VPH