CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

     UdyogSadan, C – 22 & 23, Institutional Area

          (Behind Qutub Hotel)

New Delhi – 110016

       Case No.131/2017

ABHISHEK BANSAL

(4025, SECTOR-B, PKT-5&6,

VASANT KUNJ, NEW DELHI) …..COMPLAINANT

Vs.

JASPER INFORTECH (PVT) LTD.

(SNAPDEAL, 246, 1^ST FLOOR, PHASE – III, OKHLA INDUSTRIAL AREA, NEW DELHI- 110020)                              …..RESPONDENTS

Date of Institution-07.04.2017

Date of Order-22.09.2023

         O R D E R

RITU GARODIA-MEMBER

1. The complaint pertains to deficiency on service on the part of OP in not providing the refund of the goods returned by the complainant.

2. Brief facts as stated in the complaint are that the complainant placed an order for one Transcend MicroSD 32 GB Class 10 on 23.02.2017 which was received on 24.02.2017. The Complainant sent a replacement request on 25.02.2017 and the product was picked up by courier on 27.02.2017. The complainant was assured of replacement by 01.03.2017.

3. The product was purchased under Snapdeal Gold Benefits. OP also informed the complainant that this purchase was covered under TrustPay guarantee. Various correspondences were exchanged between the parties but he did not get any replacement or refund. He sent OP emails on 14.03.2017, 16.03.2017, 20.03.2017, 23.03.2017, 27.03.2017, 01.03.2017, 07.04.2017 and he also contacted telephonically for refund/replacement but to no avail.

4. The complainant prays for refund, compensation for time wastage along with penalty.

5. OP in its reply has stated that it is an online market place under the brand name Snapdeal.  The Website enables independent third party sellers to list, advertise and offer to sell their products and services to the users of the Website. OP1 submits that it only acts as an intermediary through its web interface. The third party sellers directly raise invoices and bear all commercial risks.  The customer makes payment to such sellers on pre-paid basis or on cash of delivery basis. The ultimate monetary beneficiary is the seller and not the opposite party.

6. The OP has also questioned the maintainability of complaint as it is neither the trader nor the service provider under Consumer Protection Act. OP has also relied on Section 2(1)(w) and Section 79 of Information Technology Act, 2000 which defines intermediary and the liabilities of intermediary.

7. The OP has also questioned the territorial jurisdiction in view of terms of contract between the parties.

8. OP has relied on Clause 2.1 and 6.8 of website terms of use wherein it is categorically stated that OP is not a seller of products listed on the website.

9. On facts, it is stated that the product purchased by the complainant was neither sold by OP nor any warranty has been provided by OP. The OP has specified that all services related to delivery of goods and accepting return requests and sending replacements is a seller’s responsibility and OP merely facilitates this process.

10. OP states that the beneficiary of the consideration paid by the complainant was the seller. OP only facilitated pick up of the product from the complainant but the product did not reach the OP as it got lost in transit. Hence, any refund or replacement could not be provided to the complainant. OP prays for dismissal of the complaint.

11. Complainant has filed evidence by way of affidavit and has exhibited the following documents:

1. Copy of receipt/proof of purchase is exhibited as Annexure A1(i) to A1(ii).
2. Copy of detailed timeline is exhibited as Annexure A2.
3. Copy of Email is exhibited as Annexure A3.
4. Copy of phone calls record is exhibited as Annexure A4.
5. Copy of Emails are exhibited as Annexure A5 to Annexure A8(v).
6. Copy of evidence is exhibited as Annexure B1-B10.
7. Copy of judgment is exhibited as Annexure C1.

12. OP has filed evidence by way of affidavit and has exhibited the following documents:

1. Copy of press note is marked as Exhibit –A.
2. Copy of ‘Website Terms of Use’ is marked as Exhibit-B (Colly).
3. Copy of judgment is marked as Exhibit-C.

13. The Commission has considered the pleadings and documents files by both the parties. Undisputedly, complainant has placed an order for Transcend MicroSD 32GB Class 10 for Rs.711/-. He received the product on 24.2.2017 and asked for the replacement on 25.2.2017. The product was picked up on 27.2.2017. This sequence of events has not been disputed by OP. The Status/track report of pickup details shows that the order for the product was duly:

-Place-Dispatched-Delivered-Picked Up-Replaced. The estimated date of replacement was given as 01.03.2017. The same pickup receipt also states that “Enjoy Snapdeal Gold Benefits on your order”.

14. The complainant sent various emails requesting them about the status of refund. OP vide email dated 11.03.2017 assured the complainant that his complaint is being processed and resolution will be at the earliest. OP vide email dated 14.03.2017 again assured the complainant that he will get a revert within 24 hours. OP vide email dated 15.03.2017 assured the complainant that his complaint has been escalated and he will be informed at the earliest. The said email also contains this statement:” All purchases covered by TrustPay guarantee.” OP vide email dated 20.03.2017 required the complainant to send images of pick up slip. Complainant replied on the same day as follows: “Slip was not given but the pickup person had packed, sealed in front and even updated. His boss or some other person from that courier dept had called me and his number is Praveen Kumar 9911856453.” There is no reply from OP thereafter.

15. As per studies published by https://www.snapdeal.com/page/TrustPay

WHAT DOES TRUSTPAY STAND FOR?

Trust Pay Policy ensures assured seller refund / replacement to you on specific products when you return / seek replacement. You shall also be eligible for refund upon successful cancellation of the product prior to delivery.

The products will be eligible for return / refund / replacement if specifically provided for in the Product detail Page.

RULES FOR RETURN & REPLACEMENT

• Request to return for refund or replacement must be raised within the timeline as mentioned in the Product Description Page of the respective Product(s).
• Returns shall be arranged for pick-up through a logistic service partner. However, in the event the logistic service partner is unable to do so, a notification regarding the same shall be sent to you, for dispatching the product using a reputed courier in your respective area to the address mentioned in the notification. The freight charges for such products shall be reimbursed to you on successful receipt of product and verification of the same.

16. OP has admitted that to facilitate delivery and refund, it has provided the pickup but the product was lost in transit. The email by OP clearly states that the purchase is covered by TrustPay guarantee. The webpage of OP clearly states that all returns shall be picked up through a logistic partner. Nonetheless, there is no whiff of this logistic partner which picked up the product and lost the product in transit. No correspondence/ follow-ups with the said logistic partner has been mentioned or nor any reasons for loss in transit by the said logistic partner is provided. The complainant has followed OP’s dictum and returned the product to the pick-up person. He also provided the phone number of the person who took back the product. Thereafter, there is a complete silence from OP,

17. It is unequivocally evident that OP is actively engaged in the business of furnishing services through its online platform, namely 'Snapdeal,' for the purpose of facilitating interactions between prospective buyers and sellers. OP serves as a conduit for communication between these parties, thereby facilitating the establishment of contracts for the sale and purchase of movable goods. Given that this represents OP's declared business interest, it is impermissible for OP to assert that it renders a service purely gratuitously, devoid of any corresponding consideration. It is undisputedly not within the purview of OP's representation to claim charitable status in its e-commerce activities, wherein it derives no commercial benefit for itself. Consequently, we reject OP's assertion that the complainant fails to meet the definition of a consumer as stipulated in Consumer Protection Act. Consequently, the complainant possesses the requisite legal standing, or locus standi, to initiate a complaint against OP

18. OP has relied on Section 79 of Information Technology Act 2000 which exempts the liability of any intermediary. OP has not disputed the delivery and pick-up of the product in question. OP has not disputed email communication and its response to these emails. Irrespective of the terms and conditions of the vendor/seller,  an Agreement between the OP and seller casts an inherent responsibility on the part of OP, who being  a facilitator, to provide all necessary support services expected by the customers. These services encompasses logistical assistance and payment facilitation to ensure customer satisfaction and effective resolution of  the concerns raised  by the complainant consumer and the user of e-commerce platform of OP. The consumer/user/complainant purchases through online portal trusting the services of OP and the complainant customer has no direct interaction or privity of contract with the seller. The present case is not about the product liability or defect in product but liability for the product which was lost in transit when it was picked up for replacement/refund

19.  Hon’ble National Commission in Rediff.Com India Limited vs Ms. Urmil Munjal 2013(3)CLT79(NC) has observed that:

• In the background of the above contention, it needs to be noted that the District Forum did not hold the RP/OP liable for any defects in the goods supplied, but for failure to inform the Complainant about the manner in which defective goods were to be returned to their seller. The District Forum has observed:-
• 4. The main allegation of the complainant against the opposite party is that the opposite party failed to inform the complainant as to how the items received by the complainant are to be returned to the seller. Since the opposite party was facilitator between the seller and buyers as mentioned in the terms and conditions for Rediff Shopping Anneure-OP1 in the column online Shopping Platform Annexure-OP1-A, so it was the duty of the opposite party to inform the complainant as to how the goods are to be returned to the seller. A letter was issued through the opposite party to the complainant Annexure-C1 according to which the seller had undertaken to replace the produce at no cost to the buyer if the buyer inform the seller within 30 days of the delivery of the order, which shows that had the opposite party informed the complainant about the procedure and from the goods purchased by the complainant through the opposite party are to be returned, the complainant would have taken the benefit of the facility given by the seller under Annexure-C1. Although the opposite party did not charge any price from the complainant from mediating between the seller and the complainant yet it is implied that the opposite party which was giving service to the seller to invite buyers to purchase the goods is a service as contemplated under the provisions of Consumer Protection Act and the complainant has locus standi to file the complainant against the opposite party.
• …………..

We find that the view taken by the fora below is completely in line with the admitted position of the RP/OP. In para 2 of its written response before the District Forum, it is clearly stated that the respondent company is engaged in business of providing services through its internet portal (www.rediff.com) to interested buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sale and purchase of movable goods. If this is the declared business interest of the RP/OP it cannot be permitted to claim that it is providing purely gratuitous service to its customers, without any consideration. It is certainly not the case of RP/OP that it is a charitable organisation involved in e-commerce, with no business returns for itself. We therefore, reject the contention of the revision petitioner that the respondent/Complainant is not a consumer of the revision petitioner within the meaning of Section 2(1) (d) of the Consumer Protection Act, 1986.

20. In the light of discussion above, it is clear that OP services are clearly covered under Consumer Protection Act. OP has under its “TrustPay” services admitted that all pick-ups for replacement/refund are arranged through OP’s logistic partner. OP also admits the product in question was picked up and was lost in transit. No effort was made by OP to trace the product lost in transit.

21. Hence, we find OP is guilty of deficient services and direct OP to:

1. To refund Rs.711/- along with 7% interest p.a. from the date of purchase till realization.
2. To pay Rs. 15,000/- as compensation for mental harassment, agony and physical inconveniences.
3. To pay Rs. 5,000/- towards litigation expenses.

22. This order be complied with within 90 days from the date of the order.  This entire amount is payable to the complainant within a period of 90 days from the date of order failing which the entire amount will further carry an interest @9% per annum till it is paid to the complainant.

23. File be consigned to record room.