New Complaint No.197 of 2023.
Date of Institution:25.10.2023.
Old Complaint No:120 of 2018.
Date of Institution: 06.03.2018.
Date of order:19.01.2024.
Mohit Babbar Son of Balbir Singh Babbar, resident of Ward No. 5, Krishna Gali No. 2, Backside Power House, Dhariwal, Tehsil and District Gurdaspur.
…........Complainant.
VERSUS
1. Maestro Tradex Pvt. Ltd., Plot No. 35, Industrial Area near Rao Tula Ram Stadium, Behind Karuna Ford Showroom, Delhi Road, Rewari Behind Karuna Ford, City Rewari, State Haryana.
2. Snapdeal, Jasper InfoTech Pvt. Ltd., 246, 1st Floor, Phase – 3, Okhla Industrial Area, New Delhi – 110020, India.
….Opposite parties.
Complaint U/S 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.K.S. Dhillon, Advocate.
For the Opposite Party No.1: Sh.Ramandeep Sharma, Advocate.
For the Opposite Party No.2: Sh.Sachin Mahajan, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Mohit Babbar, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Maestro Tradex Pvt. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant purchased 4 tubeless car tyres Aeolus Steeringace A001 205/15 from the opposite parties and the demand was placed on their website on 3rd March 2017 from Gurdaspur vide order ID 18499123445 and 18499176169. It is pleaded that the value of Tubeless car tyres per tyre was Rs.4,248/- which included GST of Rs.493.03. In total the complainant paid Rs.16,992/- to the opposite parties. The opposite parties have also given a guarantee of one year from the date of its delivery to the complainant. It is further pleaded that the tyres were defective and inflated from the first day of its purchase which fact the complainant brought to their notice after a month of its delivery and the opposite parties assured of its replacement as it was a manufacturing defect. The complainant also got examined the tyres from the local car agency / tyre company who confirmed of manufacturing defect of the tyres. It is further pleaded that the complainant approached the opposite parties in the month of April, July and lastly in February 2018 and had continuously requested for the replacement of defective tyres, but the opposite parties turned a deaf ear towards the genuine request of the complainant and till date the four defective tyres with manufacturing defect have not been replaced by the opposite parties which is deficiency in service by the opposite parties. It is further pleaded that the complainant suffered a loss of Rs.50,000/- in his business as he could not drive his car Hyundai Verna due to the manufacturing defect of the tyres. Due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. So, there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to replace the defective tyres of the complainant or refund its value and Rs.20,000/- be paid as compensation for causing mental agony and harassment to the complainant in the interest of justice or any other order deems fit be also passed in favour of the complainant.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint of the complainant is not maintainable in the present form and this Ld. Commission has not got the jurisdiction to try the present complaint as the purchase of tyres (Aeolus Car Tyre) was made at Amritsar by the complainant at Mehta Telecom, Katra Bhagiyan, Near Mahajan Hall, Amritsar, Punjab. It is pleaded that the fact of the matter is that the whole facts stated in this present complaint are totally false and concocted one. In fact, the delivery of the articles / tyres in question has been made at Amritsar by Mehta Telecom, Katra Bhagiyan, Near Mahajan Hall, Amritsar, Punjab by the opposite parties and the same was received by the complainant after fully satisfying and verifying the articles / tyres in question. It is further pleaded that the complainant never approached the answering opposite party nor ever made any request for the replacement of defective tyres as alleged in this present complaint.
On merits, the opposite party No.1 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint is based on vague, misconceived notions and baseless assumptions of the complainant and are, therefore, denied. The complaint is also not maintainable as it miserably fails to bring on record any violation of the provisions of the applicable laws. It is pleaded that the present complaint under reply is liable to be dismissed due to mis-joinder of parties. The answering opposite party No. 2 is neither a necessary nor a proper party to the present complaint and hence the name of the answering opposite party No. 2 is liable to be deleted from the array of parties. It is further pleaded that Clause 2.1 of the Website Terms of Use clearly states that:-
"The Website is an electronic platform in the form of an electronic marketplace and an intermediary that (a) provides a platform for Users (who are sellers) to advertise, exhibit, make available and offer to sell various Products to other Users (who are buyers / customers), and (b) a platform for such other Users to accept the offer to sell of the Products made by the sellers on the Website and to make payments to the sellers for purchase of the Products, and (c) services to facilitate the engagement of buyers and sellers to under commerce on the Website, and (d) such other services as are incidental and ancillary thereto. The Services are offered to the Users through various modes which may include issue of coupons and vouchers that can be redeemed for various Products". It is further pleaded that the buyers/Users who use the Website also agree and accept under Clause 6.8 of the Website Terms of Use that:-
"You agree, understand and acknowledge that the Website is an electronic platform in the form of an electronic marketplace and an intermediary that provides an electronic venue where various Users may electronically meet and interact with each other to engage in commerce and transact. You further agree and acknowledge that Snapdeal is only a facilitator and is not and cannot be a party to or control in any manner any advertisement, exhibition, making available, offer to sell or transactions of sale or purchase of Products on the Website. Snapdeal is not the seller of the Products. Accordingly, any contract for the sale / purchase of Products on the Website is a bipartite contract between you and the sellers (if you are a buyer) or you and the buyer (if you are a seller). Snapdeal neither recommends You to buy or sell any Products on the Website nor does Snapdeal endorses any such Products and nor does Snapdeal provides any guarantee, warranties or assurance with respect to the advertisement, exhibition, making available, offer to sell or transactions of sale or purchase of Products on the Website. Further, Snapdeal does not guarantee, warranty or provide any assurance on the behavior of any User of the Website including any guarantee, warranty or assurance that any User (whether buyer or seller) will complete any transaction or act in a prudent manner". It is further pleaded that the complainant has suppressed true and material facts from this Hon'ble Commission and not approached with clean hands. He is trying to mislead the Hon'ble Commission by presenting the concocted story; hence, the present complaint is not maintainable and liable to be dismissed on this ground. The complaint ought to be dismissed on this ground alone. It is further pleaded that this Hon'ble Commission does not have the territorial jurisdiction to entertain the present complaint as the same is barred by the terms of agreement duly agreed to between the parties. The complainant while placing order through the Snapdeal.com had agreed to the Website Terms of Use, Standard Terms of Sale. It is further pleaded that the matter of the fact is that the answering opposite party No. 2 did not sell any product to the complainant as the answering opposite party is not a seller and only provides online platform to buyers and sellers to transact among themselves. The product ordered by the complainant was sold and delivered to him by an independent third party seller i. e. Maestro Tradex Private Limited and not by the opposite party No. 1. The complainant never purchased any product from the answering opposite party and the same was purchased from Maestro Tradex Private Limited THROUGH the answering opposite party No. 2 and the same is evident from the copy of invoice. It is further pleaded that the answering opposite party No. 2 is not engaged in sale of any product on its own, but merely facilitates various sellers to list their product for sale on its online platform i.e. Snapdeal.com and the buyers/users of the website to buy the product from the sellers out of their own free will and choice. In the present complaint, the product was sold and advertised by the opposite party No. 1 i.e. M/s. 'Maestro Tradex Pvt. Ltd.' and not the answering opposite party No. 2. The opposite party No. 2 is neither the manufacturer nor the seller of the product purchased by the complainant and hence, the warranty on the product is provided by the manufacturer/seller of the product and not by the answering opposite party No. 2. It is further pleaded that the answering opposite party No. 2 never assured any replacement to the complainant. The complainant himself admits that it was a manufacturing defect and the answering opposite party No. 2 cannot be made liable for manufacturing defects if any. It is further pleaded that the complainant approached this answering opposite party No. 2 after the expiry of 7 days return/replacement policy and hence the complainant was advised to contact the brand customer care and the contact details for the brand customer care was also provided to the complainant. The product was delivered on dated 08.03.2017, but the replacement request was raised much later i.e. 11.04.2017. On the However, the fact needs to be recorded here that the complainant himself has alleged that the product was having Inherent MANUFACTURING DEFECT. Hence, it is the manufacturer or Seller of the product, who can provide any answer to the allegation levied by the complainant. Manufacturer has not been impleaded as an opposite party by the complainant. It is further pleaded that it is wrong that the answering opposite party No. 2 has ever assured of replacement of the product. The answering opposite party No. 2 is not engaged in sale of any product on its own, but merely facilitates various sellers to list their product for sale on its online platform and the answering opposite party No. 2 not being the manufacturer or seller of any product, cannot be expected to entertain refund or replacement requests/issues which can only be entertained/address either by the manufacturer or the seller of the product. It is further pleaded that the warranty on the products or after sale services is provided either by the manufacturing companies through Authorized Service Centers or otherwise or by the sellers of the product but in no way, by the answering opposite party No. 2. Only manufacturer or Seller of the product can be held liable for any manufacturing defects, if proven. By no stretch of imagination, it can be said that there was any deficiency in service or unfair trade practice on the part of the answering opposite party No. 2 as any grievance, which the complainant has, is against the manufacturer and its authorized service centers for not providing after sale services. Hence, in view of the aforementioned, it is evident that the answering opposite party No. 2 has not caused any kind of mental agony or otherwise harassment to the complainant. Hence, the complainant does not become entitled to claim any relief from this answering opposite party No.2 and the complaint is liable to be dismissed.
On merits, the opposite party No.2 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Learned counsel for the complainant has filed an affidavit of Mohit Babbar, (Complainant) alongwith other documents.
6. Learned counsel for the opposite party No.1 has filed reply.
7. Learned counsel for the opposite party No.2 has filed an affidavit of Ms. Ankita Sharma D/o Sh. Satya Prakash Sharma (Authorized Signatory of opposite party No. 2) alongwith other documents and reply.
8. Written arguments not filed by both the parties.
9. Counsel for the complainant has argued that complainant had purchased 4 tubeless tyres from opposite party No.1 through opposite party No.2 on payment of Rs.16,992/- to the opposite parties. It is further argued that tyres sold by the opposite parties were found to be defective and were having manufacturing defect on which complainant had lodged complaint with the opposite parties to replace the tyres but opposite parties failed to replace the tyres which amounts to deficiency in service.
10. On the other hand counsel for the opposite party No.1 has argued that purchase of tyres was made at Amritsar and as such this Commission has no jurisdiction to try and entertain the present complaint and as such complaint is liable to be dismissed.
11. Counsel for the opposite party No.2 has argued that opposite party No.2 is only online platform where seller of the product sells the product to the sellers by availing services provided by opposite party No.2. The sellers directly raise invoices to the final customer and in case of manufacturing defect only seller of the product is liable and as such there is no evidence on record to prove this fact that there was manufacturing defect in the tyres and as such complaint is liable to be dismissed.
12. We have heard the Ld. counsels for the parties and gone through the record.
13. Perusal of file shows that 4 tubeless tyres were purchased by the complainant vide invoice dated 03.03.2017 and the address of the complainant for receiving the tyres is Mehta Telecom, Katra Bhagiyan, Near Mahajan Hall, Amritsar meaning thereby it is proved on record that said tyres were purchased by the complainant at Amritsar and it has not come on record that said tyres were ordered from Gurdaspur by the complainant rather complainant has not placed on record any evidence to prove this fact that any transaction took place at Gurdaspur within the territorial jurisdiction of this Commission. We are of the view that since the complainant has placed the said order at Amritsar and the purchase of tyres was made on 03.03.2017. As such as per provisions of Consumer Protection Act, 1986 as per which Sec. 12 (11) (2) is read as under:-
11. Jurisdiction of the District Forum.- (1) Subject to the other provisions of the Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed 1(does not exceed rupees twenty Lakhs).
(2) A complaint shall be instituted on a District Forum within the local limits of whose jurisdiction,-
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or 2(carries on business or has a branch office or) personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or 3(carries on business or has a branch office), or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 4(carry on business or have a branch office), or personally work for gain, as the case may be acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
14. Although, the complainant has made purchase of the tyres through online platform of opposite party No.2 but since the entire transaction has taken place from Amritsar and the tyres were received by the complainant at Amritsar, as such this Commission has not jurisdiction to try and entertain the present complaint.
15. Accordingly, present complaint is disposed off with the directions to the complainant to approach the appropriate Commission for redressal of his grievances.
16. Application if any is pending in this case is also disposed off alongwith this main order.
17. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
18. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Jan. 19, 2024 Member.
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