SRI BIJOY KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of non-refund of price of the product, which is not in accordance with the requirement of Complainant are the allegations arrayed against Ops.
2. Complaint, in brief reveals that, Complainant being a Judicial Officer serving as Register, Civil Court, Kendrapara and Complainant in order to purchase one ‘ Pluto Beige Heeled Sandal’ placed an order on dtd. 02/09/2016 through on-line selling Company ‘SNAPDEAL’. On acceptance and confirmation of the order by Op, Complainant sent Rs. 499/- debiting from his Bank account and same is credited towards Op. The ordered item was delivered to the Complainant through courier with retail invoice No.S93064/16/17/1335 dtd. 7/9/2016 against the said purchase. The copy of the retail invoice and the mail delivery report is annexed, when the product was checked and found that the size of the ‘sandal’ is not according to Complainant’s requirement. The matter was reported to Op, for return of the item/product. On dt. 13/9/2016, Op- intimated the complainant through e-mail that Op is agreed to take back the product and after quality check will refund the money, accordingly the Op provided the address and the procedure of return of the product, to their ware house located at, Kolkata. The copy of the mails are annexed into the dispute. It is also revealed from the Complaint petition that as per the instruction of Op, Complainant sent the product through India Post on dt. 14/9/2016 from Kendrapara, Head Post Office to Vulcan Kolkata Center, Durgapur, Dankuni Coal Complex, S.O.712310. On Postal tracking, it is found that the ware house officials are not receiving the return item intentionally. Complainant made telephonic conversation with Op on the telephone No.9212692126 along with mail contacts, but the Op did not respond and lastly returned the parcel to the complainant with postal remark ‘refused’. It is further revealed from the complaint petition that being inspired by the advertisement of Op to provide good service including refund facilities on certain conditions and on its non-compliance by Op caused financial loss and mental agony to the Complainant, which is to be treated as deficiency in service. The cause of action of the instant case arose on different dates and lastly on dt. 14/10/2016, when the Op refused to take back the product by refusing to refund the amount and compensation, which forced the complainant to file the complaint with prayer that a direction may be given to Op to pay amount of Rs. 50,575/- as schedule of the claim within a stipulated period.
3. Being noticed Op appeared through their Ld. Cousel and filed replies by way of preliminary submissions, objections and parawise reply. Op in the preliminary submission state that the Op-Jasper Infotech Pvt. Ltd. own and operates on-line market place platform namely “www. snapdeal.com”. The Op acts as an ‘intermediary’ by providing a platform to independent third party seller to sold their products to the customers directly. The customers make the payments directly through different modes to the seller on purchase of products and seller is liable for the consequences not the “intermediary”. OP in the preliminary objections challenges the maintainability of the Complainant on the grounds of mis-joinder of parties, protection under IT Act-2000, Jurisdiction, absence of liability and on cause of action by citing decisions of different Dist. C.D.R. Forum, decision of Honbl’e National Commission in case of RP1422/2016(Annexure-II) and decision of Honbl’e Apex Court in Civil Appealed No. 5168 of 2000 (No citations are enclosed to the replies). The gist of the preliminary objection reveals that as per clauses of ‘website terms of use’ the Op is not the seller of the product and the seller of the’ product’ is responsible for any such guarantee/warranty or refunds as revealed from the Notification of Dept. of Industrial Policy and Promotion, Ministry of Commerce and Industry. The role of the answering Op as an ‘intermediary’ offers an electronic market place for the web users. It is also averred that Complainant can’t be defined as a ‘consumer’ of Op, as no amount has been charged to the Complainant, further the Op can’t be termed as a ‘trader’ or ‘service provider as defined under C.P.Act,1986. Op further averred that the status of the Op is an ‘Intermediary’ as Information Technology Act-2000, which is a special Act having overriding effect over the provisions of the other law for time being in force. In the question of ‘Jurisdiction’ it is stated that as per the agreement ‘clause 13.1’ reveals that, if any dispute arises between the parties it falls within the exclusive Jurisdiction of Courts at new Delhi, accordingly this Forum lacks the Jurisdiction. It is also averred that there is no ‘cause of action’ against the Op to file the Complaint, as Op is not a seller of the product, rather one M/s Padmanav Swany Traders is the seller/manufacture of the product, and Op is no way related to the present dispute. The answering Op on the parawise reply denies the allegations of the Complainant reiterates his earlier stands and states that in the present case the return procedure was not followed properly, hence return could not be facilitated and the possession of the product still remains with the Complainant and claim of any refund does not arise, when the product is not returned. So further causing of mental agony and financial loss is concerned, the Op shifted the liability on the Complainant by submitting that, due to latches of the Complainant by not following the proper procedure of return, the reliefs sought for by the Complainant can’t be granted in his favour against the Op and the Complaint deserves to be dismissed with exemplary cost.
4. Heard the arguments at a length advanced by Ld. Counsel for the parties. In support of his pleadings Complainant filed documents as per the list which includes attested Xerox copies of e-mail correspondences, retail invoice dtd. 7/9/2016, photocopy of the cover of the product packet, and attested Xerox copy of the Bank account of the Complainant.On the other hand Op filed the copy of the ‘website terms of use’ and a decision of Honbl’e National Commission on R.P. No. 1422 of 2016 as Annexure I & II. Op in his replies strongly challenges the maintainability of Complaint on the following grounds, which discussed before considering the factual aspect of the case.
(A) PROTECTION TO OP Under I.T.Act-2000:-
Op’s contention is that under section 2(1) (w) of I.T. Act, 2000 the Op is termed and defined as an ‘Intermediary’ by opening on-line market places for a third-party seller and under section 79 of the same Act, Op exempted from the liability as an ‘Intermediary’, further section 81 I.T. Act-2000 has an overriding effect contained in any other law. In support of claim Op cited decision of Honbl’e Apex Court in case of Sachyani Savings Investment(1) Ltd. & others vs State of West Bengal in (Civil appeal No. 5168 of 2000) and decision of Honbl’e High Court of Delhi in the Intex Technologies vs Jasper Infotech Pvt. Ltd. CS(COMM) 34/15, and decisions of different Dist. C.D.R. Forums. Ld counsel for Complainant countering the contentions of Op submit that C.P.Act, 1986 is also a special Act enacted by the Parliament to give speedy and in-expensive relief to the consumer and in the instant case, Complainant has paid the ‘consideration’ to Op directly by crediting amount to the Snapdeal.com and the Op is not involved in charity works by providing gratuitous service.
We, carefully gone through the contentions of the parties and it is clear that both the I.T. Act-2000 and C.P.Act-1986 are special Acts. The 1986 Act deals with the protection to consumers where grievance of Unfair Trade Practice and deficiency in service are involved. Further, Sec. 3 of the C.P.Act, 1986 defined as in addition to and not in derogation of the provisions of any other law. It is now clear that, when there are different redressal mechanism opened for the litigants, it is the choice of the litigant to Opt, where he has to redress his grievance. Our opinion is supported by decision of Honbl’e National Commission reported in 2014(4) CPR 392(NC) in case of New India Assurance Company Ltd. vrs Pradee P Kumar. Simultaneously, the Op does not file any decision of Honbl’e Apex Court and Honbl’e Delhi High Court as relied on for just appreciation and effective adjudication of the present dispute, accordingly in this point Complaint is maintainable.
(B) Mis-Joinder of Parties:-
It is averred in the Preliminary objection of Op that, Op is an ‘Intermediary’ and ‘facilitator’ in the proceeding and no way, Op can be treated as ‘Seller’ or ‘Trader’ or ‘Service Provider’, it is further countered by Ops that actually the seller of the product is M/S Padmanav Swany Traders, New Delhi, who is a necessary party to redress the grievance of the Complainant. On perusal of the Complaint petition, it is noticed that Complaint is not filed alleging any ‘defects’ in the good nor deficiency in service of the seller. It is the sole allegation of the Complainant that inspite of the instruction and assurance of Op to get back the product price as per the terms and condition of sale, but lastly the ‘product’ was not received in the address given by the Op. In the scenario, seller or manufacturer is not a necessary party to the dispute, and Complaint is not to be dismissed as argued by the Op for mis-joinder of Parties. In this regard, we, rely in the decision Honbl’e National Commission on R.P. Case no. 4652 of 2012 in case of Rediff.com India vs Mr. Urmila Manjul.
(C ) Jurisdiction/Cause of Action :-
The next point of question of maintainability relates to territorial Jurisdiction of the Forum. It is the contention of Op that as per clause 13.2 of website terms of use, as per the argument and dispute arises between the Customer, Op shall be subject to the exclusive Jurisdiction of Courts at New Delhi. On examining the Sec. II of C.P.Act, 1986 which defines ‘Jurisdiction’ of the Dist. Forum. Sec. II(2)(c) of the Act 1986 clearly defines that, A complaint shall be instituted in a Dist. Forum within the local limits of whose Jurisdiction, the cause of action, wholly or in part, arises. As per the Complaint all the disputes related to the product starting from booking,crediting the cost of the product to Op and return of the product are taken place within the local limits of this Forum. All these events to the transactions are cause of actions of the instant case. It is the settled principle of law that, ‘cause of action’ is a ‘mixed question of law and fact’. On question of ‘ouster clause’ it is observed by the Honbl’e National Commission that Consumer Forum is undoubtedly a quasi judicial body which is required to observe the principle of natural justice, but no absolute technicalities developed under various substantive provisions of law. The objectives of the act will be defeated, if Op’s ‘ouster clause’ is accepted. It is also contended that as Op is an ‘Intermediary’ between the seller and buyer there is no cause of action exists between Complainant and Op. In support of Op cited a decision of Honbl’e National in R.P. case no. 1422/2016 in Veshal Kotecha vs Snapdeal.com and Another. The facts of the cited decision is completely different from the present dispute, rather we, rely on a decision of the Honbl’e National Commission in R.P. Case no. 4656 of 2012 in case of Rediff. Com India Ltd. vs Mr. Urmila Munjal, which befitting a case law to the present dispute, where Honbl’e National Commission opined that though the Op acts as an ‘Intermediary’ but does not perform or provides a service as charitable organization by not accepting any ‘consideration’. Hence, the present Complainant is maintainable in all aspects as challenge by the Op.
On factual aspect of the dispute, Complainant alleges that, he placed an order for ‘Plutos Beige Heeled Sandal’ through on line on dt. 2/9/16 and Rs. 499/- was credited to the account of Op as cost of the product and the said amount is debited from the account of Complainant. On receipt of the product, Complainant felt that the size of the sandal was not perfect and within 4/5 days of receipt of the product and on correspondence with Op, Complainant returned the product to Vulcan, Kolkata centre, the address given by the Op. On dispatch of the said product, the addressee Vulcan Kolkata centre, did not receive the product package by ‘refusing’ and returned the same to the complainant. On the other hand, Op denying the allegations states that Op acts as an ‘Intermediary’ or ‘facilitator’ to the transaction, Op can’t be liable for the same. It is the further case of the Op that as the complainant did not follow the instructions and sent an incomplete package without pasting requisite forms and documents, which caused a great confusion and doubt on the veracity of the return item.
Considering the Complainant, replies of Op and on perusal of documents i.e, the attested photocopy of Pass-Book of Complainant, the invoice, and copies of e-mail correspondences. It is crystal clear and well evident that Complainant had booked the ‘product’ in question through e-mail by crediting an amount from his own account of Rs. 529/- (which includes the price of the product Rs. 499+ other charges) on dt. 2/9/2016 directly to the account of Op i.e, Snapdeal.com. On acceptance of the said consideration the status of the Op is termed as a ‘Service provider’ as per the provisions of C.P.Act, 1986, it establishes the relationship of complainant and Op as ‘consumer’ and ‘service provider’. It is also clear from the photocopy of cover packet of product that, the said product was returned to the Complainant with postal remark ‘refused’ on dt. 19/0/2016. In addition to this, the Op has not responded the legal Notice issued to Op by Complainant on dt. 27/9/2016. Op on other side except raising the question of maintainability of Complaint does not produce a single evidence that Complainant was in fault in complying the procedure required for return of the product, as averred in their replies. This Forum do not see any fault with the Complainant in return procedure of the product. The question of maintainability of the Complainant is discussed in details, in this order. In the situation, we feel that Op has not performed their legal obligations to support the Complainant/customer as a service provider as per the provisions of C.P.Act for return of the price of the product. Op after closure of the argument filed an affidavit of one Krishna Mohan, authorized signatory of Op, without seeking a direction of the form and same is objected the argument of case was closed on dt. 21/7/2017 and the case was reserved for orders to dt. 11/8/2017, and Op filed affidavit as an evidence on dt. 25/7/2017 has no evidentiary value and not sustainable in eye of law.In the written replies of OP, it is stated that as the disputed product is in possession of the complainant, no return of price is possible, but OP remained silent regarding further process of compliance of the grievance, when the product is not accepted, and returned by the Vulcan Centre to the Complainant, it is usually to be remained with the Complainant-customer. and such non-refund of price definitely caused mental agony to the complainant. Complainant in his petition prays before this Forum seeking direction to OP for refund of the cost of the product including ancillary charges which amounts to Rs. 575/- only along with a compensation amount of Rs.40,000/- and Rs.10,000/- for cost of litigation. In our view the compensation amount claimed by the complainant is in a higher side and without any basis.
Having observations reflected above, it is directed that complainant will dispatch the disputed product in the address of the OP, by Regd post. It is further directed that on receipt of the product, OP will refund the price of the product amounting of Rs.575/-(Rupees Five hundred seventy five)only along with Rs.2,000/-(Rupees Two thousand Only) as compensation and Rs.1,000/-(Rupees One thousand)only as cost of litigation in toto Rs.3575/-(Rupees Three thousand five hundred seventy five)only within one month of receipt of the product from the Complainant, failing which action will be initiated against the Op for non-compliance of order as per the provisions of C.P.Act,1986.
Complaint is allowed in part on contest with cost.
Pronounced in the open Court, this the 11th day of August,2017.
I, agree. I,agree.
Sd/ Sd/ Sd/-
MEMBER MEMBER PRESIDENT
