Sh.Anoor Sharma, Presiding Member.

1.       Ms.Shivangi  has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that she booked order through Online with Opposite Parties  for Camera (Item) 198449982 Nikon D5500 with AF S-EDX vide order dated 19.7.2016 for a sum of Rs.57,498/- from Opposite Party and Opposite Party No.1 has issued another Camera, the detail of which as under:-

Nikon Coolpix L 3 with Bag + Memory Card. Whatsoever item is demanded, the same was not issued by Opposite Party No.1 and the payment of the full amount was made to Opposite Party No.2, thus Opposite Party No.2 has impleaded as part to the complaint. It was averred that when the Camera was received, the same was not as per the order and in this regard, the complainant requested the Opposite Parties and told that the product is not the same which was ordered by the complainant, but the Opposite Party is not listening to the just and  genuine request of the complainant. Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Parties  be directed to replace the Camera with new one as per booked Online or in the alternative remit the cost of the Camera amounting to Rs.57498/- alongwith interest @ 24% per annum thereon from the date of purchase till the date of payment made by the complainant.

b)      Compensation of Rs.40,000/- be also  awarded from the Opposite Parties  for harassment and mental tension on the mind of the complainant.

c)       Costs of the complaint be also granted.

d)      Any other relief in the alternative which this Forum may deem fit and just be also granted.  

Hence, this complaint.

2.       Upon notice, none appeared on behalf of Opposite Party No.1 despite due service,  hence Opposite Party No.1 is proceeded against exparte vide order dated 23.09.2016 of this Forum.

3.       Opposite Party No.2 appeared and contested the complaint by filing  written statement taking preliminary objections therein inter alia that Opposite Party No.2 is the owner of the website www.paytm.com alongwith the Mobile Application named ‘Paytm’ which is an online market place and acts as a platform for different sellers to sell their products and for different buyers to access and purchase amongst variety of goods offered by various sellers to the terms and conditions as enumerated by on the website of Paytm. Answering Opposite Party neither sells nor offers to sell any product and merely provides a technology platform (an online marketplace) where independent third party sellers can list their products for sale.  The seller themselves are responsible for the sale of their products on the website. Paytm is neither responsible for the products that are listed on the website by various third party sellers, nor does Paytm intervene or influence any  customers in any manner. Paytm is not directly involved in the sale transaction between the  customer and seller/ merchant. The condition relating to the customer’s use of the website and unequivocally agreed by the complainant and his associate at the time of making the order bearing Order Id.1984496982 on 19.7.2015 for purchasing one Nikon D5500 (With AF-S DX NIKKOR 18-140 mm f/3.5-5.6 G ED VR Lens) DSLR 24.2 MP Camera (Black) Free Nikon DSLR Bag+8 GB Memory Card amounting to Rs.57,498/- and specifically stated in para No. 2 of preliminary objections. It is however, admitted that Opposite Party No.2 acts only as a facilitator and thus, it does not have any privity of contract with the complainant. The true facts are that the alleged order under contention was placed by one  Rohit Sharma for the complainant. Even the payment for the purchase of the product was not made by complainant. Even otherwise, the complainant has not bought any product from Opposite Party No.2. It is also admitted that Opposite Party is neither the seller nor the manufacturer of the alleged product under  contention. It is reiterated here that Opposite Party No.2 is merely an intermediary that works as a facilitator/ bride between the seller and buyer. Admitted, Mr.Rohit Sharma booked the order bearing ID 1898172174 on 19.7.2015 on behalf of the complainant for purchase of one Nikon D5500 (with AF-S DX Nikkor 18-140 mm f/3.5-5.6 G ED VR Lens) DSLR 24.2 MP Camera (Black) + Free Nikon DSLR Bag + 8 GB Memory Card amounting to Rs.57,498/- displayed by Opposite Party No.1 upon the online market place platform provided by Opposite Party No.2. It is also admitted that ordered product was delivered on 25.7.2015 at the delivery address. It is emphatically submitted here that Mr.Rohit Sharma raised the return request on the same day bearing the reason that he has received the ‘Wrong Product’ by Opposite Party No.1 and as per the process, Opposite Party No.2 escalated the request to his customer support team for refund of the product value. However, after going through the past record and transactions of Mr.Rohit Sharma and the complainant, Opposite Party No.2 found that Rohit Sharma, who booked the orders to be a suspicious purchaser. After considering the history of the complainant ad the associate who booked the said  order, the suspicious transactions made by them, the Opposite Party No.2 had no other option but to reject the return the said order. As such, the present complaint is not maintainable. The complaint is therefore, liable to be dismissed with costs. On merits, the Opposite Party No.2 took the same and similar pleas as taken by them in preliminary objections.   Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

4.       In her bid  to prove the case, complainant tendered into evidence  affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2 to Ex.C14  and closed her evidence.

5.       On the other hand, to rebut the evidence of the complainant, the Opposite Party No.2 tendered into evidence the resolution of Opposite Party No.2 Ex.OP2/1 alongwith terms and conditions and closed the evidence on behalf of Opposite Party No.2.

6.       We have heard the ld.counsel for the complainant and ld.counsel for  Opposite Party No.2 and have carefully gone through the evidence on record.

7.       Ld.counsel for the complainant has reiterated the averments made in the complaint and argued that   the complainant  booked order through Online with Opposite Parties  for Camera (Item) 198449982 Nikon D5500 with AF S-EDX vide order dated 19.7.2016 for a sum of Rs.57,498/- from Opposite Party and Opposite Party No.1 has issued another Camera, i.e. Nikon Coolpix L 3 with Bag + Memory Card. Whatsoever item is demanded, the same was not issued by Opposite Party No.1 and the payment of the full amount was made to Opposite Party No.2. It was averred that when the Camera was received, the same was not as per the order and in this regard, the complainant requested the Opposite Parties and told that the product is not the same which was ordered by the complainant, but the Opposite Party is not listening to the just and  genuine request of the complainant.

8.       On the other hand, none appeared on behalf of Opposite Party No.1 despite due service, but however,  Opposite Party No.2 appeared through counsel and reiterated that  Opposite Party No.2 neither sells nor offers to sell any product and merely provides a technology platform (an online marketplace) where independent third party sellers can list their products for sale.  The seller themselves are responsible for the sale of their products on the website. Paytm is neither responsible for the products that are listed on the website by various third party sellers, nor does Paytm intervene or influence any  customers in any manner. Paytm is not directly involved in the sale transaction between the  customer and seller/ merchant. The condition relating to the customer’s use of the website and unequivocally agreed by the complainant and his associate at the time of making the order bearing Order Id.1984496982 on 19.7.2015 for purchasing one Nikon D5500 (With AF-S DX NIKKOR 18-140 mm f/3.5-5.6 G ED VR Lens) DSLR 24.2 MP Camera )Black) Free Nikon DSLR Bag+8 GB Memory Card amounting to Rs.57,498/- and specifically stated in para No. 2 of preliminary objections. It is however, admitted that Opposite Party No.2 acts only as a facilitator and thus, it does not have any privity of contract with the complainant. The true facts are that the alleged order under contention was placed by one  Rohit Sharma for the complainant. Even the payment for the purchase of the product was not made by complainant. Even otherwise, the complainant has not bought any product from Opposite Party No.2. It is also admitted that Opposite Party is neither the seller nor the manufacturer of the alleged product under  contention. It is reiterated here that Opposite Party No.2 is merely ana intermediary that works as a facilitator/ bride between the seller and buyer. Admitted, Mr.Rohit Sharma booked the order bearing ID 1898172174 on 19.7.2015 on behalf of the complainant for purchase of one Nikon D5500 (with AF-S DX Nikkor 18-140 mm f/3.5-5.6 G ED VR Lens) DSLR 24.2 MP Camera (Black) + Free Nikon DSLR Bag + 8 GB Memory Card amounting to Rs.57,498/- displayed by Opposite Party No.1 upon the online market place platform provided by Opposite Party No.2. It is also admitted that ordered product was delivered on 25.7.2015 at the delivery address. It is emphatically submitted here that Mr.Rohit Sharma raised the return request on the same day bearing the reason that he has received the ‘Wrong Product’ by Opposite Party No.1 and as per the process, Opposite Party No.2 escalated the request to his customer support team for refund of the product value. However, after going through the past record and transactions of Mr.Rohit Sharma and the complainant, Opposite Party No.2 found that Rohit Sharma, who booked the orders to be a suspicious purchaser. After considering the history of the complainant ad the associate who booked the said  order, the suspicious transactions made by them, the Opposite Party No.2 had no other option but to reject the return the said order. As such, the present complaint is not maintainable. The complaint is therefore, liable to be dismissed with costs. On merits, the Opposite Party No.2 took the same and similar pleas as taken by them in preliminary objections.

9.       It is not the denial on the part of Opposite Party No.2 that the complainant has placed an order online for the purchase of Camera (Item) 198449982 Nikon D5500 with AF S-EDX vide order dated 19.7.2016 for a sum of Rs.57,498/- from Opposite Party. It is also not denied by Opposite Party that Opposite Party No.1 has issued another Camera, i.e. Nikon Coolpix L 3 with Bag + Memory Card. Whatsoever item is demanded, the same was not issued by Opposite Party No.1 and the payment of the full amount was made to Opposite Party No.2. In this regard, the complainant requested the Opposite Parties and told that the product is not the same which was ordered by the complainant, but the Opposite Party is not listening to the just and  genuine request of the complainant. On the other hand, neither the Opposite Party nor Sh.Monish Seth, Asstt.Sales Manager appeared on behalf of Opposite Party No.2 has not denied the averments made by the complainant in his complaint, but they have raised about the previous conduct of one Mr.Rohit Sharma, but said person is none-else by the real brother  of the complainant. Moreso, the Opposite Party has failed to convince this Forum as to why they have sent the wrong product to the complainant against the payment of Rs.57498/- and in this way, the Opposite Parties  are indulged in  unfair trade practice. Moreover, to support and prove her case, the complainant has tendered her affidavit Ex.C1, photographs Ex.C2 to Ex.C4, copy of order summary Ex.C5, copy of e-mail Ex.C6, copy of order summary Ex.C7, copy of e-mail Ex.C8 to Ex.C12, copy of order summary Ex.C13 and Ex.C14. On the other hand, Opposite Party has nowhere rebut the aforesaid documents of the complainant placed and exhibited on the file. Not only this much, Opposite Party has failed to even rebut the aforesaid documents of the complainant by any affidavit on the file.  In such a situation,  in the absence of any affidavit on the pat of the Opposite Party,  we are of the view that by not sending the product for which the complainant made booked and made payment, there is great negligence and lapse on the part of the Opposite Parties. Due to the wrongful act and conduct, the complainant has suffered great mental tension and agony which can not be compensated on the shape of money, but however, to compensate the loss of the complainant, a reasonable compensation must be awarded to the complainant for negligence and unfair trade practice on the part of the Opposite Parties. Hence, both the Opposite Parties  are jointly and severally liable to compensate the complainant.

10.     Although the complainant has made a claim for grant of compensation to the tune of Rs.40000/-, but she has not given any detail nor any documentary proof to prove the actual loss occasioned to her on account of negligence, deficiency in service or unfair trade practice on the part of the Opposite Parties, but this Forum is competent to indulge in guess working and further use its experience to assess the actual loss suffered by the complainant. The complainant is entitled to such compensation  only to make good the actual loss suffered by him and no exorbitant or  fanciful amount can be awarded as compensation.

11.     In view of the aforesaid  facts and circumstances of the case,  the Opposite Parties  are directed to refund the amount of Rs.57498/- paid by the complainant for the purchase of Camera. However, Opposite Party is at liberty to take back the Camera in dispute from the complainant while make the awarded amount.    Keeping in view the facts and circumstances of the case and loss occasioned by the complainant on account of deficiency in service on the part of the Opposite Parties, the complainant is entitled to grant of compensation to the tune of Rs.5,000/- from the Opposite Parties  while a sum of Rs.2,000/- is imposed upon the Opposite Parties on account of litigation expenses. Compliance of this order be made within 30 days from the receipt of copy of the order; failing which, awarded amount shall carry interest @ 6% p.a from the date of passing of order until full and final recovery. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

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