Delhi

North

CC/105/2017

SURBHI GUPTA - Complainant(s)

Versus

M/S. PAYTM - Opp.Party(s)

YADAV LAW ASSOCIATES

19 Jun 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No. CC/105/2017

In the matter of

Surbhi Gupta                                                                  

D/o Pardeep Kumar Gupta

R/o BJ-61,

West Shalimar Bagh, Delhi.

Through her S.P.A.

Sh.Naval Gupta                                                                           ...Complainant

Vs

Paytm                                                                        

Paytm Head Quarter,

B-121, Sector-5,

Noida,-201301,

Through its Directors                                                          ...Opposite party No.1

 

M/s Gemleo Merchandises Pvt. Ltd.

Khasra No. 1768/123/5 (area 8 kannal,

Village Khandsa,

Behrampur Road,

Gurgaon, Haryana-122001.

Through its Directors.                                                      ...Opposite party No.2

 

M/s IQOR, Global Service India Pvt. Ltd.

Shop no. 107, First floor, Sparrk Mall,

Kamla Nagar,

New Delhi-110007.

Through its Directors                                                      ...Opposite party No.3

  

ORDER

19/06/2023
 

Ms. Harpreet Kaur Charya, Member

1. Jurisdiction of this commission has been invoked by Ms. Surbhi Gupta, the complainant against M/s Paytm as OP-1; M/s Gemleo Merchandises Pvt. Ltd., the seller as OP-2, and M/s. IQR Global services India Pvt. Ltd., authorised service centre as OP-3,  with the prayer for direction to OPs to either take back the defective Mobile phone i.e. Apple IPhone 7 (32 GB Gold) and refund an amount of Rs.53,430/- or to replace the defective mobile phone with a new Apple Iphone7 (32 GB Gold); compensation on account of mental pain, agony and harassment of Rs.50,000/- and litigation expenses.
2. Facts necessary for the disposal of the present complaint are that, being influenced by the advertisement in the various print/audio/visual media with respect to the reputation of OP-1. The complainant on 10/03/2017 placed an order for one Apple IPhone 7 (32 GB Gold) vide Paytm order ID 2886196476 with invoice no.255574/2016-17/703 for Rs.53,430/-.As per complaint, on 12/03/2017, the handset was delivered to the complainant bearing IMEI No.353778086165853 with the mode of payment being cash.  It has been alleged by the complainant that upon checking it was found that the said mobile phone was neither getting switched on nor was taking the power. Immediately OP-1 was informed with the request to return/exchange the defective phone. OP-1 assured the complainant and asked to approach OP-3 to get the Dead On Arrival (DOA) certificate. On 17/03/2017, the complainant approached the OP-3, Apple Authorised service provider. It has been further alleged that OP-3 could not verify the serial and IMIE no.  The said fact was communicated to OP-1 along with the job sheet where again the complainant was asked to provide the DOA letter from OP-3.  The complainant has submitted that since the complainant received a defective device from OP-1 and as per the return policy the product should have been replaced but OP-1 kept on delaying and avoiding the request on one pretext or the other. 
3. After several exchanges of mails, finally on 31/03/2017 the request of the complainant was accepted but the device could not be collected due to technical defect at the end of OP-1. 
4. Legal notice dated 31/03/2017 was served upon OPs on 01/04/2017.  OP-2 refused to accept the said legal notice. Feeling aggrieved by the ac/ omission on the part of OPs, the present complaint with the allegations of mental harassment and deficiency in services.
5. The complainant had annexed the Special Power of Attorney authorising her brother Sh. Naval Gupta, invoice bearing no.25574/2016-17/703 dated 10/03/2017, printout of the box, Apple care service report dated 23/03/2017, delivery challan dated 17/03/2017 issued by OP-3, emails from 18/03/2017 to 21/04/2017 with the complaint.
6. Notice of the present complaint was served upon OP-1 to OP-3.  However, none appeared on behalf of OP-2 and OP-3 despite service neither any reply was filed on their behalf hence they were proceeded ex-parte vide order dated 06/0/3/2018.
7. Written statement was filed on behalf of OP-1, where they have taken several preliminary objections such as they are an “intermediary” as defined under Section 79 of the Information Technology Act, 2000.  They offered market place based on model of e-commerce services and provide an information technology platform on a digital an electronic network thus, they act as the facilitator between the buyers and sellers and they are exempted from liability of any third party information, data or communication link.   They do not sell any of the goods on the website directly, it is only the seller, upon registering gets the opportunity to display their goods.
8. It has been admitted  that the complainant had placed an order for Apple IPhone 7 (32 GB Gold) vide order ID 2886196476  from OP-2, which was delivered on 12/03/2017 and the same was found to be non-functioning/defective.  They have further submitted that the complainant was informed that OP-1 is neither the manufacturer nor the seller and was advised to visit OP-3, an authorised service centre of Apple where the product could be repaired.
9. OP-1 has relied on the “Physical Goods Marketplace-Terms & Conditions” clarifying the contractual obligations.  It has been categorically submitted that the role of OP-1 concluded as soon as the order was successfully placed upon the marketplace platform of OP-1 and the related information of the booking was conveyed to the merchant OP-2.  Thereafter, the supply of the genuine product, its packaging, delivery are the responsibility of the merchant/seller i.e. OP-2 in the instant case.   They have denied that there was any deficiency of services on their part.  Rest of the contents of the complaint have been denied. The Authority letter dated 05/09/2017 and terms and conditions of Physical Good Marketplace has been annexed with their written statement.
10. In rejoinder to the written statement filed on behalf of OP-1, the complainant has reiterated the averment made in the complaint and has denied those of the written statement. It has been stated that the consumer are attracted by the offers and display of various product on the website of OP-1 and they placed the order in good faith.  The complainant was assured by OP-1 that the defective product will be returned at the earliest.
11. Evidence on behalf of complainant was filed, where Sh. Naval Gupta, SPA holder has reiterated the contents of the complaint.  He has relied upon the document annexed with the complaint and has got exhibited the SPA as Ex.CW1/A, the copy of the invoice 10/03/2017 as Ex.CW1/B, copy of the job sheet as Ex.CW1/C, the copy of request made through emails are Ex.CW1/D (colly). He has also got exhibited the copy of the legal notice, postal receipts and proof of delivery as Ex.CW1/E to Ex.CW1/G.
12. OP-1 have got examined Sh. Harshal Negi, the authorised representative on their behalf . He has got exhibited the copy of the board resolution as Ex.OPW1/1 and terms and condition as available on the website www.paytm.com and www.paytmmall.com as Ex.OPW-1/2, copy of the guidelines as Ex.OPW1/3.
13. We have heard the contentions on the part of Ld. Counsel for the complainant and Ld. Counsel for OP-1.  We have also perused the material placed on record.  The complainant has alleged that the product i.e. Apple IPhone 7 (32 GB Gold) delivered to her was “Dead on Arrival”.  In support of her case she has filed a jobsheet dated 17/03/2017, Delivery challan issued by OP-3 under the head problem reported by customer “UNABLE TO TURN ON THE PHONE, NOT POWERING ON”. Similarly, in jobsheet dated 23/03/2017 under problem reported by customer is, “IPHONE IS NOT POWERING ON”. The condition of equipment is “DEVICE DEAD ON ARRIVE” under the diagnosis details “Tried to Reset and restore, checked VMI. Checked in DFU mode.  IPhone is not powering on.  Device need to be replaced. Device return back to customer.”
14. As per email dated 24/03/2023, the complainant was asked to share the Dead on Arrival (DOA) certificate, which was shared by the complainant in the form of Jobsheet, the OP-1 has in subsequent email’s too has asked the complainant to share DOA, rejecting the jobsheet. On no occasion, OP-1 has shared the format of DOA certificate required to be submitted by the complainant. Later on, after exchange of various emails, the return request was accepted by OP-1 vide email dated 31/03/2017.  However, in an email dated 02/04/2017, the complainant was informed that the return was not picked as Brand Packaging was not available with the product, which was duly replied by the complainant through email of even date stating that the courier boy refused to pick the handset as it was dead & he could not read the IMEI no.
15. Subsequent email dated 03/04/2017 at 11:11 A.M., also bears details of return pickup, where the expected date of return is 05/04/2017 and ultimately vide email of even date at 06:53 P.M. the request for return was cancelled with the reason: “Return request validation did not pass”.  The said reason is very cryptic and doesn’t explain as to what is the validation process & no report has been shared with the complainant, thus rejection of return request is arbitrary.

16.   OP-1 in their defence has relied on terms & conditions of the market place. Return Policy bears:

a. In the event You receive a damaged/ defective product or a product that does       not comply with the specifications as per Your original order, You are required to get in touch with the customer service team.

b. Upon receiving Your complaint, Paytm shall verify the authenticity and the nature of the complaint. If Paytm is convinced that the complaint is genuine, Paytm will inform the relevant Merchant of such complaint and request for a replacement. However, in the event of frivolous and unjustified complaints regarding the quality and products, other than not requesting the Merchant for replacement, Paytm reserves the right to pursue necessary legal actions against You and content of the and You will be solely liable for all costs incurred by Paytm in this regard. You expressly acknowledge that the Merchant selling the defective product/ service will be solely responsible to You for any Claims that You may have in relation to such defective product/ service and Paytm shall not in any manner be held liable for the same.

c. ......

d. In order to return any products sold through the Paytm Platform, You are required to comply with the following conditions:

i.       For non-damaged/ non defective product/service, you shall be allowed to return the product within the time frame displayed on website at the time of purchase;

ii.      Please notify Paytm of receipt of damaged/ defective product/service within 48-hours of delivery to you. If you are unable to do so within 48-hours,

Paytm/Merchant/manufacturer/service provider shall not be held liable for the failure to replace the order;

iii.   Paytm will arrange pick up of the damaged defective product through its own logistics partner. In the event Paytm is unable to 8/16 do so, Paytm will notify You regarding the same and You will required to dispatch the product using a reputed courier

17.     Therefore, as per Clause (a) of the Return policy of OP-1, the complainant has contacted the consumer service and same has been assured as per invoice as “Any issue or problem we are available 24X7 for you at paytm.com/care”.  The assurance was given by the OP-1 and they have failed to redress. Further, OP-1 has also not filed any report/investigation/record of communication with the seller i.e. OP-2 to substantiate that the complaint of the complainant was thoroughly investigated.  On the other hand complainant has substantiated the same with the help of  jobsheets  and various emails that the defective handset was delivered to her. Therefore, we are of the opinion that OP-1 was deficient in services.  At the same time this fact also cannot be ignored that OP-2 has sold a defective handset to the complainant which amounts unfair trade practice.

18.     Hence, in the facts and circumstance of the present complaint, we direct OP-1 to refund the cost of the handset of Rs.53,430/-alongwith interest @7% p.a. from the date of the delivery of the defective handset i.e. 12/03/2017 till realisation.  We further award a compensation of Rs.10,000/- on account of mental agony and harassment, inclusive of litigation expenses.   OP-1 shall be at liberty to recover the awarded amount from OP-2. 

The order be complied within 30 days from the date of receipt of this order, in case of non-compliance Rs.63,430/-(Rs.53430/-+ Rs.10,000/-) shall carry interest @9% p.a. from the date of order till realization .

Office is directed to supply the copy of this order to the parties as per rules.  Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

(Harpreet Kaur Charya) Member

(Ashwani Kumar Mehta) Member

 

(Divya Jyoti Jaipuriar)

President