Order dictated by:

Sh.S.S. Panesar, President.

1        Sh.Madhur complainant has brought the instant complaint under section 12  & 13 of  the Consumer Protection Act, 1986  on the allegations that complainant has purchased an INFOCUS M330  mobile having IMEI No. 355123061242849 from opposite party No.1 online through opposite party No.4 vide invoice No. SCF-44A/15-16/20393 dated 15.5.2015 for an amount of Rs. 9999/- for his own use. Copy of the cash memo is attached.  Unfortunately the mobile created problems in working and on 6.10.2015 complainant approached opposite parties No.1 & 4 and apprised them about the problem. But the opposite parties No.1 & 4 had refused to attend the complainant on the ground that they have no liability after sale and referred the complainant to opposite party No.2, who is authorized service centre at Amritsar. On the asking of opposite parties No.1 & 4 , complainant approached opposite party No.2 on 29.9.2015. Opposite party No.2 received the defective mobile set with battery from the complainant  and issued receipt to the complainant. Since 29.9.2015  opposite party No.2 is making promise after promise to return the mobile and ultimately they flatly refused to return the mobile set to the complainant as the same has technical problems which are unrepairable and asked the complainant that they have no liability for the exchange of the defective mobile set with new one. The mobile set was within guarantee/warranty period when opposite partyNo.2  received the same from the complainant  and the opposite parties are bound to do the necessary repairs and to remove the faulty parts without charging any money or replace the defective set with new one. The complainant has sought for the following reliefs vide instant complaint :-

(a)     Opposite parties No.2 & 3 be directed to change the defective mobile set with new one.

(b)     Compensation to the tune of Rs. 20000/- may also be awarded to the complainant.

Hence, this complaint.

2.       Upon notice opposite party No.4 appeared and contested the complaint by filing written statement taking certain preliminary objections therein inter alia that  replying opposite party operates it online marketplace platform under the brandname/trademark ‘snapdeal’ through the website i.e.www.snapdeal.com (hereinafter referred to as “website”). The website is an electronic platform which acts as an intermediary to facilitate sales transactions between independent third party sellers and independent end customers. Once a user accepts the offer of sale of the products made by the third party , the seller is intimated electronically and is required to ensure that the products are made available and delivered in accordance to the delivery terms  as set out by the seller as part of the terms for sale displayed on the website ; that replying opposite party acts as an intermediary through its web interface and provides a medium to various sellers all over India to offer for sale and sell their product(s) to the general public at large. The opposite party No.4 does not directly or indirectly sells any products on its website. Rather all the products on website are sold by third party sellers. The sellers directly raised invoices to the final customers . Furthermore any kind of assurance , whether in terms of warranty on the products or otherwise, is provided either by the manufacturer of the sellers . Opposite party no.4 neither offers nor provides any assurance to the end buyers of the product ; that present complaint is based on vague 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 . In parawise reply  opposite party No.4  has submitted that it is neither the manufacturer nor the seller of the product. The actual seller of the product is opposite party No.1 and the manufacturer of the product is opposite party No.3. Role of opposite party No.4 is limited to providing online platform to facilitate sale and purchase of goods by the respective sellers and buyers on its website and a prayer for dismissal of complaint was made.

3.       Opposite parties No.2 & 3 in its written version have submitted that they are not marketers but only service providers and Saint computers is their assisting service provider. The mobile set was submitted to them for accessory problem in the audio speaker and it was admitted that the mobile was taken for repair during the warranty period. The defect was rectified and the mobile was ready for delivery. But the complainant refused to pick up the same since he demanded a replacement and not a rectified product. The mobile did not have any inherent manufacturing defect. The manufacturer can only replace the mobile hand set and the role of the service provider is limited to providing service as per the stipulations of the warranty manual  and a prayer for dismissal of the complaint was made.

4.       Opposite party No.1 did not put in appearance and it was ordered to be proceeded against ex-parte.

5.       In his bid to prove the case complainant tendered into his duly sworn affidavit E x.C-1, copy of retail invoice Ex.C-2, copy of receipt acknowledgement Ex.C-2, copy of envelope Ex.C-4 , copy of letter dated 10.11.2015 Ex.C-5 and closed his evidence.

6.       To rebut the aforesaid evidence opposite parties No.2 & 3 tendered into evidence affidavit of Sh.Charanjit Singh, authorized representative Ex.OP2,3/1 and closed the evidence on behalf of opposite parties No.2 & 3.

7.       On the other hand  Sh.Mohan Arora,Adv.counsel for opposite party No.4 tendered into evidence affidavit of Sh.Shine Joy, authorized signatory Ex.OP4/1, copy of authority letter Ex.OP4/2, copy of terms Ex.OP4/3 and closed the evidence on behalf of opposite party No.4.

8.       Ld.counsel for the opposite party has vehemently contended that complaint is barred by the terms of the agreement duly executed inter-se parties.  Relevant clause 1.3 of the terms of use are as follows:-

“By (i) using this website or any facility or service provided by this website in any way or (ii) merely browsing the website, you agree that you have read, understood and agreed to be bound by the terms of use and the website privacy policy available at the homepage www.snapdeal.com.:”

          Further clause 14.2 of the “terms of offer for sale” of the website www.snapdeal.com and agreed to by the complainant state as under:-

“You agree to all claims, differences and disputes arising under or in connection with or in relation to the terms of offer for sale or any transactions entered into on or through the website or relationship between you and snapdeal shall be subject to exclusive jurisdiction of the courts of New Delhi and you hereby accede to and accept the jurisdiction of such courts.”

9.       In the instant case, the first opposite party’s registered office is at 238, Ist Floor, Okhla Phase III, New Delhi. Accordingly, in terms of the exclusive jurisdiction clause in favour of the courts situated  in New Delhi, this  Forum does not have the jurisdiction to entertain the present dispute.

10.     As per clause 1.1 the opposite party No.1 does not sell any product and only  manages an online market place. Further clause 3.3 of the terms of sale provides as under:-

“All the products are governed by the terms of warranties provided by respective manufacturers/brands. However,  in case any product is under seller warranty, it shall be specifically mentioned under the product details.”

11.     Clause 3.5 of the terms of offer for sale provide as under:-

“In the event you purchase any electronic products from the vendors Snapdeal shall not be liable from any fault arising from these electronic products. You are requested to visit the nearest service station as per user manual, if any or as indicated by the vendors for any default in electronic products.”

12.     Clause 9.2 of the terms of offer for sale provide as under:-

“Upon receiving your complaint, Snapdeal shall verify the authenticity and nature of the complaint and if Snapdeal is convinced that the complaint is genuine, Snapdeal will inform the relevant vendor of such complaint and request for a replacement. However, in the event of a frivolous and baseless complaint regarding the quality and content of the products, Snapdeal reserves the right to take necessary legal action against you and you will be solely liable for all costs incurred by Snapdeal in this regard. You expressly acknowledge that the vendor 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 Snapdeal shall not in any manner be held liable for the same.”

13.     No doubt the complainant purchased one mobile phone i.e. IN FOCUS M330 from seller i.e. opposite party No.1 and not from opposite party No.4. Manufacturer of the product is opposite party No.3. The complainant  has filed  complaint for a defective product being purchased from opposite party No.4 which is wrong and fabricated. Hence it is not admitted. However, it is submitted that opposite party No.4 is neither the manufacturer nor the seller of the product purchased by the complainant. The complainant case has been that the mobile phone purchased on the recommendation  of opposite party No.4 is also false. Opposite party No.4 being mere an intermediary, does not provide any assurance to any visitor of the website and the same is provided only by the manufacturer or the seller of the product. It is pertinent to mention that the complainant has failed to establish any cause of action for knocking at the door of this Forum against opposite party No.4. The complaint is not maintainable against opposite party No.4 and it is contended that case against opposite party No.4 may be dismissed.

14.       But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant purchased product of opposite party No.3 from opposite party No.2  online through Snapdeal , opposite party No.4 vide invoice No.SCF-44A/15-16/20393 dated 15.5.2015 on payment of cash of Rs. 9999/- for his own use. Copy of the cash memo accounts for Ex.C-2. Unfortunately  the mobile created problems in working  and on 6.10.2015 complainant approached  opposite party No.1 & 4 and  apprised them about the problem in the set   as the set was within guarantee period. But opposite party No.1 & 4 refused to attend the complaint on the ground that they have no liability  after sale and referred the complainant to opposite party No.2 his authorized service centre at Amritsar . On the asking of opposite parties No.1 & 4, the complainant alongwith defective mobile set approached opposite party No.2 on 29.9.2015. Opposite party No.2 received the defective mobile hand set with battery from the complainant on the assurance that the same will be delivered after necessary repairs. Since 29.9.2015, opposite party No.2 is making  promise after promise to return the mobile and flatly refused one day before filing the present complaint. Although on 16.8.2016, during the pendency of the complaint, Charanjit Singh Assistant Authorised Service Provider on behalf of opposite parties No. 2 & 3 suffered a statement that opposite parties  No.2 & 3 are ready to return the mobile set after repairs & has brought the same for delivery to  the complainant  but the complainant refused to accept the offer by suffering a statement in court. As a matter of fact, opposite parties No.2 & 3 in order to escape from compensation & cost, might have made the statement at such a belated stage. The complaint has been filed on 22.12.2015 & it remained pending for more than 8 months, when this offer was made. Offer being fainted & malafide, has rightly been declined by the complainant. The contention of the complainant that he is entitled for replacement of the old mobile set with new one of the same make, is not tenable because no manufacturing defect in the gadget has been proved through evidence on record. As such, the complainant was entitled to receive the mobile hand set in dispute after repairs to his satisfaction without payment of repair charges against receipt. The opposite parties No.2 & 3 are directed to comply with the order within a period of one month from the date of receipt of copy of this order & the complaint stands disposed off accordingly. The opposite parties No.2 & 3 are burdened with compensation to the tune of Rs. 2000/- while cost of litigation are assessed at Rs. 1000/-. Complaint against the remaining opposite parties fails & is ordered to be dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated : 05.09.2016

/R/