Haryana

Panchkula

CC/153/2018

KAVITA GULERIA - Complainant(s)

Versus

MYNTRA DESIGN PVT.LTD - Opp.Party(s)

COMPLAINANT IN PERSON

03 Jul 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA

Kavita Guleria, D/o of Rajpal Guleria, R/o H.No.2158, Sector-15, Panchkula, Haryana.

….Complainant

Versus

1. Myntra Design Pvt. Ltd AKR Texh Park-B Block, Krishna Reddy Industrial Area, 7^th Mile, Kudlu Gate, Bengaluru though its Managing Director (MYNTRA.COM) (Return Processing Facility of Myntra Design Pvt. Ltd. Survey Number 231,232 and 233, Soukya Road, Samethanahalli Village, Anugondanahalli Hobli, Hoskote Taluk, Bengaluru through its Manager.

3. FLIPKART.COM (Parent Organization of MYNTRA.COM) Registered office address: Flipkart Internet Private Limited, Vaishnavi Summit, Ground Floor, 7^th Main, 80Feet Road, 3^rd Block, Koramangala, Bengaluru-560034 through its Managing Director.

4. Shreyash Retail Pvt. Ltd.(Reg. Seller Address with Myntra.COM), E-29, Ring Road, South Extension-II, Opp Park, New Delhi, Delhi-110049

….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

For the Parties:   Complainant in person.

Sh. Amit Mahajan, Advocate, counsel for OPs No.1 & 2.

Sh. Rohit Kumar, Advocate, counsel for OPs No.3 & 4.

ORDER

(Dr. Sushma Garg, Member)

1.             The brief facts of the present complaint are that complainant had ordered a Global Desi(Brand Name) Black Solid Jumpsuit 9Size M) on 27^th June, 2018 pertaining to the order no.10819588466085-4814103 for Rs.1337.28  through e-commerce company MYNTRA.COM i.e. OP  No.1. OP No.3 is its Parent Management firm. On 4^th July, 2018 in the absence of the complainant the product was delivered at her home.  Later, on unboxing the delivered package, she found a MEN BOARDSHORT of brand QUICKSLIVER instead of the item she had ordered. On the same day in the afternoon the complainant raised her concern to the Customer Care Executive and raised a return request against the delivery of the wrong product through Myntra’s mobile application. On 5^thJuly 2018 the return request was cancelled without giving any reason of the complainant. She again talked to the customer care executive on 6^th July, 2018 and raised another return request. On the same day, OP No.1 e-mailed the complainant to share the barcode picture present on a thumb sized sticker on the transparent polythene cover and details pertaining to the package delivered to her. She sent the pictures of all the barcodes present on tags and polythene cover to OP No.1. On 10^th July 2018 a delivery boy came at the complainant’s place but didn’t accept the return of the package delivered to her, claiming  that he was not given any information regarding the return of the wrong product delivered and on the same day  she received a mail from OP No.1 stating that ‘Your return request has been rejected’. She further raised  her concern and requested the customer  support team of the OP No.1 to resolve the above mentioned issue but the support  team completely rejected to process  the return of the wrong product delivered to her stating that ‘As per their data they have shipped the correct item’. Since then the complainant has complained several times to the OP No.1’s support team but they did not return the wrong product. Due to the act and conduct of the Ops, complainant had suffered financial loss, mental agony and physical harassment. Hence, the present complaint.

2.             Upon notice OPs No.1 & 2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being baseless; complainant is not a consumer; bad for mis-joinder of party; suppressed the material facts and not come with clean hands. On merits, OPs No.1 & 2 stated that the OP No.1  provides  online marketplace  platform/ technology  and/ or other  mechanism/ services to the sellers  and buyers  of products to facilitate the transactions, electronic commerce for various goods, by and between respective buyers and sellers and enables  them to deal in various categories of goods  including  but not limited to watches, clothes, footwear and accessories products etc. The complainant has purchased the product from the independent seller listed on the Myntra Platform. The OP No.1 is not involved in the entire transaction executed between the seller and the complainant. There is no privity of contract between the complainant and the OP No.1. They further stated that as per information received from the seller of the product, the correct product was shipped to complainant and the same can be gathered from the fact that even the bar code shared by the complainant matched the product ordered by the complainant. Further while inspecting the said product during scheduled pick up, it was found that the said product was not genuine and the return request was duly denied by the Seller of the said product. The OP No.1 neither offers nor provides any assurance and/or offers pick up, replacement or refund facility to the end buyers of the product. It is reiterated that OP No.1 is not liable to replace any product or make refund any amount towards the complainant. Thus there is no deficiency in service on the part of OPs No.1 & 2 and prayed for dismissal of the present complaint.

                Upon notice OP No.3 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being baseless; suppressed the material facts and not come with clean hands. On merits, OP No.3 stated that  complainant has wrongly  raised  the grievance against the OP No.3 as the OP No.3 is not the seller of the product and nor the product was purchased is not the seller of the product  and nor the product was purchased  from online portal of the OP No.3. It is further necessary to clarify  that OP No.3 is not related with OP No.1 in any manner, both the companies are different  companies and both of them are having there different  office. In no manner they are related with each other. Thus there is no deficiency in service on the part of OP No.3 and prayed for dismissal of the present complaint.

                Upon notice OP No.4 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being baseless; suppressed the material facts and not come with clean hands. On merits, OP No.4 stated that it has a separate and distinct identity from that of the manufacturer and there is no relation of principal and agent between the OP No.4 and other Ops. The entire grievance of the complainant relates delivery of wrong product. It is only registered online seller of the product. OP No.4 further stated that it only delivers the sealed packet of the product as received from the manufacturer only. As they doesn’t know about the manufacturing of the product or the quality of the product. Therefore, regarding delivery of the wrong product the complainant must have raised the grievance with the manufacturer of the product who has sent the product to the complainant. Thus there is no deficiency in service on the part of OP No.4 and prayed for dismissal of the present complaint.

3.             Replication to the written statements of the OPs No.1 to 4 was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OPs

4.             To prove her case, the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-8 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 & 2 tendered affidavit Annexure R1/A and closed the evidence. The learned counsel for OP No.3 tendered affidavit Annexure R-3/A alongwith document Annexure R-3/1 and closed the evidence. Counsel for the OP No.4 tendered affidavit as Annexure R-4/A alongwith document Annexure R-4/1 and closed the evidence.

5.             We have heard the complainant, ld. counsels for OPs and gone through the record carefully and minutely.

6.             It is evident from the record that the complainant had ordered a Global Desi(Brand name) Black solid jump suit on 27^th June, 2018 vide order no.10819588466085-4814103 for Rs.1337.28 through OP No.1 from OP No.4(Annexure C1 to C2). The product was delivered on 4^th July 2018, on opening/checking the package, the complainant found that the delivered product was not as per order. It was a men BOARDSHORT of brand QUICKSILVER. Time and again she made requests to the OPs No.1, 2 & 4 to pick up the wrong product. The complainant even shared the barcodes mentioned on the package on demand of/as asked by the OP No.1. The OP No.1 rejected the request made by complainant to process the return of wrong product by stating that they have shipped the correct item. The complainant being left with no option approached this Forum by way of filing the present complaint.

                During the course of arguments, the complainant produced the delivered product before us which apparently is a men BOARDSHORT of brand QUICKSILVER.

                On the other hand the counsel for OPs No.1 & 3 reiterated that OP No.1 provides online marketplace platform/services to the seller and buyers to facilitate only. There is no direct contract or agreement between complainant and OPs No.1 & 2. The ld. counsel appearing on behalf of OPs No.1 & 2 has vehemently denied the liability of the OPs No.1 & 2 in the matter on the several grounds, which are summarized as under:-

1. That there is no privity of contract between the complainant and OPs  No.1 & 2 as no consideration amount has been received by OPs No.1 & 2  from the complainant. Further, the OPs No. 1 & 2 are neither the manufacturer nor the seller of the product in question. The OPs No.1 &2 are 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. Myntra Design Pvt. Ltd 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, admittedly the product was sold and advertised by OP No.4 i.e. Shreyash Retail Pvt. Ltd.(Reg. Seller Address with Myntra.com) and not the OPs No.1 & 2.
2. That the OPs No.1 & 2 merely operates an online market place which acts as an intermediary between the actual seller and the buyer of a product. The OPs No.1 & 2 only acts as an intermediary through its web interface www.myntra.com  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 OPs No.1 & 2 do not sell any product rather all the products are sold directly by various sellers to the end customers and invoices are generated directly by such sellers to the customer. Once the order has been placed by the customer on the website, all services related thereto including delivery of the goods as per the specification mentioned by the seller on the website and order placed by the buyer on the website is the responsibility of the seller and not in any way, of the OPs No.1 & 2. The ld. counsel for the OPs No.1 & 2 relied upon the law laid down by Hon’ble Supreme Court in case titled as Hindustan Motors Ltd. and Another Vs. N. Siva Kumar and Another, decided on 20.08.1999. Ld. counsel further relied upon the law laid down by Hon’ble National Commission, New Delhi in case titled as Vishal Kotecha Vs. Snapdeal.Com & Anr. R.P No.1422 of 2016, decided on 11.08.2016.
3. That the OPs No. 1 & 2 are not liable in view of the terms and conditions as contained in Clause 13.1 and 13.2 of the standard terms and conditions Annexure R-3/2.
4. That the complainant does not fall under the category of consumer qua OPs No.1 & 2.
5. That the OPs No.1 & 2 are exempted from the liability in view of the provisions as contained in Section 79 of Information Technology Act, 2000. In this regard ld. counsel placed reliance upon the law laid down by the Hon’ble Supreme Court of India in the case titled as Sachayani Savings Investment (I) ltd and ors v. State of West Bengal (Civil Appeal No.5168 of 2000) & further upon the case titled as Intex Technologies V. jasper Infotech Pvt. Ltd. CS(COMM) 34/2015, decided by Hon’ble High Court, Delhi.
6. That Information Technology Act 2000 has an overriding effect over the provisions of the other law for the time being in force as per Section 81 of the said Act or the C.P Act.
7. That the as per information received from the seller of the product, the correct product was shipped to complainant and the same can be gathered from the fact that even the bar code shared by the complainant matched the product ordered by the complainant.
7.  

8.            Further, we do not agree with contentions of OP No.4 also. OP No.4 has tried to put the entire liability upon manufacturer. However the product in question was admittedly delivered by OP No.4 through the portal of OP No.1. If OP no.4 had delivered a wrong or different product then OP No.4 cannot escape from liability to change the product or to refund the amount charged. Failure of OP No.4 to do so amounts to deficiency in service as well as unfair trade practice. OP No.2 is a department/part of OP No.1 and in our view is not a separate entity. However, we do not find any deficiency in service or unfair trade practice on the part of OP No.3. Hence the complaint against OP No.3 is dismissed.

9.             In view of our discussion made above, complaint against OPs No.1,2,& 4  is hereby partly allowed and they are held liable jointly and severally and are directed as follows:

1. To refund a sum of Rs.1,337.28 to the complainant i.e. price of product along with interest @ 9% per annum w.e.f. the date of filing of this complaint till realization.
2. To pay a lump sum amount of Rs.5,000/- to the complainant on account of mental agony, harassment and cost of litigation.

10.            The OPs No.1,2 & 4  shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OPs No.1, 2 and 4. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced:03.07.2019

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal

              Member                  Member                         President

Note: Each and every page of this order has been duly signed by me.

Dr.Sushma Garg                                               Member