Order dictated by:
Ms.Rachna Arora, Presiding Member
1. Ruchika Malhotra, complainant has brought the instant complaint under section 12 read with section 2C(i),(ii) and (iii) of the Consumer Protection Act, 1986 on the allegations that complainant is a consumer having purchased/ordered a pair of jeans from opposite party No.1 supplied by opposite party No.2 manufactured by opposite party No.3 with a wrong label of opposite party No.4 from the website of opposite party No.1 for a sum of Rs. 1370/- on 16th June 2018. On 22.6.2018 when the complainant received the package in courier and after opening the said parcel, the complainant discovered that the jeans in the said parcel is of inferior quality as the same was having tags of two different companies namely “United colors of Benetton (opposite party No.3) and “Tommy Hilfiger” (opposite party No.4. After that the complainant contacted opposite party No.1 at their customer care toll free No. 8043541999 but no satisfactory response was given to the complainant by opposite party No.1. The complainant showed her displeasure on receiving a duplicate product to opposite party No.1 and requested them to return the said product, but opposite party No.1 did not consider the request of the complainant and rather told the complainant to contact opposite party No.2 being its seller. The complainant tried to contact customer care of opposite party No.1 to get the contact number of opposite party No.2 which the representative told the complainant that they have not having contact number of opposite party No.2 and advised the complainant to send her complaint to them in writing. It is submitted that opposite parties No.1 to 4 are guilty of rendering deficient service to the complainant and they have knowingly sold a duplicate/defective product. It was further submitted that the jeans in question is a duplicate product sold by opposite party No.1 in connivance with opposite party No.2 to earn profits which amounts to deficiency in service and unfair trade practice. Vide instant complaint, complainant has sought for the following reliefs:-
(a) Opposite parties No.1 to 3 be directed to take back their faulty product and to supply the original jeans of Benetton to the complainant which she had ordered online at the business website of opposite party No.1;
(b) Compensation to the tune of Rs. 50000/- alongwith litigation expenses to the tune of Rs. 22000/- may also be awarded to the complainant;
(c ) Any other relief to which the complainant be found entitled may also be awarded to the complainant.
Hence, this complaint.
2. Upon notice, opposite party No.2 appeared and filed written version in which it was submitted that replying opposite party is carrying on the business of sale of goods manufactured/produced by others. It was submitted that replying opposite party is a registered reseller on the website “Flipkart.com” and sells products of other manufacturers, traders etc. In the instant case opposite party No.3 is the manufacturer of the product in question. The present complaint relates to quality of the product in question and replying opposite party is only registered online seller of the product. It is pertinent to mention here that replying opposite party only delivers the sealed packet of the product as received from the manufacturer only. Therefore, regarding the quality of product, complainant can approach opposite party No.3, who are the manufacturer of the product. Therefore, answering opposite party cannot be held liable for deficiency in service . It was admitted that the product in question sold by the answering opposite party was manufactured by United Colors of Benetton . The liability to provide after sale service does not lay upon the answering opposite party as the answering opposite party is neither the manufacturer nor know about the quality of the product in question. It was submitted that dealer or retailer cannot be held liable for defect in the goods in view of the legal position laid down by Apex Court in “Hindustan Motor Ltd. and another Vs. N. Sivakumar (2000) 10 SCC 654” and in “Abhinandan Vs. Ajit Kumar Verma and Ors. (2008) CPJ 336 (NC). While denying and controverting other allegations, dismissal of complaint was prayed.
3. Opposite party No.1 appeared and filed written version in which it was submitted that replying opposite party 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. That said “Myntra Platform” is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers. The independent third party sellers use Myntra Platform to list, advertise and offer to sell their products to the users/buyer who visit Myntra Platform. Once a buyer accepts the offer of sale of the products made by the third party seller on the Myntra Platform, 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 per the terms for sale displayed by seller on Myntra Platform. It was submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders. The answering opposite party No.1 does not directly or indirectly sells any products on Myntra Platform. Rather all the products on Myntra Platform are sold by third party sellers, who avail of the online Market place services provided by opposite party No.1. The complainant has purchased the product from the seller listed on the Myntra Platform. The opposite party No.1 is not involved in the entire transaction executed between the seller and the complainant. While submitting that opposite party No.1 being only the facilitator/marketplace where opposite party No.1 listed their product being sellers, has not committed any deficiency in service and while denying and controveting other allegations, dismissal of complaint was prayed.
4. Opposite parties No.3 & 4 did not opt to put in appearance as such they were ordered to be proceeded against ex-parte.
5. Alongwith complaint, complainant has filed copy of bill Ex.C-1, price tag of OP3 on the said jeans is Ex.C-2, photographs Ex.C-3 and Ex.C-4.
6. On the other hand Opposite party No.2 filed certified copy of the Extract of Resolution Ex.OP2/1.
7. Opposite party No.1 alongwith reply filed reply cum affidavit Ex.OP1/1, Myntra: Terms of Use Ex.OP1/2, copy of letter of authorization Ex.OP1/3.
8. We have heard the Ld.counsel for the parties and have carefully gone through the record on the file and also gone through the written arguments submitted by opposite party No.1.
9. Ld.counsel for the complainant has vehemently contended that complainant placed an order for purchase of jeans with brand name “United Color of Benetton” the price of which was Rws 1370/- with opposite party No.1 and the same was supplied by opposite party No.2 . However, when the complainant received the parcel, she was shocked to see that the jeans was bearing tags of two different companies namely “United Colors of Benetton i.e. opposite party No.3 and “Tommy Hilfiger” i.e. opposite party No.4. In this regard complainant contacted the opposite parties and requested them to do the needful but no satisfactory reply was given by the opposite parties and this act of the opposite parties amounts to deficiency in service.
10. On the other hand the only plea of the opposite party No.1 is that it is only the electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers . In the instant complaint opposite party No.2 is the seller who sells their product on the website of the opposite party No.1 and there is no privity of contract between complainant and opposite party No.1 . Whereas the plea of the opposite party No.2 is that present complaint relates to quality of the product in question and replying opposite party is only registered online seller of the product and only delivers the sealed packet of the product as received from the manufacturer only. Therefore, regarding the quality of product, complainant can approach opposite party No.3, who are the manufacturer of the product.
11. From the appraisal of the evidence on record, it stands proved on record that the product was supplied to the complainant by Shreyash Retail Private Limited being seller of the product and in this regard complainant has placed on record copy of tax invoice Ex.C-1 in which the seller name was written as Shreyash Retail Private Limited and in case of non delivery of the product the same was to be returned to Myntra warehouse. So it stands proved on record that opposite party No.2 is the seller of the product and the opposite party No.1 is only the “Myntra platform” on which opposite party No.2 displayed their products for sale. It also stands proved on record that the complainant was supplied jeans bearing tags of two different companies namely “United Colors of Benetton” as well as “Tommy Hilfiger” and to prove this fact complainant has placed on record photographs of jeans Ex.C-3 and Ex.C-4 which shows the tags of two different companies namely “United Colors of Benetton” as well as “Tommy Hilfiger . It was the admitted case of the complainant that complainant placed an order for jeans of “United Colors of Benetton”. In this regard the only plea of the opposite party No.2 is that it is only the seller of the product and the liability can be fastened upon the manufacturer of the product i.e. opposite party No.3. But we are not agreed with this plea of the opposite party No.2 . As per rule of Caveat Venditor i.e. let the seller beware meaning thereby that it is the duty of the seller to check the product before selling it whether it was of same brand or quality as ordered by the customer . Here in this case Shreyash Retail Private Limited i.e. opposite party No.2 is the seller who has not performed its duties as it has not checked the product before making parcel of the same . The said act of the opposite party No.2 to supply the jeans of two different brand names “United Colors of Benetton” as well as “Tommy Hilfiger” instead of sending the jean of “United Colors of Benetton” as ordered by the complainant, amounts to deficiency in service for which the complainant is entitled to compensation.
12. In view of the above discussion, we allow the complaint with costs and opposite party No.2 being seller is directed to refund Rs. 1370/- as price of the jeans to the complainant. Opposite party No.2 is also directed to pay compensation to the tune of Rs. 8000/- and also to pay litigation expenses to the tune of Rs. 4000/- to the complainant. Opposite party No.2 is directed to making arrangement to pick up the jean from the premises of the complainant at their own cost. Opposite party No.2 is also at liberty to claim the abovesaid amount from the manufacturer of the product i.e. “United Colors of Benetton” i.e. opposite party No.3. Compliance of the order be made within a period of one month from the date of receipt of copy of this order ; failing which complainant shall be entitled to interest @ 9% p.a. on the awarded amount from the date of filing of the complaint till payment. Copies of the order be furnished to the parties free of cost. 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.
Announced in Open Forum
