+BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 1^st DAY OF JANUARY 2024

ORDER

SMT. K. ANITA SHIVAKUMAR, MEMBER

Complaint filed U/S 35 of Consumer Protection, seeking direction to OP to refund the cost of 2 quantity gold lakshmi coins 24 KT 999M Melorra 5 grams each along with 18% interest, to pay sum of Rs.50,000/- towards sufferings, mental agony, to pay sum of Rs.1,000/- towards cost of litigation.

2. Brief facts of this case are as follows:-

Complainant stated in his complaint that the OP is engaged in E-commerce in business of selling fashion, life style products like clothes, gold coins, jewelry, cosmetics etc. to the public for consideration. Complainant placed an order to buy 2 quantity of gold lakshmi coins (24 KT 999 Mellora 5 grams each) on 19.05.2023 manufactured by August Jwellery Mellora in wide order No.123636351210480462403 and 123636419919628279201 for Rs.64,206/-. With the price of 24 KT 999 Mellora Lakshmi gold coin dropped and got revised on same day after a hour i.e. 19.05.2023 and complainant had the option of cancelling the existing order and replacing with current price. Complainant placed new order vide order No.123637805025375836703 and 123637795500635131101 at the lower price of Rs.63,768/-3. After cancelling the order No.1, he placed a order (which is here after referred as order No.2). OP assured to deliver the order No.2 on 11.06.2023, but the complainant did not receive the product and after contacting OP for updates of order No.2 and its shipment till the expected date of delivery i,e, 11.06.2023. Immediately complainant called customer care of OP to report the matter and also wrote E-mail to know the status of order No.2. Customer support of OP company asked the complainant to wait for 24-48 hours for the update. Even after 2 days of waiting complainant did not receive any updates, again called to customer support centre for OP to know the status, OP again sought 24 hours for reporting the updates. Subsequently OP customer care did not provide any proper answer about the status on 15.06.2023 complainant filed a complaint before Consumerhelpline.gov.in in vide grievance No.4632045 and complainant received the update that Order No.2 is cancelled by complainant. The amount will be credited as Myntra credit into complainant’s account wallet. Complainant alleged that it has not cancelled by him but the customer care started blaming the complainant. He requested to transfer the amount into complainant’s bank account but customer care refused it, stating that order No.2 was placed through credit coupon.

4. Complainant further stated that he requested OP to deliver the Order No.2 or to transfer the amount to the bank account of complainant since it is fault of OP. Complainant stated that the purchase of Order No.2  was made through credit coupon that the sole intention of making booked with the credit amount of Rs.63,768/- into complainant’s online wallet on OPs mobile application would compel the complainant to make purchase from the OP, which clearly defeats the purpose of complainant’s intention for the investment. OP intentionally not delivered order 2 and cancelled it on their own, even after several requests OP did not transfer the amount to the complainant’s bank account instead they transfer to the complainant’s credit wallet. Therefore complainant approached this commission for the relief sought above.

5. Notice sent to OP through RPAD. After the service of notice, OP represented through its counsel and filed their statement of objection. OP taken contention in their version that OP is the owner of website www.myntra.com along with its mobile application which inter-alia are engaged in providing trading and selling facility over the internet platform. It is the online market, E-commerce entity which acts as a intermediary to facilitate sale transactions between independent 3^rd party and independent end consumers. Hence OP denied the allegation of complainant and also submitted that there is no deficiency of service on its part and are not liable to the relief claimed by the complainant. OP also stated that it is action in good faith and agrees with the terms and conditions as refunded its amount, OP has its credit customers redressed mechanism and proforma for providing prompt remedy to its customers. Therefore OP pray to dismiss the complaint with cost.

6. After the stage of version complainant filed its affidavit along with 4 documents and Certificate U/S 65B of Indian Evidence Act which are marked as Ex.P.1 to Ex.P.5. Complaint reiterated as stated in his complaint. One Sanchi chhabra who is working as legal counsel-I with OP company is authorized to adduce her evidence on behalf of OP. Accordingly she filed affidavit evidence and also filed 5 documents which are marked as Ex.R.1 to Ex.R.2. Heard the arguments from both the sides and perused the documents on record and to proceed to pass the following order on merits.

7. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant proves the deficiency of service on the part of OPs?

ii) Whether complainant is entitled for the relief?

iii) What order?

8.  Our answers to the above points are as follows:-

Point No.1:- Affirmative.

Point No.2:- Partly Affirmative.

Point No.3:- As per the final order.

                     REASONS

9. Point No.1&2:- These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.

10. There is no dispute with regard to the, complainant has booked 2 quantities of gold coins (24KT 999 Mellora 5 grams each) manufactured by AUGUST Jewellery Private Limited who is owner of brand Mellora in vide order No.123636351210480462403 and No.123636419919628279201 for Rs.64,206/- which is at Ex.P.1. On 19.05.2023, since the complainant had an option of cancelling the product, accordingly complainant placed new order in vide order No.123637805025375836703 and 123637795500635131101 at the lower price of Rs.63,768/-after cancelling the order No.1. There is no dispute with regard to the order placed by complainant on the very same day with lower price of Rs.63,768/- OP assured to deliver the order No.2 on 11.06.2023. Till the expected date of delivery i.e., 11.06.2023 complainant did not receive any tracking updates about the product. Therefore complainant called customer support of OP and also wrote an E-mail to know the status of order No.2 which is at Ex.P.2. In turn OP replied to wait for 24 hours for update and OP did not have proper answer about the shipment. Hence the complainant filed the complaint before OP customer care and also had www.consumerhelpline.gov.in in vide grievance No.4632045. Subsequently complainant received the update that the order No.2 cancelled by complainant and the amount will be credited as Myntra credit into complainant’s credit wallet.

11. After going through the pleadings of the complainant and the contention taken by OP, it is pertinent to note that complainant has still interested to receive the ordered product, is only grievance against OP that customer executive has cancelled the order placed by complainant on their own and indulging in bad practice of business. Here we observed that complainant and his wife continuously communicated with OP customer care about the status of product shipment and also registered complaint before the OP. As per their guidance, complainant also waited for 2 days and again perused with complainant but has not received any updates with regard to the shipment of order. Now his claim is either to deliver the products ordered by him as in the order No.2 or refund the amount to his bank account. After several requests from complainant, OP has refunded the amount to his Myntra wallet. It is not accepted by the complainant on the reason that he is not interested to buy any product from Myntra by using Myntra credit wallet. In the affidavit of complainant, he denied the contention taken by OP in the version.

12. By perusing the documents in record, in our opinion every E-commerce entity shall only record the consent of consumer for the purchase of any goods or service offered on its platform and also it clearly mentioned that only the customer can cancel the order and OP does not have any right to do so. Here in this case complainant’s order was cancelled by OP on its own without his consent/information to the complainant.

13. At the same time we also observed that the amount has been credit to the Myntra credit account or wallet, shows the malafide intention of OP that the complainant have purchased the products from Myntra platform through his wallet. But the whole purpose of complainant was to purchase the gold coins through credit cards by lending cash in Myntra credits, he also stated that no responsible person would lend such huge amount for any other reason rather than investment purpose. Complainant has purchased this gold coins only with the intention to invest the huge amount as asset. Further OP has refunded the amount Rs.63,768/- to his credit wallet of Myntra. In the opinion of complainant, it is of no use when he was intend to invest on gold coins  as a asset, hence he claimed for refund of money to his bank account, rather than in Myntra wallet.

14. When there is no privity of contract between seller and buyer/consumer, there is no question of bringing seller in the complaint and seek relief from him. Complainant has booked through OP E-commerce entity, if any trouble occurred in between the transaction, OP only held responsible. When the complainant has not cancelled the product which he ordered in order No.2, question arises that who cancelled the order without the knowledge of complaint?

15. It is pertinent to note that after going through several complaints before this commission, OP is cancelling the products ordered by complainant/consumers on its own. When the complainant has booked the products through Myntra credit account, such being the case, OP obviously has a malafide intention when the credit account of Myntra has huge balance. OP or its employees are misusing the trust/belief of consumers using the Myntra E-commerce entity, it definitely amounts to deficiency of service on the part of OP. As stated in the pleadings and evidence of OP, they have refunded the amount to the complainant’s Myntra credit account in good faith. OP refunded his own money has refunded to his Myntra account is not in faith by OP, when the complainant has used his credit card to purchase the gold coins by loading cash in Myntra credits and ordered for gold coins. When it has cancelled, no matter who has cancelled the order, the amount paid has credited into the same payment mode using which the payment was made. After several requests by complainant and his wife OP could transfer the amount from Myntra credit to his bank account when he was utilized the service of credit card and paying interest and repaying the amount he utilized through credit card. It definitely a financial burden to the complainant and the refunded amount in the Myntra credit wallet retained idle. Complainant has intention to invest the amount in gold coins as a asset, without delivering the gold coins and the amount not refunded to his bank account, simply he is repaying it with interest, is caused a mental agony by OP. It is surely a financial burden to the complainant and it is deficiency of service on the part of OP.

16. OP is not offline establishment that small number of customers visit and shop everday, since OP is E-commerce entity where lakhs/crores of people trust the app and visit to shop throughout the world. The product of smaller amount may not harm consumers, but the complainant in this case invested huge amount intent to purchase gold coins. If OP is having bonafide intention with transaction of complainant, they could refund his amount to his bank account as he requested. But OP did not do so. It would avoid the risk of manipulation as well. In other cases filed before this commission against OP, the complainant’s wallet with huge amount around Rs.50,000/- was misused and wallet become empty in single day. Such being the case OP should not taken risk. Hence, it shows OP is negligent and indulging in Unfair Trade Practice. Observing such cases, commission opined to stop such Unfair Trade Practices by penalizing them.

17. With all this observation, in our considered view complainant is entitled to get gold coin as he ordered in order No.2 should be delivered or as an alternative, complainant is entitled to get refund of Rs.63,768/- with interest at the rate of 10% p.a. Complainant is also entitled for the compensation of Rs.20,000/- for the hardship, mental agony caused to him with no fault of complainant and also is entitled to get litigation cost for no reason, OP made him to approach this commission and incurred money on the litigation.

18. Apart from the above reasons, OP being E-commerce entity, having trust of lakhs/crores of people all over the world, having visit and place an order continuously through OP App. OP should maintain that trust with their bonafide customers. By not delivering ordered gold coins to complainant and also not transfer his money to his bank account as he requested, show the malafide intention of OP, is unacceptable, it seems that OP is indulging in unfair trade practice. To stop such bad business practice, OP is liable for penalty U/S 39 (1) (g) of Consumer Protection Act. OP has to pay Rs.20,000/- as punitive damage, remitted to consumer Welfare Fund. On the above reasons we answer Point No.1&2 accordingly.

19. Point No.3:- In view of the discussion referred above, we proceed to pass the following:-

                                   ORDER

1. Complaint filed by the complainant U/S 35 of Consumer Protection Act, is hereby allowed in part.
2. OP is directed to deliver 2 quantity of gold coins (24KT 999 Mellora 5 grams each) to the complainant within 15 days from the date of order, failing which OP shall pay Rs.63,768/- with 10% interest p.a. to complainant from 19.05.2023 till realization.
3. OP is further directed to pay Rs.20,000/- towards compensation and Rs.5,000/- towards litigation cost. The above Award amount shall be paid within 30 days from the date of order, failing which Award amount carries interest at the rate of 10% p.a. till realization.
4. OP shall pay Rs.20,000/- towards punitive damages, remit the same to consumer welfare fund, for not to repeat Unfair Trade Practice U/S 39 (1) (g) of Consumer Protection Act 2019.
5. Furnish the copies to both the parities, without cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 1^st day of JANUARY, 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;