The titled complainant (the One Serving Army Officer) has filed the present complaint against the herein titled opposite-parties getting aggrieved at their acts and omissions pertaining to supply of one different and clumsy item (instead of the ordered pair of fancy ‘foot-wear’) being one of the three items ordered (invoiced @ Rs.2,765/- paid in advance) on line on 24.08.2020, through Cell # 8427727456 vide ID 023701345018. (qua Exhibits III & IV). The related online purchase order comprised of three nos. of different items, of which two items were supplied/ delivered correctly but not the 3rd one.
2. The third ordered item has been ‘SOLE HEAD Woman Maroon Solid Heels’ Size 40 (EURO-40) vide Order: 1150089-8675547-3970203 dated 24.08.2020 for Rs.1,050/- but the complainant was supplied with a somewhat different item qua Exhibit-II (Affidavit Ex.C1/A). The complainant’s on-line request for replacement of the ‘wrong’ item was duly accepted by the OP1 Myntra but their deputed pick-up courier refused to accept-back the delivered item/product. The OP1 Myntra were regularly contacted for replacement etc through mail and telephone-conversation with its different divisions but it all culminated into flat refusal and hence prompted the present complaint seeking redressal to the family’s infringement of consumer rights by way of an appropriate compensation etc.
3. Lastly, the complainant addressing the impugned subject matter as an employ of unfair trade practices culminating into an unscrupulous exploitation of unaware buyers amounting to deficiency in services and to further support his allegations has filed herewith, the listed documents as: Ex.C1/A–Affidavit by the complainant deposing the contents of his compliant and also the sanctity of his evidentiary documents; Ex.C2–Copy of the Photograph of the supplied product; Ex.C3– Copy of the Invoice dated 24.08.2020 for Rs.1,050/-; Ex.C4–Copies of SMS got on the RMN (Registered Mobile Number); Ex.C5– Copy of the courier delivery-slip; Ex.C6– Copies of SMS got on the RMN (Registered Mobile Number); Written Arguments as put forth by the complainant.
4. The titled opposite party No.1 Myntra, in response to the commission’s summons appeared through their counsel and filed the written reply whereas the OP2 Vendor Kittens (India) stayed absent and was ordered on 12.02.2021 to be proceeded against ex-part-e.
5. The OP No.1 in its written reply has stated therein its preliminary as well as other objections (on merits) as:
6. At its very introductory, the OP1 states to be deemed as having denied/disputed all statements, allegations, averments and submissions contained in the complaint except the ones specifically admitted. The complainant has been suppressing true and material facts from the commission and has thus misled the commission with framed-up stories etc. In the next 8 paragraphs (para 2 to para 9), the OP1 has explained/ narrated the basics of its own incorporation along with constitution and working with rights and privileges etc. In para 10, the OP1 has expressed its NIL liability towards the quality of the products sold at its e-platform and the entire liability etc is that of the vendor and as settled inter-SE between the seller and the purchaser. The OP1 has put forth the simile of the MALL who has rented out its shop premises to the vendors i.e., the e-platform to facilitate trade n commerce amongst the parties inclined for the same at their understanding, terms and conditions. The OP1 Myntra has claimed to provide a larger base to Buy & Sell.
7. Lastly, the OP No.1 Myntra has attempted to disown, in clear terms, all the liability cum responsibility, of the products sold by the OP2 vendor at its e-platform and have sought dismissal of the complaint with exemplary costs.
8. The OP No.1 (e-commerce market place) have also produced the listed documents in order to strengthen its prosecution of defense as: Ex.OP1/1–Affidavit Ms.Sheetal Tiwari Authorized Signatory Myntra Design Pvt Ltd. Ex.OP1/2 – Modification of Authority (16.07.2020) to sign legal documents; Ex.OP1/3– Myntra Terms of Use; Ex.OP1/4– Press Note 3 (2016 series) Govt. of India;
9. We have examined the available documents/evidence on the records so as to statutorily interpret the meaning and purpose of each document and also the scope of adverse inference on account of some documents ignored to be produced by the contesting litigants against the back-drop of the arguments as put forth by the learned counsel/representative for the respective litigants. We find that the present dispute has arisen on account of the impugned but admitted ‘delivery’ of one wrong product totally different to that ordered by the complainant. It is not understood as to how a different product can be delivered unintentionally, by mistake, and further its Return refused, in an adamant manner and how can Myntra afford to get it delivered at Gurdaspur just at a sum @ Rs.1050/- through a vendor based at Bhiwandi (Maharashtra). However, the Myntra services have failed to make it feasible through its participating vendor. People buy products displayed on the Myntra Site in the good name of the Myntra and not in the name of the vendors/sellers displaying their products at the Myntra Site. Moreover, many of the products are highlighted as 'Myntra-Choice/Standard/Express/Free Delivery by Myntra/No Interest EMI/ EMI & many other offers of concessions/facilities/discounts' as at the Site. The Buyers at the Myntra Site truly fall under the statutory definition of 'Consumer' as they all pay by way of 'cuts' from the product/services invoice values' paid by them.
10. We are certainly not convinced with the basics of the OP1 pleadings and find them unsustainable as these proceed on the wrong understanding of law and facts. On the issue of e-commerce as an 'Intermediary' we have refreshed the applicable provisions of the IT Act' 2K and have also respectfully mulled over the Senior Court Judgments as quoted and placed forth on records by the OP1 Intermediary Site who somehow does not get much benefited. In Suit (L) No. 696 of 2015 Notice of Motion (L) No.2049 of 2015 titled e-bay India Pvt. Ltd. (Applicant) in the matter of: Faber-Castell Aktiengesellschaft & Anr. vs. Cello Pens Pvt. Ltd. & Anr., the honorable High Court of Judicature at Bombay has ruled out that the goods in question were only exchanged through the services of the applicant/2nd defendant between the plaintiff and the defendants and no relief was also sought against them being intermediary only within the meaning of IT Act, 2k. But, here the OP1 have been much worse so as not to fall under the definition of Intermediary U/IT Act, 2k as they have been an accomplice of the OP2 Vendor who not only in the employ of 'unfair trade practices' but also in the act of 'unscrupulous exploitation' of the unaware consumers in countless but certainly in good number.
11. The OP1 are admittedly guilty of allowing all sellers to display their products on their site for the consumers' purchase. They admittedly do not exercise any discretion/discipline/control neither in their selection nor in their dealings/transactions with the buyers/consumers. We admire and appreciate the courage/conviction/consistency exhibited by the present complainant and his family who have held fort otherwise most of the consumers 'bear' the loss in silence for shyness cum ambiguity of triviality of issue and the amount, in transaction. It is for the conviction of legal/preferred right/common cause and not the money for which the few brave amongst the society struggle for the benefit of all in the society.
12. Lastly, coming to the issue of the ONP (onus/burden of proof) we find that the complainant has successfully discharged his initial ONP by way of infringement of his consumer right/deficiency in service at the OP end vide delivery of 'wrong' product as has been duly admitted by both the opposite parties. Further, the OP No.1 has admitted vide its reply that all sellers can display their products at its Site for purchase by the Buyers that duly implies an inherent deficiency in service and also being accomplice in employ of 'unfair trade practices' with all such vendors who by now have 'unscrupulously exploited' an uncounted number of unaware consumers, in thousands may be more, and that attracts adverse statutory awards to both the opposite parties.
13. We observe that the OP1's other trivial objections are ambiguous and no more that petty queries in non-fidelity/ignorance and have been well responded by the complainant in his rejoinder to their written reply. The OP1 have also omitted/ignored to produce some cogent evidence in support of their allegations that otherwise are no more than bald statements. The OP has also mentioned of the terms of the applicable policy but did not produce any evidence of communicating of the same to the complainant. We have observed many such petty anomalies mentioning of which does not serve any good purpose, at this stage. The facts in issue need be appreciated while awarding sanctity to the current applicable law. So we move ahead with furtherance.
14. In the light of the all above, we order the OP No.1 Myntra Co. to arrange delivery of the product as ordered by the complainant through the OP2 Vendor or any of its other vendors besides paying him Rs.15,000/- as compensation for having caused him harassment on account of delivery of totally different product that that ordered and delay cum physical harassment and wasting of his valuable time non-productively that cannot be compensated in terms of money and also to pay another Rs.5,000/- as cost of litigation etc. The herein titled opposite parties are further ordered to ensure/ afford compliance to all our above orders within 45 days of the receipt of the certified copies of these orders otherwise an additional interest @ 9% PA shall get attracted on the aggregated awarded amount from the date of filing of the present complaint till the payment stands made, in full.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
16. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (B.S.Matharu)
NOV. 23, 2022. Member.
YP.
