BEFORE THE  DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, FATEHABAD.

Complaint no.154/2016.

Date of instt. 03.6.2016. 

                                                                        Date of Decision: 19.09.2017.

Manoj Kumar son of Kirpa Ram, resident of Kalam Ka Tilk News Paper Office, Gali No.9, Bhatia Colony, Tehsil and District  Fatehabad.

                                                                             ..Complainant.

                             Versus

1.New Arise Marketing, 141-H, Sector 4, Pushp Vihar, New Delhi-110017, through his Prop.

2.ShopClues.com, Registered Office. Clues Network Pvt. Ltd. Building No.112, Sector -44, Gurgaon-122001 (Haryana). Through its Director.

..Opposite parties.

      Complaint under Section 12 of Consumer Protection Act.              

Before             Sh.Raghbir Singh, President.

                        Sh.R.S.Panghal, Member.

     Smt.Ansuya Bishnoi, Member.

Present :         Sh.Parshant Sharma, Advocate for complainant.

Sh.Bhup Joshi, Advocate for opposite party No.2.

      Opposite party No.1 ex-parte.  

ORDER

                      The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as OPs) with the averments that he had purchased a bundle of computer items i.e. one Intel Core 2 Duo 2.93 + G41 Mother Board with CPU, CPU Fan and 2 GB Ram for a sum of Rs.5920/-  vide bill No.281 dated 08.06.2015 by placing an online order through OP no.2. The above named items in question were having one year warranty.  It has been further averred that after passing of few weeks, the computer developed problems qua heating and the speed  of  system  was working  very slow and due to this faulty product the Hard Disk of the computer of the complainant has been corrupted and many important and valuable datas of the complainant has been lost. It is further submitted that thereafter the complainant sent e-mail to OPs on 26.6.2015 regarding problems but the OP did not give reply to the same. On 30.06.2015 the complainant sent a legal notice to OP No.2 but OP no.2 neither gave any reply nor solved the problems of computer items. The complainant sent many emails and made many calls on the customer care of OP No.2 but all in vain. The act and conduct of the OPs clearly amounts to deficiency in service.  Hence,this complaint.

2.                On presentation of the complaint, notice of the same was issued to the OPs. The OP No.1 despite several registered notices did not appear and was proceeded ex-parte on 20.04.2017. OP No.2 appeared and contested the complaint by filing a written statement.

 3.               OP No. 2 in its reply has asserted in preliminary submissions that complainant has suppressed true and material facts from this Forum. It is submitted by OP No.2 that the business of OP No.2 falls within the definition of an “intermediary” under Section 2(1)(w) of the information Technology Act, 2000 which is reproduced hereunder for the sake of clarity:-

            “Intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online auction sites online auction sites, online-market places and cyber cafes;”

                   A Purview of the definition as reproduced herein above makes it clear that an online marketplace is included within the definition of an ‘intermediary’ under the Information Technology Act, 2000(“IT Act”)

                   It is further submitted by OP No.2 that he is protected by provisions of Section 79 of the Information Technology Act 2000 which is reproduced hereunder:

                   “79…

“Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-section (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him”.

                        OP No.2 further submitted that as per Clause 2.3(viii) of the Pres Note 3(2016 Series) issued by Department of Industrial Policy & Promotion, Ministry of Commerce and Industries, Government of India dated 29.03.2016, in market place model, any warranty/ guarantee of goods and services sold will be the responsibility of the seller. The answering OP conducts its business on a market place model, where different sellers/ merchants/vendors can use the online platform provided by the answering OPs to showcase and seller their product. Therefore the liability qua the products lie with the respective sellers/merchants/vendors.

                   OP No.2 also contended that ShopClues.com is an online marketplace, it facilitate sellers/merchants/vendors to use our platform to sell their goods to the customer. The respective sellers/merchants create a virtual store on  website of the answering OP and uploads the products on the portal. In the present case it was the sellers/merchants who provided/sold the impugned product to the complainant and therefore, any liability qua the product shall be attributable to the complainant. The terms clearly shows that OP No.1 has not been involved in any unfair trade practices.All other allegations have been denied and a prayer for dismissal of the complaint has been made.      

5.                The complainant in his evidence has tendered his affidavit as Annexure C1 and documents legal notice and its receipts are Annexure C2 & C3 and  copy of invoices and other documents as Annexure C4 and thereafter learned counsel for the complainant closed its evidence vide separate statement.On the other hand, no document has been placed on record on behalf of answering Op and the evidence of Op No.1 was closed by court order on 11.8.2017.

6.                We have heard learned counsel for the complainant as well as learned counsel for the appearing party and have perused the case file carefully.

7.                There is no dispute that complainant had purchased the component of computer by placing an online order through OP no.1 vide bill no.281  dated 08.06.2015 for a sum of Rs.5920/- as is evident from Annexure C4. The OP No.1 is manufacturer/seller of the above mentioned components of the computer in question. The complainant in support of his averments has tendered his affidavit Annexure C1 wherein he has testified all the facts so set out by him in his complaint. According to the complainant, above mentioned components of the computer in question were having warranty of one year, however, it developed problems within two-three months and due to this it was brought to the OP No.2 and nothing was done by Ops.

The OP No.1manufacturer/seller of the products in question did not bother to file reply to the complainant and was proceeded ex-parte on 04.11.2016.  OP No.3 after filing written statement did not turn up and was proceeded ex-parte on 20.04.2017. So, the averments made by the complainant have gone unrebutted. Therefore, a presumption can be drawn that the products were having manufacturing defect and the complainant has to suffer financial and physical loss as well as mental harassment.The complainant has been able to prove his case. The OP No.1  has caused great deficiency in service as well as financial and physical harassment to the complainant. However, complainant has not been able to prove any deficiency in service on the part of OP No. 2 through whom he had placed an order for the purchasing the components of the computer in question through online website. The invoice Annexure C4 also shows the address of shipper as New Arise Marketing i.e. Op No.1 and it means that booked articles were directly sent by Op no.1 to the complainant and if there is any defects in the components then only Op No.1 is liable for that. Hence the present complaint against Op no.2 is dismissed.

8.                   Keeping in view the facts and circumstances of the present case, we are of the view that complainant is entitled to refund of the price of the components of the computer as prayed for. In this regard, we are fortified with the observations in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others 2014(1)CLT588  wherein Hon’ble Delhi State Commission has held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfying the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”. 

9.                Thus, as sequel to our above discussion, we allow the present complaint against the OP No.1 and direct it to refund the price of the components of the computer as per invoice Annexure C4 to the complainant subject to depositing of parts of computer as per above invoice if he has not already sent to the Ops along with a compensation of Rs.4000/- on account of mental tension and physical harassment suffered by the complainant. This order should be complied within a period of one month from the date of preparation of copy of order, failing which the complainant will be at liberty to initiate legal action against the opposite parties No.1 as per rules. Copy of this order be communicated to the parties free of costs. File be consigned to the record after due compliance. 

Announced in open Forum: 

Dt.19.09.2017.

                                (Ansuya Bishnoi)    (R.S.Panghal)         (Raghbir Singh)

                      Member            Member               President,