BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint Case No.75 of 2018.
Date of institution: 27.03.2018.
Date of decision:03.07.2019.
Joginder age 42 years son of Sh. Sohan Lal, r/o Arjun Nagar, Kaithal, Tehsil and District Kaithal.
…Complainant.
Versus
- Nike India Pvt. Ltd. Grand & Ist FLOR Obympia Building No.66/1, Bagmone TECH Park CV Raman Nagar, Bengaluru, Karnataka-560093, through its authorized G.M.
- Tech Connect Retail Pvt. Ltd. Khashra No.5/24, 25 Village Samka near Hanuman Mandir Jamalpur Patudi Road, District Gurgaon-122503.
- Jabong Corporate Office 82-A, Sector-18 Gurugram, Haryana, through its General Manager.
….Respondents.
Before: Sh. D.N.Arora, President.
Sh. Rajbir Singh, Member.
Smt. Suman Rana, Member.
Present: Sh. Vinod Jangra, Advocate, for the complainant.
Sh. Naresh Sharma, Advocate for the OP.No.1.
Sh. Vikram Tiwari, Adv. for the Op No.2.
Sh. Ashwani Kanyan, Adv. for Op No.3.
ORDER
D.N.ARORA, PRESIDENT
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that the complainant purchased one pair of shoes for the sum of Rs.4358/- through online booking vide order No.170607549107127 which was placed on 07.06.2017 and the delivery was made on 09.06.2017 from the Op No.1 company through the Op No.3. It is alleged that after one month of its purchase, the said shoes were cracked and regarding this a complaint was lodged by the complainant through online and the Ops sent the reply to the complainant and assured the complainant to resolve the issue as soon as possible but they did not resolve the problem of complainant. Thereafter, the complainant sent several e-mails to the Ops regarding the defective shoes but the Ops did not redress the grievances of complainant. So, it is a clear cut case of deficiency in service on the part of Ops and prayed for acceptance of complaint. Hence, this complaint.
2. Upon notice, the OPs appeared before this Forum and contested the complaint by filing their replies separately. Op No.1 filed the reply raising preliminary objections that the Op No.1 has always treated the demands of its consumers. It is further submitted that for claiming replacement of a Nike product, a consumer must first approach the Nike Consumer Care for registering their complaint, the complaint must be accompanied the photographs, the complaint must also contain bill/invoice, credit or debit card statement to prove the purchase, the product must be within the warranty period i.e. 6 months from the date of purchase, the product must have not been purchased on a discount of more than 20%. There is no deficiency in service on the part of Op. On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.
3. Op No.2 filed the reply raising preliminary objections that the answering Op is a registered seller on the website “Jabong.com” and sells products of other manufacturers, traders, etc. under their respective trademarks through the website. The answering Op has acquired good market reputation for its range of products offered and for its exceptional customer support. The answering Op is not engaged in the sale of any goods manufactured or produced by its own. The answering Op is engaged in sale of goods manufactured and produced by other manufacturer. Thus, the answering Op has a separate and distinct identity from that of the manufacturer of the product i.e. Nike India and there is no relation of Principal & agent between Nike India and the answering Op. There is no deficiency in service on the part of answering Op. On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.
4. Op No.3 filed the reply raising preliminary objections with regard to maintainability; cause of action; locus-standi; that the complainant has concealed the true and material facts from this Forum. The true facts are that the answering Op is neither manufacturer nor the seller of the products. The answering Op is engaged in providing trading/selling facility over the internet through its website www.jabong.com and mobile application. The answering Op 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. There is no deficiency in service on the part of answering Op. On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.
5. The complainant tendered into evidence affidavit Ex.CW1/A and documents Ex.C1 to Ex.C6, Mark-CA to Mark-CC and thereafter, closed the evidence.
6. On the other hand, the Op No.1 tendered into evidence affidavit Ex.RW1/A, Op No.2 tendered into evidence affidavit Ex.RW2/A, Op No.3 tendered into evidence Annexure-R1 and thereafter, closed the evidence.
7. We have heard the learned Counsel for both the parties and perused the record carefully.
8. Undisputedly, the complainant purchased one pair of shoes for the sum of Rs.4358/- through online booking vide order No.170607549107127 which was placed on 07.06.2017 and the delivery was made on 09.06.2017 from the Op No.1 company through the Op No.3. According to the complainant, after one month of its purchase the said shoes were cracked and he lodged the complaint bearing No.47413752 through e-mail with the Ops and the Op No.3 sent the reply Mark-CB and assured the complainant that they shall take necessary action to resolve the problem as soon as possible but they did not resolve the problem of complainant and ultimately they rejected the claim of complainant vide e-mail dt. 20.10.2017 Mark-CC. On the other hand, ld. counsel for the Op No.1 contended that a consumer must first approach the Nike Consumer Care for registering their complaint, the complaint must be accompanied the photographs, the product must be within the warranty period i.e. 6 months from the date of purchase, the product must have not been purchased on a discount of more than 20%. Ld. counsel for the Op No.1 has drawn our attention towards the document Annexure R1 in this regard. To rebut the contention of Op No.1, the complainant has placed on file the guidelines of Nike Company. We have perused the said guidelines of Nike Company and in the said guidelines, it is not mentioned that the product must have not been purchased on a discount of more than 20%. The said guidelines are issued by Nike Company whereas in the document Annexure-R1 placed on file by the Op No.3, it is not clear that the guidelines are issued from Nike Company or other company. So the contention of Op No.1 that the product must have not been purchased on a discount of more than 20% has no force. To prove his versions, the complainant has also placed on file the photographs of defective shoes Ex.C1 to Ex.C6 and from the said photographs, it is clear that the shoes sold by the Ops to the complainant are defective. The contention of OP No.3 is that he is not the manufacturer but an online market place and a platform for different sellers to sell their products. According to Section 79 of the Information Technology Act, 2000, the OP No.3 is exempted from liability for third party information, data or communication link made available or hosted by it. So, in the facts and circumstances of the case, we are of the considered view that the Ops No.1 & 2 have sold the defectives shoes to the complainant, hence, they are deficient while rendering services to the complainant.
9. Thus, as a sequel of above discussion, we allow the complaint against the Ops No.1 & 2 and direct the Ops No.1 & 2 to pay Rs.4358/- as cost of shoes alongwith interest @ 9% p.a. from the date of filing of present complaint till its realization. The Ops No.1 & 2 are also directed to pay Rs.3,000/- as lump sum compensation on account of harassment, mental agony and litigation charges. The complainant is also directed to deposit the old shoes alongwith bill to the Ops No.1 & 2. Let the order be complied with within 30 days from the date of preparation of copy of this order. A copy of said order be supplied to the parties free of costs. File be consigned to record-room after due compliance.
Announced in open court:
Dt.:03.07.2019.
(D.N.Arora)
President.
(Suman Rana), (Rajbir Singh)
Member Member.
