Versus.
1. One 97 Communications (Paytm), B121, Sector-5, Noida (Uttar Pardesh) through authorized person/ signatory/ founder namely Vijay Sherkar Sharma.
2. Nuclear Motors Sales & Service Pvt. Ltd., Khasra No.10068/1717, Old Delhi, Gurugram Road, Town Gurgaon-I, Gurgaon, (Mob No.9810883437, 9997494938),(seller of product in question), through its authorized person/ signatory.
3.Nuclear Motors Sales & Service Pvt. Ltd., Sector-14, Faridabad, Haryana 121007 (seller of product in question), through its authorized person/ signatory.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI R.L. AHUJA…… PRESIDENT.
SHRI ISSAM SINGH SAGWAL ……MEMBER.
SMT. SUKHDEEP KAUR…….. MEMBER
Argued by: Sh. Vijay Sharma, Advocate for complainant.
Sh. Manik Mehta, Advocate for opposite party No.1.
Sh. K.K. Relan, Advocate for opposite parties no.2 and 3.
ORDER
In brief the case of complainant is that the complainant was having desire to purchase a scooty of Suzuki Brand in order to give the same as gift to his cousin and for this the complainant was in search for the suitable deal. Accordingly the complainant visited the website of paytm mall and there the complainant find the best deal displayed by the paytm mall and put forth his intention/ willing to purchase the Suzuki Access 125 SE CBS-Disc worth Rs.20,500/- as shown on the site. That on seeing this deal, the complainant on 23.7.2018 purchased the above said scooty through online mode of payment from paytm and in this regard a message was also delivered to the complainant and cash back of Rs.1500/- has also been credited in the account of complainant. The delivery period of the product was 12.8.2018. It is further averred that thereafter the complainant placed a call to the customer care of paytm mall for the confirmation of order placed by the complainant. But at that time, the executive engineer of the paytm mall failed to provide any details about the order placed by the complainant. That thereafter on 25.7.2018, the complainant received email from the paytm care, whereby it has been informed to the complainant that the amount mentioned at paytm’s product description page is only the booking amount and the balance payment and other formalities have to be made directly at the dealership. The complainant was shocked to see this mail, because on the paytm’s product description page there is no where mentioned that the amount of Rs.20,500/- is the booking amount. That thereafter the complainant lodged his complaint to the above effect with the paytm mail, but they failed to redress the grievance of the complainant. Then on 6.8.2018, the complainant moved a complaint before the officer of Advertising Standard Council of India, Mumbai and on 8.8.2018, the complaint of complainant was accepted and in this regard email was also received by complainant, as such the complainant waited for the response of above said authority with the hope of justice. It is further averred that on 10.8.2018, the complainant again checked the status of order placed by him at Paytm Mall, but when the complainant tracked his order, he was shocked to see that on the paytm’s product page it is showing that the order placed by complainant has already been delivered to him on 7.8.2018. That thereafter ultimately on 14.8.2018 on his complaint in this regard, he received email that they have highlighted the issue to the brand/ dealership to get it resolved at the earliest. Then complainant received a telephonic call from the dealer and he stated to the complainant not to take any action against the above said issue and they will refund the amount deposited by the complainant. Ultimately on 17.8.2018, the complainant once again received a email from the paytm and he was shocked to see that his order has been cancelled by the ops without his consent and it was mentioned that seller was unable to fulfill the order of the complainant and refunded the amount of Rs.19,000/- to the complainant. It is further averred that op without the consent and wish of complainant has cancelled the order and they have contravened their own terms and conditions as at the time of placement of the order on the paytm’s product description page there has been specifically mentioned that “returns or replace are not accepted by the seller for this product and cancellation also not allowed to this order once ordered”. That the ops by doing their act and conduct have played a big fraud with general public. It is further averred that on 9.10.2018, the complainant has received an email from ASCI whereby they have informed to the complainant that his complaint is genuine and was considered by Consumer Complaints Council (CCC) at their meeting and CCC has gave a finding that “the claim related to the price of product quoted as Rs.20,500/- was misleading by ambiguity and omission to mention that it is only a booking amount with an additional convenience fees applicable. The visual is likely to lead to grave or widespread disappointment in the mind of the consumer. The website advertisement contravened chapter 1.4 and 1.5 of the ASCI Code. In view of this, the ops are liable to be penalized and the complainant is entitled for the compensation on the above said counts. It is further averred that due to the above said act and conduct, deficiency in service and unfair mal-trade practice on the part of ops, complainant has undergone mental tension and harassment. Hence, this complaint.
2. On notice, opposite parties appeared. OP no.1 filed written statement raising preliminary objections that op no.1 is an online market place and provides only a platform for different sellers to sell their products and for different buyers to access and purchase amongst variety of goods offered by various sellers subject to the terms and conditions as enumerated on the website of op no.1. Op no.1 acts only as an intermediary between seller and buyer as defined under Section 2 (w) of the Information Technology Act, 2000 and is exempted by virtue of “Safe Harbor” clause enshrined under Section 79 of IT Act 2000 from liability for third party information, data and communication link made available or hosted by it. It is further submitted that op no.1 does not sell any of the goods on the said website directly and op no.1 at th August, 2018. The amount received upon placement of order was duly remitted by Paytm Mall i.e. op no.1 to the ops no.2 and 3. That at the time of delivery of the product, the complainant was required to pay the additional amounts pertaining to the registration charges, road taxes, insurance premium etc. This fact was specifically mentioned in the Principal Display Panel of Paytm Mall where such product was listed by the seller and was already well within the knowledge of the complainant. In the principal display panel, it was specifically depicted that Rs.20000/- is merely a booking amount. It is further submitted that it is a matter of common knowledge and general human understanding and as per the Oxford Dictionary the word “book” used as ejusdem generis of “booking”, means “to reserve” and not the final amount of the product. Further, a disclaimer is also appended to the principal display page which categorically contains a statement that “The Ex showroom price is subject to change and the price prevailing at time of delivery/ billing only would be applicable.” The entire process of bike booking was most transparent in the industry which leaves no scope for any deception or ambiguity. It is further submitted that op no.1 vide email dated 16.8.2018 raised the issue with ops no.2 and 3 seeking detail as to the transaction since the same was to be fulfilled by them and they vide email dated 16.8.2018 informed and admitted to the op no.1 that they were in receipt of the booking amount of Rs.20000/- and will deliver the vehicle once the balance payment is made. The op no.1 also questioned the ops no.2 and 3 as to why the product was marked delivered by them when they have not yet made any delivery, on which no response was given by them. They further informed op no.1 that the invoice was generated and the same was ready for delivery and when the complainant came to take the same he was informed about the remaining payment which he refused to pay and further misbehaved with them. The ops no.2 and 3 thereafter requested op no.1 to cancel the product since the customer was not willing to pay the whole amount. Thereafter, op no.1 at the request of ops no.2 and 3 cancelled the product and refunded the amount which is admitted by the complainant. It is further submitted that vide marketplace agreement dated 20.7.2018 entered by op no.1 with ops no.2 and 3, the onus and contractual obligation with respect to any dispute, defect in quality etc. is that of merchant/ seller. It is further submitted that Advertisement Standard Council of India is just a self-regulatory voluntary organization of the Advertising Industry and is neither a judicial, quasi- judicial, executive or any other statutory authority, nor the views or decision of the ASCI carry any force of law or are legally binding. Remaining contents of complaint are also denied and dismissal of complaint prayed for.
3. Opposite parties no.2 and 3 in their separate reply took certain preliminary objections regarding maintainability, jurisdiction, complainant is not a consumer of answering ops and that complainant has no cause of action and locus standi to file the complaint against ops no.2 and 3. It is submitted that it is clearly mentioned by complainant that the complainant find the best deal displayed by the paytm mall and on seeing this, the complainant on 23.7.2018 purchased the scooty through online mode of payment from paytm. The answering ops being the dealer of Suzuki neither promised the customer/ complainant that they will be giving him the said vehicle in the amount of Rs.20,000/- nor they promised him any kind of special discount. They accepted the said booking from Paytm portal where the customer chose their dealership and was not influenced in any way to choose them, but once the booking was done the customer refused to pay any further when the Paytm portal clearly says in the disclaimer that the balance payment has to be made to the dealer at the time of delivery. The product delivery as shown on the Paytm website is standard protocol and that the customer opted for self pickup under the option of delivery from “Vendor Self”. It is further submitted that finally after repeated follow-ups and clarifications to the customer, the order as cancelled from Paytm’s system and the customer was refunded the amount he paid before the Paytm. It is further submitted that as per complainant himself, the finding of Consumer Complaints Council is not against the answering ops. The website advertisement, if contravened, the answering ops are not liable or responsible for this because no advertisement given by the answering ops in website. Remaining contents of complaint are also denied and prayer for dismissal of complaint qua ops no.2 and 3 made.
4. The parties then led their respective evidence.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. The complainant in order to prove his complaint has furnished his affidavit Ex.C1 in which he has deposed and reiterated all the averments made in the complaint. He has also placed on file copy of application dated 6.8.2018 Ex.C2 and copies of emails Ex.C2 to Ex.C19. On the other hand, op no.1 produced affidavit of Mr. Harshal Negi as Ex.RW1/A in which he has reiterated the averments of the written statement. Op no.1 also placed on file copy of authority letter Ex.R1, copy of terms and conditions Ex.R2, copy of press note Ex.R3, copies of emails Ex.R4 to Ex.R6 and copy of agreement Ex.R7. Ops no.2 and 3 produced affidavit of Sh. Rishi Raj Kochar Ex.RW2/A
7. It is proved fact on record that complainant visited the website of the Paytm mall and find the best deal displayed by the paytm mall and put forth his order for the purchase of a Suzuki Access scooty worth Rs.20,500/- as shown on the site. On 23.7.2018 complainant purchased the said scooty through online mode of payment from paytem and a message was also delivered to the complainant and he also received cash back of Rs.1500/- as credit amount in his account. It is also proved on record that on 25.7.2018, he received email from the paytm care by which he was informed that amount mentioned at paytm’s product description page is only the booking amount and balance payment and other formalities have to be made directly at the dealership. It is also proved fact that after making correspondence by way of emails, the booking order of the complainant was cancelled and remaining amount of Rs.19,000/- was sent back to the complainant. 8. The bone of contention between the parties is qua the price of the Suzuki Access scooty. As per contention of complainant, he found on the website of op no.1 price of scooty as Rs.20,500/- and he deposited the amount and made request for the delivery of the vehicle. On the other hand, there is plea of op no.1 that it was only a booking amount and not price of the vehicle and as per defence plea of the ops no.2 and 3, they never made any declaration that total sale price of the vehicle is Rs.20,500/-. The complainant in his affidavit Ex.C1 has categorically deposed that on 23.7.2018 he after finding the price of the scooty on the website of op no.1 got booked the vehicle and paid Rs.20,500/- through online by way of Paytm to op no.1. He has further deposed that on 25.7.2018, he received email from the paytm care that this price is only booking price and not sale price of the vehicle. Thereafter, he continued made efforts time and again by mails with a request to deliver the vehicle, but however, vehicle was not delivered as ops no.2 and 3 refused to deliver the vehicle on the ground that this is only booking price which has been received by op no.1 on their behalf, but however, they cannot deliver the vehicle against this amount of Rs.20,500/-. They made request for balance amount of the sale consideration in order to deliver the vehicle but however, during process, ops no.2 and 3 got cancelled the order and made refund of the amount of Rs.19,000/- in the account of complainant. It appears from the evidence of the complainant that there is no fault or negligence and deficiency in service on the part of ops no.2 and 3. Whereas claim of complainant against op no.1 is concerned, it appears to be maintainable as the op no.1 had given a misleading advertisement on its website in order to attract the customers like complainant. It is also proved fact that complainant being a bonafide purchaser after seeing advertisement at the website of op no.1 passed the order for supply of the scooty against the sale consideration of Rs.20,500/- and paid this amount online to op no.1 and made request for delivery of the vehicle. It is apparently clear from Ex.C3 that due to non delivery of the vehicle as per assurance of op no.1, the complainant approached the Advertisement Standard Council of India by way of written request and after considering the request of complainant, they concluded “that the claim related to the price of the product (Suzuki Access 125 SE CBS- Disc) quoted as Rs.20,000/- was misleading by ambiguity and omission to mention that it is only a booking amount, with an additional convenience fees applicable. The visual is likely to lead to grave or widespread disappointment in the minds of consumers. The website advertisement contravened Chapter 1.4 and 1.5 of the ASCI Code. The complaint was upheld. The CCC noted that the advertiser has corrected the website advertisement”. As per email dated 23.7.2018 Ex.C4, scooty was delivered on 7.8.2018 though same was not delivered to the complainant at all. So, it appears that op no.1 had been making false promises qua delivery of the vehicle to the complainant by making one or other false excuse and lastly got the order cancelled and made refund of the amount and continued to harass the complainant from time to time for a period of one month which clearly amounts to unfair trade practice on the part of op no.1 and complainant deserves for compensation for harassment, humiliation, pain and agony which he has suffered since the day of passing of the order for the purchase of the scooty. However, complaint of the complainant qua ops no.2 and 3 does not appear to maintainable and as such same is hereby dismissed qua ops no.2 and 3.
9. In view of above discussion, we allow this complaint against opposite party no.1 and direct the op no.1 to pay a sum of Rs.5000/- as compensation for harassment to the complainant within a period of 30 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @7% per annum from the date of order till actual payment. We further direct the op no.1 to pay a sum of Rs.2000/- as litigation expenses to the complainant. However, complainant is not entitled to delivery of the vehicle against payment of Rs.20,500/- as sale price of the vehicle is more than Rs.20,500/-. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:08.08.2019. Member Member District Consumer Disputes
Redressal Forum, Sirsa.
