Haryana

Kurukshetra

105/2018

Sumit - Complainant(s)

Versus

Paytm Mall - Opp.Party(s)

In Person

27 May 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

Complaint Case No.105 of 2018.

Date of instt: 10.5.2018. 

                                                                        Date of Decision: 27.05.2019.

 

Sanmeet Singh son of Sh. Surjeet Singh, resident of Plot No.92, Saini Colony, Tehsil Thanesar, District Kurukshetra.

                                                                …..Complainant.

                        Vs.

1. Paytem Mall- Head Office F-44 Udhyog Marg F Block Sector 6, Noida (Uttarpardesh).
2. Sold by Multi Shop Oversease, Bisalpur Road, Near Petrol Pump Bhutta Barelly (Uttarpardesh)
3. Xpressbees Courier Services Kheri Markanda Road Gali No.5, new Sarswati Colony, Tehsil Thanesar, Distt. Kurukshetra.

……Opposite parties.

 

Complaint under section 12 of Consumer Protection Act.                   

 

Before:      Smt. Neelam Kashyap, President.

                Ms. Neelam, Member.

                Sh. Sunil Mohan Trikha, Member.

                       

Present:     Complainant in person.

 Sh. Vineet Bajaj, Advocate for opposite party No.1.

         Opposite parties no.2 and 3 already exparte.

ORDER

                     This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Sunmeet Singh against Paytem Mall and others, the opposite parties.

2.              Brief facts of the present complaint are that on 24.4.2018 complainant booked a hard disc WD shata 2 TB black external drive for desktop (model No.WD2003FZEX) through online through Paytm Mall, the order number of which is 5032407825. But the above said company delivered Hitachi Deskstar 80 GB hard disc HDS728080 Plat 20 bearing No.SOST05AM on 1.5.2018, the ship number of which is 5032407825. The above said company delivered a cheap hard disk having rust to the complainant instead of the hard disc which was booked by him through courier upon which the complainant complained about the same to the customer care of the company and the complainant has call recording of the same as proof. It is further alleged that aforesaid company also restricted the Paytm account of the complainant and when complainant asked the reason of the same, the aforesaid company asked to do whatever complainant wants. Hence, this complaint for a direction to the ops to refund the amount of Rs.9074/- and to pay Rs.20,000/- as compensation for mental harassment.

3.             On notice, opposite party no.1 appeared and filed written statement submitting therein that op no.1 is an intermediary as defined under Section 2(w) of the Information Technology Act, 2000 and is exempted by virtue of “Sale 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. The Hon’ble Supreme Court has confirmed that under Section 79 of the IT Act, an intermediary is exempted from any liability arising out of any objectionable listing put on the website. It is further submitted that op no.1 at www.paytmmall.com provides only online marketplace platform which facilitates the sellers after registering and executing an Marketplace agreement with op no.1 to list their goods and buyer’s to access goods from multiple sellers. The op no.1 does not sell any of the goods on the said website directly. The sellers have the opportunity to display their goods and these are purchased by the buyers at the price determined and displayed by the seller after agreeing/ acknowledging the terms and conditions enumerated in the website. It is further submitted that as per the Merchant agreement entered into by the op no.1 with the merchant/ seller M/s Multi Shop overseas i.e. op no.2, it was the contractual obligation of the Merchant/ seller to ensure the quality, quantity, after sale services etc. of the ordered product to the complainant. It is further submitted that said product was delivered to the complainant by the merchant/ seller on 1.5.2018 through Xpressbees Courier Services i.e. op no.3. Once the order is placed by the buyer from Merchant/ Seller i.e. op no.2 using the online market place platform of op no.1, the ordered product is picked up from the designated merchant by a third party logistics service provider and is brought on to the logistic service provider facility. The same is then delivered by the courier agency i.e. op no.3. Further, the role of the op no.1 is only a facilitator of market place platform and the transactions therein including that of payment solutions to Merchant and to complainant and it does not have any control over the transactions between the purchaser i.e. complainant, seller op no.2 and the courier agency op no.3. It is further submitted that throughout the entire cycle of the processing of the order, till the delivery of the product, op no.1 has no control at all over the existence of the product, packaging of the product, delivery of the product. Neither at any point of time, has the op no.1 attained any type of ownership, right, title or interest in the ordered product nor had any control/ possession of the product. The ownership of the product lies with op no.2 till the delivery of the product. It is further submitted that contract of sale is entered into between the complainant and the op no.2 with no privity of contract between complainant and op no.1. The only privity of contract that ever existed between op no.1 and the complainant is that of successful booking of the order as desired by the complainant which op no.1 had without any deficiency whatsoever performed. With these averments, dismissal of complaint prayed for.

4.             Ops no.2 and 3 did not appear despite notice sent through registered covers and were proceeded against exparte.

5.             The complainant tendered affidavits Ex.CW-1/A, Ex.CW2/A, Ex.CW3/A and document Ex.C1 and CD Ex.C2. On the other hand, op no.1 tendered affidavit Ex.RW1/A and documents Ex.OPW1/1 to Ex.OPW-1/5.

6.             We have heard complainant and learned counsel for op no.1 and have perused the case file carefully.

7.             The complainant in order to prove his case has furnished his affidavit Ex.CW1/A and Ex.CW3/A wherein he has reiterated all the facts so set out by him in his complaint. He has also placed on file affidavit of one Krishan Kant son of Sh. Gurdev Singh as Ex.CW2/A in which he has deposed that he does the work of Courier delivery with Express Bees and on 1.5.2018 he delivered one hard disc to the complainant and the complainant opened the parcel of the hard disc in his presence which was having rust and was old one. From the copy of tax invoice dated 25.4.2018 Ex.C1, it is evident that complainant purchased the hard disc in question from op no.2 for a sum of Rs.8999/- through online service of op no.1 and same was delivered at the address of complainant through courier. The pleadings and evidence led by complainant against op no.2 goes as unchallenged and unrebutted as op no.2 failed to appear before this Forum and opted to be proceeded against exparte. It is proved by complainant that hard disc in question delivered to him was having rust and was old one. Though the complainant has claimed refund of the amount of Rs.9074/- but from the invoice, it is evident that an amount of Rs.8999/- was paid by complainant as price of the hard disc and as such he is entitled to refund of the said amount of Rs.8999/-.  In so far as contention of op no.1 that op no.1 is only an online platform to purchase the product of sellers and op no.1 discharged its duty and after delivery of product, it has no responsibility is concerned, we see no substance in the contention of op no.1.  The complainant has purchased the hard disc in question through online service of “Paytm Mall” so, the op no.1 is also liable for its negligence to provide defective hard disc to the complainant.    In this context, we can rely upon the order passed by Hon’ble State Commission Chhattisgarh, Raipur in case bearing appeal No.FA/2018/05 titled as Amazon Seller Services Pvt. Ltd. Vs. Love Kumar Sahoo and others decided on 07.02.2018, wherein it was observed that “Amazon” is also liable for providing services. However, no liability of op no. 3 is made out as product booked by complainant was delivered by op no.3 to the complainant and their responsibility in this regard was over after delivery of the product.

8.             In view of the above, we allow the present complaint qua ops no.1 and 2 and direct the opposite parties no.1 and 2 to refund the price of the hard disc i.e. Rs.8999/- to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @9% per annum from the date of order till actual realization. We also direct the ops no. 1 and 2 to further pay a sum of Rs.2000/- to the complainant as compensation for harassment. Both the ops no.1 and 2 are jointly and severally liable to comply this order. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.

Announced in open Forum:

Dt.:27.05.2019.  

                                                                        (Neelam Kashyap)

                                                                        President.

 

(Sunil Mohan Trikha),           (Neelam)       

Member                             Member.