Haryana

Kurukshetra

CC/50/2019

Ajay Kumar - Complainant(s)

Versus

Paytm - Opp.Party(s)

Rakesh Bangla

12 Mar 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KURUKSHETRA.

 

  Consumer Complaint No.50 of 2019.

                                                                           Date of Instt.:5.02.2019

  Date of Decision: 12.03.2021

 

Ajay Kumar son of Shri Milakh Raj resident of house No.1342, Sector -7, U.E.Kurukshetra.

                                                                                      …….Complainant.                                                       Versus

 

1. Paytm, B-121, Sector 5, Noida – 201301  (UP) through its Branch Manager.

2.Chhabra Triple Five Fashions Pvt. Ltd. 555, Katra Asharfi, Chandni  Chowk, Delhi 110006 through its Prop./Partner.

          ….…Opposite parties.

 

             Complaint under Section 12 of Consumer Protection Act.

 

Before        Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member. 

                   Shri Issam Singh Sagwal, Member.                     

                   

Present:      Sh.Ankit  Gautam, Advocate for the complainant. 

Sh.Vineet Bajaj Advocate for OP no.1.

 OP No.2 Ex-Parte.

 

                   This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by the complainant Ajay Kumar against Paytm etc- the opposite party.

 

2.                The brief facts of the complaint are that the complainant ordered a Chhabra 555 Georgette Embroidery Saree worth Rs.17,500/- including Rs.625/- as IGST  with Rs.40/- as Shipping charges through Paytm App of OP No.1 to the OP No.2 with registered Paytm mobile No. 7206022140 vide invoice No. 6104640362 on 24.09.2018 and an invoice dated 25.09.2018 was issued in this regard.  By paying the consideration the complainant has become consumer of the OPs and is thus competent enough to file the present complaint. It is averred that the said saree was delivered to the complainant on 28.9.2018,  however, on receiving the said product, the saree was found to be of inferior quality which was not ordered by the complainant. The complainant was stunned to see that it was damaged also with the damaged embroidery. It was not that product which was ordered. The complainant requested the OP No.1 on 28.09.2018 i.e. on the same day of delivery of the said saree to return the said amount by taking back the product but the OP No.1` rejected the request of the complainant on 29.9.2018, in collusion with OP No.2.  It is averred that according to 15 days return policy, the complainant made the request to OPs to return the amount paid by him, because saree was in damaged condition but the OPs rejected the request of the complainant which amounts to deficiency in services on the part of the OPs.  Thus, the complainant has filed the present complaint against the OPs alleging deficiency in services on the part of the OPs and prayed that the OPs be directed to return the amount of  Rs.17325/- + Rs.40/- to the complainant alongwith interest and compensation for the mental harassment and agony caused to him and the litigation expenses.

 

3.                Notice of the complaint was given to the OPs. OP no.1 appeared and filed written statement disputing the claim of the complainant. It is submitted that an order  was placed by the buyer (complainant) using the online platform of the OP No.1 for buying product which is sold by OP  no.2 (Chhabra Triple  Five Pvt.Limited, having its office at 555,  K ASHARFI CHANDNI CHOWK, NEW DELH , being the seller of the product. The order once placed is marked to the  designated Merchant/Seller of the product  i.e. OP No.2. The OP No.2 is an independent third party seller , bound by the terms and conditions of the market place Agreement and the OP No.1 who displays the  products over the online marketplace portal of the OP No.1 at5  www.paytmmail.com or  PAYTM Mail and Bazar Mobile Application. Once, the order is placed, the same is delivered by OP no.2 after handing over  the physical possession of the product to the Courier Agency i.e. Blue  Dart Express limited having its office at Andheri Mumbai and New Delhi. The courier agency i.e. Blue Dart Express Limited after receiving the physical possession of the product from the seller i.e. OP No.2 delivers the product to the complainant.  It is submitted that throughout the cycle of the processing of the order, till the delivery of the product, OP No.1 had no control at all over the existence of the product, quality of the product, packing of the product, delivery of the  product warranty or guarantee 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.

 

 

4.                OP No.2 has been proceeded against ex-parte vide order dated 18.06.2018 as OP No.2 failed to appear and contest the case despite due service.

 

5.                The learned counsel for the complainant tendered affidavit Ex.CW1/A alongwith documents Annexure -1 to Annexure -8 and closed his evidence.

 

6.                On the other hand, OP No.1 filed affidavit Ex.RW1/A and filed documents Ex.R-1  to Ex.R-8 and closed his evidence.

 

7.                We have heard the learned counsel for the parties and gone through the case file very carefully.

 

8.                Learned counsel for the complainant argued that complainant ordered a Chhabra 555 Georgette Embroidery Saree worth Rs.17,500/- including Rs.625/- as IGST  with Rs.40/- as Shipping charges through Paytm App of OP No.1 to the OP No.2 with registered Paytm mobile No. 7206022140 vide invoice No. 6104640362 on 24.09.2018 and an invoice dated 25.09.2018 was issued in this regard.  It is also argued that by paying the consideration the complainant has become consumer of the OPs and is thus competent enough to file the present complaint. It is argued that the said saree was delivered to the complainant on 28.9.2018,  however, on receiving the said product, the saree was found to be of inferior quality which was not ordered by the complainant. The complainant was stunned to see that it was damaged also with the damaged embroidery. It was not that product which was ordered. The complainant requested the OP No.1 on 28.09.2018 i.e. on the same day of delivery of the said saree to return the said amount by taking back the product but the OP No.1` rejected the request of the complainant on 29.9.2018, in collusion with OP No.2. Thus, it is argued that according to 15 days return policy, the complainant made the request to OPs to return the amount paid by him, because saree was in damaged condition but the OPs rejected the request of the complainant which amounts to deficiency in services on the part of the OPs.

 

9.                 The learned counsel for OP No.1 has argued  that an order  was placed by the buyer (complainant) using the online platform of the OP No.1 for buying product which is sold by OP  no.2 (Chhabra Triple  Five Pvt. Limited, having its office at 555,  K ASHARFI CHANDNI CHOWK, NEW DELHI , being the seller of the product. The order once placed is marked to the designated Merchant/Seller of the product  i.e. OP No.2. The OP No.2 is an independent third party seller , bound by the terms and conditions of the market place Agreement and the OP No.1 who displays the  products over the online marketplace portal of the OP No.1 at5  www.paytmmail.com or  PAYTM Mail and Bazar Mobile Application. Once, the order is placed, the same is delivered by OP no.2 after handing over  the physical possession of the product to the Courier Agency i.e. Blue  Dart Express limited having its office at Andheri Mumbai and New Delhi. The courier agency i.e. Blue Dart Express Limited after receiving the physical possession of the product from the seller i.e. OP No.2 delivers the product to the complainant.  It is argued  that throughout the cycle of the processing of the order, till the delivery of the product, OP No.1 had no control at all over the existence of the product, quality of the product, packing of the product, delivery of the  product warranty or guarantee of the product.  Thus it is argued that 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 learned counsel for OP No.1 has argued that the Hon’ble Supreme Court in order dated 3.4.2013  passed in I.A. Nos.136 and 137 in Civil Appeal No.5168 of 2000 has held that eBay Inc.(engaged in the same business as Appellant) is only an intermediary within the definition of Section 2(w)of the IT Act. The Hon’ble Supreme court has also confirmed the position in law 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. The learned counsel for the OP No.1 has further argued that the complainant has tried to return on one pretext or the other and it can safely be assured that the complainant himself has not come before this Commission with clean hands and is attempt to exploit the benevolent provision of the Consumer   Act because he has not produced any proof that the item so delivered is defective one.  It is also argued that the market place Agreement dated 7.9.2018  with the OP No.2. i.e. CHHABRA TRIPLE PVT.LTD., the  onus  and contractual obligation with respect to any dispute, defect in quality etc. is that of OP No.2. The relevant clauses placing the obligation on the OP no.2 and exempting OP No.1 from any liability as  the seller shall be solely responsible for making any representations or warranties with respect to the quality of the product to the buyer, including all relevant product warranties and prayed that the complaint in hand may kindly be dismissed.

 

10.              After hearing the learned counsel for the parties, we are of the view that   undisputedly, the complainant placed order for purchase of a saree from OP No.2 through OP no.1 and paid an amount of Rs.17,500/- + Rs.40/- shipping charges were paid to the OP No.2 by the complainant  through  OP No.1. OP No.1 has stated that OP No.1 is merely a platform for this transaction. The OP No.2 has supplied the defective product and OP No.2 also failed to return the amount so paid  by the complainant  in the shape of cost of the product plus shipping charges. The OP No.2 failed to appear despite due service and was proceeded against ex-parte. This act of OP No.2 also shows his conduct. The complainant has purchased the saree in question through online service of Paytm (OP NO.1) only and the cost has been paid to the OP No.2. The defective saree has been supplied by the OP No.2 and the OP No.1 has nothing to do in this regard. The OP No.2 failed to appear despite due service and was proceeded against ex-parte. The pleadings and evidence led by complainant against OP No.2 goes as unchallenged and unrebutted. So far   as OP No.1 is concerned in our view eBay Inc.(engaged in the same business as Appellant) is only an intermediary within the definition of Section 2(w)of the IT Act. As the OP no.2 have  failed to refund the amount despite repeated requests, therefore, this act on the part of the OP No.2  amounts to deficiency in services on the part of the OPs and the complainant is entitled to refund of the amount of Rs.17,500/- plus Rs.40/-  as shipping charges.   Besides this, complainant is entitled to compensation for the harassment and mental agony caused to the complainant together with litigation expenses.      

 

                    In view of the aforesaid discussion, we hereby allowed the complaint against OP No.2 in the following manner:

 

          i)       To refund the amount of Rs. 17,540/-to the complainants.

          ii)       To pay Rs.10,000/- as compensation for mental agony and physical

                  harassment suffered by the complainants alongwith litigation expenses.

          iii)      To pay Rs. 5000/- to the complainant as litigation expenses.

                   .

                        The OP No.2 is further directed to make the compliance of this order within a  period of  45 days from the date of preparation of certified copy of this order, failing which the  complainant will be entitled to interest on the amount of Rs.17540/- @ 9% from the date of this order dated  12.03.2021 till its actual realization. The complaint qua OP No.1 stands dismissed. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

 

Announced in open commission:

Dt.:12.03.2021.                                                       (Neelam Kashyap)                                                                                                  President.

 

 

(Issam Singh Sagwal),              (Neelam)         

 Member                                     Member.