Haryana

Kurukshetra

106/2018

Sunil Kumar - Complainant(s)

Versus

Paytm - Opp.Party(s)

In Person

12 Mar 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

 

Consumer Complaint No.106 of 2018.

Date of Instt.:11.05.2018.

Date of Decision: 12.03.2020

 

Sunil Kumar4 Kaushik son of Sh.Balwant Rai Sharma, House No.1190/12, Ramnagar colony, Thanesar, District  Kurukshetra.

                                                                        …….Complainant.                               

               Versus

1.Paytm office, Ist Floor Devika Tower, Nehru Place, New Delhi 110019.

2.Lenovo India Private Limited, Ferns Icon Level-2, Doddenkund village Marathalli outer ring road, Marathhalli Post Kr.Puran Hobli, Banglore, through its  Managing Director.

3. Lenovo India Private Limited Vatika Business Park, 1^st Floor, Badeshahpur Road, Sector – 49, Sohna Road, Gurgaon, through its Managing Director.

4.Gurmeet Singh, Levono Service Centre, Oppoiste New Bus Stand, Kurukshetra.

5.Vardhman Tele Marketing SCO-75, Sector 17A, Opp., Telephone Exchange, Old Delhiu Road, Gurgaon – 122001.

 

 

                ….…Opposite parties.

 

Complaint under Section 12 of Consumer Protection Act.

 

Before       Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member.       

                   Shri Issam Singh Sagwal, Member.                

                 

Present:     Shri Rajesh Kaushik, Advocate for the complainant.         

Shri Vineet Bajaj, Advocate for the opposite party No.1.

OP No.2,3 and 5 ex-parte.

OP No.4  given up.

ORDER

                   This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by the complainant Sunil Kumar against Paytm and  other, the opposite parties.

2.             The brief facts of the complaint are that the complainant has purchased a Lenovo Mobile model No.8621680321126155 from Paytm (respondent no.1) which is delivered by Verdhman Tele Marketing , Old Delhi Road, Gurgaon who is the supplied of the respondent no.2 and 3.against Bill No. 06A0002294307959 DATED 25.08.201 for an amount of Rs.13200/-. Said mobile phone was warranted for a period of one year from the date of its purchase.  At the time of purchase of the mobile phone, OP No.1 to 3 assured the complainant that the handset is of high quality and will work properly and comes within a warranty period of one year. It was also assured that if some defect develops in the handset, same  would be removed/rectified by OP No.4 within a short period.   It is averred that the mobile handset was found used one and on checking, its warranty was not found for full one year and upon that the complainant called upon the OPs but they did not respond to his grievance.  That the complainant also registered the complaint on the website of OP No.1 to 3 but nothing has been done which amounts to deficiency in services on the part of the OPs. Thus, the complainant has filed the present complaint alleging deficiency in services on the part of the OPs and prayed that the OPs be directed to pay the compensation of Rs.50,000/- for the mental harassment, agony and emotional tortures besides Rs.13,200/- as cost of the mobile handset.

 

3.     Upon notice, OP no.1 appeared and filed written statement disputing the claim of the complainant. It is submitted that the assurance of the product to be of high quality etc. squarely falls on the seller and manufacturer since it is the manufacturer who manufactures the product with no role whatsoever of OP no.1 in it.  It is further submitted that the obligation to make good and honor the warranty of one year solely rests on the OP No.2 to 4 since it is the OP No.2 to 4 who have offered the same.  That the OP No.1 is the  owner of the website www.paytmmall.com alongwith the mobile application named “Paytm Mall and Bazaar” which is an online market place and acts as 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 last opportunity to the terms  and conditions as enumerated on the website of OP No.1.That OP No.1 herein  is an intermediary 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  from liability for third party information data and communication link made available or hosted by it.  That warrant, guarantee, after sales services, etc. are the sole contractual obligation of the Merchant/Seller Vardhaman Tele Marketing having  its office at  Gurgaon through its Proprietor Mr. Vineet Jain and the manufacturer and its service Centre i.e. OPNo.2 to 4 with the  role of OP No.1 confined to facilitating the transaction and successful booking of the order of the complainant with the Merchant/Seller. That a brief perusals of  present transaction reveals that the product in question was sold by M/s Vardhman Tele Marketing, therefore, contract of sale is entered into between the complainant and the Merchant/Seller M/s Vardhman Tele Marketing  with no privity of contract between the complainant and OP No.1.Thus, it is submitted that there is no deficiency in services on the part of the OP no.1 and prayed for dismissal of the present complaint.

 

4.             OP No.2 and 3  have been proceeded against ex-parte vide order dated 18.06.2018  whereas OP No.5 was proceeded against ex-parte vide order dated  26.11.2019. However, OP no.4 was given by the complainant  on the statement  dated 27.02.2019 made by the learned counsel for the complainant.

 

5.             The learned counsel for the complainant tendered affidavit Ex.CW1/A alongwith documents Ex.C-1 to Ex.C5. On the other hand, the OP No.1 tendered affidavit Ex.RW1/A alongwith documents Ex.R-1 and R-5.

 

6.             The OP No.1 in support of its case has filed affidavit Ex.OPW1/A and tendered documents Ex.R-1 to Ex.R-6 and closed its evidence.

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

8.             The learned counsel for the complainant has reiterated all the averments mentioned in the complaint. He argued complainant has purchased a Lenovo Mobile model No.8621680321126155 from Paytm (respondent no.1) which is delivered by Verdhman Tele Marketing , Old Delhi Road, Gurgaon who is the supplier of the respondent no.2 and 3.against Bill No. 06A0002294307959 DATED 25.08.2017 for an amount of Rs.13200/-. Said mobile phone was warranted for a period of one year from the date of its purchase.  At the time of purchase of the mobile phone, OP No.1 to 3 assured the complainant that the handset is of high quality and will work properly and comes within a warranty period of one year. It was also assured that if some defect develops in the handset, same  would be removed/rectified by OP No.4 within a short period.   It is averred that the mobile handset was found used one and on checking, its warranty was not found for full one year and upon that the complainant called upon the OPs but they did not respond to his grievance.

9.     The learned counsel for the OP No.1 has reiterated all the averments mentioned in the complaint. He argued  OP No.2 to 4 who have offered the same.  That the OP No.1 is the  owner of the website www.paytmmall.com alongwith the mobile application named “Paytm Mall and Bazaar” which is an online market place and acts as 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 last opportunity to the terms  and conditions as enumerated on the website of OP No.1.That OP No.1 herein  is an intermediary 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  from liability for third party information data and communication link made available or hosted by it.  That warrant, guarantee, after sales services, etc. are the sole contractual obligation of the Merchant/Seller Vardhaman Tele Marketing having  its office at  Gurgaon through its Proprietor Mr. Vineet Jain and the manufacturer and its service Centre i.e. OPNo.2 to 4 with the  role of OP No.1 confined to facilitating the transaction and successful booking of the order of the complainant with the Merchant/Seller.The learned counsel for the complainant has placed on record authorities titled as One97 communication limited Vs. Deepak Garg ,First Appeal N.905 of 2016, decided on  06.12.2017 by Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh and Amazon  Seller Services Pvt. Limited Vs. Love Kumar Sahoo etc. Appeal No.FA/2018/05 decided on 23.05.2018 by Hon’ble State Consumer Disputes Redressal Commission, Pandri ( Raipur).

10.            Undisputedly, the complainant purchased a Lenovo Mobile model No.8621680321126155 from Paytm (respondent no.1) which is delivered by Verdhman Tele Marketing , Old Delhi Road, Gurgaon who is the supplied of the respondent no.2 and 3.against Bill No. 06A0002294307959 DATED 25.08.201 for an amount of Rs.13200/-. Said mobile phone was  having warranty  for a period of one year from the date of its purchase. The mobile phone so purchased by the complainant was found a second hand set whereas he has paid for the new mobile handset.

 

11.            In the authority titled as  One97 communication limited Vs. Deepak Garg ,First Appeal N.905 of 2016, decided on  06.12.2017 Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh has held that “No doubt the role of appellant is that  of intermediary in the present case but  if cannot be said that they have no role to play, as the harassment has been caused to the complainant, due to the cancellation of the said ordered product.   It is general observation that the consumers are attracted by the offers and displays of various products on the website of such kind of appellant- company and place their order on good faith. Online Market Place Company earns revenue each time a consumer click and visit on their website.  Moreover, the same is being done as per the terms and conditions between the online portal company and the seller for a consideration.

                 In the authority cited as Amazon  Seller Services Pvt. Limited Vs. Love Kumar Sahoo etc. Appeal No.FA/2018/05 decided on 23.05.2018 b Hon’ble State Consumer Disputes Redressal Commission, Pandri ( Raipur) has held that” the complainant was provided defective mobllehand set by the  manufacturing company. The OP No.1 sold the mobile handset to the complainant and the complainant received the mobile hand set from the OP No.1.Continuously, defective mobile handset were provided by the OP No.1 to the complainant, therefore, the complainant is entitled to get the amount which was paid by him to OP No.1.

 

 12.                   The manufacturer of the mobile phone sold the said mobile phone to the complainant through other OPs and thus each of the OP has a vital role in sale of a second hand mobile phone to the complaint despite payment for a new mobile phone and as such deficiency in services  the part of the OPs is made out.

 

13.            So, in view of our aforementioned findings and observations and the  law in the  above cited authorities, we accept the present complaint and direct the OPs to replace the mobile phone of the complainant with a new one of the same cost and same model and if the same is not  available, then the refund the cost i.e. Rs.13,200/- to the complainant. The  OPs shall also pay a sum of Rs.5000/- in lump sum to the complainant as compensation. The OPs are further directed to comply with the aforesaid directions jointly and severally within the period of 30 days from the date of preparation of certified copy of this order, failing which, the complainant will be at liberty to initiate proceedings under Section 25/27 of the Act against the OPs. 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 Forum:

Dt.: 12 .03.2020.                                                 (Neelam Kashyap)

                                                                                 President.

 

 

(Issam Singh Sagwal),         (Neelam)       

Member                               Member.