| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION – X GOVERNMENT OF N.C.T. OF DELHI UdyogSadan, C – 22 & 23, Institutional Area (Behind Qutub Hotel) New Delhi – 110016 Case No.271/2017 SURENDER PRATAP S/O TOTA RAM R/O L-1/97A, DDA FLATS, KALKAJI, NEW DELHI- 110019 …..COMPLAINANT Vs. - THE MANAGER
M/S PAYTM ONE 97 COMMUNICATION LTD. PAYTM B-121, SECTOR-5, NOIDA G.B. NAGAR- 201301,U.P. - THE MANAGER/OFFICER
M/S PAYTM DEVIKA TOWER 1ST FLOOR, NEHRU PLACE, NEW DELHI 110019 - THE MANAGER/OFFICER
M/S CAPITAL PHOTO SERVICES (P) LTD. JYOTI TOWER, SHOP NO.3, NEW DAK BUNGLOW ROAD, PATNA, BIHAR- 800001 …..RESPONDENTS Date of Institution-22.08.2017 Date of Order- 08.12.2023 O R D E R RITU GARODIA-MEMBER - The complaint pertains to deficiency in service on the part of OP in delivery of wrong product.
- Brief facts as stated in the complaint are that the complainant ordered a camera make Canon E OS80D (EF-S18-135-1S US) for Rs.95,900/- on OP portal vide ID no.2697709129 on 05.02.2017. He paid online and received a courier packet on 11.02.2017. However, upon opening the packet, the complainant discovered that instead of the expected Canon EOS 80D camera, the parcel contained a speaker/woofer identified as 'Spice M. No. 004'.
- The complainant lodged a complaint with OP on 17.02.2017 and 18.02.2017. He was assured that the product would be picked up. Several correspondences were exchanged between the parties. OP refused to return/ refund the amount paid as the system had flagged the complainant’s account for abusing the return policy.
- The complainant prays for refund of Rs.95,900/- with 24% interest or in the alternative to provide the product (camera) which he ordered and Rs.2,00,000/- towards litigation cost.
- OP1 and OP2 in its reply have submitted that it is an intermediary facilitating e-commerce as defined under Information Technology Act, 2000. It is further submitted that the contract for sale is directly between the merchant and the complainant. It is also submitted that complainant is not covered under Consumer protection Act.
- OP1 and OP2 have also relied on their return policy wherein the customer has to get in touch with customer service. Thereafter, OP1 will inform the relevant merchant and request for replacement.
- In the present matter, the product was sold by OP3 and delivered by M/s Delhivery, situated at Plot 5, Sector 44, Gurgaon, Haryana- 122002. OP1 and OP2 had made arrangements by way of Agreement with different logistics service providers who provide pick up from the merchant and deliver it to their customers. OP also submits that an expert investigation can prove the fault of the merchant or the logistic service provider in delivering the wrong product. OP1 and OP2 pray for dismissal of complaint.
- Notice was issued to OP3 but none appeared. OP3 was proceeded Ex-parte vide order dated 09.11.2017.
- Complainant has filed evidence by way of affidavit and has exhibited the following documents:
- Copy of Election Identity Card is exhibited as EX.CW-1/A
- Original delivered item/packet is exhibited as Ex.CW-1/B.
- E-mail conversations are exhibited as Ex.CW-1/C.
- Legal notice is exhibited as Ex.CW-1/D.
- Postal receipts of legal notice are Ex.CW-1/E. (Colly).
- OP1 and OP2 have filed evidence by way of affidavit and have exhibited the following documents:
- Copy of the authority letter is exhibited as Exhibit OPW-1/1.
- Copy of the terms and conditions are exhibited as Exhibit OPW-1/2.
- Copy of DIPP Guidelines is exhibited as Exhibit OPW-1/3.
- Copy of invoice is exhibited as Exhibit OPW-1/4.
- Copy of Agreement is exhibited as Exhibit OPW-1/5.
- We have considered the material on record. It is undisputed that complainant placed an order for a Canon E OS80D camera on OP portal vide ID no.2697709129 on 05.02.2017. It is undisputed that the product was delivered on 11.02.2017. The delivery invoice reveals that the product was prepaid for an invoice amount of Rs.95,900/-.
- The complainant has placed pictures which showed that another product identified as “Spice M.NO.004 Aux Mobile Speaker System” was delivered to him. The complainant has also annexed photographs of the packed shipment, the process of opening the package and the speaker which was delivered. He had also brought the speaker/disputed product to the Commission which was seen and returned.
- Emails dated 17.02.2017 from complainant to OP states that he has received the wrong product and wanted to return the product. He requests for either refund or the correct product to be delivered.
- OP1 in its reply asked for following documents to resolve the issue.-
- Your id proof (pan card, driving license, aadhar card etc.)
- Snapshots of Product with visible IMEI/ Serial No.
- Snapshots of outer and inner package with visible Serial/ Barcode number.
- Whether the packaging was sealed or opens with the product was delivered.
- The complainant sent the details vide email dated 20.02.2017. OP1 vide email dated 20.02.2017 replied to the complainant as follows:
I am Abhijeet and I understand that your wish to return Canon EOS 80D (EF-S18-135 IS USM) 24.02 MP DSLR Camera (Black) under the order 2697709129. As I checked, this account has been flagged by our system for abusing our return policy and has been temporarily restricted to raise return requests. Our system regularly scans the transaction history from each account and flag accounts with suspicious activities like misuse of promotions & offers, return policy etc. Appreciate your understanding in this regard. - The complainant in its email dated 22.02.2017 states that he is using the shopping portal for the first time. OP1 vide email dated 26.02.2017 informed the complainant as follows: We have already escalated this issue with the merchant and courier partner. Also we have raised this to the notice of relevant local investigation authorities, as required. Thereafter, OP1 multiple times asked for the photographs of outer package and the complainant sent the photographs to OP multiple times through email.
- OP1 vide email dated 01.03.2017 communicated to complainant as follows: We will ensure that we fix the issue for Canon EOS 80D (EF-S18-135 IS USM) 24.02 MP DLSR Camera (Black) against the Order 2697709129. We have already escalated this case with the seller and courier partner. And will be coordinating to get a speedy resolution for you as soon as possible.
- OP1 vide email dated 03.03.2017 communicated to the complainant as follows: This is with regards to the concern which you have registered with Paytm against the order number 2697709129. We launched a full scale investigation against your order and our checks (such as dispatch x-rays etc) have confirmed that the correct product was delivered to you in intact condition n date 11.02.2017. We also observed that you have high number of returns and refunds. Therefore, our system will not be able to refund your amount for this order.
- It is evident from the emails that OP1 initiated an investigation, resulting in the flagging of the complainant's account within the OP1 system. According to this investigation, OP asserts that the complainant received the correct product in undamaged condition on 11.02.2017. Additionally, OP1 claims that the complainant has been involved in a high volume of return and refund requests.
- OP1 has not provided appended details of the investigation, including the names of the investigation team, the procedural steps followed, and notably, the investigation report. While OP1 contends that expert investigation is necessary to establish the merchant or logistics service provider's fault in delivering the wrong product, there is no mention of the investigation referred to in the email dated 03.03.2017.
- In the complainant's email dated 20.02.2017, it was mentioned that they were using OP1's portal for the first time for shopping. OP1, in response, offers a general statement citing a high number of returns and refunds. However, no specific details regarding the quantity of returns or the reasons behind them have been provided.
- It is unequivocally evident that OP1 is actively engaged in the business of furnishing services through its online platform for the purpose of facilitating interactions between prospective buyers and sellers. OP1 serves as a conduit for communication between these parties, thereby facilitating the establishment of contracts for the sale and purchase of movable goods. Given that this represents OP1's declared business interest, it is impermissible for OP1 to assert that it renders a service purely gratuitously, devoid of any corresponding consideration. It is undisputedly not within the purview of OP1's representation to claim charitable status in its e-commerce activities, wherein it derives no commercial benefit for itself. Consequently, we reject OP1's assertion that the complainant fails to meet the definition of a consumer as stipulated in Consumer Protection Act.
- OP1 has relied on Information Technology Act 2000 which exempts the liability of any intermediary. OP1 has not disputed the delivery of the product in question. OP1 has not disputed email communication and its response to these emails. Irrespective of the terms and conditions of the vendor/seller, an Agreement between the OP1 and seller casts an inherent responsibility on the part of OP1, who being a facilitator, to provide all necessary support services expected by the customers. These services encompass logistical assistance and payment facilitation to ensure customer satisfaction and effective resolution of the concerns raised by the complainant consumer and the user of e-commerce platform of OP1. The consumer/user/complainant purchases through online portal trusting the services of OP1 and the complainant customer has no direct interaction or privity of contract with the seller. The present case is not about the product liability or defect in product but liability for the wrong product which was delivered to the complainant.
- OP1 has acknowledged its contractual arrangements with various logistics partners to facilitate pick-up and delivery services. The complainant entered into an agreement with OP1 for the purchase and delivery of a product. It's important to note that the complainant does not have a direct contractual relationship with OP's logistics partner. In cases of incorrect product delivery, the responsibility lies with OP1.
- Hence, we find OP1 i.e. M/s Paytm is guilty of deficient services and direct OP1 to:
- To refund Rs.95,900/- along with 9% interest p.a. from the date of purchase till realization.
- To pay Rs.15,000/- as compensation for mental harassment, agony and physical inconveniences.
- To pay Rs.5,000/- towards litigation expenses.
- This order be complied with within 30 days from the date of the order. File be consigned to record room. Order to be uploaded on website.
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