DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 379 of 14.9.2016
Decided on: 8.6.2017
Satwant Singh aged 28 years S/o Sh.Rajinder Singh, R/o Room No.90-A, Homi Bhabha Hostel No.4, Punjabi University, Patiala.
…………...Complainant
Versus
SHOPCLUES, Plot 112,Sector 44, Opp. HUDA City Center and Near Fortis Hospital Gurgaon-122003, through its Managing Director/manager/incharge/Chairman, Phone No.0124-4414888.
…………Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.Satwant Singh, complainant in person.
Opposite party ex-parte.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Sh.Satwant Singh,complainant has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Party (hereinafter referred to as the O.P.) . The brief facts of the complaint are as under:
2. That the complainant placed an order from the site of the OP, for purchasing one Sony Mdr-Xb450 Headphone(white), on 19.8. 2016. The headphone was delivered to him by the representative of the OP after three days from the date of placing of order. He paid Rs.728 to the representative of the OP vide order No.97343802.It is averred that the product delivered by the OP was not original and the model of the same was also different. He contacted the OP through phone, who assured him to change the same with the original , failing which they will refund the price of the same. But thereafter inspite of contacted the OP so many times, it failed to give any response. There is thus deficiency in service on the part of the OP for which he is suffering from mental agony and physical harassment. Hence this complaint with the prayer for a direction to the OP to supply the original product & model, or to refund Rs.728/-,the price of the same . The OP may also be directed to pay Rs.50,000/-as compensation for causing mental agony and physical harassment. Hence this complaint.
3. On being put to notice, OP appeared through its representative and filed the written version taking preliminary objections that it falls within the definition of an ‘intermediary’under Section 2(1)(w) of the Information Technology Act and the listings of the products that are uploaded onto the website are not created, manufactured, owned or provided by it; these listings are clearly within the purview of third party information,data or communication link; no liability qua the products lies with the respective sellers/merchants/vendors, can be fastened upon it and that the complainant is not the consumer of the OP as defined under Section 2(d) of the Act, as there is no consideration whatsoever paid by the complainant to it.On merits, it reiterated the facts that the OP is neither the manufacturer nor the seller of the impugned product but merely acts as a facilitator between buyers and sellers and also the complainant has not paid any consideration amount to it for the online services rendered by it. It is stated that the complainant had placed the order for the impugned product on 17.2.2016, vide order No.97343802, but due to delay in shipment of the said product, the same was cancelled on 22.2.2016 and a new order bearing No.97577946 was generated. It is further stated that the seller M/s Goods Enterprise Shipped the product from its end without informing it .It is pleaded that the OP being neither manufacturer nor seller of the product, no liability can be fastened upon it. After denying all other averments made in the complaint, it is prayed to dismiss the complaint.
4. On being called to do so, the complainant tendered in evidence his affidavit,Ex.CA alongwith documents Exs.C1 to C5 and closed the evidence.
After filing the written statement, none appeared on behalf of the OP and accordingly, it was proceeded against ex-parte.
5. We have heard the complainant and have also gone through the record of the case, carefully.
6. The complainant has submitted that he purchased one Sony Mdr-Xb450 headphone on 19.8.2016 through on-line from OP but it had delivered him the duplicate head phone. To corroborate this fact, he has placed on record the copy of “ check points to verify genuine Sony headphone and ear phones”. He has further submitted that, one year warranty sticker and a MRP sticker are always affixed on the packing of the original Sony head phone and the bar code of the original Sony Headphone ends with (E)/(IN). Whereas on the packing of headphones, delivered to him by the OP , there was no sticker of warranty or MRP, even the barcode is ended with (CH), as is evident from the photo copy of the headphone, delivered to the complainant, Ex.C5. At the time of arguments, the complainant brought the headphone alongwith packing, same has been perused by us and it has been found that the bar code has been mentioned as MdrXb450APLQ(CH). Since the bar code of the head phone, purchased by the complainant is different than the bar code of the genuine head phone as shown in the Ex.C2, therefore, we find force in the submission made by the complainant that the OP has supplied him the duplicate headphone. He further submitted that in the
e-mail, Ex.C3, exchanged between him and Sony India, it is clearly mentioned that Shopclues is not an authorized Sony India Seller. As the seller is not authorized, it suggested to the complainant to contact the seller from where he had purchased the said product. Since the OP is not authorized by the Sony India to sell its products, therefore, by selling the said product the OP has indulged into unfair trade practice and is thus liable to replace the duplicate head phone sold to the complainant. It is also liable to compensate the complainant for the mental agony and physical harassment suffered by him alongwith litigation expenses.
In view of the aforesaid discussion, we allow the complaint and direct the OP in the following manner:
- To replace the head phone in question with the original Sony head phone and if, it is not possible then refund Rs.728/-, the cost of the headphone , to the complainant.
- To pay Rs.4000/-as compensation on account of mental agony and physical harassment caused to the complainant inclusive of litigation expenses.
The Op is further directed to comply the order within a period of 30 days from the date of the receipt of the certified copy of this order. Certified copies of this order be sent to the parties free of cost under the Rules.Thereafter, file be indexed and consigned to the Record Room.
ANNOUNCED
DATED:8.6. 2017
NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
