5.1 The Merchant shall ensure that the quality of the products is genuine, brand new and they are legally allowed to be sold in India by the Merchant. The Merchant acknowledge that any and all liabilities arising in connection with any defect, fault or shortcoming in the product(s) including but not limited to infringement of intellectual property rights of any third party, shall be of the Merchant alone and ShopClues shall not be liable for the same in any manner whatsoever. The Merchant agrees to keep Shopclues harmless and indemnified in this regard.
5.2 The Merchant shall be responsible for after sales service of the product and to handle any customer complaint regarding product quality and warranties. Shopclues shall not be liable for the same in any manner whatsoever and the Merchant agrees to keep Shopclues harmless and indemnified in this regard.
5.3 The Merchant agrees to be bound by the shopclues return policy to accept the items returned by the customer.
It is further submitted that the usage of the website by the complainant and the terms of the agreement prescribes that the complainant/ Merchant agrees to be bound by the Shopclues Return Policy. In the present case, op received a request from the customer who placed the order with complainant through the website of op on 13.12.2017 for the return of the product being defective and damaged and the same was communicated to the complainant as well vide an email. It is further submitted that under the terms of User Protection enshrined within Clause 11 of the User Agreement, the answering op has effectively declared that it does not assure or provide any personal warranties or assumes any liability or responsibility pertaining to the genuineness and authenticity of the products and/or the seller, for which the seller shall be solely responsible and liable.
On merits, it is submitted that no liability can be fastened on the op in any manner specifically in view of clause of the agreement stated herein above and the role of op which at no point of time creates, manufacturers, owns or provides the goods that are sold on its website. As already specified, the role of the op is that of a conduit through which various goods can be sold to a vast variety of buyers. It is further submitted that the charges being charged from complainant is governed by the agreement. The calculations given are vague and baseless and is denied in entirety. The complainant handed over the product to op no.2 i.e. DTDC courier only and not to op no.1. It is further submitted that as per the agreement entered between complainant and op, it is agreed by complainant that the complainant shall pay the service fee and fulfillment service fee. Accordingly fee of Rs.389.26 was charged from complainant by the op and no penalty as alleged by complainant in the complaint was charged. It is further submitted that it is up to the complainant to open the article parcel as and when required, the answering op at this stage cannot state regarding the status of article which the complainant is alleged. Lastly it is submitted that impugned product has not been subjected to any test/ verification in order to establish the veracity of the claims propelled by complainant. With these averments, dismissal of complaint prayed.
3. Opposite party no.2 appeared and filed reply and submitted that op no.2 does not have any privity of contract with the complainant. It is denied that op no.2 is having any liability towards the complainant. It is further submitted that op no.2 has not received any amount from complainant. Hence, the complainant is not a consumer of op no.2. It is further submitted that the Pick-Up Boy of op no.2 signed and picked the product. However, the packaging is done by the complainant, hence the answering op cannot guarantee about the packaging or the product quality. It is further submitted that the Pick-Up Boy had signed for the proof that the shipment has been picked. It is also submitted that penalty of Rs.400/- and the investigation by op no.1 is not within the scope and control of op no.2. It is further submitted that op no.2 cannot gauge whether the customer has received damaged shipment or damaged it post the proper shipment was delivered. It is submitted that as per the return policy of op no.1, the only way the customer can claim refund or replacement if he had received a damaged product. It is incorrect and denied that product was handled carelessly by op no.1 and that the product was damaged by op no.2. Remaining contents of complaint are also denied.
4. The parties produced their respective evidence by way of affidavits and documents. When the case was fixed for evidence of op no.1, none appeared on behalf of op no.2 and therefore, op no.2 was proceeded against exparte.
5. We have heard complainant as well as learned counsel for op no.1 and have perused the case file carefully.
6. The complainant in order to prove his case has furnished his affidavit Ex.C1. On the other hand, op no.2 in order to prove its averments of reply has furnished affidavit of Sh. Sunil Kumar Authorized Representative Ex,RW1/A. Op no.1 produced affidavit of Ms. Gurika Tandon, Authorized signatory Ex.RW1/B, copy of mail Ex.R1.
7. The perusal of the record reveals that complainant has filed this complaint with specific averments that he is an online merchant/ reseller on shopclues.com with merchant ID: 747888. He purchases the products from whole-seller/ local market and then sells through shopclues.com. He has further averred that for every transaction shopclues charges various charges from him and it is the liability of ops to deliver order safe to the customers. Further there are averments that an order of Walkie Talkie interphone with order ID#134094705 on 2.12.2017 was picked up on 4.12.2017 to customer address which was successfully done. The product was handed over to local sirsa office and the pick up boy of op no.2 signed over the manifest report which means that parcel pick up was successful and parcel was in well and good condition. He has further averred that product and parcel was well and in good condition till pickup and after that this has been mishandled by Delhivery Logistic Team, resultantly his image has been spoiled among shopclue as well as among customer. The complainant in order to prove his plea has furnished his affidavit Ex.C1 in which he has deposed that it is a case of malpractice and willful cruel financial intention against a small merchant who is struggling to earn his livelihood to make both ends meet. Here two opponents have conducted a financial crime against a small merchant by taking him on belief. He has further deposed that this Forum has given two chances to criminals shopclue and delhivery to settle down the case, but they have refused, so these type of stubborn criminal with wrong intention do not deserve any type of relief from this Forum.
8. On the other hand, there is specific plea of the opposite party no.1 that complainant is not a consumer and there is an agreement between the parties by which it was agreed that the Merchant shall ensure that the quality of the products is genuine, brand new and they are legally allowed to be sold in India by the Merchant. The Merchant acknowledge that any and all liabilities arising in connection with any defect, fault or shortcoming in the product(s) including but not limited to infringement of intellectual property rights of any third party, shall be of the Merchant alone and ShopClues shall not be liable for the same in any manner whatsoever. The Merchant agrees to keep Shopclues harmless and indemnified in this regard. Further the Merchant shall be responsible for after sales service of the product and to handle any customer complaint regarding product quality and warranties. Shopclues shall not be liable for the same in any manner whatsoever and the Merchant agrees to keep Shopclues harmless and indemnified in this regard. Further, the Merchant agrees to be bound by the shopclues return policy to accept the items returned by the customer. In order to prove its defence plea, the op no.1 has furnished affidavit of Ms. Gurika Tandon, Authorized Signatory as Ex.RW1/B in which she has deposed in terms of written statement. Op no.2 has also taken specific pleas that op no.2 does not have any privity of contract with the complainant. Op no.2 is not having any liability towards the complainant and that op no.2 has not received any amount from complainant. As such, the complainant is not a consumer of op no.2 and that the Pick-Up Boy of op no.2 signed and picked the product. However, the packaging is done by the complainant, hence op no.2 op cannot guarantee about the packaging or the product quality.
9. The perusal of the record reveals that complainant has not placed on record the alleged damaged parcel due to reason best known to the complainant nor he has placed on record any document from which it could be presumed that delivery was not received by the consignee due to the damaged product inside. Further more, the complainant has not denied the execution of the alleged commercial transaction agreement which was allegedly executed between complainant and op no.1.
10. Secondly, as per plea of op no.2, the packaging is done by the complainant, as such op no.2 op cannot guarantee about the packaging or the product quality. So, it appears from the evidence of complainant that complainant has failed to place on record the article for the reason best known to him and further he has failed to prove his allegations against the ops by leading cogent and convincing evidence. Even the affidavit furnished by complainant in support of his averments does not touch the defence plea of the ops.
11. In view of the above, there is no merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:23.1.2019. Member District Consumer Disputes
Redressal Forum, Sirsa.
