Delhi

North

CC/264/2016

NEERAJ PRATAP - Complainant(s)

Versus

SNAP DEAL - Opp.Party(s)

24 Jun 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No. 264/2016

In the matter of

Mr. Neeraj Pratap

S/o Sh.Harpal Singh

E-10, Desu Colony Tripolia

Near Rana Pratap Bagh, Delhi-110007                                                     …Complainant

           

Versus

Jasper Infotech Private Limited (Snapdeal)

Ground floor, Plot No.-68

Okhla Industrial Estate, Phase-III

New Delhi South Delhi DL-110020                                                          ...Opposite Party

ORDER
24/06/2024

Ms.Harpreet Kaur Charya, Member

Initially, the complaint was filed against Snapdeal, as OP by the Complainant, Sh. Neeraj Pratap. Vide order dated 17.02.2017, the complaint was dismissed in default due to non appearance of the complainant.  Hon’ble Delhi State Commission, vide order dated 10.04.2017 in FA/119/2017 set aside the order dated 17.02.2017 and restored the complaint to its original position. Thereafter, the Complainant amended the complaint and impleaded Jasper Infotech Private Limited instead of Snapdeal.

1. Briefly stated the facts of the amended complaint are that the Complainant placed an order for Lenovo K3 mobile and One Sony Hard Disk Combo for Rs.10,888/- by using OP’s platform ‘Snapdeal.com’ on 04.10.2016.
2. It has been alleged by the Complainant that the above mentioned order ID 15622323614 was to be delivered by 05.10.2016. The payment for the said order was made by Credit Card with EMI’s option. On 07.10.2016 the
   Sony Hard disk was delivered however, the order for Lenovo K3 Note was cancelled on the ground of technical reasons.
3. Despite several calls and emails, OP neither delivered the Lenovo K3 Note nor refunded the money. The Complainant has further alleged that non-delivery and non-refund amounts to gross negligence, defective service and fraudulent intention of the OP.
4. Feeling aggrieved the Complainant has prayed for the directions to OP to refund Rs.10,888/- alongwith the interest @18%; pay a sum of Rs.15,000/- towards compensation for physical strain and mental agony and Rs.1,000/- as cost of litigation.
5. Notice of the present complaint was served upon the OP. Thereafter, written statement was filed on their behalf. They have raised several pleas in their defence such as they are only online market place/intermediary, which provides medium to various sellers all over India to offer for sale and sell their products to the general public at large. OP does not directly or indirectly sell any product on its website “www.snapdeal.com”. The goods are sold by third party seller directly raise invoices to the final customers for the products sold and bear all commercial risks. The buyer makes the payment to the seller directly. The ultimate monetary beneficiary of the sale proceed is the seller and not the OP.
6. The complaint is bad for mis-joinder of the parties as the OP is neither a necessary nor a proper party to the present complaint.
7. As per Clause 2.1 of the website terms of use clearly states that:

“The Website is an electronic platform in the form of an electronic marketplace and an intermediary that (a) provides a platform for Users (who are sellers) to advertise, exhibit, make available and offer to sell various Products to other Users (who are buyers/customers), and (b) a platform for such other Users to accept the offer to sell of the products made by the sellers on the Website and to make payments to the sellers for purchase of the Products, and (c) services to facilitate the engagement of buyers and sellers to under commerce on the Website, and (d) such other services as are incidental and ancillary thereto. The services are offered to the Users through various modes which may include issue of coupons and vouchers that can be redeemed for various Products”

 

8. Further, as per Clause 6.8 of the Website terms of use that:

“You agree, understand and acknowledge that the Website is an electronic platform in the form of an electronic marketplace and an intermediary that provides an electronic venue where various Users may electronically meet and interact with each other to engage in commerce and transact. You further agree and acknowledge that Snapdeal is only a facilitator and is not and cannot be a party to or control in any manner any advertisement, exhibition, making available, offer to sell or transactions of sale or purchase of Products on the Website. Snapdeal is not the seller of the Products. Accordingly, any contract for the sale / purchase of products on the Website is a bipartite contract between You and the sellers (if You are a buyer) or You and the buyer (if You are a seller). Snapdeal neither recommends You to buy or sell any Products on the Website nor does Snapdeal endorses any such Products and nor does Snapdeal provides any guarantee, warranties or assurance with respect to the advertisement, exhibition, making available, offer to sell or transactions of sale or purchase of Products on the Website. Further, Snapdeal does not guarantee, warranty or provide any assurance on the behaviour of any User of the Website including any guarantee, warranty or provide any assurance that any User (whether buyer or seller) will complete any transaction or act in a prudent manner.”

9. The Complainant has suppressed the true and material facts and has not approached the forum with clean hands. The Complainant has not sought any specific relief against OP. Complainant is not a consumer qua OP as OP has not charged any amount from the Complainant for using the services available on market place platform.
10. They have further submitted that as per Section 2(1) (w) of the Information Technology Act, 2000, they are intermediary and do not directly/indirectly sell any product through their website and they are exempted under Section 79 of the Information Technology Act, 2000.
11. There is no cause of action against OP as the present complaint pertains to non-delivery of one of the ordered products but the seller neither delivered nor refunded the money to the Complainant. It is the seller only, who is responsible for correct delivery and defect free product. OP does not exercise control over such delivery or specification of the product. It is the seller who is liable for delivery/ refund to the Complainant. It has been denied that the OP acts as a B2C market place. Rest of the contents of the complaint have been denied with the prayer for dismissing the present complaint with exemplary cost. OP has annexed the judgments of Hon’ble NCDRC Guidelines for Foreign Direct Investment (FDI) on e-commerce issued by Ministry of Commerce and Industry (GoI), copy of website terms of use with their written statement.
12. Rejoinder to the written statement has been filed by the Complainant. Reiterating the contents of the complaint and denying the written statement. It has been submitted that in case of products sold online, manufacturer only can be held responsible for any fault in the product but for the bad service such as poor customer support system, poor product delivery mechanism, the online products are to be held responsible. It has been further submitted as per Rule, the online portal (intermediary) should resolve consumer issue within 36 hours which OP has failed.
13. The Complainant has annexed the copy of the email dated 04.10.2016 confirming the order, screenshots of the Snapdeal.com reflecting account description of the Complainant; the statement of the Credit Card reflecting the EMIs; emails dated 11.10.201, 09.10.2016, 12.10.2016; screen shots of the complaint registered with the OP using social media.
14. Evidence by way of Affidavit has been filed by the Complainant reiterating the contents of the amended complaint. He has relied upon the documents annexed with the rejoinder.
15. Ms. Ankita Sharma, Authorised Signatory of Jasper Infotech Private Limited has been examined on behalf of the OP. The contents of the written statement have been repeated. The contents of the Guidelines for Foreign Direct Investment (FDI) on e-commerce issued by Ministry of Commerce and Industry (GoI) as Ex.OPW/I. Copy of website terms of use as Ex.OPW/II (colly) and the copy of judgment of  National Consumer Disputes Redressal Commission in Vishal Kotecha Vs. Snapdeal.com and Anr. In RP No.1422/2016 as Ex. OP/III.
16. We have heard the arguments of the complainant and Ld. Counsel for the OP. We have also gone through the written arguments filed by the OP and have perused material placed on record.
17. First and foremost dealing with the objections with respect to the existence of relationship of consumer-service provider is concerned; it is an undisputed fact that the Complainant had placed an order on 04.10.2016 through the website of OP.
18.  Hon’ble National Commission in Rediff.com India Ltd. Vs. Urmil Munjal, [II (2013) CPJ 522 (NC)] has observed as under:

7. In the background of the above contention, it needs to be noted that the District Forum did not hold the RP/OP liable for any defects in the goods supplied, but for failure to inform the Complainant about the manner in which defective goods were to be returned to their seller. The District Forum has observed:-

4. The main allegation of the complainant against the opposite party is that the opposite party failed to inform the complainant as to how the items received by the complainant are to be returned to the seller. Since the opposite party was facilitator between the seller and buyers as mentioned in the terms and conditions for Rediff Shopping Anneure-OP1 in the column online Shopping Platform Annexure-OP1-A, so it was the duty of the opposite party to inform the complainant as to how the goods are to be returned to the seller. A letter was issued through the opposite party to the complainant Annexure-C1 according to which the seller had undertaken to replace the produce at no cost to the buyer if the buyer inform the seller within 30 days of the delivery of the order, which shows that had the opposite party informed the complainant about the procedure and from the goods purchased by the complainant through the opposite party are to be returned, the complainant would have taken the benefit of the facility given by the seller under Annexure-C1. Although the opposite party did not charge any price from the complainant from mediating between the seller and the complainant yet it is implied that the opposite party which was giving service to the seller to invite buyers to purchase the goods is a service as contemplated under the provisions of Consumer Protection Act and the complainant has locus standi to file the complainant against the opposite party.

8. .........

9. We find that the view taken by the fora below is completely in line with the admitted position of the RP/OP. In para 2 of its written response before the District Forum, it is clearly stated that the respondent company is engaged in business of providing services through its internet portal (www.rediff.com) to interested buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sale and purchase of movable goods. If this is the declared business interest of the RP/OP it cannot be permitted to claim that it is providing purely gratuitous service to its customers, without any consideration. It is certainly not the case of RP/OP that it is a charitable organisation involved in e-commerce, with no business returns for itself. We therefore, reject the contention of the revision petitioner that the respondent/Complainant is not a consumer of the revision petitioner within the meaning of Section 2(1) (d) of the Consumer Protection Act, 1986.

19. Nowhere has it been stated by the OP that they are providing purely gratuitous services to its customers, without any consideration. It is not the case of OP that it is a charitable organisation involved in e-commerce with no business return. In the light of above judgment, it is clear that the OP services are clearly covered under Consumer Protection Act
20.  If we look at Annexure A-1 (email dated 04.10.2016) confirming the order no.1562232614. It also bears “Congratulations! Your order has been upgraded to Snapdeal Gold” and also “Enjoy Gold benefits on this sub-order” with estimated deliver 05.10.2016 for both the items. The screenshot of the website confirming the order status wherein the status corresponding to Sony HD-B1 1 TB External Slim Hard Disk- Black reflects replacement request register as per request received on 08.10.2016 for which Ticket Id 31725918 has been issued and for Lenovo K-3 Note the status is preparing for dispatch. The seller information only bears “PENTAGRAM INC. Kunda_VL-VOI” which to is corresponding to the Hard Disk and further seller details pertaining to Lenovo K3 Note (16GB, Black) have not been shared with the complainant. OP has not disputed these documents. OP has failed to share the details of the seller with the Complainant and thereafter raising the mis-joinder/non-joinder of parties/seller as a defence cannot be sustained.
21. OP is also claimed immunity available under Section 79 of the Information Technology Act, 2000. They have further submitted that as per Section 2(1) (w), of the Information Technology Act, 2000, which is reproduced as here under :

“Intermediary” with respect to any particular electronic records, means any person who on behalf of another person receives, storesor transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;”

 

22.  OP  has also referred to Section 79 of the Information Technology Act,2000 which is reproduced as here under :
23.  

1. Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary, shall not be liable for any third party information, data or communication link made available or hosted by him.

 

2. The provisions of sub-section (1) shall apply if-

 

1. The function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted ; or
2. The intermediary does not-

1. Initiate the transmission
2. Select the receiver of the transmission and
3. Select or modify the information contained in the transmission;

 

3. The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

 

23. In the present case, the exemption from liability does not come to their aid as they have acted in contravention to the provisions of Section 79 (1) of the Information Technology Act, 2000 which is subject to the conditions stipulated in Section 79(2). As per Section 79(2)(c) of the Information Technology Act, 2000, the provisions of Sub Section 1 shall apply if - the intermediary observed due diligence while discharging its duties under this Act and also observed such other guidelines as the Central Government may prescribe in this behalf. 
24. We have also gone through the payment related information Clause 5: Payment Related Information.

 Clause 5.4 deals with payment facility for your orders: Payment Facility for Your orders: Snapdeal may from time to time contract with third party payment service providers including banks to open nodal bank account under applicable Indian laws, to facilitate the payment between Users i.e. buyers and sellers and for collection of Snapdeal's fees and other charges. These third party payment service providers may include third party banking or credit card payment gateways, payment aggregators, pre-paid instruments, cash on delivery or demand draft / pay order on delivery service providers, mobile payment service providers or through any facility as may be authorized by the Reserve Bank of India for collection, refund and remittance, as the case may be of payment or supporting the same in any manner. Snapdeal shall initiate the remittance of the payments made by Your for Your purchase orders on the Website after the Products are delivered to You and the date of completion of transaction shall be after the Products are delivered to You and such other additional time as may be agreed between Snapdeal and sellers.

25. Thus, as per this clause, the payment shall not be disbursed to the seller by OP till the purchase order/product is delivered to the buyer (the complainant herein). In the present case the product has not been delivered to the complainant, therefore, as per above-mentioned clause, the payment has not been disbursed to the seller and the same is with the OP. The OP has been enjoying   the amount paid by the complainant and has even failed to refund the same.
26. Apart from that, OP has not only failed to share the inquiry conducted by them with respect to the complaint registered by the complainant. Merely stating that they are a facilitator does not exonerate them from their liability of due diligence.
27. The failure on the part of OP in non-redressal of the grievance of the complainant, non-delivery and non-refund of the cost of the product tantamount to faulty and imperfect services which definitely amounts to deficiency in services.
28. Therefore, in the facts and circumstances of the present case, we hold  OP liable to:-

1. Refund the cost of Lenovo K3 Note i.e. Rs. 7,172/- (Rupees Seven Thousand One Hundred Seventy Two Only) paid by the complainant.
2. Pay interest @9% p.a. from the date of order placed with OP i.e. 04/10/2016 till realization.
3. Pay a compensation of Rs.10,000/- on account of mental agony and harassment alongwith Rs.1,000/- as litigation expenses.

 

29. The order be complied within a period of 30 days from the date of receipt of this order. 
30. Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

 

(Harpreet Kaur Charya)               Member	(Ashwani Kumar Mehta)                          Member   (Divya Jyoti Jaipuriar)           President