DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.426 of 2017
Date of institution: 19.06.2017 Date of decision : 17.07.2019
Parveen Kumar Sharma son of Shri Babu Ram Sharma, aged 36 years resident of House No.60 (IInd Floor), Phase IX, Mohali, District SAS Nagar (Punjab).
…….Complainant
Versus
1. Snapdeal.com. Snapdeal Jespher InfoTech Pvt. Ltd. through its General Manager, 246, 1st Floor, Phase-3, Okhla Industrial Area, New Delhi 110020.
2. Pious Fashion Pvt. Ltd., c/o ro Connect Supply Chain Solutions Ltd. through the Manager, SY No.102/1, Adakamaranhali Village, Dasanapuri Hobli, Makali Post, Bangalore 562123 Karnataka (India).
3. The Manager, Blue Dart Courier Company, C-267, Opposite Hindustan Times, Industrial Area, Sector 74, SAS Nagar, Mohali.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Complainant in person with Counsel Shri Inderjit Kaushal.
Shri Amit Mahajan, cl for the OP No.1
Op Nos.2 and 3 ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainant, a Civil Engineer by profession placed online order with OP No.1 on 04.03.2017 by making payment of Rs.81,799/- through his credit card maintained with ICICI Bank. Amount was duly credited in the account of OP No.1, regarding which confirmation email on 04.03.2017 at 10.58 P.M was received. Through that email complainant was disclosed that Apple I Phone 7 Plus 128 GB purchased by him will reach him on or before 12.03.2017. Complainant requested ICICI Bank Credit Card Division to convert payment of Rs.81,799/- into 6 EMIs of Rs.13,268/- per month. Complainant had to pay Rs.5,701/- as interest on amount of Rs.81,799/-. OP No.3 delivered the packet for dispatch to OP No.1 and 2 through blue Dart Courier on 06.03.2017 at address of complainant. Complainant is living in the accommodation provided by the company. Mr. Netra, a Caretaker also resides in the said accommodation. Representative of OP No.3 i.e. Blue Dart Courier Company handed over the packet to said caretaker Mr. Netra at about 12.30 noon and direction to Mr. Netra was given to hurriedly sign the receiving slip. Mr. Netra refused by claiming that packet should be opened first because as per direction received from complainant, he was to see as to whether product is in line. However, the delivery boy refused to open the same and called upon Mr. Netra that he had to take delivery of the item in the same condition, otherwise the product would be returned back to OP No.1 and 2. When said Caretaker Mr. Netra wanted to have instructions from complainant from his mobile, then same was reachable. So Caretaker Mr. Netra received the packet from courier boy. When complainant reached at guest house at about 9.10 P.M on 06.03.2017 then the said Caretaker Mr. Netra handed over the sealed packet to complainant and he then opened the seal and found that there were 5 detergent cakes of Rin instead of Apple I Phone. Complainant called the Caretaker and thereafter gave telephonic call to help line number of OP No.1 namely 92126992126 for narrating the complete story regarding non receipt of ordered product and receipt of packet containing five detergent cakes of Rin. OP No.1 registered complaint No.40507578 and assured for redressal of grievance expeditiously. On 08.03.2017 email was received from OP No.1, where through it was disclosed that maximum 7 days time will be required for investigating the matter. Assurance was given for resolving the complaint at earliest because of seriousness of the complaint. On 13.03.2017, two representative of OP No.3 took the entire packet received by complainant for investigation and same was returned back within a week’s time by claiming that there is no fault on part of OP No.3 because packet was delivered in a sealed cover as per normal practice of the company. Complainant received another email dated 19.03.2017, where through OP No.1 informed that account created by complainant with OP No.1 was suspended. Complainant was requested to open another account with OP No.1 for new transaction, meaning thereby that complaint filed by complainant stood closed. Complainant on 21.03.2017 sent email reply to email dated 19.03.2017 of OP No.1 for knowing as to what type of checks OP No.1 claims to have performed. On 10.04.2017 complainant again requested OP No.1 to supply IMEI number for checking the movement, but no reply was received from OP No.1. Another reminder on 14.04.2017 was sent along with another email to higher authorities of OP No.1, but email bounced back with observation that there is no such address. Complainant received another email on 15.04.2017 at 1.23 P.M. That email was in verbatim of earlier email dated 19.03.2017. OP No.1 by adopting unfair trade practice illegally closed account created by complainant so that details of movement of the product from dispatch branch to delivery point may be deleted. As per uploaded remarks in user profile of complainant, OP No.1 gave response as if complainant may file consumer complaint if not satisfied with the company response. Complainant verified tracking details of courier sent to him on website of OP No.3 for finding that there is no such order bearing 69431826052 through which mobile phone has been sent to complainant by OP No.1 through OP No.3. Legal notice sent by complainant was returned with remarks of refusal. This complaint filed by claiming that OPs rendered deficient services. Refund of paid amount of Rs.81,799/- with interest @ 18% per annum w.e.f 03.04.2017 till realisation sought along with compensation for mental and physical harassment of Rs.1.00 lakhs and litigation expenses of Rs.20,000/-.
2. In reply filed by OP No.1 it is claimed that Jasper Infotech Pvt. Ltd. owns and operates online marketplace platform www.snapdeal.com. Ms. Ankita Sharma has been duly authorised by Board resolution to defend this complaint and that is why reply submitted through her. Website of OP No.1 is an electronic platform which acts as an intermediary to facilitate sales transactions between independent third party sellers and independent end consumers. The website enables independent third party sellers to list, advertise and offer to sell their products and services to the users of the website. Once a user accepts offer of sale of products made by third party seller on the website, the seller is intimated electronically and is required to ensure that the products are made available and delivered in accordance to the delivery terms as set out by the seller i.e. as per terms for sale displayed on the website. Sellers hold separate entity and they are controlled and managed by different persons/stake holders. OP No.1 does not sell any product directly or indirectly on its website. Sellers directly raise invoice to the final customers for the products sold and they bear all commercial risks. Customers purchasing products from such sellers directly make the payment for their purchases either on a prepaid basis (net banking/credit card/debit card) or on cash on delivery basis. Ultimate monetary beneficiary of such sale proceeds is the seller and not OP No.1. Operations of OP No.1 are identical to online shopping mall, where different independent third party sellers advertise, showcase and offers their products for sale to third party buyers, who visits the mall. In case of defect in the goods sold by such sellers in the shopping mall, liability remains of the seller and not of owner of the shopping mall. Complaint being vague and misconceived alleged to be not maintainable. Moreover complaint alleged to be bad due to misjoinder of parties because OP No.1 though not necessary or proper party has been impleaded. Reference to Clauses 2.1 and 6.8 of terms of use made specifically in reply for claiming that OP No.1 is not seller of the product and as such its liability is not there. Moreover it is claimed that complainant suppressed material facts from the Forum. OP No.1 has not received any supply order or delivery of the product purchased by complainant and as such complaint alleged to be not maintainable because no deficiency in service on part of OP No.1 is there. Complainant is not consumer of OP No.1 as per section 2 (1) (d) of the Consumer Protection Act because OP No.1 has not charged any amount from complainant for using the website of OP No.1. Reference to section 2 (1) (w) of Information Technology Act, 2000 and Section 79 of the same Act made for claiming that snapdeal.com is a market place and an intermediary and as such not liable. Reference to Clauses 13.1, 13.2 and 2.1 of website terms of use also made for denying liability. As per confirmation received from seller as well as logistic service provider, I phone 7 mobile handset was delivered to complainant at his given address in intact condition. It is complainant himself who has cooked up story regarding receipt of soap bars instead of mobile set. It is claimed that ordered product was duly delivered to complainant and that is why replacement request raised by complainant was denied at the sellers’ end. Complainant is trying to enrich himself by illegal means by leveling false allegations against OP No.1. It is claimed that facts regarding placement of order of Apple I Phone with OP No.1 are twisted. Facts regarding residence status of complainant are not within the knowledge of OP No.1 because product was delivered by OP No.3. Other averments of the complaint denied by praying for dismissal of the complaint.
3. OP No.2 and 3 are ex-parte in this case.
4. Counsel for complainant tendered in evidence affidavits Ex.CW-1/1 and Ex.CW-1/2 of complainant alongwith documents Ex.C-1 to Ex.C-19 and thereafter closed evidence. On the other hand, counsel for OP No.1 tendered in evidence affidavit Ex.OP-1/1 of Ms. Ankita Sharma, authorised representative of OP No.1 alongwith documents Ex.OP-1/2 to Ex.OP-1/3 and Mark-A and thereafter closed evidence.
5. Written arguments submitted by complainant as well as by OP No.1. Oral arguments of appearing counsel for parties also heard and records gone through.
6. Contents of affidavits Ex.CW-1/1 and Ex.CW-1/2 of complainant alongwith email confirmation of the placed order Ex.C-1 establishes that OP No.1 informed complainant as if Apple I Phone 7 Plus 128 GB ordered by him has been booked, packed and shipped through courier and same will reach the complainant on or before 12.03.2017 at address of House No.60, Second Floor, Phase-9, SAS Nagar Chandigarh, Mohali. Besides payment of Rs.81,799/- was made by complainant through his credit card maintained with ICICI Bank Credit Card Division on 04.03.2017, the date of placement of order. Entry of credit of this amount of Rs.81,799/- in account of Snapdeal Billdesk Mumbai is incorporated in the credit card statement of complainant placed on record as Ex.C-2. So certainly submission advanced by counsel for complainant in view of this documentary evidence, has force that payment of Rs.81,799/- for the price of ordered phone was accepted by Snapdeal. Plea is taken in the written reply as well as in the affidavit of OP No.1 that Snapdeal does not accept any payment on behalf of sellers because sellers holds independent entity than that of OP No.1. That plea absolutely is incorrect, when looked into light of contents of Ex.C-1 and Ex.C-2 referred above. If OP No.1 has no role in placement of order and dispatch of ordered product, then why it disclosed through Ex.C-1 that the product ordered by complainant has been shipped through courier of OP No.1. This means that OP No.1 by taking advantage of cited provisions of Information Technology Act and Clauses of Terms of Use wants to wriggle out from liability despite the fact that it (OP No.1) acknowledged through Ex.C-1 having packed the ordered product and shipped the same through its courier. Name of OP No.2, the seller does not find anywhere in Ex.C-1 and as such it is obvious that virtually OP No.1 itself dealt with the order and that is why it conveyed to complainant as if ordered product will reach him on or before 12.03.2017 through its courier. Besides price amount was credited in the account of OP No.1 as reflected through Ex.C-2 and as such it is not a case in which OP No.1 has not received the amount of ordered product or it has no role in the dispatch and delivery of the ordered product by complainant or receipt of sale consideration thereof.
7. Counsel for OP No.1 vehemently contends that e-statement Ex.C-2 contains contradictory entries because if credit of amount of Rs.81,799/- to Snapdeal made on 04.03.2017 in the first instance, then same amount credited again to OP No.1 on 23.03.2017. Why these two entries, qua that no plausible explanation alleged to e offered and as such it is contended that reliance on Ex.C-2 cannot be placed. However, this submission advanced by counsel for OP No.1 has no force because it is the positive case of complainant submitted through complaint as well as through affidavits Ex.CW-1/1 and Ex.CW-1/2 that initially amount of Rs.81,799/-was paid through credit card of complainant held with ICICI Bank Credit Card Division on 04.03.2017, but subsequently on request to ICCI Bank Credit Card Division, payment was requested to be received by ICICI Bank in 6 installments. Entry of 04.03.2017 in Ex.C-2 regarding transfer of amount of Rs.81,799/- through credit card of complainant does not contain observations “CR” whereas observation of “CR” incorporated against remaining entries of Rs.344/- of 04.03.2017 and of Rs.2,90,000/- of 13.03.2017 and further of amounts of dates of 18.03.2017 and 20.03.2017. This “CR” note recorded against relevant entries, as and when the amount credited through credit card of complainant. As initial entry of 04.03.2017 does not contain remarks of “CR” against amount of Rs.81,799/- and as such same shows as if this amount was ordered by complainant to be paid to Snapdeal Billdesk, Mumbai in the first instance, but subsequently complainant applied to ICICI bank for availing facility of 6 EMIs and that is why amount of Rs.81,799/- credited towards credit card account of complainant on 23.03.2017. In the last of entry of 23.03.2017 as well as in the second last entry of 23.03.2017 contained in Ex.C-2 it is mentioned specifically that principal amount amortization in 1/6 Snapdeal Billdesk. Amount of Rs.13,268.58 N.P. entered as amount of last of entry of 23.03.2017 in Ex.C-2 and as such same enough to establish as if on request of complainant to its banker i.e. ICICI Bank Credit Card Division, the banker agreed to pay amount of Rs.81,799/- at its own to Snapdeal and thereafter to recover the same with interest in 6 installments from complainant. Explanation offered by counsel for complainant in this respect is borne out from entries dated 23.03.2017 on second page of Ex.C-2 itself because credit of amount of Rs.81,799/- in the credit card account of complainant was made on 23.03.2017 after making payment of that amount to Snapdeal on 04.03.2017 by ICICI Bank Credit Card Division. So plea taken in the complaint as well as in the supporting affidavits in this respect is certainly correct.
8. It is the case of complainant that product to be received by him from OP No.3 on 12.03.2017 (the date disclosed through Ex.C-1 by OP No.1) was actually delivered on 06.03.2017 to Mr. Netra, Caretaker of guest house of private construction company in which complainant is employed as engineer. However, said Mr. Netra refused to sign acknowledgement slip of the packet in the first instance on 06.03.2017 at about 12.30 noon, when the courier boy came with the packet, but later on said Mr. Netra contacted complainant on mobile, but after finding the mobile out of range, former (Mr. Netra) was left with no option but to receive the packet. If in the complaint it is mentioned that mobile phone of complainant was reachable, when Mr. Netra aspired to seek instructions from complainant, then same shows as if due to inadvertent mistake word “reachable” mentioned instead of non reachable. It is so because crux of Para 4 and Para 5 of complaint is that Caretaker Mr. Netra had to receive the packet from courier boy in the absence of complainant. Further contents of Para No.4 and Para-5 of complaint are to the effect that complainant before leaving guest house called upon Caretaker Mr. Netra to receive the packet only after finding that the product is in line. The courier boy refused to open the packet and even claimed that courier will be sent back in case it is not received and that is why Mr. Netra had to sign on the acknowledgement in token of receipt of packet delivered by courier boy. Being so, pith and substance of Para 4 and Para 5 of complaint does not differ from the contents of Para 4 of affidavit of Mr. Netra that when he rang up complainant, then his mobile was out of range due to which he had to receive the courier packet. As complainant was not in the guest house at the time of delivery of courier packet by courier boy of OP No.3 and that is why Mr. Netra being Caretaker of guest house was bound to receive the packet of courier as per instructions of complainant. In such circumstances contents of affidavit Ex.C-3 becomes fully believable alongwith affidavits Ex.CW-1/1 and Ex.CW-1/2 of complainant that when complainant after returning back to guest house at about 9.20 p.m. received the packet from Mr. Netra, then on opening of packet, it was found as if there were 5 Rin bars in the said courier packet instead of mobile phone. It is on account of this that complainant lodged complaint through email with OP No.1, in response to which reply Ex.C-4 was received from OP No.1 that resolution of problem of complainant will be done at earliest. Further email Ex.C-5 was received by complainant from OP No.1 for informing that his issue of non receipt of Apple I Phone will be resolved within a maximum period of 7 days after investigation. As assurance for resolution of problem of complainant was given by OP No.1 through email Ex.C-5 dated 08.03.2017 and as such same shows as if OP No.1 in the first instance did not deny its role of delivery of ordered product through it to complainant. Rather OP No.1 sent the ordered product to complainant through its courier as per contents of Ex.C-1 and as such it is obvious that OP No.1 not only accepted sale consideration amount, but even dispatched the product through its courier and attended the complaints of complainant regarding non delivery of ordered product. In view of this role assumed by OP No.1 in dealing with the matter of placement of order, dispatch of same and attending to complaints of complainant, there is no escape from the conclusion that in fact OP No.1 was hand in glove with the seller at each and every occasion and that is why it acknowledged having sent the ordered product through its courier.
9. Contents of Ex.C-10 further show that in respect of online shopping of order placed by complainant, he lodged complaint regarding missing of accessories of the product and that complaint lodged with OP No.1 by mentioning name of seller as Pious Fashions Pvt. Ltd. i.e. of OP No.2. Page 2 of Ex.C-10 also shows that complainant further took up the matter with Snapdeal regarding receipt of empty box on 21.03.2017 in response to which OP No.1 claimed through email communication dated 29.04.2017 that response to complainant has already been given as per terms and conditions and if he is not satisfied, then he (complainant) may file complaint in the Consumer Forum. So, it is obvious that OP No.1 though initially undertook to investigate the matter for resolution of complaint of complainant, but subsequently solution to that problem not provided, rather account of complainant with OP No.1 was suspended through email communication Ex.C-7 of 19.03.2017.
10. It is the case of complainant that on lodging of email complaint, two representatives of OP No.3 i.e. Blue Dart Courier Company took the defective parcel for investigating the matter and returned the same back after weeks’ time through Ex.C-6. After going through Ex.C-6 it is made out that tracking Number 69431826052 is incorporated in Ex.C-6 for disclosing status of courier, but through Ex.C-11 communication given by OP No.3 it is mentioned as if there is no matching Waybill/Reference Number/Order number and as such it is obvious that OP No.3 virtually tried to shirk its responsibility without ascertaing details from the dispatcher i.e. OP No.1 and 2. So connivance of OP No.3 with OP No.1 and 2 even seems to be there.
11. Through email Ex.C-7 sent by OP No.1 to complainant on 19.03.2017 it was disclosed to complainant that when processing the complaint of complainant, it was found that same transaction do not go through the internal checks and that is why inability was expressed to complete the request of complainant. Account of complainant was suspended as per Ex.C-7, which certainly means that request of complainant for knowing status of the product dispatched was not disclosed to complainant. On account of suspension of account of complainant with OP No.1 it was but natural for OP No.3 not to trace the account of complainant from OP No.1. Even through email communications of 21.03.2017 and 10.04.2017 placed on record as Ex.C-8, complainant lodged protest against receipt of empty boxes or of delivery of wrong product in place of Apple I Phone. Through Ex.C-9 dated 15.04.2017 OP No.1 again informed complainant about suspension of his account because of non passing of some transaction through their internal checks. Contents of these letters are in contradiction to contents of Ex.C-1, where through OP No.1 itself informed complainant that his phone had been dispatched to him (complainant) through courier of OP No.1. If this dispatch took place through courier of OP No. 1, then account of complainant must not have been closed by OP No.1, but it should have taken steps for finding as to through which courier product was dispatched and on which date and as to on which number. After tracing of this, OP No.1 could have easily directed courier through which product was dispatched to give status of movement, but instead of doing so OP No.1 closed account of complainant for deleting the data of courier movement and as such certainly major fault lays with OP No.1, who in connivance with OP No.2 and 3 delivered the product other than the one ordered by complainant.
12. Photographs Ex.C-16 to Ex.C-18 shows as if the packet received by Mr. Netra, representative of complainant, was sealed one and was bearing inscription of Snapdeal, but things contained therein in a polythene sheet like substance were 5 rin detergent cakes, which are visible in Ex.C-18 and look whereof visible in the polythene transparent sheet depicted in photograph Ex.C-17. So certainly complainant received 5 Rin detergent cakes instead of Apple I Phone and in all this entire episode concurrence of OP No.1 at different stages is there due to which benefit of guidelines contained in Ex.OP-1/2 or of website terms of use in Ex.OP-1/3 cannot be availed by OP No.1. Likewise benefit from ratio of case titled as Vishal Kotecha Vs. Snapdeal.com & Anr. Bearing Revision Petition No.1422 of 2016 decided on 11.08.2016 by Hon’ble National Consumer Disputes Redressal Commission cannot be gained by counsel for OP No.1 because ratio of that case applicable, when there is no misuse of power or of website terms user by Snapdeal itself or in other words where the Snapdeal just played the role of mediator of sale of product by providing email platform. Present is a case in which role of OP No.1 appeared not as a mediator, but of acceptance of sale consideration amount, dispatch of product of OP No.2 through courier of OP No.3 and as such for this misuse of power by OP No.1, it cannot be absolved of responsibility of compensating the complainant for the loss suffered by complainant or of compensation for mental agony and harassment and of litigation expenses. In view of above facts and circumstances, liability of all the OPs held as joint and several, more so when none of OP No.2 and 3 presented their case and it was the courier boy of OP No.3, who delivered the detergent Rin cakes instead of ordered mobile phone. As ordered product was to be sold by OP No.2 and as such role of OP No.2 in sending the product other than ordered one also is there.
13. IMEI number of mobile not mentioned on the packet and nor mentioned in the bill and nor the same mentioned in Ex.C-10 and as such it is obvious that due efforts were not at all made by OPs for finding movement of mobile with particular IMEI number sold to complainant. For that fault on part of OPs also their liability should be joint and several.
14. Though Shri Amit Mahajan, counsel for OP No.1 contends that documents has not been attached for establishing as to who has sold the mobile, but that submission of counsel for OP No.1 has no force because name of seller has come forth alongwith that of the dispatcher through contents of different documents referred above in detail. Even if seller as per Ex.C-10 may be OP No.2, but despite that role of OP No.1 in dispatching product other than the ordered one is certainly there in view of contents of Ex.C-1 and as such submission advanced by counsel for OP No.1 has no force that OP No.2 alone is responsible. Even if in Ex.C-19 and other correspondence mention made about receipt of empty box instead of detergent, despite that affidavit Ex.C-3 of Mr. Netra alongwith photographic depiction discussed in detail above, duly supports claim of complainant put forth through complaint that only 5 Rin detergent cakes were found in the box. Non production of report of OP No.3 qua investigation is because of the fact that OP No.3 even did not duly investigated the mater, but virtually closed the same by claiming as if number does not match with the waybill etc. as discussed in detail above. Suspension of account of complainant with OP No.1 led to non tracing of movement of product in question sent through courier by OP No.1 and as such fault with OP No.1 in this respect is there. However, entire gamut of facts and circumstances of the case shows as if all OPs connived with each other and as such liability of all OPs held as joint and several. Unfair trade practice adopted by OPs in sending 5 Rin detergent cakes to complainant instead of ordered product of Apple I Phone and as such certainly complainant entitled for refund of paid amount of Rs.81,799/- with interest @ 8% per annum w.e.f. 03.04.2017 till payment. Complainant also entitled to compensation for mental agony and harassment and also to litigation expenses. Date 03.04.2017 chosen by keeping in view the fact that account of complainant closed by OP No.1 on 19.03.2017 and thereafter reminders were sent by complainant on 10.04.2017 and 14.04.2017. In between date of these above referred three dates is chosen as 03.04.2017 for finding that complainant was virtually having right of redressal of grievance by that date. Even though relief/prayer clause of complaint, interest claimed w.e.f. 03.04.2017.
15. No other worth mentioning point argued.
16. As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.81,799/- with interest @ 8% per annum w.e.f 03.04.2017 till payment. Liability of all the OPs held as joint and several. Compensation for mental agony and harassment of Rs.10,000/- and litigation expenses of Rs.10,000/- more allowed in favour of complainant and against the OPs. Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
17.07.2019
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
