Haryana

Kurukshetra

33/2018

Aman Garg - Complainant(s)

Versus

Snapdeal - Opp.Party(s)

Amit Sharma

01 Jan 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

                                                     Complaint Case No.33 of 2018.

                                                     Date of institution: 19.02.2018.

                                                     Date of decision:01.01.2019.

Aman Garg S/o Sh. Rajpal Garg, R/o House No.294, Sector-13, City Kurukshetra State Haryana.

                                                                        …Complainant.

                        Versus

1. Snap Deal India Pvt. Ltd. (Online Shopping) 362-363, ASF Centre, Udyog Vihar Industrial Area, Phase-4, Gurgaon-122016, near Sector-18, India through its Director.
2. Orient Impex, Under Ground 12/A, Fazal Shopping Centre, Adajan Patiya City Surat State Gujarat-395009 through its Director.

(Op No.2 given-up on 01.05.2018).

3. Ground Floor, Shop No.2, Baage Noor Complex Shaikh Jabbar Mohallo Shahpore, near Sir JJ Mishra Shala City Surat, State Gujrat through its Director.

….Respondents.

BEFORE     Smt. Neelam Kashyap, President.

                Ms. Neelam, Member.

                Sh. Sunil Mohan Trikha, Member.

Present:     Sh. Amit Sharma, Advocate, for the complainant.   

                Sh. Rakesh Arora, Advocate for the OP.No.1.

                Op No.2 given-up (Vide order dt. 01.05.2018).

                Op No.3 exparte.

               

ORDER

                This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Aman Garg against Snap Deal India Pvt. Ltd. and others, the opposite parties.

2.            Brief facts of the present complaint are that the complainant purchased three items through online from Op No.1 i.e. Nike Men Essentialist Running Shoes attribute color Gray Size 8.5 Order No.20393868578 tax invoice No.SB5AD9/200 worth Rs.1686.44 paise on 18.11.2017, Adidas NEO 2 running shoes attribute: color black size 9.5 Order No.20426192937 tax invoice No.S2F3F5/1344 on 22.11.2017 and Order ID No.20384442543 reference No.44885928 on 17.11.2017.  It is alleged that all the three shoes are different and not good as assured on online shown by the Op No.1.  It is further alleged that the complainant requested the Op No.1 several times to replace the said shoes but the Op No.1 lingered on the matter on one pretext or the other.  So, it is a clear cut case of deficiency in service on the part of Ops and prayed for acceptance of complaint with the direction to Ops to replace the shoes of the complainant with the new one and further to pay Rs.50,000/- as compensation for harassment and mental agony as-well-as Rs.7500/- as litigation charges.   

3.            Upon notice, the OP No.1 appeared before this Forum, whereas Op No.3 did not appear and opted to proceed against exparte vide order dt. 28.03.2018.  Op No.2 was given-up by ld. Counsel for the complainant vide separate statement recorded on 01.05.2018.  Op No.1 contested the complaint by filing reply raising preliminary objections that the Op No.1 operates its online marketplace platform under the brand NAME/TRADEMARK “Snapdeal” through the website i.e. www.snapdeal. com (hereinafter referred to as “Website”, which is an online market place.  The Website is an electronic platform which acts as an intermediary to facilitate sales transactions between independent third party sellers and independent end customers.  Once a user accepts the offer of sale of the products made by the 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 sellers as part of the terms for sale displayed on the Website.  The Op No.1 only acts as an intermediary through its web interface www.snapdeal.com and provides a medium to various sellers all over India to offer for sale and sell their products to the general public at large.  It is submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders.  The Op No.1 does not directly or indirectly sells any products on its website www.snapdeal.com.  Rather, all the products on Website are sold by third party sellers, who avail of the online marketplace services provided by the Op No.1.  It is submitted that the present complaint is liable to be dismissed due to mis-joinder of parties because Op No.1 is neither a necessary nor a proper party to the complaint.  The product purchased by the complainant has not been sold by the Op No.1 and the Op No.1 has no role in providing warranty of the product sold by the independent seller.  There is no deficiency in service on the part of Op.  On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.

4.             The complainant has tendered into evidence affidavit, Ex.CW1/A, copy of tax invoice dt. 18.11.2017, Ex.C1, copy of tax invoice dt. 18.11.2017 as Ex.C2, copy of tax invoice dt. 22.11.2017 as Ex.CEx.C3, copy of form 402 as Ex.C4, copy of e-mails as Ex.C4 to Ex.C8, copy of forms 402 as Ex.C9 & Ex.C10 and copy of photographs of shoes as Ex.C11 and thereafter, closed the evidence.

5.             On the other hand, the Op No.1 has tendered into evidence affidavit, Ex.RW1/A and document Ex.R1 and thereafter, closed the evidence. 

6.             We have heard the learned Counsel for both the parties and perused the record carefully.

7.             From the pleadings and evidence of the case, the grievance of the complainant is that the three pairs shoes purchased by the complainant from the Op No.1 through online were different in size.  The complainant sent many e-mails to the Op No.1 for replacement of said shoes and the Op No.1 gave reply of e-mails but the Op No.1 did not replace the defective shoes of complainant, copy of e-mails and reply sent by the Op No.1 are Ex.C4 to Ex.C8.  Moreover, the complainant has also placed on file copy of photograph of defective shoes, Ex.C11.  Besides these documents, the complainant has testified all the facts in the affidavit, Ex.CW1/A so set out by him in the complaint.  Whereas, on the other hand, the contention of Op No.1 is that they are the service-provider only.  The complainant has purchased the shoes in question through internet and they are not liable for any defects in the shoes.  But this contention of Op No.1 has no force because the complainant has purchased the shoes in question through internet on the site of “Snapdeal”, so, the “Snapdeal” is also liable for its negligence to provide defective shoes to the complainant.  The Op No.3 did not appear and opted to proceed against exparte.  So, the evidence adduced by the complainant goes unrebutted and unchallenged against the Op No.3.  In this context, we can rely upon the order passed by Hon’ble State Commission Chhattisgarh, Raipur in case bearing appeal No.FA/2018/05 titled as Amazon Seller Services Pvt. Ltd. Vs. Love Kumar Sahoo and others decided on 07.02.2018.  In these circumstances, the complainant is entitled to get the shoes replaced from the Ops No.1 & 3.  The copy of order produced by the Op No.1 titled as Vishal Kotecha Vs. Snapdeal.com & another decided by Hon’ble National Commission on 11.08.2016 bearing revision petition No.1422 of 2016 is not disputed but the same is not applicable to the facts of instant case.

7.            Thus, in view of our above said discussion, the complaint of the complainant is allowed and we direct the OPs to replace the defective mobile set of the complainant with the new one of the same model.  The Ops are also directed to pay Rs.5,000/- as lump sum compensation on account of harassment, mental agony including the cost of litigation charges.  However, it is made clear that if the same model of mobile set is not available with the OPs, then the Ops are directed to pay the purchased amount of mobile set to the complainant.  The complainant is directed to deposit the old mobile set and accessories with the service center of the company.  All the Ops are jointly and severally liable.  Let the order be complied with within a period of 30 days from the date of communication of this order, failing which, penal action under Section 27 of the Consumer Protection Act, 1986 would be initiated against the opposite parties.  Copy of this order be communicated to the parties free of cost.   File be consigned to record after due compliance. 

Announced in open court:

Dt.:01.01.2019.  

                                                                        (Neelam Kashyap)

                                                                        President.

 

 

(Sunil Mohan Trikha),           (Neelam)       

Member                             Member.