Delhi

North

CC/85/2020

DALIP ANAND - Complainant(s)

Versus

SNAPDEAL - Opp.Party(s)

DEEPANSHU GUPTA

22 Nov 2023

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.: 85/2020

Sh. Dalip Anand

S/o Late Sh. Ramesh Kumar Anand

B-9/2, Street No.8,

New Govind Pura, Delhi-110051                     …                          Complainant

                                                          Vs

Snapdeal

Through its Managing Director/ AR

Head Office At:-

Sprout Box, Surya Villas,

Suit No.# 181 TR-4, 1^st Floor,

D-181, Okhla Industrial Area,

Phase-1, New Delhi, South Delhi-110020.

 

Also At:-

Snapdeal

Corporate Head quarter At:-

Jasper Infotech Pvt. Ltd.,

246, 1^st Floor, Phase-3,

Okhla Industrial Area,

New Delhi-110020.                                        …                           Opposite Party

ORDER

22/11/2023

Ashwani Kumar Mehta, Member:

 

(1)      The present complaint has been filed under Section 35 of the Consumer Protection Act, 2019. The brief details of facts of the Complaint in hand, are that the complainant visited the website of the OP through surfing via internet where a watch from Casio brand named “CASIO EDIFICE” was on display with an offer for limited period that the actual cost of the watch is around Rs.8,999/- but after a heavy discount, it is available for Rs.1,917/-. The complainant, believing that the OP is selling a genuine product and placed an order for the said watch bearing order no. 30168153877 and order ID viz 24923593276. On 04/12/2018, the said watch was delivered to the complainant and he made the payment via COD (cash on delivery) at Tis Hazari courts, Delhi. The complainant has also stated that he bought the said watch to gift his brother on his birthday, which he did on 29/12/2008. As per the complainant, box was untouched until 29/12/2008 and it was opened by the complainant’s brother. After using the watch for few days, the minute hand of the watch came apart and later, the watch stopped working properly. The complainant’s brother took the watch to the authorised service centre of Casio Watch situated at Laxmi Nagar, Delhi as the said watch was under warranty period. The shopkeeper, however refused to repair the said watch on the ground that the watch was a replica. The complainant approached the Casio company telephonically and also sent a letter through speed post as well as on email to inquire about the product. After receiving the complainant’s letter, the executive of Casio Company asked the complainant to deposit the watch in the authorised service centre of Casio. Accordingly, the complainant deposited the said watch vide repair slip no. INC001- 0401905317098 for repair of the watch as well as to know about whether the said watch/ product is genuine or replica. In response, the complainant received a mail from the Casio company informing that the watch is not a genuine product of the Casio Company and the said watch was returned to complainant without repairing it. The complainant felt embarrassed in front of his brother. The complainant tried to contact the OP on the phone number provided on the Website. However, despite repeated efforts, he was unable to contact the representative/ Executive as the system is somehow designed in such a manner that the calls cannot be placed and complaint/grievance could be lodged on their toll-free number. The complainant has further alleged that the OP has not only indulged in unfair trade practices but are using their goodwill to commit fraud with innocent customers by selling duplicate/ replicas of reputed products, by representing that the products being put on display and for selling purpose are genuine and hence, deceiving customers and causing wrongful gain. The complainant has further contended that for deception, breach of trust, the OP is liable to not only replace the said replica watch with a genuine one of the same model but also to compensate the complainant for causing mental pain, agony, harassment which the complainant had to endure. The complainant, through counsel, had also sent a legal notice dated 06/03/02019 to the OP which was duly served, however, the OP did not respond. Thereafter, the complainant further sent a reminder dated 07/05/2019 but OP again did not respond. The complainant has further alleged that the OP has failed to discharge its part of duties which amounts to deficiency in services and unfair trade practice on part of the OP by selling fake/replicas on their website.

 

2.       The complainant has filed the copies of Original bill dated 24/11/2018, Warranty card, screenshot of the order including price details & pictures of the product,  letter  to Casio company dated 06/05/2019, mails dated 15/05/2019, 21/05/2019 & 22/05/2019, Original letter dated 22/05/2019 issued by Casio company, legal notice dated 06/03/2019, 07/05/2019 and Tracking report of the letters sent. The Complainant has prayed to Direct the OP to :-

1. replace the Edifice Watch with its original one having same quality;
2. pay Rs.2,00,000/- as compensation for the harassment, mental agony and tension suffered by the Complainant due to the abovesaid illegal acts of the OP;
3. pay the Cost of the proceedings be also awarded in favour of the Complainant;
4. Pass any other or further order(s) or relief(s) which this Hon’ble Forum may deem fit and proper in the facts and circumstances of the complaint in favour of the Complainant and against the OP in the interest of justice.

 

3.       Accordingly, notice was issued to the OP and in response, the OP has filed its reply stating that the complainant is trying to make false, baseless allegations and has not chosen to make the seller (product manufacturer) of the product a party in the complaint. The OP has contended that it is an E-commerce enterprise under Consumer Protection (E-comm) Rules 2020 and operates as an online market place. It is an electronic platform which allows its users (sellers) to advertise, exhibit and display their various products for sale purpose to other users (buyers/customers). The OP has further contended that it does not sell any product on its own but only manages to provide an online market place website and the same is mentioned in clause 1.1 of the Standard Terms. The OP has also stated that as per the Dept. of Industrial Policy and Promotion, vide its press note no.3 (2016 series), clause 2.3 (viii) states that in a marketplace model of e-commerce, any warranty/guarantee of goods and services is sold by responsibility of the seller and the said press note further clarifies that “seller is responsible for the delivery of good to the customers, customer satisfaction and post sales.” Therefore, the OP have a very limited role as it acts as an intermediary between the seller/manufacturer and buyer/customer though its web interface by providing a medium to various sellers on pan India scale to offer for sale and sell their products to general public at large. These sellers are separate entity and the OP does not directly or indirectly sell any product on the website; rather the products are sold by third party sellers who avail the online marketplace services provided by the OP. The sellers issue invoice to the final buyer of the sold product and bear all the commercial risks. Also, the ultimate monetary beneficiary of the sale proceedings is the seller and not the OP. The OP states that no relief can be sought against it as the product purchased by the complainant has not been sold by OP and more importantly, OP has no role in providing any kind of assurance for the product sold by an independent seller.

 

4.       The OP has also stated that the annexed copy of the complainant showing the invoice contains the name of the seller as “Dhanlaxmi Store”. The OP has further stated  that as per S.2(1)(w) of the IT Act 2000, an intermediary is exempted under S.79 of the same Act from any liability arising from any transaction entered into by any third party through the intermediary’s website or the information hosted/displayed by the intermediary’s website. If a product is not genuine or a copy/replica of an original brand, then it is indeed the seller’s liability and OP is neither the seller or nor its manufacturer and therefore, cannot be held liable as it does not guarantee the genuineness of the product and for any grievance or action, in case of genuineness of the product, it has to be brought against the seller and not the OP. The OP has further stated that it has its own grievance mechanism to cater complaints, grievances of the buyers and by mail dated 15/03/2019, the OP has taken note of the grievance raised by the complainant and even though the timeline of returning of product has expired, as a goodwill gesture, the OP had offered a refund and claimed to take corrective measures towards it. The OP has also provided a copy of the mail dated 15/03/2019. The OP has further referred the Standard Terms and the clause 6.8 of the Website Terms of Use.

5.       The Complainant has filed Rejoinder to the reply filed by the OP rebutting the averments of the OP and has affirmed the allegations levelled in the complaint. Both the parties have also filed evidence by way of affidavit. Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by the complainant & OPs and it has been noticed that the OP has claimed that as per S.2(1)(w) of the IT Act 2000, an intermediary is exempted under S.79 of the same Act from any liability arising from any transaction entered into by any third party through the intermediary’s website or the information hosted/displayed by the intermediary’s website. If a product is not genuine or a copy/replica of an original brand, then it is indeed the seller’s liability and OP is neither the seller or nor its manufacturer and therefore, cannot be held liable as it does not guarantee the genuineness of the product and for any grievance or action, in case of genuineness of the product, it has to be brought against the seller and not the OP. Taking into consideration the facts of the case and averments/documents/Evidence made by both the parties, we feel that:-

a)       The above defence taken by the OP does not sound convincing in this case as the Consumer has visited the OPs website, considering the goodwill of the OP, to purchase the watch and believed that the promise/declaration appeared against the displayed item/product is true and reliable. The OP should have been fully vigilant to ensure as to whether the sellers registered on his website are selling the displayed and promised products or not?  Being the portal/platform provider, the opposite party owns the liability of making sure that the product of such bigger brands must be genuine and worthy enough to match the status of the platform on which it is being sold.

b)     Since the Opposite Party is a commercial entity, operating to               earn profit and cannot escape from its liability under the garb of certain clauses discussed in para (a) above.

                                   c) The OP has received the complaint but has not placed/filed any report of investigation carried out by it on the                                              complaint to prove its fair conduct. It has also not been revealed by the OP as to what action has been taken                                               against the vendor for selling fake products through OP portal? If OP was so concerned about his                                                                 website/platform/portal users, he should have blacklisted the seller of fake products and a notification to this                                                effect would have been posted on the website but the OP is silent on this issue.

d)       Though the Opposite Party is neither manufacturer nor seller yet it is under a commercial obligation to provide genuine product, if the same are being promoted/displayed for sale, under the garb of Heavy discount, on its portal.  The OP has also not explained as to why the products being consigned or delivered or payments were made under its name?  It proves that the Opposite party has all information and knowledge of making for offer for sale duplicate products of big brands.

6)       In view of the above observations, we are of the considered view that the complainant has suffered directly due to deficient service and unfair trade practice of the OP (M/s Snapdeal Ltd. ) in terms of the deficiency defined in the Act which includes  any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer.  Therefore, we feel appropriate to direct the OP (M/s Snapdeal Ltd.) to refund Rs.1917/- (Rupees one Thousand Nine Hundred Seventeen only) within thirty (30) days from the date of receipt of this order, with interest at the rate of 9% p.a. from 24-11-2018 till the date of the payment. Since the complainant was placed in the embarrassing situations before his close relatives by gifting the replica watch purchased from OP’s portal, the OP is also directed to pay Rs.50000/-(Rupees Fifty Thousand only) as compensation to the Complainant for the mental pain, agony and harassment. It is clarified that if the abovesaid amount is not paid by the OP to the Complainant within the period as directed above, the OP shall be liable to pay interest @12% per annum from the date of expiry of 30 days period.

7.       The complainant shall return the product in question to the OP after receipt of the amount as ordered above.

8.       Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

 

                         ASHWANI KUMAR MEHTA                                       HARPREET KAUR CHARYA 

                    Member                                                                              Member

                                                       DCDRC-1 (North)                                                                  DCDRC-1 (North)

 

DIVYA JYOTI JAIPURIAR  

President  

                                                                                             DCDRC-1 (North)