Punjab

Moga

CC/16/77

Neelam Sharma - Complainant(s)

Versus

Snapdeal - Opp.Party(s)

Sh. S.K.Sharma

21 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

                                                                                      CC No. 77 of 2016

                                                                                      Instituted on: 08.03.2016

                                                                                      Decided on: 21.06.2016

 

Neelam Sharma wife of Swaranjit Sharma, resident of 617, Street no.2, Dashmesh Nagar, Moga - 142001.

                                                                          ……… Complainant

 

Versus

Snapdeal, 246, First Floor, Okhla Industrial Area, Phase-III, Delhi, through its MD/GM.

                                                                           ……….. Opposite Party

 

 

Complaint u/S 12/14  of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President,

                   Smt. Vinod Bala, Member,

                   Smt. Bhupinder Kaur, Member.

 

Present:       Sh. S.K. Sharma, Advocate Cl. for complainant. 

                   Sh. Amit Goyal, Advocate Cl. for opposite party.

 

 

ORDER :

(Per Ajit Aggarwal,  President)

 

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 ( hereinafter referred to as the "Act") against Snapdeal, 246, First Floor, Okhla Industrial Area, Phase-III, Delhi, through its MD/GM (hereinafter referred to as the opposite party) for directing them to fulfil the orders placed on by the complainant at the price at which they were originally purchased by the complainant at the best of quality and finishing. Further opposite party may be directed to pay Rs. 90,000/- as compensation for unfair trade practice, deficiency in service, costs of litigation, inconvenience caused and troubling the complainant by causing mental pain and harassment to the complainant.

2.                Briefly stated the facts of the case are that complainant had placed the following order:

i)                 Payal Creations Multi Color Velvet Saree, vide order ID:

       11685811839

ii)                Goyal Silk Mills Black Georgette Saree, vide order ID: 11685811839

iii)               3 Siddeshwary Fab Multi Faux Georgette Lehenga, vide order ID:

        11689492453, 11688144980, 11688565569.

iv)               Jagdish Fashion Pink & Blue Faux Georgette Lehenga, vide order ID:

       11688272496.

v)                Fabfulffy Pink Georgette Saree, vide order ID: 11688673455.

vi)               Rudra Fashion Orange Faux Georgette Saree, vide order ID: 11685904352 with the opposite party on 11.02.2016 on their website https://www.snapdeal.com). Complainant had made the payment, through online payment channel for the items as listed on the opposite party's website. The above said orders were confirmed on 11.02.2016  by the opposite party via various mail and text messages on the complainant mobile phone that the order will be delivered between 17.02.2016 – 21.02.2016. Later on, the complainant received various mails dated 11.02.2016 from the opposite party vide which the order of the complainant was cancelled for all the above purchased items. When a call was made by the complainant to the representative of the opposite party, it was told that due to technical problem, the price of the product was wrongly shown and the same cannot be delivered at that price. Thereafter the complainant sent the email to opposite party requesting it to deliver the above mentioned items as per the order placed upon the opposite party, but all in vain. Further alleged that the order was booked at Moga, as such this Forum has the territorial jurisdiction to entertain and decide the present complaint.

3.                Upon notice, opposite parties appeared through his counsel and filed written reply taking certain preliminary objections inter alia that the opposite party operates its online market place 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; that the opposite party only acts as intermediary through its web interface www.sanpdeal.com. and provides a medium to various sellers all over India to offer for sale and sell their product(s) to the general public at large. It is submitted that these sellers are separate entity being controlled and managed by different person/stakeholder. The opposite party does not directly or indirectly sell any produce on its website "www.snapdeal.com", rather all products on website are sold by third party sellers, who avail of the online marketplace services provided by the answering opposite party. The sellers directly raise invoices to the final consumers for the products sold and bear all commercial risks. The customers purchasing products from such sellers directly make the payments for their purchases either on a pre-paid basis (net banking/credit card/debit card) or cash on delivery basis. The ultimate monetary beneficiary of such sale proceedings is the seller and not opposite party. Further any kind of assurance, whether in terms of warranty on the products or otherwise, is provided either by the manufacturer of the products sold or by the sellers of the particular product. The opposite parties neither offers nor provides any assurance to the end buyers of the product; that the present complaint is based on vague, misconceived notions and baseless assumptions of the complainant and are therefore denied; that the present complaint under reply is liable to be dismissed due to mis joinder of parties. Opposite party is neither a necessary nor a proper party to the complaint; that the complaint is liable to be dismissed as there exists no legal entity by the name of Snapdeal. Sanpdeal is the trademark and Snapdeal.com is the name of the website which is owned by Jasper Infotech Pvt. Ltd. Further clause 2.1 of the Website Terms of use clearly states as under:

          "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."

                   Furthermore, the buyers/Users who use the Website also agree and accept under 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 your are buyer) or Your and the buyer (if Your 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 of 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 assurance that any User (whether buyer or seller) will complete any transaction or act in a prudent manner."

                   In the present case the products ordered by the complainant was in fact offered for sale by M/s Rudra Fashion whose snapdeal display name is Panihari Creation 45, Kapurvadi, Khodiyar Nagar Road, Varachha Road, Surat, Gujarat- 395006 and not by the opposite party; that the complainant has suppressed true and material facts from this Forum and not approached with clean hands; that the complainant is trying to mislead the Forum by presenting the concocted story; that the complaint does not fall within the ambit of the definition of the term "Consumer" as provided under section 2 (1) (d) of the Consumer Protection Act, 1986. In accordance with the definition of the consumer, exchange of consideration between the parties is a pre-requisite for a consumer dispute. Since the opposite party has not charged any amount from the complainant for using the website of the opposite party, the complainant does not become a consumer qua the opposite party. Furthermore, the opposite party is neither a 'trader' nor a service provider' as defined under the Consumer Protection Act, 1986 and there does not exists any privity of contract between the complainant and the opposite party; that the opposite party is an intermediary within the definition of Section 2 (1) (w) of the Information Technology Act, 2000. Section 2 (1) (w) of the Act denies the term 'Intermediary' as under:

          "Intermediary, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction site, online-market places and cyber cafes."

                   It is submitted that an intermediary who falls under the ambit of Section 2 (1) (w) of the Information Technology Act, 2000 is exempted under section 79 of the same Act from any liability arising from any transaction entered into by any third parties through the intermediary's website or the information hosted/displayed by the intermediary's website. The above has been observed by the Supreme Court of India in case Sachayani Savings Investment (I) Ltd. & ors. V. State of West Bengal and by Hon'ble High Court in case of Intex Technologies v. Jasper Infotech Pvt. Ltd. CS (COMM) 34/2015. It has been further submitted that different consumer forum after analysing the business model of the opposite party and the provisions of the law have held that opposite party is an intermediary and not liable for third party transactions on its website as upheld in different cases decided by other Forums. It has been further submitted that Section 81 of the Information Technology Act, 2000 provides that the provisions of the same act will have an overriding effect over the provisions of the other law for the time being in force; that this Forum does not have territorial jurisdiction to entertain the present complaint, as the same is barred by the terms of agreement duly agreed between the parties. The complainant while placing order through Snapdeal.com had agreed to the Website Terms of Use and Standard Terms of Sale. Further the opposite party is having its registered office at 238, Ist Floor, Okhla Phase - III, New Delhi and the same is beyond the territorial jurisdiction of this Forum in view of the terms of the contract (exclusive jurisdiction clause) agreed between the parties. As already submitted, opposite party does not sell any product on its own but only manages an online market place website. Clause 1.1 of the Standard Terms of Sale available on the website clearly stated: "The Seller hereby makes an offer to sell the Products listed by Seller on the Website and the Buyer upon agreeing to purchase the products so listed by the Seller hereby accepts such offer to sell by the seller. Accordingly the contract for sale of the product is be a bipartite contract between buyer and the seller. Jasper Infotech is not a third party beneficiary under such bipartite contract.".

                   Clause 2.1 of the Standard Terms of Sale provides that : "All offer of sale of products are governed by the description and specifications of the Product, terms of warranties provided by the respective manufacturer/sellers/brand owners (as applicable) is providing any warranty, details of such warranty will be specified on the relevant product webpage on the Website or on the label printed on the Product package. Such warranties are provided by manufacturer/sellers/brand owners ( as applicable) and will be fulfilled by the manufacturer/sellers/brand owners (as applicable)."

                   It has been further submitted that the complainant does not have any cause of action against the opposite party. Further submitted that the grievance of the complainant is with respect to the alleged cancellation of order placed by the complainant. The order placed by the complainant was cancelled by the seller due to the price error at which the product was displayed. Further the price which was shown for the product, due to technical error, was shown very less as compared to the actual price of the product. The Standard Terms of Sale, as available on the website of the opposite party clearly provides for cancellation of order by the seller at any time if 'due to technical reasons there is any error in Selling Price.' Further in parawise reply, the all other allegations made in the complaint have been denied.

4.                In order to prove the case, complainant Neelam Sharma tendered in evidence her duly sworn affidavit Ex. C1 and copies of documents Ex. C-2 to Ex. C-21  and closed the evidence. 

5.                In rebuttal, the opposite parties tendered in evidence duly sworn affidavit of Sh. Shine Joy s/o K.O. Joy, Authorized Signatory Ex. OP-1, and copies of documents Ex. OP-2 & Ex. OP-3 and closed the evidence.

6.                We have heard the learned counsel for the parties and have very carefully gone through record placed on file.

7.                Ld. Counsel for the complainant argued that  the OP company dealing in the business of online business selling the various good on line, website i.e. www.snapdeal.com. On 11.02.2016 complainant visited the website of OP and after seeing their advertisement, she ordered to purchase some goods from them there is total goods are 8 at the price of Rs.70/- each. She made payment to OP online through her credit card. The above orders were confirmed by OP on 11.02.2016 and sent various e-mails as well as text message to the complainant on her mobile phone confirming her order and assured that the goods will be delivered between 17.02.2016 to 21.02.2016. The payment of goods duly received by OP. Later on, on the same day the complainant received various mails vide which the OP informed to the complainant that her order was cancelled, on it the complainant made a call to representative of the OP, who told that due to technical problem, the price of the product was wrongly shown and same cannot be delivered at that price. Thereafter, the complainant sent e-mails to OP requesting them to deliver the above mention item as agreed by them but despite repeated request, the OP did not fulfil their promise. All these acts of the OP amounts to deficiency in service and trade mal practice on their part. The complainant suffered huge financial loss as well as mental harassment and agony. The OP may be directed to fulfil the orders placed by complainant with them on the price which were originally agreed by them along with compensation and litigation expenses.

8.                To controvert the arguments of the complainant, the Counsel for the OPs argued that the OP operates its online market place platform under the brand name “Snapdeal” through their website i.e. www.snapdeal.com. The website is an electronic platform which acts as an intermediary to facilitate sale transactions between independent 3^rd party sellers and independent customer. 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 the offer of sale of the products made by the third party seller on the website, the seller is intimated electronically and required to ensure that the products are made available and delivered in accordance with the delivery terms as set out by the seller as part of the terms for sale displayed on the website. The OPs provides a medium to various sellers all over India to offer for sale and sell their products to the general public at large. These sellers are separate entity being controlled and managed by different persons. The OP does not directly sell any product on its website. All products on website are sold by third party sellers. They directly issue invoices to the final customers for the products  sold and bear all commercial risks. Any kind of assurance, whether in terms of warranty on the products or otherwise, is provided either by the manufacturer of the products sold or by the sellers of the particular product.  The OP neither offers nor provides any assurance to the end buyers of the product. The OP is like online shopping mall where in different independent third party sellers advertise, showcase and offer their products to sale to third party buyers who visit the mall and in case of any defect in the goods, the seller is liable for the consequences and not the owner of the shopping mall. The present complaint is based on vague, misconceived notions and baseless assumptions of the complainant. The complainant is not consumer of the OP as OP has not charged any amount from the complainant for using their website. OP neither a trader nor a service provider, as per terms and conditions of the website of OP, this Forum has no jurisdiction to try and decide the present complaint, as per terms only Courts at Delhi has jurisdiction to try and decide any dispute arose between the parties. In the present case the product ordered by the complainant was in fact offered for sale by M/s Rudra Fashion and not by OPs, as per terms and conditions of the website the OP or the 3^rd party seller is at liberty to cancel the order placed with them at any stage and as per terms, the selling price of the product is subject to change without notice prior to the purchase of the product by the buyer. The order placed by the complainant was cancelled by the seller due to price errors as which price of product as displayed was very less due to technical error as compared actual price of the product. As per standard terms of sale of website, cancellation of the order by the seller due to technical reason. There is an error in selling price. All the payments received by the Ops is on behalf of third party seller, OP is not ultimate beneficiary of the payments made by the complainant and ultimate beneficiary is the seller and OP only provide third party solutions to make the payments and same are done in accordance with the Relevant RBI guidelines. The complainant has manipulated the entire story, he has no cause of action to file the present complaint, due to technical error the price was shown very less as compared to the actual price of the product, so as per terms and conditions the Ops cancel the order placed by the complainant and made refund of the payment received by them. There is no deficiency in service and trade male practice on the part of the Ops, the complainant filed the present false and frivolous complaint against the OP and the same may be dismissed with costs.

9.                We have heard the arguments of both the parties and also gone through the pleadings and evidence led by both the parties. The case of the complainant is that OP is dealing in the business of online trading, the complainant placed order of some articles with OP on their website and made payment to them on line, her order was confirmed by OPs and sent e-mails regarding it and also promised to deliver these articles within few days but they later on sent various e-mails to complainant informing her that order is cancelled. She contacted to the OP who told that due to technical error the price shows for the goods was very less, so her order has been cancelled. She requested them to deliver goods as agreed by them earlier but they refused.

10.              In reply the Ops argued that they operate online platform where various independent 3^rd party sells their goods to the consumer. They have nothing to do with the order placed by consumer to 3^rd party sellers, the dealing between consumer is directly with 3^rd party sellers and not with the OP and they are only facilitator and as per terms and conditions of the website , all these conditions mentioned on the website as per terms they are at liberty to cancel any order at any stage and can make change in the price of the goods without any prior notice to the purchaser and in the present complaint due to technical error the price shown for the goods ordered by the complainant very less than the actual price. The OPs cancelled the order of the complainant, there is no irregularity on their part. Moreover, if there is any liability it is of the 3^rd party seller and not of the OPs.

11.              To prove his case the complainant produced his duly sworn affidavit and copies of the e-mails and message sent by OP regarding placement of order by her and further receiving the payment by OP as price of the goods and confirming the order and agreed to deliver these goods on the address of the complainant and further later on regarding the cancellation of these orders same are Ex C-2 to C-20 which proves that complainant placed order with OP and OP received payment for those goods and further later  regarding cancellation of these orders which proves the case of the complainant. The stand of OP is that they are only a facilitator and all the goods sold on their website is sold by independent 3^rd party directly to the customer and they have nothing to do with their business and it is like a shopping mall, the customer visit directly the shop and purchase the goods then that case the shopping mall owner is not responsible, further they receive the payment on behalf of the seller and they are not ultimate beneficiary of those payments and they transfer the payment to 3^rd party seller, so they are not liable for the default on behalf of 3^rd party seller and 3^rd party seller is liable for the consequences. From the perusal of the e-mail Ex C-2 to C-20 sent by OP to complainant regarding the placement of order, payment of price, confirming the order and later on cancelling her order. It reveals that there is no where the name of 3^rd party seller is written or disclosed. All these e-mails are sent by the OP directly to the complainant neither in the e-mails confirming the order nor cancelling the order were sent by any 3^rd party seller even nowhere the name of the alleged independent 3^rd party seller is mentioned. All these e-mail are directly sent by the OP Snapdeal.com. The payment is also received by the OP directly, so the stand of OP that they have nothing to do with the selling and purchase of goods on their website and only 3^rd party seller is liable is not sustainable. The 2^nd objection of the OP is that this Forum has no territorial jurisdiction to try and decide this case as there is no branch office of OP within the territorial jurisdiction of this Forum. On this complainant put reliance on citation 2014 (1) CLT titled as M.D.Air Deccan and others Vs Ram Gopal Aggarwal, Hon’ble Meghalaya State Commission Shillong held that where contracts for services and or goods are entered into over the internet, the for the purposes of Consumer complaints, part of cause of action arises interalia at the complainant’s place of business. If acceptance of the contract is communicated to him through the internet, including the medium of emails, this is in addition to the other places where a consumer may choose to file a complaint in accordance with other provisions of Section 11 of (2) of the Consumer Protection Act. So, this court has jurisdiction to try and hear this case.

12.              In the light of above discussion, we came to the conclusion that the cancellation of the order placed by the complainant with opposite party which was duly confirmed by opposite party and received the payment by them for the same and later on cancelling the order at their own is amounts to deficiency in service and trade mal practice. We are fully convinced with evidence, arguments and case law produced by complainant, the present complaint is hereby allowed. As the amount received by opposite party as price of products is already refunded by them, but the complainant is entitled for the compensation for financial loss, mental harassment and agony. The opposite party is burdened to pay Rs 8,000/- (Eight thousand only) as compensation for mental agony and harassment faced by complainant and Rs.2000/- (Two thousand only) as litigation expenses to the complainant. Opposite party is directed to comply with the order within one month from the date of receipt of the copy of the order, failing which, complainant shall be entitled to initiate proceedings under Section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of costs. File be consigned to the record room. 

Announced in Open Forum

Dated : 21.06.2016

                               (Bupinder Kaur)           (Vinod Bala)                     (Ajit Aggarwal)

                                     Member                     Member                            President