BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, FATEHABAD.
Complaint no.227/2016.
Date of instt. 01.09.2016.
Date of Decision: 16.05.2017.
Rajesh Kumar son of Shiv Kumar resident of Bhattu Kalan c/o Sangam Photostat Bhattu Mandi District Fatehabad.
..Complainant.
Versus
1.Snapdeal (Jespar Infotech Private Limited) Plot No.237 Okhala Phase Second Industrial Area New Delhi 110020 through its Proprietor/ Partner/ Director/Incharge.
2.Jaipur Communication Khasra No.206/207 Ambeyar Grinding Milj Kuks Ambeyar Jaipur Delhi High-way City Jaipur (Rajasthan) 302028 through its Direrctor.
3.Lenevo India Private Limited Franj I Con Level 2 Dodenka Kundi village outer Ring Road, K.R.Puram, Hobli, Banglore-560037 through its Proprietor/ Partner/ Director/Incharge.
..Opposite parties.
Complaint under Section 12 of Consumer Protection Act.
Before Sh. Raghbir Singh, President.
Sh.R.S.Panghal, Member.
Smt.Ansuya Bishnoi, Member.
Present: Sh.Aman Bhatti, Advocate for complainant.
Sh.Yogesh Gupta, Advocate for OP No.1.
Opposite party no.2 exparte.
Sh.Anil Solra, Advocate for OP No.3.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties with the averments that he had booked a mobile phone Lenevo Wibe K-4 Note 16 G black colour with OP No.1 for a sum of Rs.11999/- which was received by the complaint on 01.08.2016 through E-com Ex-press Courier (authorized courier of the Op No.1) on paying of Rs.11999/-. It has been further averred that on opening the parcel the complainant was taken by surprise because there was an old mobile phone of Micromax Company, therefore, the complainant lodged a complaint with courier service but it did not pay any heed and asked to approach OP No.1. On this when the complainant approached OP No.1 after 2/3 days then it had asked the complainant to deposit the set with but the courier company had refused to receive the set. It has been further averred that thereafter the complainant kept on sending the massages to the Op No.1 for depositing the mobile but to no avail. The act and conduct of the OPs clearly amounts to deficiency in service on their part. In evidence, the complainant has tendered his affidavit Ex.CW1/A and documents Annexure C1 to Annexure C15.
2. On presentation of the complaint, notice of the same was issued to the opposite parties.
3. Opposite party No.1 appeared and resisted the complaint by filing reply wherein it has been submitted that it acts as a common market place to facilitate the sellers to list their goods and buyer’s to access goods from multiple sellers through its website www.snapdeal.com and 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 seller as part of the terms for sale displayed on the website. It has been further submitted that OP No.1 acts as intermediary and it does not sell any product directly or indirectly and the sellers directly raises invoices to the final customers for the products sold an bear all commercial risks, therefore, only seller is liable for the consequences. The product purchased by the complainant has not been sold by the OP No.1; therefore, it has no role play because OP No.1 is a market model of e-commerce and any warranty/guarantee of goods relate to the seller and only seller is responsible for delivery of goods to the customers. It has been further averred that intermediary is exempted under Section 79 of the Information Technology Act, 2000 from any liability arising from any transaction entered into by any third parties through the intermediary’s website. Other contents made in the complaint have been contorverted and prayer for dismissal of the complaint has been made. The OP No.2 did not appear before this Forum despite issuance of notice through registered cover and was proceeded against exparte. OP No.3 filed its separate reply wherein it has been submitted that it is not aware about any transaction allegedly taken place between the complainant and OP No.1 and the OP No.3 is not responsible for any acts of OP No.1. It has been further averred that OP No.3 in no way connected/involved in the e-commerce transactions and delivery of its products and the onus of delivery of the products listed for sale on the e-commerce portal/website of the OP No.1. Other allegations made in the complaint have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OP Nos.1 & 3 have affidavit of Sh.Shankara Narayana Prakash as Ex. R1, affidavit of Mr.Shine Joy as Annexure R1 documents Annexure R2 to Annexure R4.
4. We have heard learned counsel for the complainant as well as learned counsel for the OP Nos.1 & 3 and have perused the case file carefully.
5. Perusal of Annexure C1 reveals that the complainant had purchased a handset from OP No.2 for a consideration of Rs.11999/- which the complainant had received through courier as is evident through Annexure C2. The complainant in support of his averments has tendered his affidavit Ex. CW/1 wherein he has testified all the facts so set out by him in his complaint. According to the complainant, he had received old mobile of Micromax Company instead of mobile which he had booked with OP No.2 through online portal of OP No.1. The complainant has specifically mentioned in his complaint that there was an old mobile phone of Micromax company in the box but there is nothing on the file to show that the appearing parties have rebutted this fact. From the material available on the case file it is ample clear that there is no specific allegations against the Op No.1 because it has acted as intermediary service provider and as per Section 79 of the Information Technology Act, 2000 the service of the Op No.1 is exempted and only the seller is liable for any discrepancy qua the sold product. Since the complainant has not alleged any manufacturing defect in the mobile, therefore, the manufacturer has also no role to play in the same matter. It is strange that OP No.2 after selling the product in question did not bother to redress the grievance of the complainant forcing him to approach this Forum but the seller/OP No.2 did not appear before this Forum despite notice and remained exparte. The allegations made by the complainant has gone unrebutted, therefore, we have no hitch to reach a conclusion that the present complaint deserves acceptance against Op No.2 only. Hence, the present complaint against OP Nos.1 & 3 is dismissed and allowed against Op No.2 with a direction to refund the price of the mobile in question i.e. Rs.11999/- to the complainant within a period of one month from the receipt of copy of this order. We also direct the OP No.2 to pay a compensation of Rs.2,000/- in lump sum to the complainant for harassment and mental agony etc. This order should be complied within a period of one month, failing which the above said amount of Rs.11999/- will carry interest @9% per annum from the date of order till actual realization and the complainant will be at liberty to initiate legal action against the OP No.2. The complainant is directed to deposit the handset so received by him along with its accessories to the OP No.2. File be consigned to the record after due compliance. Copy of this order be communicated to the parties free of costs.
Announced in open Forum:
Dt.16.05.2017. (Raghbir Singh)
President,
District Consumer Disputes
(R.S.Panghal) Redressal Forum, Fatehabad.
Member
(Ansuya Bishnoi)
Member