| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION-VII DISTRICT: SOUTH-WEST GOVERNMENT OF NCT OF DELHI FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN SECTOR-20, DWARKA, NEW DELHI-110077 CASE NO. CC/527/2017 Date of Institution:- 22.11.2017 Order reserved on: 20.03.2023 Date of Decision:- 03.04.2023 IN THE MATTER OF: Sanjeev Kasana H.16, Duggal Housing Complex School Road Khanpur New Delhi - 110062 ......Complainant VERSUS Snapdeal Jasper Infotech Pvt. Ltd. 246, 1st Floor, Phase-III, Okhla Industrial Area, New Delhi – 110020 …..Opposite Party R D E R Per Dr. Harshali Kaur, Member - The Complainant placed an order for a mobile phone via online mode through the O.P.'s website. He paid Rs.14,990/- on 05.07.2017 and received the phone on 07.07.2017.On purchase of the LETV phone, the Complainant was eligible for the gold policy of the O.P. wherein the Complainant could return/replace a product within 14 days from the delivery date without any questions being asked from him. The Complainant has filed a copy of the terms and conditions of the gold policy as reflected on the O.P.'s website.
- After purchasing the mobile, the Complainant alleges that he learned that the LETV mobile phone had very poor after-sales services and was no longerrunning its business in India. After receiving the mobile phone on 07.06.2017, he placed the return request on 08.07.2017, i.e. the next day.
- It is alleged by the Complainant that the O.P. denied his return request for the mobile phone and also suspended his online account on their portal. He, therefore, called the customer care number and also wrote e-mails to the O.P., but no action was taken to address his grievance by the O.P., who alleged that he had returned some faulty articles and hence his return request was being denied.
- To substantiate his claim, the Complainant has annexed the copy of the Invoice dated 06.06.2017 on page no.5 of his Complaint, a copy of the e-mail dated 10.07.2017 wherein the O.P. rejected his request is annexed on page no. 6 of his Complaint. He has also annexed the return request sent/lodged by him registered on the O.P. site dated 08.07.2017,showing that his item/product was covered under the Gold premium service on pages 7 & 8, respectively.
- When the Complainant could not get a refund of his mobile phone, he filed the present Complaint under section 12 Consumer Protection Act, 1986, alleging deficiency-in-service and unfair trade practice on the part of the O.P. The Complainant has prayed for a direction to the O.P. to pay him a sum of Rs.50,000/- towards a refund of the amount paid, compensation and litigation cost.
- Notice was issued to the O.P., who appeared and filed thereply to the Complaint. In their reply, the O.P. has stated that the O.P. is not a necessary party in the present Complaint as it is only an intermediary. The O.P. provides a medium for various sellers to offer their products for sale and facilitates sale transactions between independent third-party sellers and independent end customers. It is the seller who raisesthe Invoice and bears all commercial risks. The customers purchasing products directly make the payments to the sellers and not the O.P. Hence, the O.P. sought the dismissal of the Complaint based ona misjoinder of parties or deletion of the O.P. from the memo of parties.The O.P. has also reproduced clause 6.8 of the website terms to corroborate their averment.
- Further, the O.P. state that the Complainant purchased the product from the independent seller and had no role in making the delivery or providing a refund/replacement of the product sold. The Press Note No.3(2016 Series) in clause 2.3 (viii) issued by the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India have clarified the marketplace model of e-commerce (such as O.P.) that any warranty/guarantee of goods and services sold is the responsibility of the seller. (Annexure-1)
- Also, the Complainant does not fall under the definition of 'Consumer'as defined in the Consumer Protection Act, 1986, since the O.P. is neither a trader nor a service provider. There exists no privity of contract between the Complainant and O.P. since the O.P. has not charged any amount from the Complainant for using the services available on O.P.'s online market platform. Hencethe Complainant does not fall within the ambit of 'consumer' as the exchange of consideration between the parties is a pre-requisite.
- The O.P. further states that on receiving the request of the Complaint, the O.P. transferred his refund request to the seller, who had to comply with the conditions of his policy. On receipt of the Complainant's refund request, the O.P. also undertook an internal investigation by their team.It was observed that the Complainant is a habitual abuser of the seller's replacement policy and had demanded a refund on unreasonable grounds at many instances from various sellers. In this case, he wanted to return the product as it was "very costly", as stated by the A.R. of the O.P. in her affidavit. The O.P. has also cited a catena of judgments in their reply to substantiate their averments in the present Complaint.
- The Complainant filed his Rejoinder and Affidavit to be read in evidence reiterating what he had already stated in his Complaint. The O.P. filed the affidavit of Ms. Ankita Sharma, AR of O.P., who similarly repeated what the O.P. had stated in their reply proving the documents on record. Both parties filed their written arguments, and the case was fixed for final arguments.
- We have heard the Ld. Counsel of the O.P.as the Complainant did not appear on the date fixed for Final Oral Argument. The Complainant was given seven working days to address oral arguments however he has not appeared to date. Hence we felt it prudent to reserve the present Complaint for orders.
- We have carefully perused the documents filed on record by the contesting parties. In our view, the Complainant's case is that he purchased a mobile phone on 05.07.2017 through the O.P. online portal, which qualified him for a Gold Policy of replacement and refund.A copy of the policy with inclusions is annexed with the Complaint. He paid the consideration amount of Rs.14,990/- to ' 'Vardhman Tele Marketing-GGN-SHA',who sold his products through the O.P.website. When he initiated the return/refund of his mobile phone on 08.07.2017, his request was denied, and his account on the O.P.'s website was suspended vide e-mail dated 10.07.2017 (page no.6 of the Complaint). The O.P. stated in their reply that they are only an intermediatory that allows independent sellers and end user to use their portal for selling and purchasing. Hence, the Complainant is not their consumer as per the provision of the Consumer Protection Act, 1986.
- The preliminary objection of the O.P. regarding the misjoinder of parties and that the Complainant is not its consumer have been extensively dealt with in the judgment passed by the Hon'ble National Consumer Dispute Redressal Commission in M/s Hello Travel Vs Harish C. Jain &Anr. decided on 27.02.2020.
8. In the instant case also, admittedly, the appellant/opposite party No.2 is an online discovery platform, which works like a Search Engine namely www.hellotravel.com. As such, it also cannot escape its liability and take benefit by merely saying that it is not privy to the negotiation, offer, acceptance/payment which took place between opposite partyNo.1 and the complainant. It is a kind of selling or service provider platform. It has to ensure the quality of the product coming to its platform for sale or the service, which is being provided through it by third party. By ensuring the quality of product and services hired, through their website/portal, to the complete satisfaction of the consumers, they can fetch more confidence. It is generally seen that lot of complaints qua the products purchased online or services hired are increasing day by day, which is creating a shabby picture of online selling portals/search engines. 9. The appellant/opposite party No.2 failed to provide due service to the respondent No.1/complainant. Once, approached by the complainant, it was the bounden duty and responsibility of the appellant to assist the complainant and provide him alternative arrangement but it tried to escape its liability one way or the other. 13. It is seen that the Travel Portal is in the business of providing wide-ranging tour and travel services, which inter alia include displaying travel agencies on its website and providing access to them from its website. The Travel Agency herein was also so displayed on the Travel Portal's website, access to the Travel Agency was also so provided from its website. 14. It is further seen that the Travel Portal was not operating gratis. It earned through the services it provided through its website, including inter alia from payments made by (some or all of) the travel agencies displayed on its website (as per its internal policy, categorization, etc.). 15. The Travel Portal was required and expected to exercise the due diligence in displaying travel agencies on its website and providing access to them from its website. Hence, we do not find any merit in the contention of the O.P. that the Complaint should be dismissed on the grounds of misjoinder of parties. - Now, coming to the merits of the case. The issue of refund of the Complainant's phone cannot be held valid as the Complainant chose not to make the seller of his phone 'Vardhman Tele Marketing-GGN-SHA', who raised the Invoice dated 06.07.2017 as a necessary party for reason best known to him.
- So far as the O.P. who had floated the Gold Policy, a premium service that offered the product buyer anextended 14 days return/replacement period as reflected on their website along with faster delivery at no extra cost, cannot shrug off their culpability in causing distress and mental agony to the Complainant when his product which was clearly in the ambit of this policy was denied return or replacement when he had sent the return request dated 08.07.2017 within 48 hours of receipt of the phone on 07.07.2017. Further, the O.P. also suspended his account without filing any documentary proof that he was a habitual offender, as was found in their internal investigation as per their testimony. The Complainant admits to having returned two products, which in our view, does not constitute a habitual propensity to seek wrongful gains as claimed by the O.P.
- In this case, after receiving the phone on 07.07.2017, the Complainant lodged his request under the Gold Policy of return of the product, the mobile phone in question, as was his right, given to him by the O.P. themselves. How, then, can the O.P. deny his refund request or close his account without proper justification?Labelling a consumer a habitual offender without cogent proof does not behove the O.P., a reputed service provider.
- The present case squarely falls within the ambit of the above judgment (supra) and thus we feel the Complainant's account was wrongly and unjustly suspended for seeking return/replacement under the Gold Easy/Return Policy of the O.P.which is tantamount to deficiency-in-service.
- Hence, allowing the Complaint, we direct the O.P. to pay Rs.10,000/- to the Complainant towards compensation for mental agony and harassment caused by their arbitrary suspension of his account. The O.P. shall also pay Rs.5,000/- towards litigation charges. No other order as to cost.
- Order be given dasti to both parties.
- Order be complied with within 45 days of receipt of this order failing which they shall be liable to pay interest 9% on the awarded amount from the date of pronouncing the order till realization.
The file be consigned to the record room thereafter | |
