MR LAXMI NARAYAN PADHI, PRESIDENT… The factual matrix of complaint is that, the complainant had placed order for a mobile, Xolo Prime 8 GB through online vide Order no. 12126459047, invoice No. SA0E57/15/16/861 on dated 04.03.2016 from OP.no.1 by paying Rs.4288/- which was received on dt.11.03.16 through cash on delivery. After 15 days the same started hanging, automatic switch off etc. So the complainant approached the authorized service center at Rayagada on dt.01.06.2016 vide work order no.510008908809 but the mobile could not be well rectified by him. Being aggrieved the complainant once again approached the service center on dt.17.7.16 but he expressed his inability to mend the set. Hence finding no other way she purchased another mobile by paying Rs.1550/-. She further contends that the OP.s provide her a manufacture defective set for a good hard earn price, hence the Complainant inflicted highly mental tension and financial hardship due to the sub standard set as well as inaction and deficiency service by the OP.s. So she prayed before the forum to direct the OP.s to pay the cost of alleged handset and a sum of Rs.50,000/- as compensation and Rs.5,000/- as cost of litigation for such unfair practice and deficiency in service on the part of OP.s.
2. The counsel for OP.1 filed his counter and written argument in the case, wherein he contended that they have delivered the goods as per order and onwards specified nothing except unwarranted submissions and evasive denials. The OP.2 neither appeared on call nor filed any counter despite several chances given to him since admission of the case. Hence he set ex parte as per provisions contemplated in Sec.13(2)(b) of C.P.Act.1986. The complainant has filed cash invoice of the alleged mobile, warranty card of the set etc. The complainant & counsel for OP.1 has been heard the case at length and perused the record.
3. That, the O.P. admits that, he is an intermediary acting through a networking platform under banner/brand Snapdeal.com for products of different traders, who are different entities managed by different persons/stake holders. The Statement in para 6 that, the products sold are directly made by these sellers directly to the consumers because the monetary benefit directly goes to these sellers, for any defects the sellers should have been liable, is based totally on false hood and deceptive, as the O.P. as admitted, providing network platform to allure the prospective customers from the far and wide, is not surely made on Charitable basis, as the Parent Organization of Snapdeal.com is not a Charitable Society or Club, but a private limited Company, incorporated for profit. So providing the platform to allure consumers in favour of brand name of Snapdeal, and selling them with deceptive descriptions, as an intermediary, attracts the joint responsibility of the seller and the intermediary, simultaneously, vicariously and ostensibly.
4. The O.P. admits in para 7 of his preliminary objection petition that, he is the intermediary, in para 10 denies to have provided any service. Service providers are considered to be wide in range as per the definitions of C.P.Act and consumers being the potential users, the meanings of which are not to be restricted, as is viewed in numerous decisions of Honble apex court.
5. Further the O.P. cited the Judgements of Delhi Highcourt in Intex Technologies vs Jasper infotech pvt. Ltd, CS(COMM)34/2015 and some other citations of judgements pronounced by different Consumer Forums. He stressed the RP NO. 697/2016 in Snapdeal vs Nikhil Bansal, where in Hon’ble National Commission is said to hold Complainant should have disclosed the legal entity of snap deal and in failure to it , the complaint is not maintainable. In this regard, It is attracted the notice of the Forum, that, in the website or Tv network platform of the O.P. nowhere any clarification is produced as to the legal entity or legal liability. Further there is no information about the seller, except in the invoice at the time delivery of the product to the consumer. It is also obscure, if there is any such seller, or it is a created brand of the O.P. Now all the information about the third party seller or legal entity of the O.P.1 being inadvertence of the consumer, and when the complaint is filed against the legal character of the snapdeal, by name, with description in the Complaint itself, that, the O.P./J.Dr is the network/web platform who advertises the product of the different sellers, the Complaint cannot be attributed to any irregularity or the O.P. cannot find immunity referring the non est clauses.
6. Further, in Snapdeal vs Nikhil Bansal(supra) case, the case was decided on the point that, there was no payment for the product. When service or product is not paid the transaction becomes different, there is not contract of sale, and basing on that point the Honble National Commission decided the case, which cannot stand precedent in the present case. The above decision passed by the Honble Commission is merely a Sub silentio decision, which flow when the particular point of law involved in the decision is not perceived by the court of present to its mind. A point not argued or considered by court is said to pass sub silentio. The decisions ‘sub silentio’ and ‘per incuriam’ are not binding.
7. In this regard the Complainant explains that, Snapdeal is an online plat for vending the products of different brands and sellers, and the profit is obviously going to its creator M/S Jasper infotech Pvt.Ltd. The name itself speaks that, it is a private limited Company and record of ministry of Company affairs says that it is limited by shares. The Complainant has filed the details of the snapdeal @ M/S Jasper Infotech Pvt.Ltd, which is admitted as Ext-C-2. Surely, the objects of enacting statute and the intention of the Legislature are most relevant. It is, therefore, sometimes said that the golden rule is that there is no golden rule.
8. A company, though a legal entity, can act only through its Board of Directors. The settled position is that a Managing Director is prima facie in-charge of and responsible for the company's business and affairs and can be prosecuted for offences by the company. But insofar as other Directors are concerned, they can be prosecuted only if they were in-charge of and responsible for the conduct of the business of the company. A combined reading of Sections 5 and 291 of Companies Act, 1956 with the definitions in clauses 24, 26, 30, 31 and 45 of Section 2 of that Act would show that the following persons are considered to be the persons who are responsible to the company for the conduct of the business of the company:
(a)the Managing Director/s; b) the whole-time Director/s; (c) the Manager; (d) the Secretary;
(e) any person in accordance with whose directions or instructions the Board of Directors of the company is accustomed to act;
9. From the contentions of the learned counsel for the O.P.s and pursuing the judgements cited by him, Forum overrule the relevancy of the subject matter of these judgements in the present context, are all of Personam in nature and has no precedental substances as to the present case. Of the relevancy of judgments, Sections 41 and 42 of Evidence Act draw a distinction between Judgments in rem and Judgments in .A judgment “in personam” that defines, positively, claims against competing individuals in respect of a particular matter, or to compel the performance of a particular act and none other than the parties to it are bound to the judgments unless any principles of law or statutes are interpreted therein and to the contrary a judgment "in rem" amounts to a determination of the status of a particular matter or an individual’s right in respect of a certain matter, but is conclusive not only between the competing parties but also as against the whole world. The Hon’ble Apex Court in Union of India Vs Major Bahadur Sigh has observed that courts should not place reliance on decisions without discussing as to how factual situation fits in with the fact situation of the decision on which reliance is placed observations of the courts are neither to be usual as Euclid’s Theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been sited. Judgments of the courts are not be construed as statues, judges interpret statutes. They do not interpret judgments.
10. The basic contention of the O.P in the Petition is that, he is an intermediary within the scope of definition in Sec.2(1)(w) of Information and Technology Act-2000 so that, he cannot be impleaded as party to the dispute.
11. However, the forum brushed off any doubt that, the O.P. is a service provider as defined in the C.P.Act and that, at the time of order for the product or after the receipt of the product on payment, as no where the O.P. had ever clarified of his position, hence concealed the informations as to the product and of the supplier, and the O.P. has not adhered to the exceptional conditions as laid down in Sec 79 of I.T.Act-2000, so also could not prove his innocence as in sec 106 of Evidence Act.
12. Prima facie it is seen that the complainant had placed order for the mobile set on dt.04.03.2016 which was received on dt.11.03.16 by paying Rs.4288/- and the same became defect within 10 to 15 days. Hence the complainant approached the authorized service centre of OP.s for necessary repair, but the service care neither repaired the set nor replaced it with a new one despite of several requests. Considering the evidences, submissions by both the parties, we are of the view that, the mobile set purchased by the complainant has inherent defect, and the OP.s failed to rectify the set. Thus the complainant sustained mental agony with the defective set, and also inflicted financial losses due to the negligence and unfair practices of OP.s.
13. Provisions of C.P.Act 1986 for grant of compensation is a species developed from the law of Torts, price factor in calculating the damage for any loss in tort is subsidiary, the prime factor to consider is mental agony, harassment & negative social impact.
14. An exemplary damage, should serve the purpose of hindering these absecue and unscrupulous traders continuing such unfair trade practices duping innocent customers. Further, we have carefully examined the alleged mobile set and found defects. It is further noticed that, despite service of notice of this forum none of the OP.s took any initiations to settle the matter of complainant. Hence we feel that the action of OP.s is arbitrary, highhanded, illegal which amounts to deficiency in service, hence found guilty under the provisions of sec. 2(1)(g) of the C.P.Act, as thus the complainant is entitled for compensatory relief, so we allowed the complaint against both the OP.s with cost.
O R D E R
i. The opposite party no.1 & 2 supra are severally & collaterally directed to pay the price of the set/product in question Rs.4288/- (Rupees Four Thousand Two hundred & Eighty Eight only) inter alia, to pay Rs.10,000/-(Ten thousand) as compensation and a sum of Rs.5000/-(Five thousand) towards the cost of litigation to the complainant.
ii. All the above directions shall be complied with in 30 days of this order, failing which, the total sum will bear 12% interest per annum till its realization. Pronounced on 16th Nov' 2016.
SD/- SD/-
MEMBER PRESIDENT, DCDRF,
NABARANGPUR.
Date of Preparation:
Date of dispatch :
Date of received by
the A/A for Ops / Complainant :
