FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The complainant has filed the complaint against the OPs alleging therein that he placed order of a Fast Track Sport (Men’s) Watch being model No. 3099M02 on 10.10.2018 vide order No. 23978438436 and paid an amount of Rs. 649/- through credit card. Snapdeal delivered the subject watch to the complainant on 22.10.2018 through courier Vulcan Express Pvt. Ltd. vide Airway bill No. SLP 1865364244. On opening the sealed packet, complainant found that the subject wrist watch not genuine and he had been to Titan Show Room (Fast Track Outlet) at Park Street where they confirmed that the subject watch is not genuine. Snapdeal authority issued warranty card without any seal and signature and the span of warrantee period. OP-4 cheated the complainant with the help of OP-3/courier services. Having no other alternative, the complainant sent a letter to the OP-4 with regard to genuineness of sports watch. Said letter was returned. Even, email was sent to the OP-4 regarding their activities. Email was unattended. Hence, the complainant has filed the instant consumer case against the OPs with the following reliefs:-
- Complete new set of original Fast Track Sports Model No. 30995M02 Men Watch.
- Compensate for causing mental harassment, mental agony, time and considering everything compensation claim Rs. 4,95,000/-
- Other reliefs as the department feels fit and proper for defrauding and cheating the innocent citizen of India and so an exemptory punishment for the ends of justice.
Upon notice, the OPs 1, 2, 4 and 5 appeared and filed their WV alleging that the allegation made out in the complaint petition is motivated and misleading. The specific case of the answering OPs is that OP-1 owns operates online market place platform “snapdeal.com” and the name of the OP-1 subsequently, changed as Snapdeal Pvt. Ltd. Infotech. The website is an electronic platform which acts as an intermediately to facilitate the sale transaction between independent third party sellers and independent customers. The said website is also amenable independent third party sellers to list, advertise and offer to sell their products and services to the users of the website and once a user accepts the offer of sale of the product made by the third party seller on the website, the sellers intimated electronically and is required to ensure that the products are made available and also delivered in accordance with the delivery terms as set out by the sellers display by the website, the answering OPs only act as an intermediately through its website wave interface www.snapdeal.com and provides a medium to various sellers all over India to offer the sale to the general public at a large. The sellers are separate entity being controlled and managed by different persons the answering OPs never directly sells any product on its website rather all the products are sold by third party seller who avail of the online market place services provided by Snapdeal Pvt. Ltd. on terms decided by the respective sellers only. Clauses 2.1 and 6.8 of the website terms the duties of the electronic platform of an electronic market place. The product purchased by the complainant is not sold by the answering OPs and they have no role in providing any kind of assurance of the product sold by an independent sellers through the website. The complainant is not a consumer under the answering OPs and there is no deficiency in service and unfair trade practice on the part of the OPs. Complainant fails to implicate Titan Company as party of the instant complaint and the complaint is bad for non joinder of necessary party. Being an intermediately between the buyer and the seller the complainant is not entitled to get any reliefs against the answering OPs. Thus, the complainant is not entitled for any relief and compensation as prayed for.
Notice of the complaint was issued to OP-3 the Managing Director, Vulcan Express Pvt. Ltd. However, since they do not file the WV within the time as prescribed under the CP Act, their right to file WV was forfeited.
In this context, it is pertinent to mention here that the name of OP-6 and 7 were expunged and deleted on the prayer of the complainant vide order dated 07.01.2020.
Complainant Md. Mozammel Hossain has filed his E/chief supported by an affidavit. The contents of the complaint are supported by documentary evidence. The contested OPs did not file their E/chief despite several opportunities given to them and their right to file E/chief was closed vide order dated 07.01.2022.
Heard the Ld. Counsels for the parties and carefully perused the record. Ld. Counsel for the OPs 1,2,4 and 5 submitted that Snapdeal Jasper Infotech Pvt. Ltd. is a esteemed market platform provides an easily available and friendly customer case service to the customers. The complainant was requested to send a picture of the faulty product and return the same immediately but the complainant turned down such request. It is also submitted that Consumer Protection Rules, 2020 has defined liabilities of both the market places as “inventory based marketplace” and “marketplace based marketplace”. The answering OPs operates as marketplace based model of e-commerce and does not own any inventory in any form. He further contended that as per clauses under seller agreement the answering OPs are not deficient in rendering service being an intermediary for the purpose of listings or content and all the date and information contained therein. Thus, the ultimate liability is on the seller and the answering OPs are exempted from the liability as per provisions of the Information Technology Act read with relevant rules for the time being in force.
On the contrary, the Ld. Counsel for the complainant submitted that the answering OPs delivered a fake, defective and counter thief product to the complainant resulting his loss of money and harassment. In this regard, he relied on the judgment of the Hon’ble Delhi High Court in CS (COMM) 380/2019 (Titan Company Ltd. Vs. Rohit Kumar Jain & Ors) wherein the Hon’ble Delhi High Court upon hearing the parties and perusing the records has been pleased to pass an order directing the respondent No. 3 (Snapdeal Pvt. Ltd.) from selling, marketing or otherwise dealing in goods bearing the marks “Titan and Fastrack”.
It is an admitted fact that complainant placed order of a Fast Track Sports Men’s Watch Model No. 3099M02 on 10.10.2018 against order No. 23978438436 and OP Snapdeal delivered the product through OP-3 Vulcan Express Pvt. Ltd. to the complainant on 22.10.2018. Complainant paid Rs. 649/- the price of watch through Credit Card. Warranty Card of the watch was without seal, signature and warranty period. Complainant had been to the showroom of Titan at Park Street, Kolkata where the Fast Track Outlet confirmed that subject watch is not genuine and it is duplicate. On perusal of the photocopies of documents annexed with the complaint petition, we find that the complainant reported genuineness of the subject watch to OP-1 under Speed Post but such letters were unattended. On receiving such complaint, it was the duty of the answering OPs to remove OP-7 Fashselect Company from their electronic platform from selling counterfeit goods. The Snapdeal Pvt. Ltd. continued the OP-7 on its portal in showing the products as their range of products.
This commission is now inundated with such consumer complaint against online marketing platforms and it appears that infringement of intellectual property rights as of today, is happening more via such online marketing platforms than physically with on most occasions, the identity of the seller being not traceable and the said online marketing platforms claiming the defence of Section 79 of the Information Technology Act, 2000. In spite of complaint of the complainant, the said online marketing platforms have not come up with a solution to the problem. Certainly online marketing platforms were not intended to foster such infringement and it cannot be disputed that infringement of intellectual property rights is taking place in the goods sold on the said online marketing platforms. It is up to the online marketing platforms to come up with a solution therefore or face claims for damages.
In view of the aforementioned discussions, we are of the view that the complainant is entitled to get reliefs as per Consumer Protection Act and there is deficiency in service and unfair trade practice on the part of the contesting OPs. The consumer case is disposed of in the following terms:-
(i) OPs 1, 2, 4 and 5 are directed to refund Rs. 649/- being price of the Fast Track Sport (Men’s) watch against order No. 23978438436 dated 10.10.2018 to the complainant,
(ii) OPs 1, 2, 4 and 5 are further directed to make payment of Rs. 50,000/- (Rupees fifty thousand) only as compensation for harassment and mental agony caused to the complainant on account of deficiency in service and unfair trade practice.
(iii) OPs 1, 2, 4 and 5 shall also pay Rs. 10,000/- (Rupees ten thousand) only as costs of litigation to the complainant.
(iv) Above payments shall be made within 60 days from the date of this order failing which the amount shall carry interest @ 9 % p.a. from the date of order till its realization.
(v) complainant is directed to return the Fast Track Sports (Men’s) watch to the representatives of Snapdeal on receiving price of the watch, compensation and litigation cost.
Thus, the consumer case is allowed in part on contest against the OPs 1, 2 , 4 and 5 and dismissed ex parte against OP-3 Vulcan Express Pvt. Ltd.
Copy of the judgment be supplied to the parties as per CP Act. Judgment be uploaded on the website of this Commission forthwith for perusal of the parties.
