Complaints filed on: 14-12-2020
Disposed on: 30-09-2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, TUMAKURU
DATED THIS THE 30th DAY OF SEPTEMBER 2022
PRESENT
SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT
SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER
SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER
CC.No.85/2020
Sri. Nagendra .S S/o Late Shanthamallaiah .P
Aged about 47 years, R/at Shivashree, 5th Main,
Vijayanagar, Devanuru Church Main Road,
Tumakuru – 572 1025.
……….Complainant
(By Kum/Smt. Navya .B., Advocate)
V/s
1. The Manager, M/s Snapdeal, Jasper Infotech
Private Limited, No.246, 1st Floor, Phase-3,
Okhla Industrial Area, New Delhi-110 020.
2. The Manager, Shop Jupiter (All Mall),
KDRD Uttarayan, State General Hospital Road,
(2nd GT), Near City Naihati/State West Bengal(19)
Pin – 743 165.
……….Opposite Party
(OP1 - By Sri.Obalesh .T., Advocate)
(OP2 – Served, absent)
:ORDER:
SMT.G.T.VIJAYALAKSHMI, PRESIDENT
This complaint is filed against the OPs with a prayer to direct the OPs to deliver original item namely Bushnell Binocular along with a sum of Rs.5,00,000/- towards mental agony, negligent act while attending the service, harassment, caused to the complainant with interest, along with interest @ 18% p.a. from the date of petition till its realization.
2. The brief facts of the complaint are as under:-
The Ops are doing e-commerce business and the OPs are supplying necessary articles to its customers as per the orders of consumers, the complainant used to purchase the articles from the respondent through booking from his official hand set mobile and hence the complainant is one of the regular customer of respondent firm.
2(a) The complainant further submitted that he intend to purchase Bushnell Binocular for his personal use, and accordingly the complainant booked the said articles through his handset mobile application on 16.08.2020. After booking the said article, the respondent firm have delivered the said articles vide order No.36845666960 and collected Rs.4,622/-.
2(b). The complainant further submitted that after receipt of the said items, the complainant opened the box and found that instead of sending original Bushnell Binocular, the OPs have sent the sent the duplicate item as the said article do not contained any of the specification like make, serial number, item code, bar code, MRP details of manufacturing and origin of the country. Hence, the complainant approached the OPs over phone and e-mail and expressed the fault committed by the respondent and requested to supply the original item. But the OPs have not properly responded to any of the request made by the complainant. Hence, the complainant got issued legal notice through RPAD on 30.09.2020 calling upon the OPs to supply the original Bushnell Binocular, But the OPs have failed to comply the said notice and also did not deliver the said original item even though on receipt of the legal notice. Hence, there is no any alternative, filed this complaint.
3. After service of notice, the OP No.2 remained absent and the OP1 appeared through its counsel and filed version, wherein the OP has contended that they operates its online marketplace platform under the brand name/trademark “Snapdeal” through the website i.e. www.snapdeal.com which is an online market place. The website is an electronic platform which acts as an intermediary to facilitate sales transactions between independent third party sellers and independent end customers. The website enables independent third party sellers to list, advertise and offer to sell their products and service 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 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.
3(a) The OP No.1 further contended that the sellers are separate entity being controlled and managed by different persons/stakeholders. All the products on website are sold by third party sellers, who avail of the online marketplace services provided by the OP, on terms decided by the respective sellers only. The sellers directly raise invoices to the final customers 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 the OP. The complaint is liable to be dismissed because mis-joinder of parties.
3(b) The OP No.1 further contended that the product purchased by the complainant has not been sold by the Opposite Party and Opposite Party has no role in providing any kind of assurance for the product sold by an independent seller through the website of the OP. The grievance of the complainant is all about the alleged sale and supply of a duplicate product by the seller and not returning a product which was returned by the complainant to seller for quality checks.
3(c) The OP No.1 further contended that the complaint is not maintainable against the OP for any deficiency of service as it is most respectfully submitted that the complainant does not fall under the category of ‘Consumer’ for this OP as OP is neither a ‘trader’ nor a service provider’ as defined under the Consumer Protection Act, 2019 and only a marketplace e-commerce entities and there does not exists any privity of contract between the complainant and the OP. Hence, the present complaint is liable to be dismissed on the ground of mis-joinder of parties.
3(d). The OP No.1 further contended that the different Consumer Forums after analyzing the business model of the OP and the provisions of the law, have held that the OP is an intermediary and not liable for third party transactions on its website. The complainant has not cause of action against this OP and hence the complaint is not maintainable in law.
3(e) The OP No.1 further contended that the OP merely acts as an intermediary between the buyer and the seller and this has been upheld by the Hon’ble National Consumer Disputes Redressal Commission in the case of RP 1422/2016 between Vishal Kotecha V.Snapdeal.com & Anr. Hence, the relief claimed under the present complaint is untenable and unreasonable and the complainant under the circumstances and for the reasons stated is not entitled to claim any of relief of compensation against this OP. Hence, prays to dismiss the complaint.
4. The complainants and OP No.1 have filed their affidavit evidence. The complainant has marked the documents at Ex.P1 to P7.
5. We have heard the arguments from both parties.
1) Whether there is any deficiency in service on the part of OP?
2) Whether complainant has entitled for reliefs sought for?
6. Our findings to the aforesaid points are as under:
Point No.1: Partly in the affirmative
Point No.2: As per the final order
:R E A S O N S:
7. The complainant ordered Bushnell Binocular on 16/08/2020 from Snapdeal and the order was successfully delivered to the complainant respectively and the price for the order is 4,622/-. The complainant after receiving the order form Snapdeal, found that the Binocular sent by the OPs is not original one and it is fake i.e. not as shown by the OP No.1 on its website portal. In this regard a complaint was also lodged with the customer care of the OP No.1.
8. The OP No.1 contended that he does not directly or indirectly sell any products on Sanpdeal Platform and all the products in Snapdeal Platform are sold by third party sellers who avail the online market place service provided by OP No.1 and terms decided by the respective sellers only. The Binocular purchased by the complainant was sold by an independent seller through Snapdeal Platform. Further, the OP No.1 contended that the Binocular was purchased from the third party seller i.e. OP No.2 by the complainant as the complainant filed copy of tax invoice of the product. It is OP No.2 who sold and supplied the product to the complainant. It is also contended that the involvement of OP No.1 is an intermediary only and he is not involved in the entire transaction except of providing the online transaction for the transactions and the concern contracts of sale and purchase in between the sellers and buyers only. The contract of sale is a bipartite contract between the buyer and seller only. As op No.1 is mere intermediary and not the manufacturer or seller of the product sold to the complainant and cannot assume liability for fake product supplied. It is only the seller who is liable towards the complainant for fake product supplied.
9. Perused the evidence on record, it clearly established that the complainant placed the order through Snapdeal for purchase of the said Bushnell Binocular from OP No.2. Even though the receipt issued by the OP No.2, the receipts came from Snapdeal i.e. OP No.1 to complainant. Hence, the Snapdeal stands as co-seller. The OP No.1 is not a mere broker/intermediary as considered in the commercial world, it was acting as a representative/agent of OP No.2 during the negotiation. All transactions took place through the OP No.1 and contract also concluded between the complainant and OP No.2 through OP No.1. The delivery of the Bushnell Binocular to the complainant was also through Snapdeal. Moreover, the payment was made to the Snapdeal and payment also received by the Snapdeal only. Therefore, the OP No.1 is personally and jointly answerable for the supply and delivery of goods and also be liable for the consequences arising out of the breach of contract.
In Emerging India Real Assets Pvt. Ltd. & Ano., V/s Kamer Chand & Ano., R.P.No.765/2016, wherein the Hon’ble National Commission held that “it was the bounden duty of the facilitator to ensure that goods sold through the any individual are manufactured as per quality standard. If the goods purchased through online are found not up-to the mark, online portal through which goods were purchased, cannot escape its liability”. Similar view has taken by the Hon’ble Punjab, Chandigarh State Commission in the following decisions i.e. in Amazon Seller Services Pvt. Ltd. V/s Vishwajit Tapia & Ano. in First Appeal No.544/2019 decided on 03.12.2019 and in Flipkart Internet Pvt. Ltd. V/s Arish Juneja in First Appeal No.321/2019 decided on 22.02.2022.
10. The main allegations of the complainant is that "he received a duplicate product". As complainant stated he placed an order for Bushnell Binocular, but delivered Fake Bushnell Binocular. He got duplicate Bushnell Binocular without accessories and without original bill. The complainant also made other allegations i.e.:
- Low grade pouch,
- Sticker MRP and other stickers shown non quality
- Rusted screws
- Non authenticity of log, model on product/packing
- Origin of Country missing
- Totally wrong built product in the name of Bushnell and poor quality of built
- No item code, HSN Code, BARCODE, QR Code, Manufacturer details
- Clearly visible used marks in and around moving eye pieces.
As per the e-commerce Rules - There is an obligation to disclose the following:-
Every marketplace e-commerce entity shall provide the following information in a clear and accessible manner, displayed prominently to its users at the appropriate place on its platform:
(a) details about the sellers offering goods and services, including the name of their business, whether registered or not, their geographic address, customer care number, any rating or other aggregated feedback about such seller, and any other information necessary for enabling consumers to make informed decisions at the pre-purchase stage:
Provided that a marketplace e-commerce entity shall, on a request in writing made by a consumer after the purchase of any goods or services on its platform by such consumer, provide him with information regarding the seller from which such consumer has made such purchase, including the principal geographic address of its headquarters and all branches, name and details of its website, its email address and any other information necessary for communication with the seller for effective dispute resolution;
11. In view of the above Rules, the OP No.1 is failed to provide the information and thereby violated e-commerce Rules. "Not providing the mandatory information is nothing but deceptive practice which distort the consumer choice. Therefore, as e-commerce portal Sanpdeal/OP No.1 is liable for not mentioning the above information.
12. The complainant claimed Rs.5,00,000/- as compensation although he is not entitled to claim compensation of Rs.5,00,000/-, due to the mindset of the complainant. As complainant admitted, the OPs are ready to refund the price of Binocular, but the complainant refused to accept the refund and return the product to OPs. The complainant has stick-on to the replacement of the original product. However, the complainant is not submitted any evidence to show that he placed the order regarding particulars of the product and received fake binocular and also not disclosed on what grounds he came to conclusion that the binocular supplied by the Ops are fake. Therefore, he is not entitled to claim Rs.5,00,000/- as compensation. It is just and proper to direct the OPs to refund the amount of Rs.4,622/- by receiving the Binocular from the complainant. The OP No.1 is at liberty to send representative to the house of the complainant to collect the Binocular. The complainant is directed to hand over the said product to the representative of the OP No.1 against proper receipt. Accordingly, we proceed to pass the following:-
:ORDER:
The complaint is allowed in part with costs.
The OPs are directed to refund Rs.4,622/- to the complainant by receiving the Binocular from the complainant.
The OPs are further directed to pay Rs.3,000/- as litigation expenses.
Further, the OPs are directed to pay Rs.5,000/- as punitive damages, out of which, Rs.2,500/- shall be payable to complainant and remaining Rs.2,500/- shall be deposited in the Consumer Legal Aid Account of this Commission.
The OPs are further directed to comply the above order within 45 days from the date of receipt/knowledge of this order.
Supply copy of this order to both parties with free of costs immediately.
