This case is coming for final hearing on 03.03.2015 in the presence of Sri R.V.Raghavulu Complainant appear in person and of Sri J.Suresh Chandra Reddy & M.V.S.Narayana, Advocate for Opposite Party and having stood over till this date, the Forum delivered the following:

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on

behalf of the Bench)

1.       The case of the Complainant is that he ordered a While iball and 4.5q mobile from the opposite party on 21.02.2013 for an amount of Rs.11,099/- while placing the order by the complainant, the opposite party’s description and displayed had also indicated that the handset is white, when the mobile arrived on 25.02.2013 it was noted by the complainant that the top portion of the mobile is black in colour and bottom is white.  Then, the complainant complained on 26.02.2013 and asked the opposite party to return the mobile by one Mr.M.Tiwari & Mrs Honey Chopra after verifying the details of the order etc.  Thus, the complainant returned the mobile and opposite party informed the complainant that the mobile was received by their end.  Subsequently, on follow up with customer care rigorously Mrs Honey of opposite party called and stated that the mobile is supplied as per the order.  Thus, the complainant sent the opposite party, the website page where it shows in picture the iball and 4.5q was both on top and bottom as white in colour.  But the opposite party failed to acknowledged their fault even after repeated mails and follow up made by the complainant and there is no reply from the opposite parties.  Subsequently, one Sri Pradeep from Opposite party took the call and after some time he also started stating that the mobile sent was as per the order and returned the same mobile which is black top and bottom white colour, though it was informed by the complainant that he has no interest in black top and while bottom mobile.  Thus, the matter took up by the complainant with a party in Delhi M/s Akosha for resolving the complaint and then, he took up the matter with opposite party with their higher ups, but the same is not resolved.  Hence, this complaint to direct the opposite party;

a)      to apologize for all the inconvenience caused to the complainant.

b)      to deliver the handset as was promised as white while placing the order or refund the entire amount paid Rs.11,099/- by taking back the piece by snap deal, including the amount spent for returning the mobile to snap deal as indicated by them in their mail.

c)       to pay Rs.20,000/- towards compensation besides costs of Rs.2,000/-.

2.       On the other hand, the opposite party filed its counter and denied the allegations mentioned in the complaint and pleaded that the complaint is not maintainable as per the provisions of the law.  An online market place is a type of electronic commercial website where product and inventory information is provided by a number of third party sellers.  In an online market place, consumer transactions are processed by online market place operator and then delivered by the participating sellers.  The opposite party does not directly or indirectly sell any products on its website www.snapdeal.com which is an online market place.  Rather, all the products on snap deal website are sold by third party sellers, who avail of the market place services provided by opposite party.  The sellers directly raise invoice to the final customers for the products sold and bear all commercials risks.  The warranty on the products is provided either by the manufacturing companies or by the sellers selling the products on the website.  Thus, in the present case the mobile phone purchased by the complainant was sold by M/s Spinal Tradecome Pvt. Ltd., and not by the opposite party.  Thus, the opposite party acts only as intermediary through its website interface and acts as a medium to various sellers all over India to offer for sale and sell their products to the general public at large.  As per Section-2(w) of the Information Technology Act 2000 defines the term Intermediary as: “With respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes”.  As per Section-79 of the Information Technology At, 2000 provides as under: “Notwithstanding anything contained in any law for the time being in force, but subject to the provisions of sub-sections(2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him”. 

3.       The opposite party pleaded that since product information such as product specifications/images/data etc., displayed by the opposite party on its website at the behest of their third party seller who is offering such product for sale, the opposite party cannot be held responsible or liable for any incorrect product information.  Further more, contrary to the claim made by the complainant, the product display page of the mobile phone purchased by the complainant available on the snap deal website does not any where indicates the product colour as “White”. In Akarsh Vs. Chairman & Director, Ebay India Pvt. Ltd.,  in para-9 of the judgment as observed about the mis-joinder and non-joinder of party and that too as per IT Act, 2000, the opponent is only the intermediary and he is exempted under Section-79 of the said Act and therefore, he is not liable for any of the transactions entered into by the parties through their website except the limited warranty of replacement or refund of value incase of registering the complaint within 30 days as per the terms of the user agreement”.  The complainant failed to implead the manufacturer as one of the opposite party and this opposite party is only an intermediary and the complainant has not made the seller of the mobile purchased by the complainant M/s Spinal Tradecom Pvt. Ltd., as a party to this complaint.  The seller of the mobile phone purchased by the complainant is M/s Spinal Tradecom Pvt. Ltd., is a necessary party since M/s Spinal Tradecom Pvt. Ltd., itself had packed and delivered the mobile phone to the complainant without any intervention on part of the opposite party.  The opposite party also pleaded that as per the terms of use of website from which the complainant had ordered the product sold by the opposite party only the Honourable Consumer Forum situated in Delhi have jurisdiction to adjudicate the present complaint.  The opposite party pleaded that the crux of the present complaint is that the mobile phone delivered to the complainant by the seller was of a different colour than that for which he had ordered through opposite party’s website www.snapdeal.com and the opposite party cannot liable or responsible for the acts of 3^rd party seller which is not managed or controlled by the opposite party in any manner.  Further, more when the complainant alleged that a different product was delivered to him and not which he had ordered, the opposite party had proceeded to return the amount paid by the complainant and already refunded the amount paid by the complainant to purchase the mobile phone from the opposite party’s and the opposite party refunded an amount of Rs.11,099/- on 06.05.2013 to the complainant. The amount was refunded/charged back into the credit card of the complainant which was used to purchase the mobile phone.  Thus, it is absolutely clear that no cause of action has occurred in favour of the complainant herein to prefer the complaint.  Hence, the complaint is to be dismissed.

3.       At the time of enquiry, the complainant not come forward to file his evidence affidavit even after imposing costs, hence it was treated no evidence affidavit for complainant and posted for opposite party’s evidence.  On the other hand, the opposite party filed its evidence and Ex.B1 to B3 are marked.  Opposite party filed its written arguments, but the complainant not filed its written arguments and no representation by him, hence treated no written arguments.  Heard opposite party’s counsel.  As there is no representation by the complainant at the time of hearing even after imposing costs. Treated it heard for complainant and posted for orders.  On 06.02.2015 the matter was suo-motto reopened for marking of documents which were filed by the complainant and Ex.A1 to A.26 are marked and also to hear the opposite party’s counsel for clarification of Ex.B3 and heard opposite party’s counsel and posted for orders. 

4.       In view of the respective contentions, the point that would arise for determination is:-

Whether there is any deficiency in service on the part of the opposite party, if so can the complainant entitle for the reliefs prayed for?

5.       As per Ex.A1 copy of invoice shows that the complainant purchased iball for an amount of Rs.11,099/- on 21.02.2013. Ex.A2 is the mail sent by the complainant on 27.02.2013 regarding the problem and Ex.A3 is the copy screen of shot.  Ex.A4 to A26 are the mail correspondences between the complainant and opposite party.

6.       The version of the complainant is that the opposite party has not sent the mobile which was ordered by the complainant as per the description made by them and the top portion of the mobile is black in colour and bottom is in white which was not ordered by the complainant, then, he returned that to the opposite party and the same was received by them, as he is not interested in back top and white bottom mobile and asked the opposite party to send the white top mobile, but they failed to do so.

7.       The version of the opposite party’s is that being intermediary they are not liable and that too, the product specifications and images displayed by the opposite party on its website and on the snap deal website does not mentioned or indicate that the product colour is white.  Ex.B1 & Ex.B2 are the terms of sale Snap deal.com.  Ex.B3 is the Customer Admin wherein, the 3^rd page shows that the payment mode is credit card EMI and in last column mark Txn as refund details shows that refund amount is Rs.11,099/- and refund comments column is mentioned as “charge back received, amount debited from us”.  Hence, in our view as the complainant already received amount of Rs.11,099/- he was not come forward to contest the matter and not come forward to file his evidence affidavit, as well as written arguments.  As such, as already the complainant received the amount by the opposite party and that too the complainant not added the manufacturer as party, the complaint is not maintainable.  In Akarsh Vs Chairman & Director, Ebay India Pvt. Ltd., Complaint No.410 of 2012 held that “an intermediary who falls under the ambit of Section-2(w) of the Information Technology Act, 2000 is exempted under Section-79 of the same Act from any liability arising from any transaction entered into by any third parties through the intermediary’s website”. Hence the complaint is dismissed.

8.       In the result, the complaint is dismissed. No order as to costs. 

Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 20^th day of March, 2015.

    Sd/-                                                                       Sd/-

Member                                                                 President (FAC)

                                                                   District Consumer Forum-I 

                                                                             Visakhapatnam

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Party:

    Sd/-                                                                       Sd/-

Member                                                                  President (FAC)

                                                                   District Consumer Forum-I

                                                                             Visakhapatnam

//VSSKL//