Orissa

Debagarh

CC/22/2019

Bidhan Keshari Kapardar, S/O-Samir Kant Kapardar - Complainant(s)

Versus

The Proprietor, OLX - Opp.Party(s)

06 Nov 2019

ORDER

BEFORE THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DEOGARH

C.C. Case No- 22/2019.

Present:-Sri Dipak Kumar Mahapatra, President, Smt. Jayanti Pradhan,

Member(W) & Smt. Arati Das, Member.

Bidhan Keshari Kapardar, aged about 19 years,

S/O- Samir Kant Kapardar,

R/O-At-Baniasahi, Hospital Road, Ward N-03,

P.O/P.S/Dist-Deogarh.

                                                                                                                                             ...      Complainant.

                                                                                 Versus

1. The Proprietor OLX

         A-8/21, First Floorvasant Vihar, New Delhi

         New Delhi District Delhi, India – 110057

2. The Proprietor

          Farhan Enterprises,

         At-Shop No-2, Royal Centre Market,

         Bhagatalav,B/H Janata Market,

         Surat, Gujurat.

3. The Proprietor

         Bigfoot Retails Solutions Private Limited,

         At-Shree Rangavdhut,

         Rangavadhut Soc,Shop No-1,

         Gujurat, Pin-395009

4. The Director,

           Ecom Express Pvt. Ltd.,

          Ground Floor-13/16 min 17 min, Samalka,

         Old Delhi- Gurugram Road, Kapashera,

          New Delhi-110037, India.                                                                                          .… Opposite Parties.

 

            For the Complainant       : -        Nemo.

            For the O.P-1,2&3           :-         None.

            For the O.P.4                    :-         P.C.Mishra & J. Naik, Advocate.

DATE OF HEARING: 28.10.2019, DATE OF ORDER: 06.11.2019.

SMT. JAYANTI PRADHAN (W):-Brief facts of the case is that the Complainant has ordered a mobile handset online after seeing an Advertisement on the Website of the O.P.1 with an offer price of Rs.28,000/-. He has paid Rs. 500/- as advance to the O.P.No.2 and the rest amount of Rs.27,500/- was agreed to pay as Cash on Delivery. After receiving a message from the O.P.No.2, he went to the O.P.No.4 and paid rest amount of Rs.27,500/- and received the parcel,  opened the parcel in the office of O.P.No.4 and found a demo mobile handset of Apple I-phone inside the parcel and he immediately made contact with the O.P.2 but no response was made on that day. But after few days the O.P.2 received the phone call of the Complainant where he has assured to return the entire money (Rs.28,000/-) to the Complainant as early as possible. During cross examination by the Advocate of O.P.4, the complainant stated he has paid the rest amount of Rs.27,500/-  at the office of the O.P.4 in presence of the witness No-1&2 he opened the parcel and found a demo mobile of Apple i-phone. Also he has submitted the receipt with the Forum & witness No-1&2 confirmed the same. But the O.P4 stated that the duty of O.P.4 is only to provide courier service but not verifying the quality, quantity or contents of the delivered item and has no power to replace the order. He is acting as a bridge between the seller and the purchaser. During  the cross examination by the Complainant the witness of O.P.4 Govinda Behera denies all the allegations made by the Complainant as the Complainant has not provide any AWB number and order number in the complaint petition hence he is not responsible for delivery of this products. The O.P.1,2&3 are set-exparte in this case as they did not appear before this Forum.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act.1986?
2. Whether the O.Ps has committed any Deficiency in Service to the Complainant?

From the above discussion and materials available on records we inferred that the Complainant is a Consumer as he has ordered a Mobile handset and paid Rs.28,000/- which is received by the O.P-2. Hence he comes under the purview of Consumer U/S-2(1)(d). Here the role of the O.P.1 is to provide online marketplace platform/technology and or other mechanism/ services to the including mobiles, computers, watches, clothes etc. Also it is inferred that the business of the O.P-1 falls within the definition of an intermediary under section 2(1)(w) of the Information and Technology Act,2000. As an intermediary the O.P-1 is protected by the provisions of section 79 of I.T act-2000.Again there is no privity of contact between the Complainant and the O.P-1.The O.P-1 provides online platform to registered sellers to advertise their goods and the visitors/buyers of the website voluntarily enter into transaction of purchase of various goods from the seller at their own choice and to provide service through its intent portal to interest buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sell and purchase of moveable goods. The O.P.3 is a shipping company; he has received the parcel in sealed condition for shipment through courier services, so he has no scope to know about the contents inside the parcel and has no role in this present case. The role of the Opp. Party No.4 is to deliver the product parcel supplied by the order to the purchase. He has no role in verifying the articles inside on the content of the parcel to be delivered things online.

That the O.P-2 has offered his products to sell online in the marketplace /platform of the O.P-1, so he is responsible for every defect, damage, fake or second hand articles delivered through the courier services. That O.P-2 has knowingly sent the Demo mobile phone in place of an original and genuine one; therefore the Complainant has a right to seek refunds of the price. The O.P-2 has clear control over the products and all transactions regarding the same. Again from the record it is evident that the O.P-2 has not responded to the phone calls of the Complainant even after several contacts to provide right goods or refund of money. The O.P-2 sold or sent wrong item which is different than the ordered item after changing full amount of the product. The matter is well settled in the case of Rediff.Com India Limited vs Ms. Urmil Munjal decided on 11 April, 2013 by the National Consumer Disputes Redressal,Delhi. It shows the ill intension of the O.P-2. The act and conduct of the O.P.-2 leads to Deficiency in Service u/s-2(1)(g) and Unfair Trade Practice u/s-2(1)(r). Hence we order as under:-

 

ORDER.

The complaint petition is allowed in favour of the complainant. The O.P.No.2 is hereby directed to refund the amount of Rs.28,000/- towards the cost of mobile handset received from the complainant and pay an amount of Rs.5,000/- towards compensation, Rs.3,000/- towards the cost of mental pain and agony, Rs.2,000/- towards the litigation cost within 30 days from receipt of this order, failing which , the complainant is at liberty to proceed in due process of law.

            Order pronounced in the open court today i.e. on 06^th day of November, 2019 under my Hand and seal of this forum.

            Office is directed to supply copies of the order to the parties free of cost receiving acknowledgement of the delivery thereof.

I agree,                                              I agree,

 

PRESIDENT.                                   MEMBER.                            MEMBER(W)

                                           Dictated and Corrected

         by me

           

                                                       MEMBER(W)