Delhi

North East

CC/128/2015

Sandeep Jain - Complainant(s)

Versus

TV18 Home Shopping Network Limited - Opp.Party(s)

16 Oct 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 128/15

 

In the matter of:

	Sandeep Jain S/o Late Sukhmal Chand Jain R/o D-514/6, Gali No.6, Ashok Nagar, Shahdara Delhi-110093.	Complainant
	Versus
1.             2.           3.	TV18 Home Shopping Network Ltd Through its Manager/ Director/ Partner/  Secretary 503,504 & 507, 5th Floor Mercantile House, 15, Kasturba Gandhi Marg, New Delhi-110001   North India Top Company Pvt Ltd Through its Manager/ Director/ Partner/  Secretary D-18/1, Okhla Industrial Area,                          New Delhi-110020.   Ecom Express Pvt Ltd Through its Manager/ Director/ Partner/  Secretary 52A, Dilshad Garden, Opposite B-Block, Market & PNB Bank, New Delhi-110095.   Also At: C-509, Vardhman Apartment, Plot No.3, Phase-1 Mayur Vihar Extn. New Delhi-110091.	Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION :

13.04.2015 16.10.2019 16.10.2019

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts germane as culled out in the present complaint are that the complainant, through telephonic booking service of online shopping portal – OP1 placed an order for a mobile phone of brand and make Karbonn Titanium S2 Plus – Black vide order no. 957688969 dated 06.11.2014 for a sum of Rs. 5,649/- with payment term Cash on Delivery (COD). The said mobile parcel got delivered on behalf of OP1 and OP2 by OP3’s delivery boy on 07.11.2014 at the complainant’s residence who handed over the said packet/parcel to the complainant but did not allow the complainant to open the parcel before paying COD and assured the complainant that the said parcel was OK. The complainant, believing him made the said payment of Rs. 5,649/- vide invoice No. NITCDRH/DRH/11/2014/3374255. However, when the complainant opened the parcel, he was shocked to see that the parcel did not contain the mobile phone but only its accessories like cover, charger, battery and USB cable meaning thereby either OP1 and OP2 had not sent the mobile phone in the first place or the same was stolen by somebody from OP3. The complainant immediately informed about the said incident to OP1 helpline which registered his complaint vide complaint no. 117520555 dated 07.11.2014 and assured the complainant that action would be taken in the next 48 to 72 hours for the resolution. However, no resolution came forth from OP1. The complainant again contacted OP1 vide e-mail on 12.11.2014 vide which he sent photograph of parcel and invoice to OP1. Thereafter complainant kept following up the status of his complaint with OP1 between November 2014 to January 2015 but OP1 kept on lingering the matter on some pretext to another. In the interim, the complainant also lodged a police complaint on 17.11.2014 with PS Jyoti Nagar, Delhi vide DD No. 39B against OP1 regarding missing mobile phone from online parcel and inaction on its part. Therefore, feeling aggrieved being put to mental agony, harassment due to unfair trade practice and deficiency of service on the part of OPs, complainant was compelled to initiate legal proceedings by way of present complaint against the OPs before this Forum praying for issuance of directions against them to refund the cost of the mobile phone i.e. Rs. 5,649/- with interest @ 18% alongwith damages of Rs. 80,000/- as compensation for mental tension and harassment faced by the complainant due to conduct of the OPs and cost of litigation.

Complainant has attached copy of retail invoice cum order form dated 06.11.2014 issued by OP1 with respect to the subject mobile phone with OP2 as seller thereof and OP3 as the courier agency and copy of police complaint dated 17.11.2014 lodged by complainant with S.H.O. Jyoti Nagar, Delhi.

2. Initially, the complaint was dismissed on admission vide order dated 17.04.2015 in limine as being considered outside the purview of Consumer Protection Act. However, vide order dated 31.07.2015 in FA No. 323/2015 (preferred by complainant) passed by Hon'ble SCDRC remanding the matter back for fresh adjudication on merits as per the Act, the said complaint was admitted and notice was issued on all OPs vide order dated 12.10.2015. All OPs entered appearance.

OP1 filed its written statement in which it took the preliminary objection that vide Service Agreement dated 29.10.2014 entered into between itself as Company and OP3 as Service Provider, OP1 shall not be liable for any loss arising due to shortage, damage etc of Consignments. OP1 relied upon Clause 12 of Scope of Work Annexure -A attached with the said Agreement whereby “the Service Provider shall be liable for any loss arising due to shortage, damage etc of the consignments. However, the maximum liability of the carrier arising out of such loss shall be limited to Rs. 5,000/- or the invoice value of the Consignment whichever is lower in respect of each Consignment. HS 18 shall not be liable to pay charges to the Carrier on Consignments lost by the Carrier.”OP1 admitted the factum of complainant having placed an order of the subject mobile phone through its online shopping network on 06.11.2014 but submitted that it is merely providing service of offering online portal to enable various sellers to showcase their products in India on its website subjecting all accessing it and ordering through it to the Terms of Use detailed in the written statement not repeated here. In pursuance to the said services, the complainant was delivered the said product on 07.11.2014 by OP3 with which OP1 had a Service Agreement as mentioned above. OP1 contended that complainant has not raised any dispute or question regarding deficiency of service against OP1 and stated that its role is only to provide a platform to buyers and sellers to buy and sell through it. OP1 submitted that it had asked the complainant on 27.11.2014 to share the snap shot of the product as well as the copy of FIR with OP1 but the complainant did not do the same. OP1 also submitted that it is neither seller nor manufacturer of service provider of the said product and therefore no way responsible for any deficiency of service or unfair trade practice. OP1 alleged that the complainant deliberately took out the mobile phone from the parcel and then informed OP1 of having received the parcel without mobile phone in it and has failed to produce any cogent evidence to prove that he received the parcel only containing the accessories without the mobile phone showing complainant’s doubtful, mischievous and malafide conduct. On merits, OP1 resisted the complaint by submitting that the Consignment was delivered to the complainant in sealed proof packing untampered when handed over by the delivery boy. OP1 urged that the complainant has not filed copy of e-mail dated 12.11.2014 though admitted that the complainant has approached OP1 on 07.11.2014 and 17.11.2014 through e-mail after which OP1 on 27.11.2014 had asked the complainant to share snap shot of the product which the complainant failed to comply with nor shared copy of police complaint. Therefore alleging that the complainant is not entitled to any relief, OP1 prayed for dismissal of the same. OP1 has attached copy of Terms of Use of its website and copy of Service Agreement dated 29.10.2014 entered into between itself and OP3.

OP2 filed its written statement in which, while admitting the factum of purchase of the subject mobile phone in question purchased by the complainant through online website OP1 with which OP2 was registered as the seller of the said product delivered by OP3 to complainant on 07.11.2014, OP2 stated that the complainant was delivered the said product alongwith the warranty card without any discrepancy / deficiency of service with regard to delivery thereof. In its defence, OP2 urged that its role was only to make timely delivery of the product for which no complaint has been raised anywhere by the complainant with respect to any deficiency in service therein and the complaint has being raised by the complainant on OP1 pertaining to mobile phone not being there in the parcel. OP2 also alleged that the complainant deliberately took out the mobile phone from the parcel and complaint to OP1 of having received parcel without it for which no cogent evidence placed on record by it showing complainant’s doubtful, mischievous and malafide conduct. On merits, OP2 resisted the complaint by submitting that the Consignment was delivered to the complainant in sealed proof packing untampered when handed over by the delivery boy and prayed for dismissal of the present complaint. OP2 has filed copy of retail invoice dated 06.11.2014 for the subject mobile phone sold by it through OP1 and copy of purchase order dated 20.08.2014 alongwith copy of warranty card issued by Karbonn.

Written statement was filed by OP3 in which it took the preliminary objection of non maintainability of the complaint on grounds of OP3 being unrelated party to the sale transaction effected between complainant and OP1 and OP2 except its role being that of a courier agency which delivered the ordered item in intact condition to the complainant as required of it by OP1 in terms of agreement entered into between them and has been unnecessary dragged into this litigation despite being not privy to any deficiency of service or unfair trade practice or fraud or cheating. In its defence, OP3 submitted that it is an E-Commerce focused company providing courier service to E-Retailers, including OP1 who provide Online Market Platform via Digital Media to end Users and these E-Retailers have various sellers registered on the portal to whom they provide online market / sale platform to sell their products to such end users accessing the portal who have an option to either purchase goods on pre-paid or COD basis. OP3 only receives a service fee from OP1 in terms of Service Agreement between them and OP1 avails of the courier services of OP3 to effectuate delivery of ordered items on its portal and all such items have unique AWB number generated by OP1 detailing name of seller, purchaser, amount and product description etc and the cash collected from end users by OP3 in case of COD is remitted directly in account of OP1 and as such OP3 has no share in such consideration collected. OP3 urged that the packaged item of OP1 and OP2, explicitly states a caution to end users not to accept any tempered packaging thereby implying that open packages are not to be accepted. Moreover, as per the terms and conditions on the invoice of each shipment, it is explicitly marked that for any refund/ replacement policy, contact www.homeshop18.com and for any after sale issue contact the ASC of the respective brand i.e. OP1 in the present case and therefore in case of any deficiency in sale/after sale issue, the complainant was required to contact OP1 in view of the said mentioning of the package. OP3 submitted that post delivery, the status is informed by OP3 to OP1 by updating on its portal which was done in the present case to and stated that OP3 collected the consignment in intact condition and delivered the same to the complainant in intact condition and not tempered with which can be well proven by the factum of acceptance by the complainant who signed the POD and therefore OP3 cannot be held liable for any deficiency/ theft/ fraud. Further OP3 contended that it has a principal to principal relationship with each other and OP3 was never an agent of OP1 to be held liable for any packaging / product default and/ or violations on part of OP1 and OP2. OP3 also stated that the complainant is not a consumer of OP3 within the meaning of CPA since neither has he availed of any service from OP3 nor has paid any consideration to OP3 in as much as even the COD consideration collected by OP3 from him was remitted to OP1 and therefore OP3 is under no legal obligation to compensate complainant in any manner whatsoever. OP3 contended that it was only required to effectuate the delivery of ordered item in intact condition to the complainant which it did and stated that it has been accepted and acknowledged by the complainant that OP3 is a courier company and therefore no allegation as to deficiency arising from Sale Transaction on the part of OP1 and OP2 can be attributed to OP3 since after sale issues were required to be notified to OP1. Lastly, OP3 urged that it being a courier service provider to OP1 is not engaged in any unlawful activity or indulged in any unfair trade practice or can be held liable for deficiency of service and therefore prayed for dismissal of the complaint. OP3 has attached sample packaging of OP1 with emphasis on disclaimer to not accept a tampered parcel and terms and conditions on the invoice requiring the buyer to contact the OP1 in case of after sale / delivery issue and copy of online status / track report of consignment delivered by OP3 to the complainant on 07.11.2014 by its delivery boy namely Rishabh Kumar.

3. Rejoinder to the defence taken by all OPs in their respective written statements filed by the complainant in which he reaffirmed the contents of the complaint.
4. Evidence by way of affidavit was filed by the complainant in which apart from the documents  filed / relied upon, complainant placed on record copy of e-mail dated 12.11.2014 written to customer care of OP1 from e-mail ID of Mr. Nitin Jain attaching photographs of the parcel in question with accessories.
5. Evidence by way of affidavit was filed by all OPs reiterating their respective defences and exhibiting the respective documents relied upon.
6. Written arguments were filed by all the parties in reemphasis / reinforcement of their respective grievance / defence taken in pleading file before us and documents relied upon by each one of them.
7. During the course of proceedings the complainant had brought and shown before this Forum the original packing box with accessories with packaging and had submitted that the sticking of the package was loosely done on the area in such a way that “do not accept if the parcel is tampered” was hidden and argued that the package was loosely cello tapped.  
8. We have heard the arguments forwarded by counsel for complainant and OP3 and carefully scrutinized the documents placed on record / relied upon by all parties. After the matter was relisted in 2018, despite issuance of notices to OP1 & OP2 to address oral arguments, both parties failed to appear and address oral arguments. However, pleadings were already complete qua them and shall be duly considered as per the settled law passed by Hon'ble National Commission in Bank of India Vs N V Deoras 1997 (3) CPR 63 (NC) that even if OP is absent, commission / Forum must consider averments in version before passing orders. Therefore the pleadings of OP1 & OP2 shall be taken into consideration while passing orders.
9. We may now advert to the core question giving rise to two material considerations for adjudication:

1. Whether the OPs are guilty of deficiency of service and / or unfair trade practice in keeping with their respective roles and duties / obligations qua the complainant in the online transactions of mobile purchase.
2. Compensation, if any, payable by whom and quantum

10.  To succinctly bring the rival contentions into focus, we have analyzed on appraisal of documentary evidence and pleadings placed before us that undisputedly the subject mobile phone was ordered by complainant through OP1, OP2 being seller thereof and shipped / delivered through OP3 logistic partners/ courier company. Dispute arose on complainant opening the parcel and not finding the mobile in it. OP1 has placed reliance upon the Clause 12 of Service Agreement entered into between itself and OP3 dated 29.10.2014 fixing maximum liability of OP3 upto                    Rs. 5,000/- of any loss arising due to shortage damage etc., of the consignment or the invoice value of consignment whichever lower and OP1 shall have no liability to pay charges for lost consignment to OP3 thereby holding OP3 liable for missing mobile and to make good the loss to the complainant. On the other hand OP3 took the defence assigning culpability of OP1 relying on the sample copy of packaging of OP1 and sample copy of invoice with Terms and Conditions which clearly required the end user to contact OP1 in case of any deficiency in sale / after sale issues and in case of any damaged / defective product, to contact OP1. We have observed that the OP1 has admitted Para 8 of Reply on Merits in written statements that complainant had contacted OP1 on 07.11.2014 (date of delivery of parcel) and complainant has also placed on record email dated 12.11.2014 sent to OP1 with attachments of pictures of the opened parcel with accessories. But OP1 did nothing in this regard in terms of investigation into the matter or taking it up with either OP2 (seller) or OP3 (courier company) despite being under express contractual liability qua the complainant as a service provider to him. OP2 has also filed a rather dismissive written statements more or less adopting the defence taken by OP1 of no deficiency of service made out against it and alleging that complainant may have deliberately taken out the subject mobile phone from the parcel and thereafter alleging not having received in the same in act of fraud. We observe that none of OPs has shown any earnestness or sincerity of purpose or professionalism towards the complainant for redressal of his grievance and have merely made attempts to pass on the onus / burden on to each other to escape and shift liability compelling the complainant to take legal recourse. In terms of the Service Agreement entered into between OP1 & OP3, the liability in such cases falls squarely on OP3 upto Rs. 5,000/- or invoice value whichever is less. In the present case since the cost of mobile was Rs. 5,649/-, the liability of OP3 shall be Rs. 5,000/- in terms of clause of 12 of said agreement. We therefore direct OP3 to pay Rs. 5,000/- to the complainant as damages for the missing mobile. We also find OP1 deficient in service in having failed to address the grievance of the complainant despite being duty bound to do so in terms of express terms and conditions laid down in its refund / replace policy. However, OP1 violated the same and did not investigate the matter with both the other OPs. We therefore direct OP1 to pay a compensation of                   Rs. 4,000/- to the complainant for mental harassment and deficiency of service.  Even the Hon'ble National Commission in the judgment of Rediff. Com India Ltd Vs Urmil Munjaal in RP No. 4646/2012 decided on 11.04.2013 held that responsibility of online shopping company cannot be over after sale of product as it is the bounden duty of the company to satisfy of its customer and it does not give any liberty to it to usurp the money of the consumer by either sending wrong or defective item. We hold OP2 also guilty of deficiency of service as it has failed to establish beyond reasonable doubt that it had indeed shipped the subject mobile phone from its hub or took any measures or resolutions step to redress the grievance of the complainant except filing a cryptic written statement to wriggle out of liability. We therefore direct OP2 to compensate the complainant to the tune of Rs. 1,000/- towards harassment and deficiency of service.  Both issues are decided accordingly. All OPs are directed to comply with the said order within 30 days from the date of receipt of copy of this order.              
11.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
12.   File be consigned to record room.
13.   Announced on 16.10.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member