DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 30th day of June 2023.
Filed on: 11/02/2022
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No.89/2022
COMPLAINANT
Harigovind, S/o Ganesh Kumar, Nandanam, Janatha Road, Palluruthy South, Cochin 682 006.
(By Adv.Thomas Jacob and Adv.Bindu G., X-pert Law Associates, P-20, 2nd Floor, Pure Business Centre, Kompara Junction, Near High Court, Ernakulam)
Vs.
OPPOSITE PARTY
The Proprietor, M/s JJ Pet Zone,No 94.East Coast Nagar, Lakshmsn Perumal Nagar, Chennai 600041 , Road, Kannappa Nagar Chennal -600 041.
(op. rep. by Adv.N.Shalini, Adv.Manju Divyadharsini, Qut.314/3, FACT (CD), Township, Ambalamedu, Ernakulam)
F I N A L O R D E R
D.B. Binu, President.
1. A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The complainant is an engineering student and pet lover filed a complaint against "JJ PETZONE," an online pet food and accessories distributor. The complainant ordered 2x10 kg Smart Heart Powerpack Puppy Dry food on December 22, 2021, with the assurance of free delivery within two days. However, the delivery was delayed, and the opposite stated it that the delay was occurred due to the Christmas holidays. Despite numerous attempts to contact the opposite party, the complainant received no response and eventually sent a legal notice on January 3, 2022. The reply to the legal notice blamed the delivery party and stated that the refund would be issued once the product was returned. After waiting for a considerable period, the complainant realized that they were being cheated. The opposite party had received full payment but made no effort to resolve the non-delivery issue. The complainant suffered a financial loss, mental agony, and had to buy alternative food for their puppy. The complainant seeks a refund or delivery of the ordered product, along with an interest of 10%, and requests compensation for damages amounting to Rs 15,000.
2. Notice
The notice was issued by the Commission to the opposite party. The opposite party received the notice and filed their version.
3.) THE VERSION OF THE OPPOSITE PARTY
On 22-12-2021, the complainant ordered two 10Kgs Smart heart Powerpack Puppy Food with a 10% discount, amounting to Rs. 6,130. The payment of Rs. 5,517 was made via Google Pay. The opposite party deny assuring the delivery within two days and emphasize that they rely on a third-party courier service for deliveries. Due to Christmas holidays and Covid-19 restrictions, there were delays in the courier service picking up the order. The tracking ID was provided to the complainant on 28-12-2021. The opposite party argues that the delivery delay was beyond their control and that they cannot be held liable.
Regarding the incomplete address provided by the complainant, the opposite party claims that the delivery agent was unable to reach the complainant due to this issue. The complainant allegedly admitted in WhatsApp messages that their mobile number was not reachable and attempted to change the delivery contact number, which the opposite party couldn't accommodate. The opposite party asserts that the complainant's legal action was initiated prematurely and deliberately provided an insufficient address to extract money. They claim to have incurred losses due to the complainant's actions and the damaged return shipment.
The opposite party denies engaging in unfair trade practices and states that they are willing to refund the paid amount once the shipment is returned. They argue that the complainant's claim of damages amounting to Rs.15,000/- is irrational. The opposite party highlights that legal action was initiated before the product was returned and mentions the terms and conditions stating that they cannot be held liable for delivery delays. They express their readiness to refund the complainant's payment but state that it was withheld due to the premature legal action. The opposite party accuses the complainant of approaching the commission without clean hands and requests the dismissal of the complaint.
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4) Evidence
The complainant had produced a proof affidavit and six documents that were marked as Exhibits A-1to A-6.
- Exhibit A1: Details of previous order and delivery of puppy food from the opposite party, dated 26/11/21.
- Exhibit A2: Communication details between the complainant and the opposite party.
- Exhibit A3: Screenshots of calls and WhatsApp chat between the complainant brother and the opposite party.
- Exhibit A4: Details of the complainant payment.
- Exhibit A5: Legal notice.
- Exhibit A6: Reply to the legal notice.
The opposite party had produced a proof affidavit and ten documents that were marked as Exhibits B-1to A-10.
- Exhibit B1: Advertisement made by the Opposite Party at the High Court Buildings.
- Exhibit B2: Terms and conditions of the Opposite Party, located at Chennai-104.
- Exhibit B3: Bill of the Complainant, dated 22-12-2021.
- Exhibit B4: Proof of order placement, dated 22-12-2021.
- Exhibit B5: Proof of delivery attempts made on 29-12-21, 30-12-21, 31-12-21, and 02-01-2022.
- Exhibit B6: Proof of return initiation, dated 04-01-2022.
- Exhibit B7: WhatsApp chat screenshot, dated 05-01-2022.
- Exhibit B8: Proof of return received, dated 24-02-2022.
- Exhibit B9: Photographs of the damaged shipment returned on 24-02-2022.
10. Exhibit B10: Bank passbook of the Opposite Party.
5) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
The complainant has filed a case claiming compensation for the deficiency in service provided by the opposite party. The complainant asserts that the service rendered was unsatisfactory and did not meet their expectations.
The learned Counsel for the complainant submitted the seller cannot escape liability by blaming the delivery agent or imposing unfair terms and conditions. Such practices should be stopped, and strict actions should be taken against fraudulent online sellers. The complainant, who paid the full amount and was cheated by non-delivery and non-refund, should be compensated as requested in the complaint. The cost of the complaint should also be allowed in the interest of justice. The complainant made a purchase of 2 packets of 10 kg Smartheart Power Pack Dry Food from the seller, JU PETZONE, on 22/12/2021, and paid the full amount of Rs 5517. The seller confirmed the payment and promised to deliver the product. However, the product was not delivered, and the money was not refunded even after a legal notice was sent. The complainant has submitted six Exhibits as proof, including details of the previous order, communication with the seller, screenshots of calls and WhatsApp chat, payment details, the legal notice, and the reply to the legal notice.
Admitted facts include the acknowledgment of the product order and receipt of funds by the seller, as well as the admission of non-delivery with the blame placed on the courier service. The main questions before the commission are whether there was an unfair trade practice, whether the consumer who paid the full amount was cheated by the seller, whether a refund was made after receiving the legal notice, and whether the seller can be held liable for non-delivery on the courier services.
The seller's contention that they are not responsible for the non-delivery goes against the Consumer Protection Act 2019. The terms and conditions provided by the seller are inconsistent with the law and consumer rights. The concept of 'Caveat Venditor' (let the seller beware) holds the seller responsible for the goods they sell. The new Consumer Protection Act includes provisions to address such cases, including unfair trade practices and unfair contracts. Unilateral contract terms or conditions that absolve the seller of all liability in the event of non-delivery may not be enforceable under Indian law.
Several cases, such as Flipkart Internet Private Limited vs. Dharmpal Satyapal Limited (FAO (OS) No. 540 of 2015) and Jainendra Kumar v. Shakuntala Shukla (First Appeal No. 52 of 2018), have established that unilateral contract terms or conditions that seek to absolve the seller of liability for non-delivery are void and unenforceable. Sellers have a responsibility to provide goods and services of acceptable quality and ensure delivery. Failure to fulfil these obligations may result in liability for damages or losses.
The second allegation that the complainant's address was wrong is proven false by Exhibit A1, which shows the previous order delivered to the same address. The opposite party's communication also confirms the correctness of the address. The claim that a new delivery agent caused the non-delivery is an admission of their mistake. The seller has not provided any call recordings to prove their contact with the complainant for delivery. The seller cannot escape liability for non-delivery and non-refund. They have cheated the complainant, a student depending on their parents' money, and caused mental agony. The liability of sellers for non-delivery has been established by apex courts, as shown in cases like Flipkart Internet Private Limited v. Dharmpal Satyapal Ltd. and Jitendra Kumar sing v. Snapdeal.com.
During the proceedings, the learned Counsel for the opposite party disputed the claims made by the complainant. They argued that the complainant's expectation of receiving the delivery within two days was unfounded, citing the Covid-19 pandemic and reliance on a third-party courier service as reasons for the delay. They claimed that the courier service faced difficulties during the Christmas holidays and due to Covid-19 restrictions. Additionally, they alleged that the complainant provided an incomplete address, preventing the delivery agent from reaching them. The opposite party stated that the complainant admitted in WhatsApp messages that their mobile number was unreachable and attempted to change the delivery contact number, which they could not accommodate. They maintained that the delay and non-delivery were beyond their control, asserting that they cannot be held liable.
Furthermore, the opposite party informed the complainant that a full refund would be initiated upon receiving the returned shipment. They accused the complainant of prematurely initiating legal action and deliberately providing insufficient address details, suggesting an intention to extort money. The opposite party claimed to have incurred losses due to the complainant's actions and the damaged return shipment. They denied engaging in unfair trade practices and expressed willingness to refund the paid amount, which was withheld due to the legal action initiated by the complainant before the product was returned. They argued that the complainant's claim of Rs. 15,000 in damages was unreasonable and requested the dismissal of the complaint with exemplary costs.
In the present case, the complainant, an engineering student and pet lover, filed a complaint against the opposite party, an online pet food and accessories distributor, under Section 35 of the Consumer Protection Act, 2019. The complainant alleged deficiency in service, unfair trade practices, and sought a refund or delivery of the ordered product, along with interest and compensation for damages amounting to Rs 15,000.
Upon reviewing the evidence presented by both parties, it is evident that the complainant placed an order for 2x10 kg Smart Heart Powerpack Puppy Dry food on December 22, 2021, with the assurance of free delivery within two days. However, the delivery was delayed, and the opposite party attributed it to the Christmas holidays. The complainant made several attempts to contact the opposite party but received no response. A legal notice was sent on January 3, 2022, to which the opposite party responded by blaming the delivery party and stating that a refund would be issued upon return of the product. Despite waiting for a considerable period, the complainant did not receive the ordered product or the refund.
The opposite party's version of the events raises certain defines. They claimed that the delivery delay was due to the Christmas holidays and Covid-19 restrictions, which affected the courier service they relied upon. They further alleged that the complainant provided an incomplete address, making it impossible for the delivery agent to reach them. The opposite party denied engaging in unfair trade practices, asserted their willingness to refund the payment, and accused the complainant of prematurely initiating legal action and intentionally providing an insufficient address.
Upon consideration of the facts and legal provisions, it is established that the complainant has made a valid complaint against the opposite party. The opposite party's attempt to shift the blame onto the delivery agent is inconsistent with the Consumer Protection Act, 2019.
The Consumer Protection (E-Commerce) Rules, states that sellers are responsible for ensuring the delivery of goods to consumers. The opposite party's attempt to shift blame onto the courier service is inconsistent with the legal obligations imposed on sellers.
Furthermore, the opposite party's claim of an incomplete address is contradicted by Exhibit A1, which demonstrates that a previous order was successfully delivered to the same address. The opposite party's own communication also confirms the correctness of the address. Therefore, their assertion that a new delivery agent caused the non-delivery is an admission of their own mistake. Sellers have a responsibility to provide goods and services of acceptable quality and ensure delivery. Failure to fulfil these obligations may result in liability for damages or losses.
According to Section 6(1) of the Consumer Protection (E-Commerce) Rules, sellers on marketplace e-commerce platforms are prohibited from adopting unfair trade practices. In the case at hand, the complainant accused the opposite party of engaging in unfair trade practices by failing to deliver the ordered product and refusing to provide a refund. The opposite party attempted to shift blame. However, their actions are in violation of the duty imposed on sellers by the Consumer Protection (E-Commerce) Rules. The failure to deliver the product and refusal to refund constitute unfair trade practices that are disadvantageous to consumers. Based on Section 6(1) of the Rules, the opposite party is found to be in violation and the complainant is entitled to remedies, including a refund and compensation for damages suffered. This decision aligns with the aim of the Consumer Protection (E-Commerce) Rules to protect consumer rights and ensure fair business practices in online transactions.
Considering the evidence and legal precedents, it is evident that the complainant has suffered a financial loss, mental agony, and inconvenience due to the non-delivery and non-refund by the opposite party. The opposite party has failed to provide any satisfactory explanation for their actions and has not demonstrated a valid defense against the complainant's claims. Therefore, the complaint is maintainable, and the complainant is entitled to relief from the opposite party.
In view of the above facts and circumstances of the case, we are of the opinion that the Opposite Party is liable to compensate the complainant.
We find the issues Nos. (i) to (iv) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite party. Naturally, the complainant had suffered a lot of inconveniences, mental agony, hardships, financial loss, etc. due to the negligence on the Opposite Party.
Hence it the prayer is partly allowed as follows:
- The Opposite Party shall refund the full payment of Rs. 5,517 made by the complainant for the ordered product.
- The Opposite Party shall pay the compensation of Rs. 10,000, considering the financial loss, mental agony, and inconvenience suffered by the complainant.
- The Opposite Party shall also pay to the complainant Rs.5000/- towards the cost of the proceedings.
The above-mentioned directions shall be complied with by the Opposite Party within 30 days from the date of the receipt of a copy of this order failing which the amount ordered vide (i) and (ii) above also shall attract interest @9% from the date of receipt of a copy of this order till the date of realization.
Pronounced in the Open Commission on this 30th day of June 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
Order
Assistant Registrar
Appendix
Complainant’s Evidence
- Exhibit A1: Details of previous order and delivery of puppy food from the opposite party, dated 26/11/21.
- Exhibit A2: Communication details between the complainant and the opposite party.
- Exhibit A3: Screenshots of calls and WhatsApp chat between the complainant brother and the opposite party.
- Exhibit A4: Details of the complainant payment.
- Exhibit A5: Legal notice.
- Exhibit A6: Reply to the legal notice.
The opposite party had produced a proof affidavit and ten documents that were marked as Exhibits B-1to A-10.
- Exhibit B1: Advertisement made by the Opposite Party at the High Court Buildings.
- Exhibit B2: Terms and conditions of the Opposite Party, located at Chennai-104.
- Exhibit B3: Bill of the Complainant, dated 22-12-2021.
- Exhibit B4: Proof of order placement, dated 22-12-2021.
- Exhibit B5: Proof of delivery attempts made on 29-12-21, 30-12-21, 31-12-21, and 02-01-2022.
- Exhibit B6: Proof of return initiation, dated 04-01-2022.
- Exhibit B7: WhatsApp chat screenshot, dated 05-01-2022.
- Exhibit B8: Proof of return received, dated 24-02-2022.
- Exhibit B9: Photographs of the damaged shipment returned on 24-02-2022.
10. Exhibit B10: Bank passbook of the Opposite Party.
