Haryana

Kurukshetra

CC/240/2021

Vijay Sraw S/o Sukhbir Singh - Complainant(s)

Versus

Myntra Designs Pvt Ltd - Opp.Party(s)

Asish Deswal

09 Jun 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KURUKSHETRA.

 

                                                                    Complaint No.:    240 of 2021.

                                                                   Date of institution:         18.08.2021.

                                                                   Date of decision: 09.06.2022

 

Vijay Sraw s/o Shri Sukhbir Singh, permanent resident of village Dadupur Head, Tehsil Jagadhri, District Yamuna Nagar and at present residing at H.No.420, Vikasnagar, Red Road, Ladwa, Kurukshetra.

                                                                                                …Complainant.

                                                     Versus

 

1. Myntra Designs Pvt. Ltd., Registered Office located at Buildings Alyssa, Begonia and Clover situated in Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village, Varthur Hobli, Bengaluru-560103, through its Managing Director.
2. PUMA sports India Pvt. Ltd. (NSCM), No.509, CMH Road, Indiranagar, Bangalore-560038, through its Managing Director.

...Respondents.

 

CORAM:   NEELAM KASHYAP, PRESIDENT.    

                   NEELAM, MEMBER.

                   ISSAM SINGH SAGWAL, MEMBER.           

 

Present:       Shri Ashish Deswal, Advocate for the complainant.

                   Shri Shekhar Kapoor, Advocate for Opposite Party No.1.

                   Opposite Party No.2 ex-parte.

 

ORDER:

 

1.                This is a complaint under Section 35 of the Consumer Protection Act, 2019.

2.                It is alleged in the complaint that complainant placed an Online order for one pair of shoes “Puma Unisex White & Grey Colourblocked Scuderia Ferrari Drift Cat 8 Shoes Sneakers” from E-Commerce portal of OP No.1 vide order No.1147999-7226873-0679403 dated 30.07.2020 for Rs.3699/- and made part payment of Rs.1749/- at the time of placing the order and balance amount of Rs.1950/- was paid at the time of delivery of the order. The said shoes were manufactured and sold by OP No.2. The shoes were delivered to him on 05.08.2020 and when he opened the package, he found out that wrong product/pair of shoes were delivered to him by OPs. The shoes was different in description like colour, design etc. from the shoes ordered by him. The colour of shoes delivered was “White-Peacoat”, which was mentioned on the box of the shoes, whereas, the colour of shoes ordered was “White-Grey” as mentioned in the invoice dated 30.07.2020. On the same day, he raised a complaint bearing No.IN20080515421985965775 with OP No.1 regarding deliver of wrong product and requested for exchange/return of the product. As per return/exchange policy of OP No.1, the product can be returned/exchanged within 30 days from the date of delivery. In response to the aforesaid request of complainant, the OPs initiated the exchange process of the product and placed an exchange order bearing No.1148499-4710069-2386703 dated 05.8.2020. It is pertinent to mention here that complainant had kept the shoes in their original condition, unused with all original tags and packaging intact as per the instruction of OPs, but the exchange order dated 05.8.2020 had not been delivered nor did the original order dated 30.7.2020 had been picked up till today. He raised complaints with OP No.1 on 11.8.2020, 15.8.2020 and 18.8.2020 in this regard. The customer care executive of OP No.1 instead of taking any action on the complaints, arbitrarily refused to process the exchange order and refused to refund the money paid by him. He served a legal notice dated 27.8.2020 through his counsel to OP No.1, which was duly received on 03.9.2020, but no reply was given. He had again got served legal notices dated 16.11.2020 to both the OPs, which were delivered by them on 26.11.2020 & 27.11.2020 respectively, but they neither replied the same nor redressed his grievance till today, which is an act of deficiency in service on the part of OPs, due to which, he suffered great mental agony, hardship and financial loss, constraining him to file the present complaint against the OPs.

3.                Upon notice of complaint, OP No.1 appeared and filed its written statement, whereas, OP No.2 failed to appear before this Commission on 04.10.2021 despite issuance of notice upon it through registered post and was proceeded against ex-parte on that date by this Commission.

4.                OP No.1 in its written statements stating therein that Myntra Platform is an electronic sale transactions between independent third party and independent end customers. The independent third party sellers use the Myntra platform to list, advertise and offer to sell their products to the users/buyer who visit the Myntra Platform. Once a buyer accepts the offer of sale of products made by the third party seller on the Myntra Platform, 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 per terms for sale displayed by seller on the Myntra Platform. The OP No.1 falls within the definition of an “intermediary” under Section 21 (1)(w) of the Information Technology Act, 2000. The OP No.1 is also protected by the provisions of Section 79 of the Information Technology Act, 2000. In the instant case, the actual seller of the product is a third-party seller and not OP No.1. Hence, request for replacement/refund made by the complainant cannot be fulfilled by OP No.1. There is no deficiency on the part of OP No.1, so present complaint deserves dismissal.

5.                In support to support his case, complainant tendered affidavit Ex.CW1/A along with documents Ex.C-1 to Ex.C-14 and closed the evidence.

6.                On the other hand, OP No.1 tendered affidavit Ex.RW1/A along with document Ex.R-1 and closed its evidence.

7.                We have heard the learned counsel of the parties and carefully gone through the case file.

8.                Learned counsel for the complainant argued that complainant placed an Online order for one pair of shoes “Puma Unisex White & Grey Colourblocked Scuderia Ferrari Drift Cat 8 Shoes Sneakers” from E-Commerce portal of OP No.1 on 30.07.2020 for Rs.3699/- and made part payment of Rs.1749/- at the time of placing the order and balance amount of Rs.1950/- was paid at the time of delivery of the order. The said shoes were manufactured and sold by OP No.2. The shoes were delivered to the complainant on 05.08.2020 and when he opened the package, found out that wrong product/pair of shoes were delivered to him by OPs. The shoes was different in description like colour, design etc. from the shoes ordered by him. The colour of shoes delivered was “White-Peacoat”, which was mentioned on the box of the shoes, whereas, the colour of shoes ordered was “White-Grey” as mentioned in the invoice dated 30.07.2020. On the same day, the complainant raised a complaint with OP No.1 regarding deliver of wrong product and requested for exchange/return of the product. As per return/exchange policy of OP No.1, the product can be returned/exchanged within 30 days from the date of delivery. It is pertinent to mention here that complainant had kept the shoes in their original condition, unused with all original tags and packaging intact as per the instruction of OPs, but the exchange order dated 05.08.2020 had not been delivered nor did the original order dated 30.07.2020 had been picked up till today. The complainant raised complaints with OP No.1 on 11.08.2020, 15.08.2020 and 18.08.2020 in this regard. He served a legal notice dated 27.08.2020 through his counsel to OP No.1, which was duly received on 03.9.2020, but no reply was given. The complainant had again got served legal notices dated 16.11.2020 to both the OPs, which were delivered by them on 26.11.2020 & 27.11.2020 respectively, but they neither replied the same nor redressed his grievance till today, which is an act of deficiency in service on the part of OPs. To support his contentions, he placed reliance on case law titled Myntra Design Pvt. Ltd. Vs. Monika Thakur, Appeal No.279 of 2019, Date of Institution 18.11.2019, Date of Decision 29.11.2019 by the Hon’ble State Commission, U.T. Chandigarh.

9.                The learned counsel for OP No.1 argued that Myntra Platform is an electronic sale transactions between independent third party and independent end customers. The independent third party sellers use the Myntra platform to list, advertise and offer to sell their products to the users/buyer who visit the Myntra Platform. He further argued that once a buyer accepts the offer of sale of products made by the third party seller on the Myntra Platform, 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 per terms for sale displayed by seller on the Myntra Platform. The OP No.1 falls within the definition of an “intermediary” under Section 21 (1)(w) of the Information Technology Act, 2000. The OP No.1 is also protected by the provisions of Section 79 of the Information Technology Act, 2000. In the instant case, the actual seller of the product is a third-party seller and not OP No.1. Hence, request for replacement/refund made by the complainant cannot be fulfilled by OP No.1. There is no deficiency on the part of OP No.1, so present complaint deserves dismissal.

10.              At the outset, learned counsel for the OP No.1 has taken plea that OP No.1 falls within the definition of an “intermediary” u/s 21 (1)(w) of the Information Technology Act, 2000 and also protected by the provisions of Section 79 of the Information Technology Act, 2000, as such, OP No.1 is exempted from liability for third party information, data or communication link made available or hosted by it at market place platform of OP No.1, therefore, OP No.1 is not liable for any discrepancy, if any, done by the seller i.e. the third party and display of price and subsequent supply of order is the sole responsibility of seller i.e. OP No.2 in the case in hand and prayed for dismissal the present complaint against it. But this Commission does not found this contention of OP No.1 plausible, in view of case law cited (supra) by learned counsel for the complainant titled Myntra Design Pvt. Ltd. Vs. Monika Thakur, wherein, it is held by the Hon’ble State Commission, U.T., Chandigarh that “The Opposite Party cannot escape from its liability stating that it is not the manufacturer of the product and only provides portal for sale, because the Opposite Party allows the companies to project their products for sale on their portal, so it is their legal obligation to keep a check for the rightful delivery of the products sold through their portal services”.  In the case titled Amazon Seller Services Private Limited Vs. Gopal Krishan, First Appeal No.27 of 2017, it is held that “In the said case, it was observed that it was bounden duty of the facilitator to ensure that goods purchased through 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. Further, the contention raised that as per terms and conditions of sale, no liability can be fastened upon the appellant (Amazon), was rejected by this Commission by observing as under:-

                   “8……An agent, who sells a product, is duty bound to ensure its quality, and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, along with the manufacturer of the product. It was so held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Emerging India Real Assets Pvt. Ltd. & Anr. Vs. Kamer Chand & Anr. Revision Petition No.765 of 2016 decided on 30.3.2016”.

11.              So, in the light of above case law laid down by the Hon’ble State Commission, U.T. Chandigarh in the case referred to above, this Commission has no hitch to say that OP No.1, being an intermediary, is also jointly and severally liable for any wrong done by seller i.e. OP No.2 in the case in hand.

12.              From the Tax Invoice Ex.C-1, it is evident that on 30.07.2020, complainant placed an Online order for one pair of shoes i.e. “Puma Unisex White & Grey Colourblocked Scuderia Ferrari Drift Cat 8 Shoes Sneakers” manufactured by OP No.2, from E-Commerce portal of OP No.1, vide order No.1147999-7226873-0679403 dated 30.07.2020 for Rs.3699/- and made part payment of Rs.1749/- and balance amount of Rs.1950/- was paid at the time of delivery.

13.              The grievance of the complainant is that the OPs delivered wrong product to him instead of the original product shown in the website of OP No.1 and in this regard, he placed an order for its exchange/replace, but the OPs had not exchanged/replaced the same till date, which is an act of deficiency in service as well as unfair trade practise on the part of both the OPs.  

14.              To support his contentions, the complainant produced photo/image of shoes which was delivered to him as Ex.C-2 and the image of shoes as shown on the website of OP No.1 as Ex.C-3 and from the comparison of both these images/photos of the shoes, we found that colour and shape of the shoes shown in Ex.C-2 is totally different from the shoes shown in Ex.C-3, as alleged by the complainant. The complainant further produced document Ex.C-4 on the case file, vide which, he made request to the OPs to replace/exchange the said pair of shoes. The complainant also produced Returns and Exchange policy of OP No.1 as Ex.C12. As per that policy, in case consumer/complainant wants to exchange or return the product delivered to him, due to any reason, then in that case, the OPs are duty bound to return/exchange the said product within 30 days from the date of its delivery, but in the case in hand, the OPs did not do so.

15.              The complainant further contended that he served a legal notice dated 28.08.2020 through his counsel to OP No.1 and on 16.11.2020 to both the OPs, which were duly received by them, but no reply was given till today. In this regard, the complainant produced copy of postal receipt dated 28.8.2020 issued to the OP No.1 as Ex.C-5 and copy of legal notice dated 27.08.2020 as Ex.C-6 on the case file. The complainant further produced postal receipts No.2806 and 2807 dated 16.11.2020 and copy of legal notice dated 16.11.2020 in the name of OPs as Ex.C-9 on the case file. Complainant also produced Track Consignment Report as Ex.C10 and Ex.C11 respectively, vide which, the items were shown to be delivered to the addressee.              

16.              The case of complainant was duly supported by his affidavit and documents Ex.C1 to Ex.C14, whereas, on the other hand, the contesting OP No.1 failed to lead any documentary evidence on the case file to deny the same. No doubt, the OP No.1 produced affidavit of Ms. Sheetal Tiwari on the case file as Ex.RW1/A, but in that affidavit, the OP No.1 had only reiterated to the version made into its written statement. In this way, the pleadings and contentions, put forth by the complainant, remained unrebutted and there is no ground to disbelieve the complainant. So, keeping in view the facts and circumstances of the case, we are of the considered view that the OPs, not only delivered the wrong product to the complainant, instead of original product, as shown on their website/Invoice, but also failed to exchange/replace the same with new one, till date, which is an act of deficiency in service as well as unfair trade practise, on the part of the OPs, for which, they are liable to refund the price of the product in question along with compensation and litigations expenses as well to the complainant.

17.              In view of our above discussion, we accept the present complaint against OPs and direct them jointly and severally refund Rs.3699/- the cost price as mentioned in Tax Invoice Ex.C-1, to the complainant, subject to return the shoes in question, by the complainant to the OPs. We further direct both the OPs, jointly and severally to pay Rs.2000/- to the complainant, as compensation for mental agony and physical harassment, caused to the complainant, due to non-resolving his grievance by the OPs, along with Rs.3,000/- as litigation expenses. The OPs are further directed to make the compliance of this order within a period of 45 days from the date of preparation of certified copy of this order, failing which, the award amount of Rs.3699/- shall carry interest @6% simple per annum, from the date of this order, till its actual realization and the complainant shall also be at liberty to initiate proceedings u/s 71/72 of the Act, against the OPs. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost, as per Rules. File be indexed and consigned to record-room, after due compliance.

Announced in open Commission:

Dated:09.06.2022.

 

    

                                                                                        (Neelam Kashyap)               

(Neelam)                    (Issam Singh Sagwal)                   President,

Member.                    Member.                                                  DCDRC, Kurukshetra.           
 

 

 

Typed by: Sham Kalra, Stenographer.