BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, FATEHABAD.
Complaint no.84/2016.
Date of instt. 16.03.2016.
Date of Decision: 15.05.2017.
Ravi Kumar aged 20 years son of Sh.Balwnt, Caste Jat, resident of village Manawali, Tehsil & District Fatehabad Mobile No.98122-20446/88149-13219.
..Complainant.
Versus
1.Paytm Headqaurters B-121 Sector 5 Noida-201301 India, Phone No.91-1204770770.
2.Parkash Sales Corporation, SCO -75 2nd Floor Opp. Telephone Exchange Sector-12 A, City Gurgaon, State Haryana PIN 122001, phone No.0120-3062244.
..Opposite parties.
Complaint under Section 12 of Consumer Protection Act.
Before Sh. Raghbir Singh, President.
Sh.R.S.Panghal, Member.
Smt.Ansuya Bishnoi, Member.
Present: Sh.Bhal Singh, Advocate for complainant.
Sh.Yogesh Gupta, Advocate for OP No.1.
Opposite party no.2 exparte.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties with the averments that he had purchased a mobile Samsung Galaxy J7 16 GB (Gold) through online shopping having (Item # 1539706901) IMEI/Serial #3562730772299892 vide retail invoice # 23206/000000033013 vide invoice dated 21.01.2016 under paytm order Ref: 1480864146 paytm shipment ID: 1183717232 Sr. No.1 for a sum of Rs.16050/- (Rs.15970/- with shipping charges Rs.80/- levied by Paytm). It has been further averred that said product was delivered without IMIE number through courier with tracking ID 155309216 on 25.01.2016. The complainant was taken by surprise when he opened the box because there was a black stone in it instead of mobile therefore, the complainant prepared video thereof in the presence of one Sajjandeep. It has been further averred that the complainant lodged a complaint to the OPs by way of email vide ticket 00277224, regarding problem in receiving the product, duly received by the OPs with assurance to reply soon. The complainant again approached the OPs on 27.01.2016 but this time also the OPs assured to reply soon. It has been further averred that thereafter the complainant received an email wherein the OPs felt apologize for inconvenience and assured that this issue is being discussed with the merchant and logistics company. The complainant was also asked to fill and sign the disclaimer and to send the same to the OPs which the complainant had sent with complete detail as demanded by them on dated 30.10.2016. The complainant requested the OPs many a times through email either to provide the mobile or to return the cost of mobile but the Ops refused to do the same. The act and conduct of the Ops clearly amounts to deficiency in service on their part. In evidence, the complainant has tendered his affidavit Ex.CW1 and documents Annexure C1 to Annexure C7.
2. On presentation of the complaint, notice of the same was issued to the opposite parties.
3. Opposite party No.1 appeared and resisted the complaint by filing reply wherein it has been submitted that it acts as a common market place to facilitate the sellers to list their goods and buyer’s to access goods from multiple sellers through its website www.paytm.com and the OP No.1 is an intermediary as defined under Section 79 of the Information Technology Act, 2000. The complainant had been using around 197 different customers ids from the multiple IP servers and had been making bulk orders of different goods from the website of OP No.1 which shows that he was re-selling the product in the market probably on a less competitive price in order to earn huge profit. It has been further submitted that the complainant had also raised complaint qua receiving of stones/empty boxes instead of mobile phone against three orders, therefore, on believing the complainant to be bonefide one the OP No.1 had refunded the amount against one order but stopped refunding against rest of two orders as during investigation it came to the notice of OP No.1 that the products were purchased by the complainant for re-selling. The ownership of the goods bought by the customers transfers directly from the merchant to the buyer and at no point the ownership of the goods transferred to the OP. The terms and conditions available in the website of OP No.1 were duly accepted by the complainant at the time of placing his order wherein it has been clearly mentioned that the Op No.1 has no control over the existence, quality, safety or legality of items displayed; the accuracy of third party content or listings; the ability of sellers to sell items; the ability of buyers to pay the items. Therefore, the OP No.1 is not liable for the receipt of wrong product or empty box received by complainant from OP No.2. It has been further averred that being a market place the OP No.1 has specifically informed the buyers on its portal that it is not a warrantor of the products/services being offered on its portal by various sellers/merchants and it was also made clear to the customer that any issue or disputes regarding the warranty, guarantee , quality and service would be addressed either by the manufacturer/service provider or the merchant and the customer would handle such issues and disputes directly with the merchant/manufacturer. It has been further averred that OP No.1 had entered into a market place agreement with OP No.2 who was agreed to sell its products to the users on the platform of OP No.1. The OP No.2 solely would be responsible for making any representations of warranties with respect to the quality of the product to the buyer including all relevant product warranties. It has been further averred that the complainant had order Samsung Galaxy J7 16 GB (Gold) mobile on 21.01.2016 for a sum of Rs.15970/- which was delivered on 25.01.2016. However, the complainant had lodged complaint regarding receiving of stone , therefore, on its demand the complainant had submitted disclaimer form along with the relevant image of the product on 30.01.2016 with undertaking on 01.02.2016. It has been further submitted that as per Section 79 of the Information Technology Act, 2000 the OP No.1 cannot be held liable for any discrepancy done by the seller. There is no deficiency in service on the part of Op No.1. Objections about concealment of material facts from this Forum, cause of action and maintainability of the complaint have also been taken. With these submissions, prayer for dismissal of complaint has been made. The OP No.2 did not appear before this Forum despite issuance of notice through registered cover and was proceeded against exparte. In evidence, the OP No.1 has tendered documents Annexure R1 to Annexure R3.
4. We have heard learned counsel for the complainant as well as learned counsel for the opposite party No.1 and have perused the case file carefully.
15. There is no dispute that complainant had purchased the mobile Samsung Galaxy J7 for a sum of Rs.15970/- (Annexure C1) through online portal (OP No.1) and OP No.2 is the seller of the product. The complainant in support of his averments has tendered his affidavit Ex. CW/1 wherein he has testified all the facts so set out by him in his complaint. According to the complainant, he had received black stone instead of mobile which he had purchased through online portal of OP No.1 from seller-OP no.2. During the proceedings of this case the complainant had produced copies of email (Annexure C2 to Annexure C5) along with his undertaking (Annexure C6) to Op No.1 by him wherein he has specifically mentioned that he had received a piece of stone instead of mobile allegedly purchased by him from Op No.2 through online portal of OP No.1. From the material available on the case file it is ample clear that there is no specific allegations against the Op No.1 because it has acted as intermediary service provider and as per Section 79 of the Information Technology Act, 2000 the service of the Op No.1 is exempted and only the seller is liable for any discrepancy qua the sold product. It is strange that OP No.2 after selling the product in question did not bother to redress the grievance of the complainant forcing him to approach this Forum but the seller/OP No.2 did not appear before this Forum despite notice and remained exparte. The allegations made by the complainant has gone unrebutted, therefore, we have no hitch to reach a conclusion that the present complaint deserves acceptance against Op No.2 only. Hence, the present complaint against OP No.1 is dismissed and allowed against Op No.2 with a direction to refund the price of the mobile in question i.e. Rs.16050/- to the complainant within a period of one month from the receipt of copy of this order. We also direct the OP No.2 to pay a compensation of Rs.2,000/- in lump sum to the complainant for harassment and mental agony etc. This order should be complied within a period of one month, failing which the above said amount of Rs.16050/- will carry interest @9% per annum from the date of order till actual realization and the complainant will be at liberty to initiate legal action against the OP No.2. File be consigned to the record after due compliance. Copy of this order be communicated to the parties free of costs.
Announced in open Forum:
Dt.15.05.2017.
(Raghbir Singh)
President,
District Consumer Disputes (R.S.Panghal)
Redressal Forum, Fatehabad.
Member
(Ansuya Bishnoi)
Member
