By Sri. MOHANDASAN.K, PRESIDENT 1. Complaint in short is as follows:- The complainant bought two water filters from the first opposite party and it is to be delivered to the complainant on 27/03/2019. But the complainant received only one unit of water filter. The second unit was missing and when it was asked with the third opposite party, it was told that the second water filter will be delivered to the complainant within few days, which might have been sent from another supplier. So, the complainant waited for two more days and later he complained that he received only one unit on 30/03/2019. While the complainant called the company they said to the complainant that, he had not reported the missing of water filter within two days. But the complainant submits that, he complained 6hours later of the said period of two days. The complainant submitted that the GATI personal stated to the complainant they did not receive two items from the supplier itself. They had sent a proof of delivery note obtained from the computer. The same reveals that there is only one unit sent and not two, for which the complainant had paid Rs. 8000/-, which is the cost of two units and the complainant mailed so many times stating that he received only one unit of water filter. The complainant submitted that, he contacted several times but the opposite party did not heed to the request of the complainant. The complainant submits that,he contacted the opposite party more than 50 occasions. The complainant lost his time and energy and which caused mental agony also. Hence the complainant pray for compensation of Rs. 1,00,000/-. 2. On admission of the complaint notice was issued to the opposite parties and the opposite party entered appearance. The first opposite party filed version contenting non joinder of necessary party and accordingly the complainant has taken steps to implead opposite party No.2 &3. Notice to op No.2 and 3 were delivered duly but the notice stand returned with endorsement the addressee left. Hence opposite parties No.2 and 3 set exparte. 3. The first opposite party filed detailed version, disputing the entire averments and allegation contained in the complaint. According to first opposite party the complaint is wrong and devoid of merit. It is submitted that the product was not sold by the opposite party to the complainant. The first opposite party acts like an intermediary which brings sellers and buyers together, enabling goods to be marketed and sold. It is further submitted that no point of time they vends, creates, manufacturers, owns or provides the goods that are sold on its website, it merely acts as a conduit where a seller puts forward his goods for sale and the same can be viewed by any potential customer. It is further submitted that the contract of sale of the product is a bipartite contract entered into between the complainant and the seller and there is no privity to the contract. 4. The opposite party submitted that the complainant had placed the request regarding return of the missing product on 30/03/2019 that is two days after the delivery of the product. The submission of the opposite party is that as per the Return and Replacement Policy of the opposite party, it is stated that “in case of Damaged /Missing product, the return request should be filed within two days of delivery.”Hence, the opposite party was under no obligation to fulfil the request of the complainant. The complainant has approached the Forum with unclean hands and malafide intention, with the sole intention of harassing the opposite party. The prayer of the opposite party is that, the complainant was not delivered any products by the opposite party and so there is no reason to allege deficiency in service on the part of the opposite party and no cause of action arise against the opposite party. The opposite party neither sold any product to the complainant nor provided any service to the complainant in lieu of consideration and therefore, is not governed and/or liable under the Act. 5. In addition to the above stated specific denial by the opposite party, the opposite party submitted preliminary submissions before the Commission as follows:- 6. The complaint is fully mis-conceived, baseless, un sustainable in law and devoid of any merit and is nothing but an abuse of the process of the law, thus liable to be dismissed under the Consumer Protection Act 1986. The opposite party submitted that the seller of the product is “Shiner India “ having its office at B-347, G.D Colony, Mayur Vihar, Ph-III, New Delhi-110096 and Gati Packers and Movers Private Limited having its registered Office at C-132 Pachhya Mohalla, Khasra No.22 Chhawla extension. West Delhi, New Delhi -110071 are necessary party in the complaint. Hence the opposite party requests the complainant to implead “Shiner India” and Gati Packers and Movers PVT Limited as opposite party No.2 and 3 in the complaint. The opposite party further submitted that they are, a company duly incorporated under the Companies Act, 1956 having its registered office at Plot No.112, Sector 44, Gurugram, Haryana-122003 and engaged in the business of e-commerce and online market place where sellers/retailers and customers/buyers get a common platform for selling any buying product respectively through its website and mobile application known by the brand and style of www.shopclues.com. It is an online market place which enables merchants to sell their products online and enables users to shop for various products. 7. The opposite party admitted that the complainant purchased two Aqua Novo 12 litre water purifier worth Rs. 7925/- from the seller on 16/03/2019 and the product was duly delivered to the complainant on 27/03/2019. The opposite party had merely facilitated the purchase of the product by displaying the product details and providing the clear and unbiased information about the products. Opposite party efforts are focused to offer unbiased, accurate, and responsible data to the best of their ability. The opposite party at no point in time is responsible for selling package in or delivery the product to customers. These activities are conducted by the seller and third party logistics service provider. As per the business of opposite party the product is offered for sale by the merchants, once an order in place the same is packaged by the merchant and is picked up by the courier service provider and is delivered to the customer. It is submitted that the role of first opposite party is limited to that of a conduit or a platform where sellers and buyers meet to conduct a transaction. 8. The opposite party submitted that the complainant raised a complaint with the opposite party on 30/03/2019 at about 18.11 hours , that the only one Aqua Nova 12 litre water purifier was received by him and he had ordered for two Aqua nova 12 water purifier. In response, it was sent reply dated 03/04/2019 and that as per the return policy of the complainant should be reported within two days of order delivery. The complainant did not raise his issue within two days and so the case was rejected from the end of opposite party. 9. The complaint raised by the complainant was addressed by the Customer Support Centre Team of opposite party on 03/04/2019 at about 11.05 hours where in the opposite party communicated to the complainant that the product had been delivered to the complainant on 27/03/2019 and the complainant registered the complaint on 30/03/2019. The opposite party further informed the complainant that as per Shop clues return policy, the request for return/replacement of missing / damaged /empty products is accepted within two days of delivery which is already over. 10. The opposite party submitted that the complainant placed the complaint on 04/05/2019 for the return of the product to the Shopclues Customer Support Service. That complaint also was addressed by Shopclues Customer Support Team, where in the complainant was again communicated on 04/05/2019, the product have been delivered to the complainant on 27/03/2019, however, the complainant registered this complaint on 30/03/2019 and as per the policy of the opposite party , the request for return/ replacement of missing /damaged /empty products is only accepted if placed within two days of delivery. 11. The opposite party is web aggregator and it is an intermediary between the merchants and the customers and it does not have any inference in the modus operandi or working of merchants and the liability or any product purchased by any user. The opposite party is merely a facilitator where the merchants and the customers meet and it markets the product by displaying the description of the product sold by the merchants regulated under the applicable laws in India in order to help the user make an informed choice while purchasing any product. The opposite party one is included within the definition of an intermediary under the IT Act 2000. The role of the first opposite party is that of a passive intermediary wherein the platform is engaged in optimising the reach of the content to the users about the commodity /product for sale. In case, further submitted that the website of opposite party clearly mentions in its ‘user agreement’ under the heading “use of the website “that opposite party is merely an intermediary providing the hosting service. The opposite party submitted that the role of opposite party was limited to extent of facilitating the complainant by providing various options of similar products for the complainant to choose from. Opposite party has no role to play in complainant choice of the product or the merchant, he chooses to buy the product from or the terms and conditions of the contract of sale agreed between complainant and the seller. The opposite party is merely an intermediary and any sale of product is bipartite contract between the customer and merchant. 12. The complainant had used the services of opposite party’s website means the complainant has also read, understood and accepted the terms and conditions of the “user agreement “and therefore cannot hold opposite party liable for any fault. In a market place model like that of the opposite party any warranty /guarantee of goods and services sold will be the responsibility of the seller and not that of the online platform provided like the opposite party. The opposite party submitted that the complainant purchased the product from the seller which is an independent merchant and the same is also clearly an exemption under the IT Act 2000. 13. The submission of the opposite party is that the opposite party provides a platform which brings sellers and buyers together, enabling goods to be marketed and sold. The opposite party at no point of time vends, creates, manufactures, owns or provides the goods that are sold on its website is merely acts as a conduit where a seller puts forwards his goods for sale and the same can be viewed by a potential customer. The opposite party only provides the services of an online market place where buyers and sellers interact and complete purchases. Hence the allegations of the complainant are completely misplaced and do not constitute a valid cause of action against the opposite parties. 14. The opposite party submitted that the complaint is not maintainable against the opposite party since the opposite party has not charged any consideration or his services provided by it to the complainant. The Consumer Protection Act excludes those services which are offered free of charge from his services against which compensation for any deficiency can be claimed. The opposite party has not sold defected /missing product and so the complaint is not maintainable against the opposite parties. 15. The opposite party is a web aggregator and it is an intermediary between the merchants and the customers and it does not have any interference in the modus operandi or working of merchants. The complaint not disclosing relevant facts and events clearly shows that the complainant approached the Forum with a malafide intention and to harass the opposite party. The complainant indulged into illegal acts and conducts amounting to over reaching the Forum and causing obstruction in administration of justice by the Forum in terms of the law laid down by the Hon’ble Apex Court. 16. So, the submission of the opposite party is that the term of the “returned and replacement policy” regarding the placing of the request for return of the missing products within two days of delivery is an unambiguous, conveying a clear meaning that, if any request for the return of the missing product is placed after two days of delivery of the product, the opposite party has not been responsible to fulfil the request. Hence opposite party is not liable for not fulfilling the return request of the complainant. The complaint is liable to be dismissed with cost as against the first opposite party for want of any cause of action and for abusing the process of law. 17. The complainant filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A16. The documents on the side of first opposite party marked as Ext. B1 to B6. Ext. A1 is printed copy of communication from the opposite party through online site regarding order shipped nil dated. Ext. A2 is copy of email message from the opposite party to the complainant dated 30/03/2019 and from complainant to the opposite party dated 03/04/2019. Ext. A3 is copy of email from the opposite party to the complainant dated 03/04/2019 and also 06/04/2019. Ext. A4 is copy of communication from the complainant to the opposite party dated 01/05/2019 and 6/05/2019. Ext.A5 is the copy of email from the opposite party to the complainant dated 04/05/2019 and from the complainant to the opposite party dated 6/5/2019. Ext. A6 is the copy of communication from the opposite party to the complainant dated 07/05/2019 and the message from complainant to the opposite party dated 24/5/2019. Ext. A7 is copy of communication from the opposite party to the complainant dated 24/5/2019 and dated 31/05/2019.Ext. A8 is copy of communication from complainant to the opposite party dated 31/5/2019. Ext. A9 is the copy of communication from the opposite party to the complainant dated 12/06/2019 and 15/06/2019. Ext. A10 is the copy of email communication from the complainant to the opposite party dated 20/06/2019. Ext.A11 is copy of email communication from the opposite party to the complainant and communication from the complainant to the opposite party dated 22/06/2019.Ext.A12 is copy of email communication from the opposite party to the complainant dated 31/05/2019. Ext.A13 is the copy of email communication from the opposite party to the complainant dated 20/06/2019 and also copy of email communication dated 24/06/2019. Ext. A14 is copy of email communication from the complainant to the opposite party. Ext. A15 is the copy of email communication dated 26/06/2019 from the complainant to the opposite party. Ext. A16 is the photocopy of tracking (ICE) docket No. 548903616. Ext. B1 is copy of extract of the minutes of the meeting of the Board of Directors dated 08/04/2019. Ext. B2 is the copy of docket or shipment of articles. Ext. B3 is copy of complaint from the side of complainant to the opposite party dated 30/03/2019.Ext.B4 is the copy of reply from the opposite party to the complainant dated 3/4/3019. Ext. B5 is the copy of user agreement shopclues. Ext. B6 is the copy of press note No.3 of the Ministry of Commerce and Industry Department of industrial policy and promotion / Government of India/ Guidelines for Foreign direct investment on Ecommerce(FDA) . 18. Heard complainant and opposite party. Perused affidavit and documents. The complainant filed argument notes also. The following points arise for consideration: Whether there is deficiency in service on the part of the opposite parties? Relief and cost?
19.Point No.1 and 2:- The case of the complainant is that, he purchased two water filters from the first opposite party and it is expected to be delivered on 27th March 2019. On that day he received one unit. While he asked about the missing of second one, the parcel service personal said to him that it will be delivered within few days which might have been sent from another supplier. So the complainant waited for two days and later complaint on 30th March 2019. But the first opposite party said to him that the complainant should have been reported the non-delivery of the article within two days, but he reported non delivery after two days. Thereafter the complainant regularly contacted the opposite party, since he was delivered only single unit of water filter. The complainant debited the cost of two water filters Rs. 8000/-, hence this complaint. 20. The second and third opposite parties impleaded as parties to the complainant on the basis of contentions raised by the first opposite party. The notice to the second and third opposite parties returned stating various reasons. The notice to second opposite party returned stating addressee left. The notice to the 3rd opposite party returned no such addressee. Hence the opposite parties second and third declared exparte. The first opposite party filed version and affidavit contenting that the complaint is not maintainable and the opposite party is only a market place and there is no privity of contract between the complainant and first opposite party and the complainant availed service of the first opposite party duly understanding the user agreement Ext. B5 and so no complaint will lie against the first opposite party. The complainant independently purchased the product from the second opposite party and if at all any cause of action that is to be raised against second and third opposite parties. Moreover, the first opposite party is contented that as per Ext. B5 it is prescribed the complainant has to register the complaint with the opposite party within 48 hours of delivery. 21. Now the issue is to be considered is whether the first opposite party is exonerated from the responsibility towards the buyer of a product from the market place and whether the delay occurred in reporting complaint to the opposite party has got material impact in not rendering the service required in the matter. 22. The complainant filed this complaint against the first opposite party believing that the product was purchased from the first opposite party and during the process before the Commission, he came to know the seller as well as delivery agent is to be party to the proceedings and accordingly, he made them supplemental second and third opposite parties as contended by the first opposite party. The complainant has taken earnest effort to deliver notice to the supplemental opposite parties but he could not succeed. The complainant is none other than a person working as Programme Officer, Department of Life Science, University of Calicut. The contention of the opposite party that the complainant bought the product from the second opposite party after understanding the averment of Ext. A5 document is not proved one. The opposite party has not proved the complainant placed the order after accepting the Ext. B5 terms and conditions. The complainant can be treated as a bonefide purchaser of the goods from the first opposite party and so he preferred this complaint against the first opposite party. The first opposite party in turn never stated that the complainant has to approach the seller with the grievance during the communication between them. The first opposite party said to the complainant that there is delay in reporting complaint of certain hours which disentitled the complainant from availing service from the opposite party. The contention of the first opposite party is absolutely baseless and against the interest of consumer and the legislation. The specification of time is not meant minutes and seconds but, reasonable time is the essence of prescription of time limit. Moreover, the condition states that the complaint should be filed within two days of delivery. But in this case the grievance is not against the article, but the issue is non delivery of article. So, the question of complaint to be filed within two days does not arise since the issue involved is non delivery of ordered article. The complainant placed orders for two water filters but the complainant was delivered single water filter. The complainant duly informed the first opposite party about his non delivery of the water filter. Moreover the complainant stated that the courier personal said to him that the other water filter will be delivered to the complainant since it might have booked with another agency. So, it is quiet natural to avail a breathing time to prefer complaint that too one day is not at all an unreasonable period of time. Ext.2 produced the complainant reveals the regular communication with the first opposite party , but nowhere it is asked the complainant to approach the second opposite party for the redressal of the grievance. So it is not acceptable the contention of the opposite party that they are only market place and they do not have any liability towards the buyer who purchased articles from the first opposite party market place. 23. The complainant produced documents to establish that he placed order for two water filter and the third opposite party delivered single package contains single water filter to the complainant. It is a definite case of unfair trade practice and deficiency in service on the part of the opposite parties and they are liable to compensate the complainant duly. 24. The complainant remitted Rs. 8000/- towards the water filter and so the value of the non-delivered water filter is Rs. 4000/-. The opposite parties are liable to refund the cost of water filter to the complainant. It is also to be noted that the complainant submitted that the complainant booked these two water filters to use for the students who are part of National Service Scheme. Due to the non delivery of the product, the complainant might have suffered a lot of inconvenience and hardships. The complainant appeared before this Commission in person to get redress his grievance, so is entitled a reasonable amount of compensation as well as cost of the proceedings. We allow Rs. 50,000/- compensation to the complainant on account of deficiency in service and unfair trade practice committed by the opposite parties and there by caused in conveniences and hardship to the complainant. We also allow Rs. 10,000/- as cost of the proceedings. 25. It appears the first opposite party is the market place as admitted and being impressed by the online site the complainant approached the first opposite party and the second opposite party is being the seller of the product as stated by the first opposite party is liable to ship the ordered article to the complainant. In case of non-delivery of the placed order, both the first and second opposite parties are liable to the complainant. So, we find the first and second opposite parties are liable to compensate the complainant. The complainant further submitted that the personal of third opposite party had told him that single package was booked with them and it has been delivered to him. He has produced Ext.A16 to establish the same. 26. In the light of the above facts and circumstances, we allow this complaint as follows: - The first and second opposite parties are directed to pay compensation of Rs. 50,000/- (Rupees Fifty thousand only)to the complainant for the deficiency in service and unfair trade practice and thereby caused inconvenience and hardship to the complainant. The first and second opposite parties are directed to refund Rs.4000/- (Rupees Four thousand only) to the complainant as the cost of single water purifier. The first and second opposite parties are directed to pay Rs. 10,000/- (Rupees Ten thousand only) as cost of the proceedings.
The first and second opposite parties are directed to comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled to interest for the above said amount of Rs. 64,000/- till date of payment. Dated this 17thday of March, 2023. MOHANDASAN K., PRESIDENT PREETHI SIVARAMAN C., MEMBER MOHAMED ISMAYIL C.V., MEMBER APPENDIX Witness examined on the side of the complainant : Nil Documents marked on the side of the complainant : Ext.A1to A16 Ext. A1 : Printed copy of communication from the opposite party through online site regarding order shipped nil dated. Ext. A2 : Copy of email message from the opposite party to the complainant dated 30/03/2019 and from complainant to the opposite party dated 03/04/2019. Ext. A3 : Copy of email from the opposite party to the complainant dated 03/04/2019 and also 06/04/2019. Ext. A4 : Copy of communication from the complainant to the opposite party dated 01/05/2019 and 6/05/2019. Ext.A5 :Copy of email from the opposite party to the complainant dated 04/05/2019 and from the complainant to the opposite party dated 6/5/2019. Ext. A6: Copy of communication from the opposite party to the complainant dated 07/05/2019 and the message from complainant to the opposite party dated 24/5/2019. Ext. A7 :Copy of communication from the opposite party to the complainant dated 4/5/2019 and also dated 31/05/2019. Ext. A8: Copy of communication from complainant to the opposite party dated 31/5/2019. Ext. A9 : Copy of communication from the opposite party to the complainant dated 12/06/2019 and 15/06/2019. Ext. A10 : Copy of email communication from the complainant to the opposite party dated 20/06/2019. Ext.A11 : Copy of email communication from the opposite party to the complainant and communication from the complainant to the opposite party dated 22/06/2019. Ext.A12 : Copy of email communication from the opposite party to the complainant dated 31/05/2019. Ext.A13 : Copy of email communication from the opposite party to the complainant dated 20/06/2019 and also copy of email communication dated 24/06/2019. Ext. A14 : Copy of email communication from the complainant to the opposite party. Ext. A15 : Copy of email communication dated 26/06/2019 from the complainant to the opposite party. Ext. A16: Photocopy of tracking (ICE) docket No. 548903616. . Witness examined on the side of the opposite party : Nil Documents marked on the side of the opposite party : Ext. B1 to B6 Ext. B1 : Copy of extract of the minutes of the meeting of the Board of Directors dated 08/04/2019. Ext. B2 : Copy of docket or shipment of articles. Ext. B3 : Copy of complaint from the side of complainant to the opposite party dated 30/03/2019. Ext. B4 : Copy of reply from the opposite party to the complainant dated 3/4/3019. Ext. B5 : Copy of user agreement Shopclues. Ext. B6 : Copy of press note No.3 of the Ministry of Commerce and Industry Department of industrial policy and promotion / Government of India/ Guidelines for Foreign direct investment on Ecommerce(FDA) MOHANDASAN K., PRESIDENT PREETHI SIVARAMAN C., MEMBER MOHAMED ISMAYIL C.V., MEMBER | 
