State Consumer Disputes Redressal Commission
One 97 Communications Ltd. vs Deepak Garg on 6 December, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.905 of 2016
Date of institution : 02.12.2016.
Date of reserved : 22.11.2017.
Date of decision : 06.12.2017.
One97 Communication Limited (PAYTM) (through Managing
Director and Authorized Representative), B-121, Sector -5, Noida-
201301 (U.P.).
....Appellant/Opposite Party No.1.
Versus
1. Deepak Garg, son of Sh.Charan Pal Garg, r/o Gaushala
Road, Sangrur (Pb.).
....Respondent No.1/Complainant.
2. Infinity Infomatic (P) Ltd. through its Managing Directors, 20,
Dobson Road, Shri Niketan Building, 5th Floor, Howrah, West
Bengal-711101.
3. Hemant Kumar Sethi, Director (Infinity Infomatics), C-401,
Sarswati Apartments, Plot No.97, I.P.Extension, Patparganj,
Delhi - 110092.
4. Jayant Jain Sethi, Director (Infinity Infomatics) Room
No.345, Plot No.25/31 Lalmani CHSL, Dr.A.M.Road,
Bhuleshwar, Mumbai-400002.
...Respondents/OPs.
First Appeal against the order dated
21.10.2016 of the District Consumer
Disputes Redressal Forum, Sangrur.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the appellant : Sh. Vivek Sethi, Advocate For respondent No.1 : Ex-parte For respondent No.2 : Service dispensed with vide order dated 07.07.2017.
First Appeal No.905 of 2016 2
MRS. KIRAN SIBAL, MEMBER
The instant appeal has been preferred by the
appellant/opposite party No.1 to challenge therein order dated 21.10.2016 passed by District Consumer Disputes Redressal Forum, Sangrur (for short, "the District Forum"), whereby the complaint filed by respondent No.1/complainant, under Section 12 of the Consumer Protection Act, 1986 (for short "the Act"), was allowed and OPs were directed to provide the apple iphone 6 (16-
GB space Grey) to the complainant at `60/- only and further to pay a consolidated amount of compensation and litigation expenses to the tune of `2,000/- only.
2. It would be apposite to mention that hereinafter the parties will be referred to, as have been arrayed before the District Forum.
Facts of the Complaint
3. The factual matrix of the matter in brief, as averred in the complaint, are that the complainant placed an order of Apple iphone 6 (16 GB -space Grey) with the OP No.1 on 09.03.2016 vide order number 1590099476 under the offer of the OP No.1. The cost of the mobile set in question was `52,000/- and there was a discount of `51,965/- on the same, as such, he was to pay an amount of `35/- only with other charges in this way, he had to pay an amount of `60/- only. It was further stated that the OP No.1 assured that they will dispatch the product on 9.3.2016 and the First Appeal No.905 of 2016 3 same would be delivered within 8/9 days. It was further stated that the said amount was paid by him from the account of his cousin brother Rakesh son of Tarsem Chand bearing account number 30764486101. It was further stated that he received an email dated 10.09.2016 from the OP No.1 vide which his order was cancelled. He requested OP No.1 number of times to deliver the product, but all in vain. He also alleged that OP No.2 as the merchant was equally liable for the negligence and unfair trade practice. Thus, alleging deficiency in service and unfair trade practice on the part of the OPs, the complainant prayed that the OPs be directed to provide the mobile phone in question i.e. Apple iphone 6 (16 GB) to him; to pay `50,000/- on account of mental agony and physical harassment; and to pay `5,500/- as litigation expenses.
Defence of the Opposite Parties
4. Upon notice, OP No.1 filed its written reply and stated that the OP No.1 neither sells nor offers to sell any products. It merely provides a technology platform where independent third party seller can list their products for sale. OP No.1 was neither responsible for the products that were listed on the website nor Paytm intervened or influenced any customer in any manner. It was further stated that the OP No.1 was not a warrantor of the product, nor was liable for any manufacturing defect. It was further alleged that the complainant was not a consumer. There might be First Appeal No.905 of 2016 4 certain orders that Paytm Merchant partners were unable to accept and service and these need to be cancelled. The complainant had no cause of action to file the complaint and the territorial jurisdiction of this Forum was also disputed. On merits, it was stated that there was no privity of contract between the complainant and Paytm. It was stated further that the OP duly replied to the emails written by the complainant and informed the complainant about the real picture and was informed that the order of the complainant had been cancelled and the amount of `60/- was refunded to the complainant. OP No.1 prayed for dismissal of the complaint filed by the complainant.
5. Despite service, OP No.2 did not appear before the District Forum, hence OP No.2 was proceeded ex-parte on 08.08.2016.
Finding of the District Forum
6. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint against opposite parties, vide impugned order. Hence, this appeal.
Contentions of the Parties
7. We have heard learned counsel for the appellant as respondent No.1 was proceeded ex-parte on 31.10.2017 and the service of respondent No.2 was dispensed with vide order dated First Appeal No.905 of 2016 5 07.07.2017. We have carefully gone through the records of the case.
8. Learned counsel for the appellant/opposite party No.1 vehemently contended that appellant, being the owner of the website www.paytm.com and the Mobile Application 'Paytm', which acts as a platform for different sellers like respondent No.2 to sell their products and for different buyers like respondent No.1 to access and purchase amongst variety of goods offered by various sellers on the terms and conditions as enumerated by them on the website of appellant/Paytm. Appellant/Paytm neither sells nor offers to sell any products. It merely provides a technology platform (an online marketplace) where independent third party sellers i.e. respondent No.2) can list their products for sale. The sellers themselves (and not Paytm) manage display of their (sellers/merchants) goods, its pricing, its catalogue and orders placed by customers online and are responsible for the sale/purchase of their products on the website. Appellant is neither responsible for the products that are listed on the website by various third party sellers, nor does Paytm intervene or influence any customers in any manner about its pricing etc. Appellant/Paytm is not directly involved in the sale transaction between the customer (respondent No.1) and seller (Respondent No.2), which is exclusive domain of Merchant and customers. Appellant has contended that District Forum has wrongly stated in the impugned order at page 5 that the contract of purchase of First Appeal No.905 of 2016 6 Apple iPhone was concluded at the time when payment of `60/- was made by the respondent No.1 and accepted by appellant. The District Forum has also wrongly observed that it was not open for OP No.1 (appellant) to cancel the order of its own without the consent of the respondent No.1. The fact of the matter is that the appellant is an intermediary as defined in the Section 79 of the Information Technology Act, 2000, and exempted from liability for third party information, data or communication link made available or hosted by it, which is reproduced below :-
Exemption from liability of intermediary in certain cases:-
1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information data or communication link made available or hosted by him.
2) The provisions of sub-section (1) shall apply if -
a) The function of the intermediary is limited to provide access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
b) The intermediary does not-
i) Initiate the transmission,
ii) Select the receiver of the transmission,
and
iii) Select or modify the information
contained in the transmission;
c) The intermediary observes due diligence while discharging his duties under this Act and also First Appeal No.905 of 2016 7 observes such other guidelines as the Central Government may prescribe in this behalf.
3) The provisions of sub-section (1) shall not apply if-
a) The intermediary has conspired or abetted or aided or induced, whether by threats or promise or authorize in the commission of the unlawful act;
b) Upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource, controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Explanation- for the purpose of this section, the expression "third party information" means any information dealt with by an intermediary in his capacity as an intermediary. As stated above, being an intermediary.
In view of the above, it is contended that the appellant/OP No.1 herein cannot be held liable for the act of Merchant i.e. Respondent No.2, who has inadvertently, entered `35/- in the column of MRP instead of quantity and entered `36,899/- in the place of quantity instead of MRP.
First Appeal No.905 of 2016 8
Learned counsel for the appellant relied upon the case reported as "Harnam Singh and Ors. Vs. Smt. Purbi Devi and Ors", AIR 2000 HP 108, wherein it has been held as under :-
"The doctrine of privity of contract implies mutuality at will and is interaction of parties and their successors. It creates a legal bond or tie or vinculum juris personal to the parties. The rule, thus, is that no one except the parties to a contract can be bound by or entitled under a contract. This doctrine which debars third party to enforce a contract forbids the parties to the contract from enforcing any obligation there under against a stranger. A person cannot be subject to the obligation of a contract to which he is not a party and the logical consequence is that a stranger cannot acquire rights under a contract. This general rule, no doubt, is subject to certain exceptions."
It has been also agitated that the District Forum has failed to consider the fact that the Merchant i.e. respondent No.2 in the present appeal is solely responsible and liable for any complaints and queries of Buyers with respect to the products booked. Hence for any liability with respect to the ordered product lies with respondent No.2. It is impossible for any intermediary like the appellant herein to monitor millions of products being displayed on its portal. The intermediary, upon receipt of a specific knowledge, can only take actions of disabling the product in question from its portal as per provisions contained in Information Technology (Intermediaries Guidelines) Rules 2011 and as an extra caution, though not bound by law to terminate the contractual relationship First Appeal No.905 of 2016 9 with the concerned merchant. It is further submitted that the appellant has also, as a policy of fair play, blocked the merchant from using the online platform provided by the appellant and has also taken stringent action of delisting of concerned products of the respondent No.2. Passing the judgment against the appellant and ignoring such a vital fact is not judicious and is contrary to law. It has been further alleged that the District Forum has allowed the complaint and has directed both the opposite parties to provide the ordered Apple i-phone 6 (16 GB) to the complainant at a price of `60/- only along with the consolidated litigation cost and compensation of `2,000/-. The fact of the matter is that, admittedly, the amount of `60/- paid by the complainant at the time of booking the order for purchasing the alleged product already stands refunded vide transaction id.1688095602 on dated 10.03.2016 by the appellant and the same has also been consumed by the complainant. Further the product booked was to be supplied by the Merchant to the complainant as per the order placed by the complainant. The appellant being merely an online market place platform does not have any control or ownership of the product under contention nor have any privity to contract and the products are listed, packed and delivered by the sellers like respondent No.2 themselves. Hence, it would not be in the interest of justice to direct the appellant to supply the alleged product for `60/- that too with no fault on the part of the appellant. Even otherwise, the consumer complaint bearing no.340/2016 was First Appeal No.905 of 2016 10 not maintainable as respondent no.1 under the grab of claiming deficiency of service against OP No.1 has prayed for specific performance as follows which is not permissible in light of the various judgments of the Apex Court. Appellant had specifically made it clear to the respondent No.1 that certain orders booked on the platform of appellant (Paytm), the seller are unable to accept and service and these may need to be cancelled as per "Clause 6"
of terms and conditions as available in the website of the opposite party which was duly accepted by the complainant while placing the order. It is further submitted that the appellant has refunded the ordered amount to the complainant bank account as per the terms and conditions of the policy. The "Clause 6" of the terms and conditions is reproduced below :-
"Clause 6 - Cancellation"
Cancellation by Paytm: There may be certain orders that Paytm Merchant partners are unable to accept and service and these may need to be cancelled. Some situations that may result in your order being cancelled include, non-availability of the product or quantities ordered by you, non-
availability of the delivery service in the address to which product is required to be shipped, inaccuracies or errors in pricing information specified by our merchant partners, or problems identified by Paytm's credit and fraud avoidance department. Paytm may also require additional verifications or information before accepting any order. Paytm will contact you if all or any portion of First Appeal No.905 of 2016 11 your order is cancelled or if additional information is required to accept your order. If your order is cancelled after your credit card or bank account has been charged, the said amount will be reversed back in your credit card/bank account. A promo code, once used shall not be refunded in case of cancellation of order either by Customer or Paytm. That passing the impugned order without appreciating the above mentioned terms and conditions specifically agreed by the respondent No.1(complainant in the original complaint) cannot be enforced and deserves to be set aside at once. So far as the transaction between the complainant and opposite party No.1 is concerned, the complainant does not fall within the definition of "consumer" under the Consumer Protection Act, 1986. Admittedly, the complainant has not bought any goods from appellant (Paytm) nor any inference can be drawn to this effect by any interpretation or analysis of the factual position explained hereinabove. The goods have been bought by the complainant from an independent third party seller i.e. respondent No.2 i.e. Infinity Infomatic (P) Ltd. selling its products on the Website operated by the appellant/OP No.1. Accordingly, the complainant does not fall within the definition of "consumer" vis-à-vis the appellant/opposite party No.1. Further it is pertinent to reiterate here that the appellant is merely an online market place where independent third party sellers list their products for sale. The appellant was neither a necessary, nor a proper party in the consumer complaint, the First Appeal No.905 of 2016 12 consumer complaint was liable to be dismissed due to misjoinder of parties. Affidavit of respondent No.1 along with the affidavit of his cousin-Ramesh Kumar son of Sh.Tarsem Chand is an act of deliberate connivance in order to wrongly and illegally implicate appellant company by leveling frivolous allegations. In fact, respondent No.1 is trying to take advantage of misquoting on the website. It was averred that the District Forum has completely overlooked the fact that the complainant has wrongfully impleaded the appellant company. Learned counsel for the appellant vehementally contended that the appellant is the owner of the website www.paytm.com and the mobile application Paytm which is an online portal and acts as a platforms for different sellers like respondent No.2 to sell their products. It merely provides technology platform where independent third party seller can list their product for the same. Appellant is neither responsible for sale. Appellant is neither responsible for the products listed on the website nor does Paytm intervene or influence any customer in any manner about its price etc. Hence, they are not directly involved in the said sale transaction.
9. During the course of arguments, learned counsel has made reference to clause (zg) of subsection (2) of section 87 read with sub-section (2) of section 79 of the Information Technology Act, 2000 (21 of 2000), which states that the Rule 3 sub-clause 4 of the Information Technology Act 2000, para No.4 states that "the intermediary, on whose computer system the information is stored First Appeal No.905 of 2016 13 or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule(2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes". Acting in accordance with the above mentioned intermediary Rules, 2011, the appellant had already rectified the error which had occurred on the online portal within the prescribed rules. The appellant vide their email dated 10.03.2016 had intimated the complainant regarding the cancellation of the order and that a refund of `60/- for the said item had been initiated. It was also averred that OP has specifically made it clear to the complainant that certain orders booked on their platform, the sellers are only to accept the service and these may need to be cancelled as per Clause 6 of the terms and conditions which were available on the website of the OP and duly accepted by the complainant while placing the order. In the present case, the complainant has not bought any goods from OP No.1. He has booked an iphone 6 (16 GB Grey) from Infinity Informatics (P) Ltd. i.e. OP No.2, who has not performed its part of obligation, therefore the order booked by the complainant had been cancelled within 24 hours and the amount deposited by the First Appeal No.905 of 2016 14 complainant had been refunded within the prescribed rules for which the appellant has tendered Ex.C-4. The cancellation has been done in pursuance of the terms and conditions as enumerated on the website of the OP No.1. It was argued that OP No.2 i.e. seller is not coming forward and accepting his part of obligation being the merchant partner. A reference was made specifically to the cancellation policy of Paytm Market placed on the terms and conditions, which clearly states that "there may be certain orders that Paytm Merchant partners are unable to accept and service and these may need to be cancelled. Some situations that may result in cancellation of order, which include non- availability of the product or quantities ordered by you, non- availability of the delivery service in the address to which product is required to be shipped, inaccuracies or errors in pricing information specified by Merchant partners, or problems identified by Paytm's credit and fraud avoidance department. Learned counsel for the appellant averred on similar lines as stated in his appeal and prayed for dismissal of the complaint.
9. On behalf of respondent No.1, none appeared and was proceeded against ex-parte and service of respondent No.2 was dispensed with vide order dated 07.07.2017. Consideration of Contentions
10. We have given thoughtful consideration to the contentions raised by the learned counsel for the appellant and perused the record carefully.First Appeal No.905 of 2016 15
11. Admittedly, respondent No.1 booked one apple iphone 6 (16 GB Grey) vide order No.1590099476 on 09.03.2016, originally costing `52,000/- at a discounted price of `35/- along with the shipping charges of `25/- from Infinity Infomatic (P) Ltd. (respondent No.2) using the online marketing place platform of the appellant company. The product was to be dispatched on 09.03.2016 as per Ex.C-3 but the same was cancelled on 10.03.2016 by notification given through e-mail dated 10.03.2016 vide Ex.C-4. It has been alleged by the respondent No.1 in the original complaint that the appellant is guilty of deficiency in service as the above stated order bearing No. 1590099476 was subsequently cancelled by the appellant and the product was not delivered to the complainant. The complainant had made many requests to the appellant to deliver the mobile but all in vain. A perusal of Ex.C-4 i.e. E-mail sent by the appellant company to the complainant reads that "we regret to inform you that merchant Infinity infomatic Pvt. Ltd. is unable to deliver your order for Apple iPhone 6 16 GB(Space Grey) due to unavoidable circumstances".
It is pertinent to mention here that the appellant has simply stated "unavoidable circumstances", as the reason for cancellation of the order that too of their own without seeking the consent of the complainant before cancelling the same. They have not produced any evidence on the record to show that the seller i.e. Infinity Infomatics P. Ltd. was responsible for the cancellation of the order. It is assumed that there must have been some privity of contract First Appeal No.905 of 2016 16 between the seller and the appellant company due to which the services of the appellant company were hired on payment basis by the appellant company who being an online portal, were displaying the products of the seller. We are of the view that the appellant company cannot cancel the order of their own on vague grounds as stated in the e-mail.
12. Appellant has interalia specifically raised certain preliminary objections with regard to the maintainability of the complaint, mis-joinder or non-joinder of necessary parties and the law of governing the rule of intermediary that has been contended by the counsel for the appellant. During the course of arguments, the appellant has also referred to the section 79 of the Information Technology Act and Intermediary Rules pleading that the directions cannot be issued to the appellant being an Intermediary between the consumer and the seller and also that it is not a manufacturer.
13. No doubt, the role of the appellant is that of intermediary in the present case but it cannot be said that they have no role to play, as the harassment has been caused to the complainant, due to the cancellation of the said ordered product. It is general observation that the consumers are attracted by the offers and displays of various products on the website of such kind of appellant company and place their order on good faith. Online market place company earn revenue each time a consumer click and visit on their website. Moreover, the same is being done as First Appeal No.905 of 2016 17 per the terms and conditions between the online portal company and the sellers for a consideration. Hence, if appellant company can accept an order and subsequent cancellation also makes him equally responsible and being deficient in rendering the services. Therefore, the plea that the intermediary should not be held liable for the acts of deficiency in service and unfair trade practice does not find merit with us.
14. We have also gone through clause 6 of the terms and conditions related to the cancellation policy of the appellant company. It is our interpretation that the clause specifically also states that the order may be cancelled due to "non-availability of the product or quantities ordered, non-availability of the delivery services in the address to which product is required to be shipped, inaccuracies or errors in pricing information specified by merchant partners or problems identified by Paytm's credit and fraud avoidance department". An inference can be drawn that the said order was cancelled without giving any specific reason and no evidence has been placed on record to show the accountability of the merchant seller in this case. The contention that complainant has booked the order from an independent third party seller selling its product on the website operated by the appellant, does not find merit to infer that no harassment has been caused to the complainant.
First Appeal No.905 of 2016 18
15. In view of the above discussions, the order dated 21.10.2016 passed by the District Forum, Sangrur is modified and following directions are issued to OP No.1 :-
i) to pay `10,000/- as compensation on account of mental agony, harassment and deficiency in service;
and
ii) to pay `2,000/- as litigation cost before this Commission and District Forum.
Liberty is granted to OP No.1 to recover the said amount from OP No.2 in accordance with law.
16. The appellant had deposited a sum of `1,030/- at the time of filing of the appeal. This amount, along with interest, which has accrued thereon, if any, be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to them. The respondent No.1 may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard, in accordance with law.
17. The case could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (KIRAN SIBAL) December 06, 2017. MEMBER Lb/-