Delivered but Disappeared: Who Is Liable When Your Online Shopping Package Is Stolen from Your Doorstep

-By Saniya Chaudhary

Abstract

The rise of the e-commerce industry has changed the manner in which customers relate with the market and turned the act of buying into something that requires the use of technology. In the current digital age, individuals can purchase a variety of things using just their phones or computers; these include everyday goods like foodstuffs to expensive gadgets. Customers have the convenience of receiving deliveries of their packages right at the comfort of their houses. Delivery has therefore become one of the crucial components of trade today due to its importance. On the other hand, there are many legal issues that have emerged due to the rapid expansion of e-commerce. For instance, package thefts have become rampant and pose numerous problems for consumers in e-commerce. Cases of missing deliveries have increased greatly in recent times. Packages that had been marked as delivered would actually have gone astray and never reach the owner. These instances pose significant legal challenges for both customers and e-commerce businesses. This is because of various reasons like lack of clarity on how the package could end up being lost, who is liable, and how they will be compensated if ever they are victims of missing deliveries.

There are various parties that have roles to play in online dealings; some of them are the sellers, consumers, delivery drivers, and even third parties. The issue therefore becomes quite complex since several legal issues emerge. Does this mean that the process of delivering occurred with the act of stating “package delivered” by the seller? Where does the transfer of risk for losing the package take place? Can e-commerce websites shirk from liabilities when the delivery reaches the consumer’s address? Is a delivery officer responsible for delivering the goods to a safe destination? Most importantly, who pays for losses incurred when a package is lost after delivery at the consumer’s residence? All of the above questions are pertinent and require answers. As the e-commerce industry grows faster in the contemporary world, it is becoming important to look into these questions critically. The current work analyses several acts and rules relating to consumer protection, delivery of goods, and online transactions. Some of such enactments are Consumer Protection Act 2019, Consumer Protection (E-commerce) Rules 2020, Indian Contract Act 1872, Sale of Goods Act 1930

Background and Legal Context

1. E-Commerce in India – Evolution

In India, there has been an impressive growth of the e-commerce industry in the last decade due to several factors, including increasing internet accessibility, smartphones use, electronic money transfer solutions, and initiatives such as Digital India launched by the government. Online stores contribute to changes in consumer behaviour, offering convenient conditions, wider selection of goods, competitive prices, and even services of delivering products. Currently, individuals cannot purchase certain products without visiting an online store that offers everything from food supplies to expensive electronic appliances.

In addition, with the emergence of the new coronavirus, online shopping becomes an integral aspect of the contemporary reality. It means that the sphere experiences rapid growth; however, it causes the emergence of new problems associated with the issue of securing deliveries and determining liability in case of stolen packages.

Third-party logistics service providers distinguish the current e-commerce industry. Namely, most e-commerce platforms lack the possibility of making home deliveries themselves; instead, they employ courier companies or other logistic agents. Therefore, each sale involves the participation of the seller, an e-commerce platform, a delivery company, and a consumer. The involvement of numerous parties into a single sale process leads to complications with establishing liability for stolen goods.

2. Legal Provisions

(a) Consumer Protection Act, 2019

Consumer Protection Act, 2019 is one of the foremost acts that safeguard the interests of consumers in India. This Act provides consumers protection even when they make purchases and transactions using online methods and views e-commerce as an integral part of present-day trade activities.

According to Section 2(7), consumers are those who purchase goods or avail themselves of services for consideration. Hence, people buying products online have statutory rights under this act. One of the key terms under this act is ‘deficiency in service’ as per Section 2(11), which means any defect, deficiency, inadequacy, or failure in regard to the quality of performance expected from law or contract.

Examples of deficiency in services related to package theft may be the following cases:

– Delivery of the item to a different address;

– Failing to obtain the mandatory OTP/signed receipt;

– Placing packages at unsafe places without informing the consumer;

– Reporting a false mark of completion of the transaction.

For example, leaving an expensive electronic item outside an unlocked house without notifying the consumer and having it taken by someone else will be treated as a negligent service in terms of the above provisions. Consumers can pursue refund and compensation claims before various consumer commissions under the act.

(b) Consumer Protection (E-Commerce) Rules, 2020

Observing the growing significance of the digital form of commerce, the Government of India has brought out the Consumer Protection (E-Commerce) Rules, 2020. The new Rules require certain obligations from online platforms and help to secure consumers in their e-transactions. Firstly, online platforms should disclose information concerning products and sellers; ensure transparency; provide effective grievance redressal measures and appoint grievance officers to solve disputes.

In particular, Rule 4 demands that any e-commerce entity shall acknowledge the received complaint and take appropriate actions to solve the issue within a specified time frame. Such requirements become especially important in case consumers have problems with missing or stolen packages. When it comes to package theft, the Rules make sure that e-commerce businesses are liable to assist consumers with resolving the dispute and solving it. Nevertheless, there is no provision concerning doorstep theft in the Rules. Nevertheless, the lack of such provisions does not eliminate the necessity to discuss liabilities in the context of package thefts.

(c) Indian Contract Act, 1872

“All agreements made for the purchase and sale of goods in an online manner shall be deemed to be contracts under the Indian Contract Act, 1872”. When the acceptance of such agreement is made, there shall be a formation of a contract.

Common elements of such contracts include:

– Delivery of goods;

– Transfer of property rights;

– Risk shifting; and

– Refund of payments.

In case of theft of goods packed in a parcel, the second issue that will arise concerns risk shifting. The most important thing will be to identify the time period during which the risk must shift. When delivery does not take place, the risk lies on the party making the delivery. When the goods have been delivered successfully, the risk will shift to the recipient.

It will therefore be important to establish whether delivery had taken place or not.

d) Sale of Goods Act, 1930

The Sale of Goods Act, 1930 is another law that enlarges the law of contract and provides the law regarding the passing of property and risk during the transaction of sales of goods. In general, risk also passes together with the passage of property, unless any other agreement is made for the same. But normally, it is quite challenging to define the situations in regard to risk passing and property passing during e-commerce transactions.

The risk is retained by the seller/delivering person till the goods are delivered to the purchaser. After that, the risk shifts to the purchaser. There have been some cases relating to theft of parcels, in which it is evident that there were problems with regard to delivering parcels. Whether the parcel could be termed to have been delivered only if it had reached the consumer’s door or it had to be physically delivered too. No Indian law on this point.

Determining Responsibility in Online Delivery Theft

1. Point of Delivery

One of the key questions in any discussion of stolen packages from online shopping is whether delivery has been made successfully. In e-commerce sites, it is assumed that delivery is achieved once the package arrives at the address that the consumer has indicated. Nevertheless, there may be circumstances where delivery will not be deemed successful.

Characteristics of Successful Delivery

Conversely, a successful delivery refers to the delivery of goods where the customer can gain possession of them. However, this cannot always be assumed to be the case when the item has just been left somewhere because there is a likelihood that the item might not remain safe. Some of the characteristics of a successful delivery include:

Delivering the item at the correct address;
Receipt of a one-time password (OTP) or signature at the point of delivery;
Possession of the item by the purchaser;
Obeying the delivery instructions.

As such, it must be understood that failing to undertake the above actions might form reasonable grounds to challenge a delivery.

Actual Possession versus Constructive Delivery

This other classification is equally significant. In the former, actual possession means that there is acceptance of the item by the consumer. On the other hand, the latter classification pertains to instances wherein the consumer did not make physical acceptance but is regarded as having made receipt, e.g., deliveries to the guard house or reception area. Questions arise if the delivery is left unattended at the doorsteps. While it will be constructive delivery as claimed by the seller, the consumer contends that actual possession was never made on his part. It would now fall to the court or consumer forum to determine the diligence of delivery.

2. Liability of the Seller

The sellers have the responsibility, under the terms and conditions of the laws for consumers and contracts, of delivering the goods purchased by consumers in the right manner.

a) Wrong Address Deliveries

In the event that a mis-delivery occurs due to some level of carelessness by the supplier and/or logistics firm, fault will probably lie with the supplier. The buyer is not supposed to miss out on his order for the sake of negligence during the delivery stage. For instance, in the case whereby an online store delivers a parcel to House No.21 instead of House No.12 and, as such, the package is lost in the process, the supplier may need to replace the order.

b) Delivery System Issues

On the contrary, liability can be assumed on the part of the sellers for issues within the delivery system that they are using. These issues could include difficulties in the update process in the delivery system such as not being able to determine who the recipients are as well as the incorrect location information that results in wrong deliveries.

c) Negligence in Following Delivery Instructions

In some cases, consumers have made clear instructions about how they want deliveries handled, like “call before delivery,” “deliver to security,” or “do not leave unattended.” If such instructions are not followed and something goes wrong as a result, there may be an act of negligence on the part of the deliverers.

3. Responsibility of Delivery Partners

Delivery companies serve as intermediaries between the seller and buyer of products. Their conduct during the last step of delivery usually decides whether goods are successfully delivered to consumers.

a) Leaving Parcels Unguarded

The most common cause of the theft of delivery parcels is leaving the parcel unguarded. Sometimes delivery people leave goods at the gate, stairs, or front door without verifying the presence of a consumer. It may be considered negligence if the area chosen for leaving goods is prone to stealing. The duty of the delivery partner to act reasonably requires him/her to handle the transfer of possession carefully.

b) Improper Package Deliveries

Consumers sometimes receive messages regarding delivery without actually getting the parcel. These notifications are sometimes used for misleading consumers into believing they have gotten their parcel. It is a case of poor performance by the delivery partner, which is considered negligence.

c) Disregarding Consumer Instructions

Consumers sometimes give instructions like delivering at security, calling before delivery, or not leaving the goods unattended. Failure to comply with these instructions amounts to negligence. A package will be considered stolen if delivery people failed to obey the instruction of a consumer.

4. Consumer’s Responsibilities

Although there may be some responsibilities which may be common to both parties, i.e., vendors and couriers, for delivering the products, there are also certain responsibilities that have to be borne by the consumers.

a) Delay in Delivery of Parcels

It can also be observed that the delay in collection of parcels by the consumers, even after notification regarding the receipt of the same, might have been another reason for the loss suffered. The behaviour of the consumers in such cases is certainly considered when parcels have been left uncollected for quite some time.

However, this does not mean that the sellers and delivery persons do not have any responsibility at all for losing parcels due to absence of consumers.

b) Request for Contactless Delivery

Contactless deliveries are common practices following the emergence of coronavirus disease. There are instances where consumers authorize the couriers delivering their orders to leave packages outside their premises. The question that arises in cases where consumers decide to receive deliveries without meeting the courier is whether there is any liability on consumers due to unattended deliveries. Nonetheless, both the sellers and delivery companies should act responsibly.

5. Comparative Analysis

Analysing other countries’ methods will offer useful information on dealing with such cases of package theft.

a) USA

In the USA, package thefts, popularly referred to as “porch pirates,” have become quite rampant. Many retailers have introduced package protection programs, and there are several state legislations that impose stiff penalties on individuals found guilty of stealing packages and mails.

Large e-commerce companies typically replace or refund goods as part of their consumer-friendly policies, even if the legality of their actions is questionable. Technological innovations such as smart lockers and delivery cameras are also very common.

b) Europe

Consumers enjoy high protection in Europe. In most instances, consumer-related legislation in Europe provides that the duty to ensure goods are delivered to consumers lies with the seller.

Advancing Further in India

Considering the increase in the number of cases of package thefts in India, there is need for the government to introduce tougher regulations in order to counteract the situation whenever there is a delivery of products via online shopping. There is, however, no legislation covering such package thefts in India. Foreign lessons indicate that there is a need to consider:

– Statutory definition of delivery;

– OTP and/or signature authentication for valuables;

– Delivery standards;

– Security measures for package lockers; and

– Consumer complaints handling.

However, as further development in India’s digital economy continues to take place, this solution can aid in developing trust among consumers along with ensuring accountability for the e-commerce business and the logistics organizations.

Legal Loopholes, Customer Problems, and the Way Ahead

Although the growth of online transactions in India has witnessed a steep rise in recent years, the current legal regime relating to package theft after the process of delivery is not well-defined. The legal provisions like the Consumer Protection Act, 2019 and the Indian Contract Act, 1872 lay down some basic guidelines in terms of protection available to the consumers but fail to cover the aspect of package thefts after delivery. There is lack of clarity among the parties involved in these cases as there are no specific rules related to liability of each party, especially when it comes to assigning the responsibility in case of package theft. This brings us to the problem of transfer of risk. In case of traditional contracts, the risk gets transferred to the buyer at the time of delivery, but in e-commerce transactions, there is ambiguity as far as defining valid delivery of goods is concerned.

The issues faced by consumers when a package is stolen include the challenge in proving that they have a case against the delivery service company. It is important that the consumer proves that despite the evidence provided by the delivery service company indicating the delivery of the package, the consumer never got it. This may be a bit difficult since there will be no recorded proof of the theft. In addition, the policies regarding replacement and refund of packages are different among various e-commerce websites. The issues mentioned above emphasize the necessity of immediate action on the part of both legislative and technological solutions. In order to address this problem, for high-value goods, a mandatory system of deliveries using one-time passwords or signatures will have to be implemented to make sure that the consignment arrives at its destination. The use of smart parcel lockers in housing estates and other communal places will also prevent any instances of package theft. Consistent delivery procedures across all e-commerce firms could also be considered.

In regard to an individual, it is necessary that some sort of law is made in which the ending time of the deal is stated, and the liability moves to the other side. Strict action should be taken against the logistic service in case of their irresponsibility in delivering the items. Moreover, the use of some tracking system with features like GPS, pictures, and live deliveries can be advantageous.

Conclusion

There is no doubt that the rise of e-commerce has had a positive impact on the way consumers shop because of the importance of access. Nevertheless, the increase of package theft is proof that there are some negative aspects to e-commerce that need to be taken into account. Package theft and package misplacement are becoming increasingly relevant issues in consumer law due to the rise of e-commerce. With regard to the determination of who is at fault where there is the case of stolen packages at the doorstep, there is nothing clear-cut to do in terms of how it should be solved. The process requires balance because consideration has to be made not only for consumers, but also for business and for those individuals involved in delivering packages.

Nonetheless, although acts such as the Consumer Protection Act, 2019 have been drafted in response to the problem of defective service, one of the major loopholes that come into play is that of theft of the purchased product after it has been delivered. In the absence of any clear legal guidelines in this regard, confusion is inevitable in the dispute resolution process. In the future, better legislation of consumer rights, standardization of package delivery, better verification methods, and technology such as smart boxes, which track delivery in real-time, will reduce the number of conflicts related to delivery. In general, the emergence of e-commerce requires the parallel development of legislation in order to secure consumer rights. Consumers must feel protected even when they are conducting their activities on the internet, and packages delivered through e-commerce must be delivered to the right recipient.