Smt. Sangita Paul, Member

This is a case filed by Shri Milon Halder, S/o. Nikhil Halder, Village – Keshabpur, Tarafdarpara near Chetona Sangha, P.O. - Bansundaria, P.S. – Baruipur 24 Parganas (South), Pin – 743 372, West Bengal against Flipkert Internet Pvt. Ltd.,  Karnatak – 560 103, India, Sane Retails Pvt. Ltd. Haryana – 134 114, Instakart Service Pvt. Ltd., Kolkata – 711 303, West Bengal and Delhivery.com (Local HUB) Jaynagar, Majilpur, Pin  - 743 337 with a prayer for directing the OPs to deliver the ordered item (price Rs.20,999/- ) immediately as per description of the item stated in the Tax Invoice, to pay Rs.50,000/- as compensation for harassment and mental trauma / agony, to refrain / prevent the OPs not to do the unfair Trade Practice, by cheating, to deprive the consumers by way of not delivering the ordered item to the consignee, when the payment (prepaid) is already being made online on the day of placing the order, to pay Rs.15,000/- as litigation cost.

OP No.1 is Flipkart Internet Pvt. Ltd.  The address is Embassy tech Village 8th Floor, Block – “B” Devarabeesonahalli Village Varthur Hobli, Bengaluru East Taluk, Bengaluru District Karnatak – 560 103 India.

OP No.2 is Sane Retails Private Limited.  The address is SCO136 1st Floor, Sector-5, Mansa Devi Complex, Panchkula Haryana-134114.

OP No.3 is Instakart Service Pvt. Ltd.  The address is Bagnan NH-6 Kolkata, West Bengal, Mouza and Village – Tenpur Nabasan & Hijlok P.O. & P.S. – Bagnan, Howrah, Pin – 711 303, West Bengal.

OP No.4 is Delhivery.com (Local Hub).  The address is Motilalpara, Ward No.9.  Beside Jaynagar Institute of Girls Jaynagar Mazilpur, P.O. & P.S. – Jaynagar, Mazilpur, West Bengal, Pin – 743 337.

Complainant, by filing this case states that he placed an order to Flipkart Internet Pvt. Ltd. (OP No.1) online on 09.01.2020 an M1 LED Smart TV 4A Pro 108 c.m. 43 with android along with warranty.  Online payment of Rs.20,999/- is done by complainant through Axis Bank Credit Card No. 45145702…..2948 to Flipkart, OP No.1 here.

After online payment, OP No.1 generated a tax invoice bearing No.FADLM 32000009796 dated 10.01.2020, with an order ID:OD117540578591519000 provided to the complainant after realization of online payment of Rs.20,999/-.  Complainant states that OP No.2 shipped the ordered item from the address as stated in Tax Invoice from their Instakar Service Pvt. Ltd. (OP No.3) and OP No.3 shipped the ordered item to their local HUB to Delhivery.com (OP No.4).  Complainant’s order was out for delivery on 23.01.2020 at 10:33 p.m.  On the same date, the OP No.4 sent SMS to the complainant that unable to deliver the Flipkart package.  OP No.4 failed to deliver the item ordered by complainant on 23.01.2020.  On 28.01.2020 again, complainant was informed that they were coming today on 28.01.2020 but failed.  Complainant informed the agent and asked to deliver the Flipkart package.  Agent of OP No.4 informed that they would deliver the same.  But it was not delivered to the complainant.  On 01.02.2020, the item was about to be delivered to complainant, but complainant failed to receive the same.  OP No.4 informed that the ordered item would be reached to the complainant soon, but with no effect.  On 01.02.2020 at about 11:17 p.m. complainant received a message that the item has been delivered to the complainant successfully, but it was not so. Complainant was surprised.  He lodged a complainant on 01.02.2020 against OP No.4.

Complainant sent a reminder to OP No.4.  OP No.4 sent a proof of delivery through e-mail.  Complainant stated that it was not his signature.  OP No.4 did not take any steps so that the complainant would get the ordered item.  On 06.02.2020, complainant sent a letter of complaint to OP No., Flipkart Internet Pvt. Ltd., but OP No.1 did not reply.  Complainant sent a legal notice to OP No.1 on 11.03.2020.  OP No.1 assured the complainant that they would look into the matter.

The payment was made before the date of delivery.  So the OPs did not deliver the ordered item to the complainant, but shows a paper showing the consignee’s signature, but it was not the signature of complainant.

That the cause of action arose on 23.01.2020, 28.01.2020, 01.02.2020 and 11.03.2020 within the jurisdiction of this Ld. Commission.

Hence the complainant prays for directing the OPs to deliver the ordered item (Rs.20,999/-) immediately as per description of the item, stated in the tax invoice, to pay Rs.50,000/- as compensation for harassment and mental trauma, agony, to prevent them not to do the unfair trade practice and to pay Rs.15,000/- as litigation cost.

The OP No.1 in the written version denies all the allegations of complainant.  OP No.1 states that the product was duly delivered to the complainant. The complainant files this complaint to earn illegal gain.  The complainant tries to mislead the Commission.  OP No.1 is online e-commerce entity.  For any act of seller OP No.1 is not held liable.  OP No.1 is an intermediary.  OP No.1 only provides a medium to various sellers who are separate entities and are being controlled by separate persons.  Any kind of assurances whether in terms of warranty, delivery are offered by the seller of products.  The seller has the responsibility to ensure the delivery of the product at the address provided.  The service of OP No.1 is like a shopping mall.

Flipkart is not responsible for any breach of contract entered into between buyers and sellers.  Flipkart is not involved in the entire transaction executed between the seller and the complainant.  So OP No.1 cannot be held liable for any deficiency in service on the part of the seller.  Thus the present complaint is not maintainable against OP No.1.  OP No.1 prays for dismissal of the case against OP No.1.

The OP No.2, in its written version denies all the allegations leveled against them.  OP No.2 states that the complainant was trying to mislead the Commission by presenting concocted stories.  Hence the present compliant is not maintainable.  The OP No.2 is carrying on the business of sale of goods produced by others.  Thus OP No.2 has a separate identity from that of the manufacturer of the product.  The complainant cannot show any cause of action. OP No.2 also states that the products sold by OP No.2 carries manufacturer’s warranty.  OP No.2 is the reseller.  There is no deficiency in service on the part of OP No.2.  OP No.2 is not the manufacturer, but an online reseller.  OP No.2 delivered the product at the address provided by the complainant.  The courier service provider took the snap of the person to whom the item has been delivered.  It was collected at the time of delivery OP No.2 states that the present complaint is not maintainable.

The OP No.3, in the written version states that OP No.3 has not been involved in the entire transaction.  OP No.3 has no involvement in the process of entire transaction.  OP No.3 also states that the present complaint is not maintainable and is liable to be dismissed.  That the OP No.3 acts as a logistic partner to facilitate the logistic transactions between independent third party sellers and independent end customers.  OP No.3 picks up the sealed product from seller and deliver it to the buyer in intact condition.  OP No.3 acts as  a courier to various sellers all over India, to deliver the products.  The OP No.3 does not associate itself with any kind of liability.  OP No.3 picks up the sealed packed product from the seller and delivers it to the buyer without altering, opening, damaging, tampering the product.  There is no privity of contract between complainant and OP No.3.  The services of OP No.3 is similar to the postman.  The delivery agent of this product is Delhivery and not the instakert.  OP No.3 prays for dismissal of the complaint.

OP No.4 in the written version states that the technology which is used by OP No.4 is so advanced, that it corrects the given address of the addressee in case of erroneous entry of address details for proper delivery of goods at the door steps of the customers.  OP No.4 states that the said product was properly delivered to the complainant’s address in properly sealed manner while delivering the product, the delivery agents are not in the power  to verify the identity of the receiver.  OP No.4 states that the complainant confirms the delivery at 11:17 p.m.  The item was delivered to the complainant and it was acknowledged by the complainant by endorsing a signature in the receipt.  OP No.4 denies each and every allegation leveled against him.  OP No.4 states that the intention of the complainant is to harass OP No.4.  Hence prays for dismissal of the complaint.

The case was filed on 04.09.2020.  The instant case was admitted on 21.09.2020.  On 17.12.2020, OP No.2 appears and files W/V.  On 20.01.2021, the case proceeded exparte against the OPs 1 and 3, because they did not turn up in spite of service of notices.  On 26.02.2021 OPs 1 and 3 file W/V because the exparte order was vacated.  On 30.03.2021 OP No.4 files W/V.  On 03.08.2022, argument was heard and we proceeded for giving judgement.

Points of Consideration

01.Is the complainant, a consumer?

02.Are the OPs guilty of deficiency in service and unfair trade practice?

03.Is the complainant entitled to get relief as prayed for?

Decision with Reasons :-

01.          On perusal of records and documents, it appears that the complainant intended to purchase a smart T.V. and he placed an order on 09.01.2020.  After choosing the item, he placed an order for the same.  Complainant made online payment of Rs.20,999/- through Axis Bank Credit Card No.45145702……2948 to Flipkart Internet Pvt. Ltd.  OP No.1 generated a tax invoice bearing No.#FADLM32000009796 dated 10.01.2020 with an order ID:OD117540578591519000 after realization of online payment.  As the complainant paid the full consideration amount, the complainant is regarded as a consumer u/s 2(7) of the consumer protection Act. 2019.  So the 1st point is decided in favour of complainant.

02.          The complainant placed an order for buying a smart TV on 09.01.2020.  The case has been filed on 04.09.2020.  Eight months have passed the complainant failed to get the ordered item.  After payment, a tax invoice has been issued by the OP No.1.  The order was packed by OP No.2 on 10.01.2020.  OP No.2 shipped the ordered item to OP No.3 and OP No.3 sent the ordered item to OP No.4.  OP No.4, i.e., Delhivery .com (Local Hub) was supposed to deliver the item to the complainant’s address.  But it is very unfortunate that the complainant failed to receive the item inspite of making full payment.  Track report shows that the complainant’s ordered item was out for delivery on 23.01.2020.  But on the same date OP No.4 informed through message that they were unable to deliver Flipkart package.  On 28.01.2020, the complainant was informed by OP No.1 that they were going to arrive on that day.  But they did not.  Complainant informed OP No.1 and they assured the complainant that they would solve the problem. On 01.02.2020, OP No.4 again informed that they would be arriving on that day, but again the complainant faced the same fate.  On 01.02.2020, the complainant received a message from OP No.4 that the item has been delivered successfully.  Complainant informed that he did not get the item.  OP No.4 showed a proof of delivery, but the evidence is manufactured.  The address was taken by the OPs when the order was placed.  It was sent to one Milan Halder.  His father’s name is Rabindranth.  The father of the complainant was Mr. Nikhil Halder.  Signature was not the complainant’s signature.  The OPs somehow matched the name and dispatched the item to another person.  OP No.1 in his written version stated that they had taken the snapshot of the complainant after delivery.  The picture did not match with the complainant. The Adhaar Card of complainant did not match with the person to whom the item was delivered.  All the OPs want to shrug off their responsibilities by showing a manufactured proof of delivery.  All the OPs are jointly responsible for the non-delivery of the article to the complainant’s address.  Because from the shipment to delivery, it is a joint venture .  The OPs failed to perform their duties.  It appears to be a case of impersonification.  Instead of the right person the article was delivered to other person having same name.  But the father’s name is different.  The OPs tried to establish that the article was delivered to the right person.  The acts of the OPs are glaring example of unfair trade practice and deficiency in service.  Hence the 2nd point is decided in favour of complainant and the against the OPs.

03.          The complainant paid in full for purchasing a smart TV.  The complainant failed to get the ordered item.  The item was not delivered in the given address of complainant.  In spite of making the full payment, the complainant is deprived of getting the desired item.  His investment went in vain.  As per the OPs version, the item has been delivered, but in reality it was not delivered to the complainant’s address.  The mystery remains unresolved.  The OPs have to discover the missing link and solve the problem accordingly. The complainant has been harassed, he suffers from severe mental pain and agony due to the act of non-delivery of the LED TV by the OPs.  The OPs state that they have got the receipt with the complainant’s signature.  The complainant with affidavit states that it was not his signature.  As the OPs are deficient in rendering proper service they wanted to establish the fact that they delivered successfully.  The cause of building concocted stories is best known to them.  The OPs left the complainant in severe mental trauma.  Hence the complainant is entitled to get the relief as prayed for.  Hence the 3rd point is decided in favour of complainant and against the OPs.

In the result, the complaint case succeeds. 

Hence, it is,

                                                                            ORDERED

That the complaint case be and the same is allowed on contest against the OPs. 1, 2, 3 and  4 with cost of Rs.15,000/- (Rupees fifteen thousand).

That the OP No.1 is directed to pay Rs.20,999/- (Rupees twenty thousand, nine hundred and ninety nine) (the cost of the LED TV) to the complainant with simple interest @10% per annum to the complainant from 09.01.2020 till disposal of the case within 60 days from the date of this order.

That the OPs 1, 2, 3 & 4 jointly or severally are directed to pay compensation to the tune to Rs.40,000/- (Rupees forty thousand) to the complainant within the stipulated period of 60 days from the date of this order.

That the cost of litigation cost of Rs.15,000/- (Rupees fifteen thousand) is to be paid within 60 days from the date of this order. 

That the complainant is at liberty to put the order into execution if the orders are not complied with within 60 days from the date of this order.

 Let a copy of the order be supplied to the parties concerned free of cost.

That the final order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me. 

        (Sangita Paul)

           Member