Adv. For the Complainant         : -  Shankar Pr. Mishra

        Adv. For the OP No. 1                :-   Mr. Subhransu  Bagarty and Others

        Adv. For the OP No.  2               :-   No

        Date  of filing of the Case          :- 20.01.2023

        Date of Order                               :-04.04.2024   

JUDGMENT

Smt. Jyotsna Rani Mishra , Member

Fact of the case:-

           Flipkart India Pvt. Ltd. (OP1) deals in online shopping of cell phone and other house hold articles. Gandhi mobile Shoppy (OP2) is a dealer of cell phone.     

                      The complainant placed an order on dt.23.12.2021 through online shopping from (OP1) ‘s app. which  was delivered to the complainant on 27.12.2021. The warranty period is one year from the date of delivery. The complainant paid Rs.26,699/- for said mobile.

           That but on 30.11.2022 the phone purchased by complainant was stopped working and from the inquiry from customer care center of the above said cell phone it is as certained  that the mother board of the phone is dead and all the datas saved by the complainant have been lost. The service center gave an estimate cost of Rs.24,000/- towards repair of this phone.

         That , complainant could know that the cell phone was activated from 26.06.2021 which is prior to the six months of delivery of the cell phone so the Ops supplied a used phone to the complainant.

         That , the complainant had objected  the aforesaid prior use of phone to Op1 on dt. 02.12.2022 and Op1 promised to solve the problem by 07.12.022. as it is responsibility on OP1 because the MI phone service denied to repair after the warranty period . and asked the petitioner to get a denial confirmation from MI . After so many contact petitioner finally got a screenshot from MI regarding warranty activation and shared it with Op1 on 6^th December 2021.

         That then Op1 neither responds nor have repaired the phone of complainant.

        That, finally on 27.12.2022, the Op1 sent a technician and the complainant returned the phone set to the technician and it was approved as return product on 27.12.2022 and thereafter complainant was asked to furnish his A/C details for refund of money paid by complainant toward the cost of the aforesaid cell phone and return of item was informed to complainant on 29.12.2022 and money will be refunded by 30.12.2022. But till today neither money was refunded nor repair / a new cell phone was supplied by Ops, in spite of complainant repeated calls and conversation.      

              Complainant relies on following documents-

1. Invoice / receipt- 1 sheet
2. Screenshot of dated 06.12.2022, 10.12.2022

And other dates – 3 sheets.

Having gone through the complainant, it’s accompanied documents and on hearing the complainant prima facie it seemed to be a genuine case. Hence admitted and notice to the opposite parties were served and in response OP1 appeared through his counsel and filed their version. But OP2 did not appeared before the commission. Sufficient time has been given but Op2 could not turn up and filed the written version within statutory period and fails to proves his credential, as such the Op2 set exparte on dt.20.07.2023.

   Op1 on his rival contention filed his  written statement that taking some preliminary objections such as complainant has suppressed the true and material facts.   Present complaint is false, frivolous and vehemently denied. Complainant has cited the business model of Flipkart Internet Private Limited. In their complainant which operate as an e- commence market place platform .however Op1 flipkart India a private limited is a separate legal entity.

   Complainant purchased product through  ‘ Flipkart .com’  which is owned and operated by different legal entity and not by OP1. That the alleged defects in the product denied due to want of knowledge. OP1 is not involved in sale of any product to the end customer. The Op1 is a wholesaler and is only engaged in B2B sales.

      OP1 relies on following documents-

1. Copy of Certificate of Registration of Flipkart India private Limited.
2. Copy of online market place operation Flipkart internet.

In the view of above fact and circumstance and carefully gone through the evidence and written statement available on record and taking facts and circumstances in to consideration that, OP1 provides online market place platform/ technology and /or other mechanism / services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods, by and between respective buyers and sellers and enables them to deal in various categories of good including but not limited to mobile, camera, computers , watches, clothes, electronics etc. the business of the Op1 falls within the definition of an intermediary under sec.2(1) (w) of the information technology Act.2000. OP1 rendered deficiency in service and resorting malpractice of his trade for which violated the terms and condition of monopoly and restrictive trade practice.

     However his own document issued by register of companies Flipkart India Pvt Ltd and Flipkart internet pvt . Ltd are the same company situated in the same address. OP1 is try to misguides the complainant to get rid his liability.

     However Ops are restoring unfair trade practice by supplying defective goods and the return both have committed deficiency in service. The complainants important saved in phone supplied by the Ops have been deleted and destroyed.

 However it may note that it was on a good faith, reputation and good will of OPS, the electronics platform and intermediary that the complainant had purchased the mobile. But OP1 was not doing and gratuitous service. At the same time Op2 is responsible for providing defective mobile to the complainant. Op1 did not adhere to its own policy of replacement/ Refund / Repair the mobile which is under the warrantee period.

        For the foregoing conclusions arrived and keeping in view the judicial verdict as afore mentioned that there was privity of  contract between complainant and Ops. So I awarded the complainant and Ops are liable to compensate for its losses including harassment and mental agony. Hence Order.

ORDER

OPS are directed to pay a sum of Rs.26,699/- with 9% interest towards the cost of cell phone.

     I further directed to OPS to pay Rs.30,000/- towards compensation for the loss and injury suffered by complainant .

And to pay Rs.3,000/- towards litigation expenses within one month from the dt of order. Failing which the entire amount shall be paid by the Ops @12% interest per annum from the date of filing of the case till realization.

                                       No award as to cost.

 PRONOUNCED IN THE OPEN COMMISSION TO-DAY 04^th day of  April’ 2024.