Haryana

Kaithal

359/20

Surender Kumar - Complainant(s)

Versus

Adilaxmi E-Commerce Pvt Ltd - Opp.Party(s)

Sh.Mukesh Sharma

01 Sep 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.359/2020.

                                                     Date of institution: 20.10.2020.

                                                     Date of decision:01.09.2023.

Surender Kumar S/o Dharam Chand r/o House No.527, Gali No.3, Ward No.1, Arjun Nagar, Patti Afgan, Kaithal, Tehsil and Distt. Kaithal.

                                                                        …Complainant.

                        Versus

1. Adilaxmi E-Commerce Private Limited, 1257/37, Ist Floor, 14^th Main, Sector-7, HSR Layout, Bengaluru, Karnatka-560102 IN, Bengaluru, Karnatka, INDIA-560082-Registered Office.
2. Managing Director, Flipkart Head Officer, Ground Floor, Vaishnavi Summit, Mahatayagi Lakshmi Devi Road, 80 Ft. Road, 3^rd Block, Karamangala, Bangluru, Karnatka-560034.
3. EKart Logistics, Dayanand Colony, Dhand Road, Kaithal. 

….OPs.

        Complaint under Section 35 of the Consumer Protection Act

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Sh. Mukesh Sharma, Advocate, for the complainant.   

                Sh. Vikram Tiwari, Advocate for the OPs.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Surender Kumar-Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the OPs.

2.             In nutshell, the facts of present case are that the complainant placed an order for purchasing of OPPO A31 mobile set vide order ID No.OD119495964572926000 from the OPs vide order dt. 22.08.2020 for the sum of Rs.14,990/-.  The case of complainant is that the said mobile set was received by the complainant vide tax invoice No.FAC95X2100180085 dt. 23.08.2020 but when opened the box/packing, it was found another model of mobile set i.e. OPPO A9 2020 with same IMEI number as mentioned in Tax Invoice but model was different.  It is alleged that the OPs have failed to supply the mobile set as per order placed by the complainant but have supplied another piece of mobile set to the complainant.  So, it is a clear cut case of deficiency in service on the part of OPs and prayed for acceptance of complaint.     

3.            Upon notice, the OPs appeared before this Commission and contested the complaint by filing their written statement separately.  OP No.1 filed the written statement raising preliminary objections that the answering OP is engaged in selling of goods manufactured and produced by other manufacturers; that the answering OP categorically denies the allegation of wrong delivery of the product in the sealed pack box as it was received from the manufacturer/distributer within the time specified in the order; that there is no deficiency in service on the part of OP.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

4.             In the written version, OP No.2 stated that the answering respondent provides online marketplace platform/technology; that the said ‘Flipkart Platform’ is an electronic platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent end customers.  The independent third party sellers use the Flipkart Platform to list, advertise and offer to sell their products to the users/buyer who visit the Flipkart Platform.  Once a buyer accepts the offer of sale of the products made by the third party seller on the Flipkart Platform, the seller is intimated electronically and is required to ensure that the products are made available and delivered in accordance to the delivery terms as per the terms for sale displayed by seller on the Flipkart Platform.  The answering respondent does not directly or indirectly sell any products on flipkart platform.  In the instant complaint also, it can be evidenced that the actual seller of the product is a third party seller (who is not impleaded as a party).  There is no deficiency in service on the part of respondent.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

5.             OP No.3 filed the written statement on the same line as followed by OP No.1 and so, prayed for dismissal of complaint

6.             To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C30 and thereafter, closed the evidence.

7.             On the other hand, the OPs tendered into evidence affidavits Ex.RW1/A and Ex.RW2/A alongwith document Annexure-R1 and thereafter, closed the evidence.

8.             We have heard the learned Counsel for both the parties and perused the record carefully.

9.             Ld. counsel for the complainant has argued that the complainant placed an order for purchasing of OPPO A31 mobile set vide order ID No.OD119495964572926000 from the OPs vide order dt. 22.08.2020 for the sum of Rs.14,990/-.  It is further argued that the  mobile set was received by the complainant vide tax invoice No.FAC95X2100180085 dt. 23.08.2020 but when opened the box/packing, it was found another model of mobile set i.e. OPPO A9 2020 with same IMEI number as mentioned in Tax Invoice but model was different.  Ld. counsel for the complainant has placed reliance on case law titled as Myntra Design Pvt. Ltd. Vs. Monika Thakur, Appeal No.279 of 2019, Date of Institution 18.11.2019, Date of Decision 29.11.2019 by the Hon’ble State Commission, U.T. Chandigarh.  

10.            On the other hand, ld. counsel for the Ops has argued that OP No.2 provides online marketplace platform/technology.  It is further argued that the said ‘Flipkart Platform’ is an electronic platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent end customers.  The independent third party sellers use the Flipkart Platform to list, advertise and offer to sell their products to the users/buyer who visit the Flipkart Platform.  Once a buyer accepts the offer of sale of the products made by the third party seller on the Flipkart Platform, the seller is intimated electronically and is required to ensure that the products are made available and delivered in accordance to the delivery terms as per the terms for sale displayed by seller on the Flipkart Platform.  The OP No.2 does not directly or indirectly sell any products on flipkart platform.  There is no deficiency in service on the part of Ops.

11.            At the outset, learned counsel for the OP No.2 has taken plea that OP No.2 falls within the definition of an “intermediary” u/s 21 (1)(w) of the Information Technology Act, 2000 and also protected by the provisions of Section 79 of the Information Technology Act, 2000, as such, OP No.2 is exempted from liability for third party information, data or communication link made available or hosted by it at market place platform of OP No.2, therefore, OP No.2 is not liable for any discrepancy, if any, done by the seller i.e. the third party and display of price and subsequent supply of order is the sole responsibility of seller in the case in hand and prayed for dismissal the present complaint against it. But this Commission does not found this contention of OP No.2 plausible, in view of case law cited (supra) by learned counsel for the complainant titled Myntra Design Pvt. Ltd. Vs. Monika Thakur, wherein, it is held by the Hon’ble State Commission, U.T., Chandigarh that “The Opposite Party cannot escape from its liability stating that it is not the manufacturer of the product and only provides portal for sale, because the Opposite Party allows the companies to project their products for sale on their portal, so it is their legal obligation to keep a check for the rightful delivery of the products sold through their portal services”.  In the case titled as Amazon Seller Services Private Limited Vs. Gopal Krishan, First Appeal No.27 of 2017, it is held that “In the said case, it was observed that it was bounden duty of the facilitator to ensure that goods purchased through any individual are manufactured as per quality standard. If the goods purchased through online are found not up to the mark, online portal through which goods were purchased, cannot escape its liability. Further, the contention raised that as per terms and conditions of sale, no liability can be fastened upon the appellant (Amazon), was rejected by this Commission by observing as under:-

                “8……An agent, who sells a product, is duty bound to ensure its quality, and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, along with the manufacturer of the product. It was so held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Emerging India Real Assets Pvt. Ltd. & Anr. Vs. Kamer Chand & Anr. Revision Petition No.765 of 2016 decided on 30.3.2016”.

12.            So, in the light of above case law laid down by the Hon’ble State Commission, U.T. Chandigarh in the case referred to above, this Commission has no hitch to say that OP No.2, being an intermediary, is liable for any wrong done by seller.

13.            We have considered the rival contentions of both the parties.  The grievance of the complainant is that the complainant placed an order for purchasing of OPPO A31 mobile set for the sum of Rs.14,990/- but the OPs have delivered the another model of mobile set i.e. OPPO A9 2020.  During the course of arguments, ld. counsel for the OPs has vehemently contended that the another model of mobile set i.e. OPPO A9 2020 which was supplied to the complainant was of higher rate amounting to Rs.18,990/- and in this regard he has also placed on file copy of print out taken from the internet, which is Mark-A on the file.  To rebut the said contention, ld. counsel for the complainant has contended that the mobile set supplied to the complainant i.e. OPPO A9 2020 was having 4 GB RAM, whereas the mobile set OPPO A31 which was ordered by the complainant was having 6 GB RAM.  Ld. counsel for the complainant has also produced the mobile set OPPO A9 2020 which was delivered by the Ops to the complainant in the Court, the said mobile set is unused and moreover, SIM is also not inserted in the said mobile set.  Ld. counsel for the complainant has vehemently contended that the mobile set was received by the complainant on 23.08.2020 and on 25.08.2020 he made correspondence with the OPs for change the said product and he has drawn our attention towards Annexure-C9 in this regard.  Ld. counsel for the complainant has also drawn our attention towards proof for refund as per Annexure-C11 from which it is clear that the complainant had requested the OPs for refund of amount in his account and he submitted the copy of aadhar card with the OPs which was demanded by the Ops from the complainant.  So, from the facts and circumstances of the case and documentary evidence available on the file, it is clear that the OP No.2-Flipkart has delivered the another model of mobile set to the complainant which amounts to deficiency in service on their part.

14.            Thus, as a sequel of aforesaid discussion, we direct the OP No.2-Flipkart to pay the amount of Rs.14,990/- to the complainant within 45 days from today and further to pay Rs.5,000/- as lump sum compensation on account of physical harassment and mental agony as-well-as litigation charges.  However, the complainant is also directed to submit the mobile set OPPO A9 2020 with the OPs within 30 days.  However, it is made clear that if the OP No.2 failed to pay the awarded amount of Rs.14,990/- to the complainant within stipulated period, then they shall also be liable to pay interest @ 7% p.a. from the date of this order till its realization.  Hence, the present complaint is accepted accordingly against OP No.2-Flipkart and dismissed against OPs No.1 & 3. 

15.            In default of compliance of this order, proceedings against OP No.2 shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:01.09.2023.

                                                                (Neelam Kashyap)

                                                                President.

 

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.

 

Typed by: Sanjay Kumar, S.G.