West Bengal

Birbhum

CC/113/2018

Lutfar Rahaman - Complainant(s)

Versus

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

Joy Gopal Das

28 Apr 2022

ORDER

Shri Sudip Majumder: Member.

            Petitioner’s case is that he ordered one “Realme 2 (Diamond Red 64 GB)” mobile hand set with valuable consideration of Rs. 10,990/- (Ten thousand nine hundred ninety only) through his Flip kart account i.e. OP No. 3 on 02/10/2018 in the name of the complainant Samim Ahamed relative of the complainant on 06/10/2018 and delivered another mobile hand set instead of “Realme 2 (Diamond Red 64 GB)”.

            As per Tax Invoice No. FAB3X01900039751 dated 03/10/2018 it is stated that the mobile hand set sold by OP No. 2 and it’s Registered office i.e. OP No. 1. OP No. 4 delivered the product as per the Billing Address.

            On 06/10/2018 after receiving the product, the complainant did not satisfy with the same as the product as shown in the website and the product delivered was not same. Therefore, on the same day the complainant lodged a return request through the delivery agent Flipkart towards the seller of the product.

            That thereafter the complainant received an e-mail from the Flipkart and also uploaded documents as asked by the Flipkart Company.

          

That thereafter the complainant came to know that the return request lodged by the complainant was cancelled on 12/10/2018 and subsequently the complainant called over phone to the Flipkart customer care and they assured to approve the request of the complainant and also assured that the dispute will be solved within 72 hours.

That thereafter on 13/10/2018 the return request of the complainant was canceled again and explain “We’d like to let you know that your recent request for a replacement has been cancelled as our systems have detected an unusually high number of retruns in your purchase history. This would also mean that you will no longer be able to login to your Flipkart account.” And this time the Flipkart authority also block the account of the complainant due to some reason best known to them.

Complainant submitted himself before us that he purchased the product through Flipkart and also return request made by him only for the same product not for “high number of returns”. Accordingly to him the reason for cancellation of return request from/by Flipkart is absolutely wrong.

That the complainant also informed the matter to the National Consumer Helpline vide his docket No. 963141 but the same is still pending.

That finding no other alternative, the complainant became compelled to file this complaint for the proper relief.

The complainant prayed for:

1. To pass and order directing the Ops for completing the said return procedure and to complete the same within the specified time fixed by this Ld. Forum/Commission.
2. To pass an order directing the Ops to refund the money which was paid to the Ops for the purpose of purchasing he said Mobile handset.
3. Rs. 10, 000/ (ten thousand) for physical & mental harassment caused by the OPs.
4. Any other relief/reliefs as the Court think fit and proper.

On 19/03/2019 all the Ops i.e. OP Nos. 1,2,3 and 4 filed there written version and denied all the complaint against them.

It appears from case record that by virtue of order No. 11 dated 31/12/2019 the case has been running exparte against all the Ops. Through we are considered the view of OP members from their written version.

The complainant/petitioner filed some documents, evidence-in-chief but no written notes on argument is filed as the complainant is present himself at the time of argument. Heard the complainant/petitioner and examined his original Aadhaar Card, Tax Invoice and the disputed mobile hand set on dock.

 

Now, for coming to a conclusion as regards the merit of the case, the following issues are framed.

                                                                     Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Ops?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

 Decision with reasons

Point No. 1:

            Evidently the complainant ordered for a mobile hand set with a consideration of Rs. 10,990/ through Flipkart vide Tax Invoice No. FAB3X01900039751 dated 03/10/2018. Hence, the complainant is a consumer as per C.P Act.

Point No. 2:

            Pecuniary jurisdiction of the Forum as per C.P. Act 1986 i.e. Rs. 20,00,000/ (now as per C.P. Act 2019 i.e. Rs. 1 crore). So, this Forum/Commission has territorial and pecuniary jurisdiction.

Point No. 3 and 4:

            On the date of argument, Ld. Advocate of the complainant is present and the complainant/petition also present himself. The complainant/petitioner submitted himself that he ordered for one “Realme 2 (Diamond Red 64 GB) mobile hand set and also paid the consideration amount of Rs. 10,990/ for the same composition. But, he received the mobile hand set being Model No. RMX 1805, Color : Diamond Red, RAM : 3GB,ROM : 32GB IMEI No. 864006040751754 instead of 64 GB and MRP of this mobile hand set is Rs. 9,990/ i.e. printed in the box of the mobile hand set.

 It is proved from evidence on the part of the complainant’s side that after receiving the return request from complainant, the OP No. 3/ Flip kart reply on 13/10/2018 as “We’d like to let you know that your recent request for a replacement has been cancelled as our systems have detected an unusually high number of returns in your purchase history. This would also mean that you will no longer be able to login to your Flipkart account.”

It appears to us that it is a case of Unfair Trade Practice, as defined by Sec. 2(1) (r) (1) (i) of CP Act 1986  "Unfair Trade Practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:

 (i) making any statement, whether orally or in writing or by visible representation including by means of electronic record, which:

(a) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model; ……”

 

In M R Ramesh vs. Prakash Moped House 2003 LJCP 601  “But one thing which is striking  is  that the respondents had indulged in unfair trade practice within the meaning of clause 

( r )  of  Section 2(1)  of the Consumer Protection Act whereby it has to be held that  respondents falsely represented that the motor cycle sold  by them would give mileage of 80  kms. per litre of petrol when it was not so and there was no  clear and intelligible  warning  in what circumstances such a claim had been made.”

It appears to us that the reason given by OP No. 3/Flipkart for cancellation of return request is vexatious one.

 

In case of  Liability for delivering article different from sample, it was stated in Katyayana Smriti  7 [689] as :

निर्दोषं दर्शयित्वा तु यः सदोषं प्रयच्छति ।
मूल्यं तद्द्विगुणं दाप्यो विनयं तावदेव च ॥ ७ [६८९] ॥

nirdoṣaṃ darśayitvā tu yaḥ sadoṣaṃ prayacchati |
mūlyaṃ taddviguṇaṃ dāpyo vinayaṃ tāvadeva ca || 7 [689] ||

 

“Whenever a seller, having shown an article free from defects as the one to be sold, delivers after the sale a different article which is defective, he should be made to pay double the price to the buyer and also an amount equal to that as fine to the king.” 

 Katyayana Smriti  7 [689].

 

The Complainant/petitioner ordered the said mobile had set through Flipkart/OP No. 3. Complainant did not chose the OP Nos. 1 and 2 i.e. seller of the product and OP No 4 i.e. delivery authority/person. Complainant ordered the product on good faith of Flipkart/OP No. 3. The OP No. 4 cannot come under vicarious liability because he is /was a mere delivery boy who delivered the same as per direction of the OP Nos. 1 and 2.

It also appears to us that the acts or omission in course of employment of OP Nos. 1,2 and 3 whether it is intentionally or unintentionally are to be Vicarious Liability under Law of Tort.

According to BLACK’S LAW DICTIONARY, 11^th Edition, Page No. 1099, “Vicarious Liability” is defined as “Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties. Also termed imputed liability.”

“The vicarious liability of an employer for torts committed by employees should not be confused with the liability and employer has for his own torts. An employer whose employee commits a trot may be liable in his own right for negligence in hiring or supervising the employee. If in my business I Higher a truck driver who has a record of drunk driving and on whom one day I detect the smell of bourbon, I (along with my employee) may be held liable for negligence if his deriving causes injury. But that is not ‘vicarious’ liability  I am held liable for my own negligence in hiring that employee or letting him drive after I know he has been drinking.” Kenneth S. Abraham, The Forms and Functions of Tort Law 166 (2002).

In Mclaughin vs. Pryor, (1942) Man. & G. 48., where one person authorizes another to commit a tort, the liability for that will be not only of that person who has committed it but also of that who authorized it.

It is based on the general principle: “Qui facit per alium facit per se” which means that “the act of an agent is the act of the principal.” For any act authorized by the principal and done by the agent, both of them are liable. Their liability is joint and several.

Reasons for Vicarious Liability:

The reasons behind holding the master liable for the actions of his servant are:

1. A servant is just an agent who is controlled and supervised by his employer. So, the servant works according to the master which means he works in the manner the master wants the work to be done. So, the liability for the actions of the servant must be of the master. 
2. The master always enjoys the profit derived from the efforts of the servant, so he must also bear the loss that occurred by the activity of the servant but only in the course of employment. 
3. The master is financially stable than that of a servant. So, the master is more suitable to pay for the damages caused by the tortious act of the servant. But the masters are allowed to take reasonable care and precautions to prevent himself from such situations. 

 

• In Pushpabai Parshottam Udeshi and others Vs. M/s Ranjit Ginning & Pressing Co. Pvt. Ltd. and another, AIR 1977 SC 1735, it has been held that when an act is committed by a driver in the course of employment or under the authority of the master, the liability would be that of the master.       
•  In State of Maharashtra and others Vs. Kanchanmala Vijaysing Shirke and others, AIR 1995 SC 2499, where clerk in a Government Department was driving a vehicle under the authority of driver at the time of accident and the vehicle was used in connection with the affairs of State and for official purpose, it was held by the Lordships under the circumstances the State cannot escape its vicarious liability to pay compensation to the heirs of the victim.

 

• In Sitaram Motilal Kalal Vs. Santanuprasad Jaishanker Bhatt, AIR 1966 SC 1697 it has been held that law is well settled that a master is vicariously liable for the acts of his servant acting in the course of his employment. Unless the act is done in the course of employment, the servant’s act does not make the employer liable.

It appears to us from the documentary evidence of both parties that

• The complaint is to be Unfair Trade Practice under the C.P. Act, as well as Vicarious Liability under law of Tort.
• The reason given by OP No. 3/Flipkart for cancellation of return request is vexatious one.
• The OP members cannot avoid their liability after receiving the return request at once. OP members are very much reluctant to exchange the mobile hand set as per order as specific composition, style or model.
• There exists deficiency in service against the complainant.
• Hence, from the documentary evidence from both parties, we are of the considered view, that the complainant has been able to prove his case. All the points are thus decided accordingly.

                        Hence, it is,

                                    O R D E R E D,

                                                            that the instant C.C. Case No. 113/2018 be and same is allowed in part exparte against  all the Ops in part with cost.

            All the OP members are directed jointly/severally to complete the said return procedure. All the OP members are also directed jointly/severally to refund the sum of Rs. 10,990/ Ten thousand nine hundred ninety only) i.e. the purchase money paid by the complainant as against the said mobile hand set within 30 days from the date of this order along with interest thereon @ 7% per annum calculating on and from 06/10/2018 i.e. date of purchase of the mobile set in question and along with that the Ops are also directed to pay a sum of Rs. 8000/ as compensation  for harassment and mental pain and agony cause to that effect by them to the complainant and to unblock the Flipkart Account of the complainant within said period of 30 days from this date of order failing which the complainant is at liberty to put this order in execution.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.