DATE OF DISPOSAL: 28.06.2023
PER: SRI SATISH KUMAR PANIGRAHI, PRESIDENT
The fact of the case in brief is that the complainant has filed this Consumer complaint under section 35 of the Consumer Protection Act, 2019 alleging unfair trade practice by the Opposite Parties (in short O.Ps) and for redressal of her grievance before this Commission.
2. The complainant on 28.08.2020 ordered an item to the O.P. “ SAMSUNG GALAXY-S-10-LITE PRISM BLUE 128” ID NO: OD119543554234862000 through his mobile SIM NO; 8763498545 for buying price of Rs.38,999/- in the same the complainant paid the buying amount of Rs.38999/- through his debit card to the O.P. On 03.09.2020 he received a wrong product/item from the O.P. namely “VIVI 1Q00” without invoice/bill of that product/item showing MRP Rs.37,990/-. On 03.09.2020 the complainant made grievance to the customer care of O.P. in its toll free phone number. Accordingly, the opposite party communicated with the complainant to redress the grievance. The complainant complied the requirements as per desire of the OP. The opposite party also inquired into the matter and informed as per findings to the complainant. It was going on for several days till 5th Oct., 2020 through e-mail. On 05.10.2020 the complainant sent the advocate notice. On 17.12.2020 the O.P. has given reply to legal notice by stating that “Under these circumstances we state that there is no claim against “Flipkart in this entire transaction and hence we requests you to instruct your client to withdraw this notice and not to initiate any proceeding against Flipkart.” Alleging deficiency in service on the part of the O.P. the complainant prayed to direct the O.P. Flipkart Internet Private Limited to replace the wrong product from the complainant and compensation of Rs.2,00,000/- in the best interest of justice.
3. The O.P. filed written version/written argument through his advocate. The O.P. Flipkart Internet Private Limited is a Company engaged, among others, in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application. The O.P. is an online market place e-commerce entity as defined under Consumer Protection Act, 2019 and Consumer Protection (E-commerce) Rules, 2020. The said ‘Flipkart platform’ is electronic marketplace model E-commerce platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers. These sellers are separate entity being controlled and managed by different persons/stakeholders Consumer Protection ( E-commerce) Rules, 2020 has clearly distinguished marketplace E-commerce platform from the seller of the goods. Thus, for any act of the seller, the marketplace e-commerce platform or its operating entity cannot be held liable. Any kind of assurance, whether in terms of specifications, warranty on the products, delivery, price, Discounts, Promotional offers, after sale services, RETURN AND REFUND or otherwise, are offered and provided by the seller of the products sold on Flipkart platform. The Opposite Party neither offers nor provides any assurance and/or offers pickup or refund facility to the end buyers of the product. The seller further intimated this O.P. that the area in which the product in issue was delivered to the complainant is highly vulnerable area in terms of false claims and miss-shipments. Hence, the seller conducted an investigation regarding the grievance of the complainant where in it was found that the mobile phone (vivo Iqoo 3) which the complainant claims to have received having IMEI No. 864656049904752 was already delivered in the same area as that of the complainant’s with a different order ID (OD119190337962244000) in the month of July 2020. Thus it is factually not possible that the same mobile phone which has been already delivered in the month of July to a customer has been again delivered to the complainant in the month of September 2020. The present frivolous complaint is being filed by the complainant based on twisted facts with the malignant motive to damage the reputation and obtain unlawful gain against the OP. and O.P. cannot be held liable for any deficiency of service or unfair trade practice against the complainant and cannot be held liable to pay any amount towards loss, damage, mental agony, litigation expenses or any other relief to the complainant.
4. On the date of hearing of the case, we heard learned counsel for the O.P. and the Complainant is absent on repeated call. Perused the case record and the materials placed on it. The issues or question arises in the present case are very peculiar. For just and appropriate adjudication in any case, there is a need for a proper party whose presence would enable the Court to completely, effectively, and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favor of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him, against the wishes of the plaintiff. Hence, a proper party is a necessary party who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court – held in Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Others (2010) 7 SCC 417. In the instant case, the Complainant has not impleaded the seller of the product in question. In the absence of the seller the issues cannot be resolved effectively.
In the result the case of the complainant is dismissed. No cost.
This case is disposed of accordingly.
The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.
A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 or they may download same from the www.confonet.nic.in to treat the same as if copy of the order received from this Commission.
The file is to be consigned to the record room along with a copy of this Judgment.
Pronounced on 28.06.2023
