By Smt. PREETHI SIVARAMAN.C, MEMBER

1. Case of the complainant:-

                  On 24/09/2018 complainant had ordered one Television from Flipkart   and they assured to complainant that they will deliver the item on or before  04/10/2018.  Thereafter the shipment reached at the local delivery agent that means opposite party No.1 on 30/09/2018 and  on 14/10/2018  opposite parties cancelled the order without the knowledge of complainant and despatched back to flipkart. Complainant followed and enquired regarding the delivery of the product to opposite party No.1 through mail from 1^st October onwards, but every time the only response he received was two more days will take to deliver the item to complainant.  Complainant’s intention to purchase a television worth Rs. 30,000/- through online was  due to the  belief   that he had  on the flipkart, the online e-commerce giant and the offers  they provided  at the time of purchase.

2.          The delivery agent, opposite party No.1 called the complainant  about 2-3 times  and requested the complainant to come and collect the product  from their  courier service   because  they have  no proper  mode of transportation  to get the product delivered (No three wheelers or four wheelers). Due to the excuses from opposite party No.1, complainant called the flipkart office regarding this issue and they insisted the complainant not to collect the product by complainant as it is the duty and responsibility of opposite party No.1 to deliver the product to complainant.  They directed the complainant to wait till 14^th October and later cancelled the order without complainant’s knowledge.  As a consumer, complainant feel cheated and opposite parties kept complainant’s money for one month with them.  Moreover complainant again stated that, he can purchase TV from some other online retailer as lot of discounts were being provided during that period.  Complainant felt that the local delivery agent opposite party No.1 is the main person responsible for the deficiency of service and monetary loss occurred to complainant. 

3.     Claim of the complainant is that he is entitled to get Rs. 1,00,000/- from the opposite parties  for the  mental and emotional trauma  he had gone through during that 45 days and  the refusal of opposite party No.1 to deliver the TV.

4.        On admission of the complaint notice was issued to the opposite parties  and notice served  on them  and they appeared through their counsels  and filed  version and affidavit.   

5.    In their version, opposite party No.1 denied the entire averments in the complaint except which are expressly admitted.  Opposite party No.1 stated that complainant is not a consumer with respect to the services rendered by them.  This complaint is bad for non-joinder of necessary parties and mis-joinder of parties.   They again submitted that they provide an airway bill at the time of booking of parcel and it had an airway bill number also and complainant suppressed the airway bill number in the complaint.  Without the airway bill number, opposite party No.1 is unable to track the details of the shipment. 

6.        They again stated that  complainant is not a consumer as far as opposite party No.1 is concerned and there is no privity of contract between the complainant and opposite party No.1.  Opposite party No.1 is not aware about the allegations levelled by complainant against them.  There is no deficiency of service or unfair trade practice from the side of opposite party No.1.   Hence complainant is not entitled to get any relief   prayed in the complaint.  Hence complaint may be dismissed.

7.          In their version, opposite party No.2 submits that complainant is not a consumer of opposite party No.2  under the provisions of Consumer Protection Act  and he wrongly arrayed opposite party No.2 as a party.  There is no privity of contract between complainant and opposite party No.2. Hence complaint is not maintainable.   They again submitted that the business done by opposite party No.2 falls within the definition of an intermediary under IT Act.  Their involvement in  the entire transaction as an intermediary is very limited and they are providing only the online platform. Moreover they  shipped the proper product in proper time and on proper day at proper place of billing address and nothing  beyond this.   Opposite party No.2 does not sell any product  on its own .   Opposite party No.2 provides online platform for different registered sellers to sell their products  and  buyers to purchase  such products  from the respective sellers  on the above said online  market place website.   The service of opposite party No.2 is similar to a shopping mall where various shops are rented out to different sellers and  in case of any defect in the  goods  sold by sellers in the shopping mall,  it is a seller  who is held liable for the consequences  and not the  owner of the shopping mall where  such shops are situated. 

8.          They again submitted that complainant does not fall under the category of consumer of opposite party No.2 because opposite party No.2 is neither a trader  nor a service provider and  there does not exist  any privity of contract  between them.    They again submitted that  opposite party No.1 intimated to opposite party No.2  that  the product could not be delivered  to the complainant  due to the insufficient or incomplete address of the complainant and  the order was cancelled after  multiple attempts  made by  opposite party No.1.  The complainant even failed to respond to phone calls made by opposite party No.1.

9.              They  again  submitted  that  the  complainant  was   asked  to  collect  the

product  from the nearest office, but he refused to do the same.  Even after that opposite party No.2 tried to contact the complainant on his mobile number,however no response was received  from the complainant  and consequently the order was cancelled.  Moreover opposite party No.2 is an online intermediary that does not sell products of its own.  No consideration has been charged by opposite party No.2 from complainant for using its online platform and whatever the consideration has been paid by the complainant was against the cost of the products purchased by complainant.  Moreover  any kind of assurance, whether in terms of warranty  on the products, price, discounts, promotional offers , after sales services or otherwise  are offered  and provided  by seller  or  by the manufacturer of the products  sold on  flipkart platform.  It is further submitted that the product in issue has been sold  and delivered by  separate entities  and the product has  never even  came under the  physical possession of opposite party No.2 and  it is the seller  who ensures  the delivery of the product  in accordance with the specifications  through  independent third party logistics service provider.  Hence complaint may be dismissed.

10.            In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and he produced one document which is  marked as Ext. A1 series (13 Pages). Ext. A1 series are the copies of order history  from flipkart website and e-mail communication with flipkart etc. 

11.      Thereafter opposite party No.1 did not file affidavit and documents  to prove their case . Opposite party No.2 filed affidavit   and no document filed.   Perused the affidavit  and documents  filed by  complainant and version of opposite party No.1 and version, affidavit  and argument notes of opposite party No.2  and the following points arise for consideration:-

1. Whether there is any deficiency in service and unfair trade practice on the part of   opposite parties.
2. Relief and cost.

12. Point No.1 &2

              Case of the  complainant is that  the opposite parties are unable to deliver the television for which complainant had  already prepaid the amount of Rs. 30,000/- to opposite party No.2  on  24/09/2018 with the promise of delivery  on or before  4/10/2018. As per the documents, the above TV reached at Perintalmanna on 30/09/2018, but from that day  to 14^th October 2018  opposite party No.2 tried to believe the complainant that they will  deliver the item, but on that day  they cancel the order without the consent of complainant.     Hence complainant felt cheated.

13.     But the first opposite party appeared before the Commission and filed version , but not filed affidavit to prove their case. In their version, they only mentioned about the airway bill which they provide at the time of booking of a parcel which contains an Airway Bill number which is used to track all the details regarding the shipment couriered.  Again they stated that if the product is shipped through them, both second opposite party and complainant shall have the airway bill number and complainant suppressed the bill number in the complaint.   So opposite party No.1 is unable to track the details of the above shipment. Again they wanted  to file  additional version with correct facts  after   getting  the Airway bill number.

14.         From the  facts  stated by complainant and the opposite party No.1, we are on the opinion that, it is easy for  opposite party No.1 and 2 to submit the Airway Bill number. If there is any such bill while booking the  parcel,  that Airway bill number will surely provided to opposite party No.2 and the copy  will kept in the custody of opposite party No.1.  They can easily produce that number before the Commission and they can easily track the item  by using  this number.  If complainant not produced that number before the Commission, then opposite party No.1 can file it  before the Commission. They even not filed an affidavit before this Commission to prove their case.   The main contentions of complainant are against opposite party No.1. Complainant stated that the shipment reached at Perintalmanna on 30/9/2018 and  opposite parties  cancelled the order on 14/09/2018 without complainant’s knowledge  and  despatched  it back to flipkart. More over complainant stated   in the complaint that,  opposite party No.1 called him  about 2-3 times  and requested the complainant  to come  and collect the product at their office  because they have no proper mode of  transportation to get the product delivered .  They have no three wheeler or 4 wheeler of transportation with them.  Thereafter complainant called opposite party No.2 regarding this issue and they insisted the complainant not to collect the product by complainant as it is the responsibility  of opposite party No.1 to get it delivered .

15.           It is easy for opposite party No.1  to produce document regarding the call details and other communication with flipkart  before  this Commission.  They neither  appeared before the Commission   nor filed  affidavit.  From the documents submitted by complainant which is marked as Ext. A1 series page No.2 there clearly mentioned that on 30/09/2018 at about 7.34 am the shipment reached at  Perintalmanna EMS, Panambi.  So the item was reached there, but the courier service people not delivered the item to complainant. It is the duty of opposite party No.1 to   prove that point otherwise.   From Ext. A1 series  page No.3,4,5,6 clearly shows that  there is communication between complainant and opposite party No.2 and opposite party No.2 had escalated  complainant’s issue to the concerned team  and they assure  that  they will  resolve the  problem of complainant by 3/10/2018. They again changed the dates to  4/10/2018, 5/10/2018 and 9/10/2018.  As per  Ext. A1 series page No.7, on 14/10/2018 opposite party No.2  said sorry  to complainant and  they admitted that   “there has  been an unexpected delay in having your order delivered. Again on Ext. A1 series page No.8 they stated that they tracked the order of complainant and they convinced that the order reached the complainant on time, but it has been cancelled.  As per Ext. A1 series page No.9”, there also opposite party No.2 said sorry for the unexpected delay for the item delivery.  But as per Ext. A1 series page No.10,11,12 and 13, opposite party No.2 called the complainant through phone on 9/10/2018 ,10/10/2018,11/10/2018 and 13/10/2018,  but  complainant did not taken the phone calls of opposite party No.2 . 

16.       In the version and affidavit filed by opposite party No.2 they stated that they are only an intermediary and their role is very limited and they provided an online platform to sell the product by the seller and purchased the product by the buyer. But it is not correct.  Opposite party No.2 should know the veracity and reliability  of the product sold  through them.   But in this case the role of opposite party No.2 is  negligible.   They submitted that opposite party No.1 informed opposite party No.2 that the product could not be delivered to the complainant due to incomplete address of the complainant and later the order was cancelled by them after multiple attempts made by opposite party No.1. In  this case there is no role   for opposite party No.2  to play because all the  communication were between opposite party No.1 and complainant. 

17.        From the above facts it is clear that    the shipment was reached at opposite party No.1 courier service at Perintalmanna  on 30/09/2018  and  they contacted the complainant  to come and collect the item from their office at Perintalmanna .  It is the duty of opposite party No.1 to deliver the item to complainant’s house. If they have no such practice to deliver the item  at complainant’s place ,they should  clearly  inform that fact  to  opposite party No.2  and complainant.  Here opposite party No.1  did not produce their  brochure which mentioned about that they have no such  home to home delivery of the product. Opposite party No1 not filed   affidavit and documents to prove that  they have  called the complainant many times and  he had not  taken the phone calls of opposite party No1.  So in this matter  we are on the opinion that opposite party No.1 intentionally suppressing something to escape from the liability.  The Ext. A1 series document filed by complainant shows that there is an e-mail communication between complainant and opposite party No.2.  Opposite party No.1 can easily produce documents  and call list  to prove that  they contacted the complainant,  but he did not attend the phone.

18.         Moreover complainant did not produce document to show that  there was some offer from opposite party No.2 for purchasing this  kind of TV.  So  the Commission did  not find any merit  on that point regarding offers mentioned  by the complainant in the complaint. Moreover complainant had already received Rs. 30,000/- which he had paid to opposite parties. So there is no need of any clarification on that point . But  there is deficiency of service  from the side of opposite party No.1 alone.  Hence we allow  this complaint holding that opposite party No.1 is deficient  in service.

19.   In the result   we allow the complaint as follows:

1. The opposite party No.1 is directed to pay compensation of Rs.5,000/-(Rupees Five thousand only)  to the complainant on account of deficiency in service on the part of opposite party No.1 and thereby caused mental agony, physical hardships and sufferings to the complainant.
2. The opposite party No.1 is also directed to pay Rs. 5,000/- (Rupees Five thousand only) as cost of the proceedings.

         If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite party No.1 is liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.

      Dated this 28^th day of February, 2022.

MOHANDASAN.K, PRESIDENT

PREETHI SIVARAMAN.C, MEMBER

APPENDIX

Witness examined on the side of the complainant             : Nil

Documents marked on the side of the complainant           : Ext.A1 Series

Ext.A1 : Series are the  copies of order history   from flipkart website and  e-mail

               communication with flipkart etc (13 Pages). 

Witness examined on the side of the opposite party          : Nil

Documents marked on the side of the opposite party         : Nil

MOHANDASAN.K, PRESIDENT

PREETHI SIVARAMAN.C, MEMBER