Haryana

StateCommission

A/580/2019

FLIPKART INTERNET PVT. LTD. - Complainant(s)

Versus

DHARMENDER AND ANOTHER - Opp.Party(s)

AMIT MAHAJAN

10 Sep 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA   

 

                                                 

                                                First Appeal No.580 of 2019

                                                Date of the Institution: 19.06.2019

                                                Date of Decision: 10.09.2019

 

 

 

Flipkart Internet Private Limited, Buildings Alyssa, Begonia & Clover, Embassy Tech Village Outer Ring Road, Devarabeesanahalli Village, Bengaluru-560103, Karnataka, India.

 

 

…..Opposite Party No.1- Appellant

 

VERSUS

 

1.      Dharmender son of Shri Dal Chand, resident of House No.246, New Basti, Adarsh Colony Near Jeeven Jyoti School, Palwal, Haryana-121102.

 

…..Complainant-Respondent No.1

 

2.      ECOM Express, Ekta Nagar, Panchvati Road, Ward No.25, Near Naz Cinema, Palwal through its Proprietor.

 

…..Opposite Party No.2-Respondent No.2

 

 

 

CORAM:    Hon’ble Mr. Justice T.P.S. Mann, President.

                   Ms. Manjula, Member.

 

 

                  

                                     

Present:-    Shri Amit Mahajan, counsel for the appellant.

                    

                  

 

                                                O R D E R

 

 

T.P.S. MANN, J.  

 

          Flipkart Internet Private Limited-opposite party No.1 has filed the instant appeal against the order dated 4.4.2019 passed by learned District Forum, Palwal, whereby complaint preferred by Dharmender-complainant under Section 12 of the Consumer Protection Act, 1986, stood allowed and an award of `69,900/- passed against opposite party No.1 along with interest @ 9% from the date of filing of the complaint till its realization and `5,000/- as litigation and harassment charges. The complainant was also directed to return the mobile phone iPhone 5S to opposite party No.1 and opposite party No.1 directed to comply with the order within 30 days.

2.      According to the complainant, he had purchased an Apple iPhone 7 Plus (Jet Black, 128 GB) from opposite party No.1 through internet for `69,999/- and paid an amount of `69,990/- to opposite party No.1 through debit card and opposite party No.1 uploaded the IMEI/Serial No.359160076194165. Thereafter, the complainant received a packet containing the said mobile from ECOM Express-opposite party No.2. However, when the complainant received the packet and opened the same, it was found to contain mobile phone Apple 5S in a switched off mode. The complainant made complaints to opposite party No.1 through e-mail but opposite party No.1 did not pay any heed to his genuine request by making one excuse or the other. The complainant requested the opposite parties several times to refund the amount of mobile in question i.e., `69,990/- along with interest but to no effect. The complainant then issued legal notice to the opposite parties, which was served upon them but the opposite parties neither replied to the same nor paid the costs of the mobile. According to the complainant, the aforesaid wrongful act and conduct of opposite parties caused breach of trust to the complainant and also cheated him for not refunding the price of mobile in question. The said act and conduct of the opposite parties amounted to deficiency in service on the part of the opposite parties. Hence, the complaint.

3.      Upon notice, opposite parties appeared and filed their written version. In its written version, opposite party No.1 stated that the complainant having purchased a mobile phone Apple iPhone 7 Plus from opposite party No.1 was totally false. It was mentioned that opposite party No.1 was merely an intermediary having limited role of providing an online platform between the seller and the buyer of the product through its website and neither the seller nor the manufacturer of the product under consideration. The product purchased by the complainant was sold by independent seller registered on ‘flipkart platform’ and the delivery of the product was responsibility of seller only. Opposite party No.1 did not sell any product at its own either directly or through any third party seller. It was denied that when the complainant opened the packet of mobile, he found mobile phone iPhone 5S kept in the packet in a switched off mode. The complainant had not placed on record any document like picture of wrong product delivered, IMEI number of delivered mobile or any other document in support of his averments and that clearly created doubt about the validity of the product. Without prejudice to the above, opposite party No.1 being mere intermediary was not responsible for delivery of the product, rather it was the seller who was responsible for delivery of the product. Opposite party No.2 or seller of the product was responsible for alleged wrong delivery of the product. The complainant upon receiving delivery of the product had informed opposite party No.1 about alleged delivery of wrong product. It was submitted that the product was sold by independent seller and it was the seller only who was responsible to entertain/accept/reject any return or refund request of the complainant. Any information or confirmation of replacement of product was provided by opposite party No.1 is strictly as per the information provided by the concerned seller and it did not create any liability on part of opposite party No.1 for refund or replacement of product. Accordingly, dismissal of the complaint was sought.

4.      Opposite party No.2 in its written version pleaded that while delivering the shipment, it was not required to verify the contents or quality of the shipments whatsoever and was required to deliver the same in the packaged condition only to the end customer. Opposite party No.2 had carried out its services by delivering the product to the complainant. However, opposite party No.2 was neither a manufacturer nor a seller or packer of the product and the role of opposite party No.2 was confined to merely that of a “Courier Service Provider” only and was in no manner responsible/liable for the defects in the product. Opposite party No.2 simply performed the task of picking of an order already packaged product from the seller and delivering it to the buyer with the sole responsibility of ensuring that the package was delivered in intact condition based on the order assigned by opposite party No.1. Accordingly, opposite party No.2 prayed that the complaint be dismissed.

5.      In support of his case, the complainant tendered affidavit (Exhibit CW1/A) and documents (Annexures C-1 to C-16). Opposite party No.1 tendered affidavit (Exhibit RW1/A), document (Annexure R-1) and opposite party No.2 tendered affidavit (Exhibit RW2/A).

6.      After hearing, learned counsel for the parties and on going through the record, learned District Forum accepted the complaint and passed the award against opposite party No.1 of `69,000/- along with interest and litigation and harassment charges. Further, the complainant was directed to return the mobile phone iPhone 5S to opposite party No.1 and opposite party No.1 directed to comply with the order within 30 days.

7.      The State Commission has heard learned counsel for opposite party No.1/appellant and perused the impugned order.

8.      According to opposite party No.1, it was not the seller but only a trading facility platform and therefore protected by Section 2(1) (w) of Information Technology Act, 2000. At the same time, it is not in dispute that opposite party No.1 supplied the lower model and make of the mobile to the complainant. The payment for the product was received by opposite party No.1 and the mobile phone was also supplied by opposite party No.1. Thus, the objection of opposite party No.1 that it was not the seller of the mobile in question cannot be accepted.

9.      As the payment was received by opposite party No.1 and the product supplied by opposite party No.1 to the complainant which was not as per specification, opposite party No.1 was liable for providing deficient service. Opposite party No.1 having charged for trading/selling products/goods of various manufacturing companies, it had to be termed as a trader and the inferior quality of the product supplied by opposite party No.1 instead of the ordered one amounted to deficiency in service. Once the Commission finds that opposite party No.1 is a trading company and therefore not an intermediary, it was liable for deficiency in service.

10.    In view of the above, no fault can be found with the impugned order passed by the learned District Forum, whereby the complaint preferred by the complainant was allowed. The appeal lacks any merit and therefore dismissed.

11.    The statutory amount of `25,000/- deposited by opposite party No.1/appellant while filing the appeal be released in favour of the complainant-Dharmender against proper receipt and identification subject to filing of any appeal/revision.

 

 

Announced 10.09.2019

(Manjula) Member

(T.P.S. Mann) President

D.R.