IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 04^thday of March, 2022

Present:  Sri. Manulal V.S. President

Smt. Bindhu R. Member

Sri. K.M. Anto, Member

C C No. 67/2018 (filed on 19-04-2018)

Petitioner                                          :         Alex Augustine,

                                                                   Kollaparambil House,

                                                                   Kooroppada,

                                                                   Kottayam – 686502

                                                                             Vs.                            

Opposite Parties                               :  1)    Manager,

                                                                   Flipkart,

                                                                   Kottayam Office,

                                                                   Kottayam -1,

                                                                   Kumarakom Road,

                                                                   CMS College,

                                                             2)   Manager,

                                                                   Flipkart,

                                                                   Regd. Office,

                                                                   Consulting Office,

                                                                   Consulting Rooms Pvt. Ltd.

                                                                   House No.37/13, Old regikurnagar,

                                                                   New Delhi – 110060.

                                                                   (For Op1 and 2, (Adv. Thomas Joseph)

O  R  D  E  R

Smt. Bindhu R. Member

The complaint is filed under Section 12 of 1986

The complainant purchased one mobile phone of iVooMi brand through the opposite parties and got it delivered on 23-02-2018.  But after 28 days the phone started showing complaint on display and got switched off.  Thereafter the complainant contacted the customer care centre of the opposite party and entrusted the said phone with the service centre at Kottayam.  They informed the complainant that the IME No. Of the phone was wrong and it was a duplicate one.  So they returned the mobile phone.  From the date of defect of the phone, the complainant communicated with the opposite party over phone, but they were not ready to rectify the defect of the said phone or replace it with a new one. Later without giving any clear reply to the complainant, the opposite parties discontinued the communication.  The opposite parties have deceived the complainant by selling useless products through internet to make undue gains.  Hence the complaint is filed for replacement with a new phone or payment of the price of the mobile phone and for compensation.

          Upon notice from the Commission, the opposite party 1 and 2 entered appearance and filed version.

          The 1^st opposite party contented in its version that the complainant has approached the Commission without any bonafides and hence the complaint is liable to be dismissed.

          The 1^st opposite party is not an agent, seller or manufacturer of any product but merely an online intermediary providing a common platform to the buyer and independent 3^rd party seller.  The 1^st opposite party is a registered private limited company engaged in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application to facilitate the transactions, electronic commerce for various goods, buy and sell between respective buyers and sellers. The independent 3^rd party seller is the flipkart platform to list, advertise and offer to sell their products to the users/buyers who visit the Flipkart platform.  Upon the acceptance of the offer of sale by a buyer the seller is intimated electronicallyand  isrequired to ensure that the products are made available and delivered in accordance with delivery terms as per the terms of sale displayed by seller on the Flipkart platform.  The business of opposite party 1 false within the definition of ‘intermediary’ under Section 2(1) (W) of the IT Act 2000.   Further the 1^st opposite party is protected by the provisions of Section 79 of the IT Act 2000.

1. Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data or communication link made available or hosted by him.
2. The provisions of sub-section (1) shall apply if-

1. The function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
2. The intermediary does not-

1. Initiate the transmission,
2. Select the receiver of the transmission and
3. Select or modify the information contained in the transmission,

3. The intermediary observes due diligence while discharging his duties under this act and also observes such other guidelines as the Central Government may prescribe in this behalf.

          The 1^st opposite party neither offers nor provides any assurance, offers or warranty to the end buyers of the product.  Any of such offers if made are by the manufacturers.  As the 1^st opposite party does not fall under the definition of trader or service provider and there does not exist any privity of contract between the complainant and 1^st opposite party and so the 1^st opposite party is wrongly arrayed in the party array.  So the complaint is bad for misjoinder. 

          The product purchased by the complainant has not been sold by the 1^st opposite party and it has no role in issuing invoice for the products sold by the independent seller through the platform of the 1^st opposite party.  The 1^st opposite party’s role is only of an intermediary like a shopping mall.  The users of the Fllipkart platform are bound by the terms of use enumerated on the platform which clearly state that the contract of sale is a bipartite contract between the buyers and seller only.  The grievances of the complainant is with respect to defect in the goods, after sale services by the service centre or  by the manufacturer under manufacturer’s warranty clause and mismatch in IMEI No. Mentioned on the product and on the invoice.  So grievance of the complainant is only against the manufacturer or seller of the product (opposite party No.2).  The 1^st opposite party being merely an intermediary is not connected with the allegation.  Moreover the 1^st opposite party on behalf of the seller of the product had offered to refund the amount of Rs.3,599/-.  Since the said product was out of stock on the part of the independent seller and requested the complainant to return the product and thereafter the payment of refund will be processed in the account of the complainant as per the terms and conditions mentioned in the website of opposite party No.1.  But the complainant insisted for the payment 1^st and then he would return the handset.  Hence there is no cause of action for this complaint.  In the return policy available on the website www.flipkart .com, it is evidently mentioned that the maximum period for product replacement is 10 days and any alleged issue arising after the 10 days period the authorized service centre of the manufacturer will entertain the issue or upon the return of the product the seller accept the return request made by the buyer and then the refund shall be credited to the buyers account.  Thus in the present case the product was delivered on 23-02-2018 and the replacement request was raised by the complainant only after 28 days.  Moreover the said product is out of stock of the seller.  So the complainant is obligated to accept the amount offered as refund by the opposite party 1.  Thus the 1st opposite party has duly complied with the terms of use and return policy and no further liability up on them. 

          The 1^st and 2^nd opposite parties are not related to each other.  The 1^st opposite party provides online market space platform/technology/other mechanism/services to the sellers and buyers while the 2^ndopposite party is one of the registered sellers availing the facilities provided by the 1^st opposite party.    The complainant has not produced any supportive evidence for the alleged telephonic conversation between opposite party No.1 and the complainant.  So 1^st opposite party cannot be made liable.  Moreover the 1^st opposite party has not received any amount of consideration from the complainant and the complainant has failed to establish any cause of action under the provisions of Consumer Protection Act against the 1^st opposite party and the complaint is liable to be dismissed.

          In version, the 2^ndopposite party contends that the 2^nd opposite party is a registered seller on the website Flipkart.com and sells products manufactured by others through the online platform of 1^st opposite party.  The duty of the opposite party No.2 is only to conduct the sale of goods manufactured or produced by 3^rd parties and up to the delivery of the product in the given address of the customer. 
The manufacturer is not a party in the complainant.  There is no relation of agency between opposite party No.1 and 2 as alleged by the complainant.  The allegation of the complainant is that the handset of    purchased from the 2^nd opposite party with a manufacturer’s warranty for a period of one year and which was delivered to the complainant on 23-02-18 started showing some defects after 28 days of delivery, the 2^nd opposite party does not hold any liability for the alleged defects or after sale services as the manufacturer or its authorised service centre are liable for the same.  The complainant has never made any correspondence with the customer care or officials of 2^nd opposite party or approached 2^nd opposite party for the defects in the product and the 2^nd opposite party was completely unaware the same.  The 2^nd opposite party was not aware of the denial of service by the authorised service centre of the manufacturer.  Without admitting the liability, the 2^nd opposite party has offered to refund that the amount of Rs.3599 through the opposite party No.1.  But the complainant with ulterior malicious intention denied to accept the said offer and the complaint is now filed with ulterior motives.

The complainant filed Affidavit in lieu of chief examination along with Exhibit A1 and A2.Opposite parties did not adduce any evidence.

On considering the above said pleadings and evidence on record, we would like to consider whether the complainant has successfully established the deficiency in service on the part of the opposite parties and if so what are the reliefs?

The complainant’s allegation is that the mobile phone purchased by him from the opposite parties turned inactive on the 28^th day of purchase and on verification it was seen that the IMEI number of the handset was different from that of the bill which accompanied the product. The opposite parties 1 and 2 have taken same defence that they are only intermediaries and in no way connected to the product which was manufactured by a third party who is not a party to the complaint.

Exhibits A1 and A2 are the documents proving the transaction.

The allegation of the complainant is that the mobile phone purchased by him from the opposite parties as per Exhibit A1 and A2 became defective on the 28^th day of purchase and when it was given to the authorised service centre, they informed him that the mobile phone was not having the same IMEI number as in the invoice. Thus the opposite parties deceived the complainant .

Though the opposite parties have filed separate elaborate version with  more or less same  contentions, the 2^nd opposite party in its version that “ Further, the averments with regard to alleged mismatch in IMEI no, of the handset and the invoice is concerned, it is submitted that without prejudice to his rights, the opposite party no 2 had offered to refund back the amount of Rs.3599/- for the product to the complainant through opposite party no 1 who is an electronic platform in the name of www.flipcart.com since the said product was sold through the platform of opposite party no.1.”So the 2^nd opposite party admits that there is a chance for the change in the IMEI number for any reason and that is why they informed the complainant to refund for the same.

This admissive action and statement of the opposite party proves the complaint and the opposite parties have committed unfair trade practice and rendered deficient service to the complainant. The contention of the opposite parties that they acted only as an intermediary is not sustainable as the intermediary platform has a bounden duty to ensure that the sellers keep the standard of quality products and services they sell to the consumers. Any latches on the part of the sellers with regard to the quality of the products or the services will hold the intermediary also liable.

S.2 (1) (w) of IT act 2000 does not give any protection to the intermediaries.

Information Technology Act,2000 S.79 says “79. Exemption from liability of intermediary in certain cases.–(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(1) …………………………………………..

(2) The provisions of sub-section (1) shall apply if–

 (c) The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf”.

So it is clear that S. 79  stipulates that the intermediary platform should be careful about the contents and products delivered through it.Moreover, the 2^nd opposite party is the seller of the impugned product. The seller cannot abstain from the liability of the sale of a substandard product. The 1^st opposite party contented that they were only a platform facilitating the sale of products manufactured by a third party manufacturer and sold by the 2^nd opposite party seller whereas the Exhibit A1 invoice was issued by the 1^st opposite party. A common man who visits the opposite parties’ website  or advertisements, has no opportunity to distinguish between the both. The name and appearance of both the opposite parties look the same. That itself amounts to unfair trade practice if they claim that the 1^stopposite party has no relation with the 2^nd opposite party.

In State Consumer Disputes RedressalCommission, U.T., Chandigarh in First Appeal No.27 of 2017(Amazon Sellers Service Private Limited v. GopalKrishan and others) decided on 17.2.2017 while holding Amazon SellersService Private Limited liablem has held as under:-

 “Contention of Counsel for the appellant that as per terms and conditions of sale, no liability can be fastened upon the appellant, is liable to be rejected. 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 Honble National Consumer DisputesRedressal Commission, New Delhi in the case titled asEmerging India Real Assets Pvt. Ltd. &Anr. VsKamer Chand&Anr. Revision Petition No.765 of 2016 decided on 30.3.2016that it was bounden duty of the facilitator to ensure that goods sold through any individual are manufactured as per quality and standard. If the goods purchased through online are found not upto the mark, online portal through which goods were purchased,cannot escape its liability.”

In the case on hand the transaction is proved with Exhibit A1 and A2. The  2^nd opposite party admits that there was a complaint raised by the complainant that the handset purchased by him from the opposite parties was defective and was having difference in the IMEI number. The 2^nd opposite party tried to refund him the amount of Rs.3599/-.But they have not produced any written document to prove the same. The complainant has averred in the complaint that the opposite parties had never turned up even on receipt of his complaint. So inthe light of above discussion we are inclined to decide the points in favour of the complainant and the complaint is allowed.

(1) The opposite parties are directed to replace the defective mobile phone with a brand new phone of the same make and price failing which refund the amount of Rs.3599 to the complainant along with an interest @9% p.a from the date of purchase ie.23.02.18 till the date of realisation.

(2)  The opposite parties are directed to pay Rs.5000 as compensation along with

Rs.  2000/- as litigation cost.

          Pronounced in the Open Commission on this the 04^thday of March, 2022.

Smt. Bindhu R. Member                 Sd/-

Sri. Manulal V.S. President             Sd/-

Sri. K.M. Anto, Member                 Sd/-

Appendix

Exhibits marked from the side of complainant

A1 – Invoice dgtd.23-02-2018 for Rs.3,599/-

A2 – Warranty card

Exhibits marked from the side of opposite party

Nil

                                                                        By Order

                                                                                                                                    Assistant Registrar