Date of filing: 24.04.2017
Date of Disposal: 22.12.2022
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU – 560 027.
DATED THIS THE 22nd DAY OF DECEMBER, 2022
CONSUMER COMPLAINT NO.807/2017
PRESENT:
SRI. RAJU K.S:MEMBER
SMT.REKHA SAYANNAVAR,:MEMBER
Shijil Ravindran
Aged about 36 years,
No.18, Sushir, 5th Cross,
1st Main Road, Pampa Extension,
Kempapura Hebbal,
Bangalore-560024. …… COMPLAINANT
Party in person
V/s
Flipkart Internet Private Limited,
Vaishnavi Summit, Ground Floor,
7th Main, 80 Feet Road,
3rd Block, Koramangala,
Bangalore-560034. ……OPPOSITE PARTY
(Opposite party Rep. by Sri. Nagaraja .S, Adv.)
*****
//JUDGEMENT//
BY SMT. REKHA SAYANNAVAR, MEMBER
The present complaint is filed U/s 12 of Consumer Protection Act-1986 with a prayer to direct the opposite party to pay a sum of Rs.28,000/- for wilfully cheating the complainant multiple times. In the absence of the deceiving in the advertisement posted on Flipkart.com, the complainant would have bought the TV for a lesser price from other online stores or by redeeming Rs.10,000/- worth gift voucher at a local store. Further instruct the opposite party to refrain from putting up deceiving advertisement and false promise in order to sell their product and also direct the opposite party to pay the cost of the proceedings and grant such other relief as the Hon'ble Commission deems fit to grant/award in the circumstances of the case, in the interest of justice and equity.
- The brief facts of the complaint is as under;
The complainant is a party in person. He has purchased a Sony BRAVIA SMART TV (KLV-43W752D) from opposite party-Flipkart.com on 21 October 2016. The product was delivered to him on the next day that is 22nd October 2016. Further submits that he purchased the said product during the festival season hence there were several offers on various online stores. The most attractive offer was the one that was on opposite party- flipkart.com as the web portal had offered two years manufacturer warranty along with 15% cashback and a Sony power bank and also a lucky draw coupon. Hence, he chose to buy from opposite party, although other online stores were selling the same model for lesser price.
3. Further the complainant submits that when the product was delivered and while unboxing the parcel in front of the seller’s representative the complainant realised that the television only has a one year manufacturer warranty contrary to the two-year manufacture warranty advertised it by the opposite party-flipkart.com.
4. Further the complainant submits that he sent an email to flipkart.com informing them of the received error on their part. However on 11 November 2016 he received a reply call from flipkart.com and it was informed to him that although the offer was there when the complainant took the screenshot and meanwhile op pulled out the offer just in time before he could complete the payment hence he was not eligible for the offer which the complainant is claiming .The representatives of the opposite party told the complainant that the screenshot was taken at 3:4PM IST and the payment process was completed at 3:48PM IST. Submits further that the complainant contacted Sony India, who informed him that Sony never offered two years standard manufacturer warranty for any of its previous series of televisions. Further the complainant submits that he being cheated by the opposite party by the misleading advertisement of products on their website. This kind of cheating acts of the opposite party caused the complainant to suffer mentally and financially. It amounts to unfair trade practices of the opposite party. Further opposite party did not respond the complainant’s requests. It amount of deficiency of service. Hence the complainant left with no other alternatives, approached this commission for redressal of his grievances. Hence, this-complaint.
5. The counsel for the opposite party filed a detailed version and partly denied the averments made by the complainant. The counsel for opposite party contended that the complainant is not the consumer; there is no privity of contract between the complainant and opposite party. Therefore the complaint is not maintainable and is liable to be dismissed with cost.
6. The complainant had filed an affidavit in the form of his evidence along with documents. The counsel for opposite party also filed affidavit in the form of their evidence along with documents.
7. The counsel for the opposite party has filed written arguments.
- The points that would arise for consideration are as under:
i) Whether the opposite party had followed the UnfairTrade Practices ?
ii) Whether the complainant has proved the deficiency in service on the part of the opposite parties ?
iii) If so, to what relief the complainant is entitled for ?
iv) What order ?
9. Our findings on the aforesaid points are as follows:
Point No.1 : In affirmative
Point No.2 : In affirmative
Point No.3 : Partly in affirmative
Point No.4 : As per the final order for the following;
REASONS
10. POINT NO.1 & 2:- To avoid the repetition of facts I have discussed point one and two together. PW1 and RW1 had reiterated the facts stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.
11. There is no dispute with regard to the purchase of the product Sony BRAVIA SMART TV (KLV-43W752D) from opposite party through E-commerce platform. The complainant claims that he purchased the said product by seeing the advertisement on the opposite party website and got cheated with respect to the features, offers and warranty of the product. On perusal of email dated 09.11.2016 opposite party admitted the fact that they offered discounts and other offers for products time to time and are valid for certain time. The say of opposite party in the email that not able to provide the offers amounts to unfair trade practice. Further, the product was purchased on 22.10.2016. In the website of opposite party produced by opposite party it appears that, the product has two year warranty and in the warranty card issued it is mentioned as one year warranty. Such act of opposite party attracts unfair trade practices as enumerated U/sec. 2(r) and 2(r)(viii)(i) of CP Act-1986. Hence, I answer Point No.1 in affirmative.
12. The opposite party counsel contended in the version that the actual seller of the product is different from the seller whose name is mentioned in the invoice copy of the product produced by the complainant and also contended that there is no privity of contract between the complainant and opposite party. He is not a consumer and further contented that opposite party acted just as an intermediary involvement, hence falls within the definition of an intermediary U/sec.2(1)(w) of information Technology act 2000. Hence, the complaint can’t invoke for justice under the consumer protection act. It is pertinent to mention here that Sec.3 of CP Act-1986 provides “Act not in derogation of any law. The provisions of this act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”. Hence, it is very much within the ambit of CP Act-2019.
13. Further the complainant is the consumer which comes U/sec. 2(d) of Consumer Act, which means any person who buy any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of ‘deferred payment’.
14. Further it is noticeable here that the counsel for the opposite party admitted the fact in their version and in the written argument that the opposite party provides online marketplace platform/ technology and/or other mechanism/service to the sellers and buyers of products to facilitate the transaction, electronic commerce for various goods, by and between respective buyers and sellers and enables them to deal in various categories of goods including but not limited to mobiles, cameras, computer, watches, clothes, footwear, healthcare and personal products, home appliances and electronic etc., and admits the fact that the opposite party is an electronic platform which acts as an inter-mediatory to facilitate and sell transactions between independent third parties and independent customers.
15. On the basis of the contentions made by the opposite party itself it appears that opposite party is an online e-commerce platform a public platform and the complainant had purchased the said product through its e-commerce platform and delivered the product with one year warranty only and till filing of the complaint opposite party has not responded in any positive manner with the complainant. Therefore the Acts of opposite party falls under the deficiency of service as enumerated U/sec. 2(g) of the CP Act-1986. Hence, I answer Point No.2 in affirmative.
16. POINT NO.3 :- Therefore this commission for the reasons discussed above hold that the opposite party is liable to pay the damages of Rs.10,000/- to the complainant for misleading advertisement and unfair trade practices and deficiency of service of the opposite party and to pay Rs.5,000/- as compensation for mental agony. In addition to shall pay Rs.5000 towards cost of the litigation to the complainant. Hence we answer point number two in affirmative and point No.3 is partly in affirmative.
17. POINT NO.4:- In the result, for the foregoing reasons, we proceed to pass the following;
ORDER
The complaint is allowed in part.
Opposite party is directed to pay the damages of Rs.10,000 to the complainant.
Further opposite parties are directed to pay compensation of Rs.5,000 and to pay Rs.5000 towards cost of the litigation to the complainant.
If the opposite parties fail to comply the order within 30 days, the above said amount of Rs.20,000/- carries interest at the rate of 9% p.a. from the date of order till realization.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
Applications pending, if any, stand disposed of in terms of the aforesaid judgement.
(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 22nd day of DECEMBER, 2022)
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
-
//ANNEXURE//
Witness examined for the complainants side:
Complainant Sri. Shijil Ravindran, who being the complainant had filed his affidavit.
Documents marked for the complainant side:
1. Copy of the tax invoice.
2. Copy of the email conversation.
3. Copy of the warranty card.
Witness examined for the opposite party side:
Smt. Ms. Mehek Sharma, authorized signatory of opposite party, who being the opposite party had filed her affidavit.
Documents marked for the Opposite Parties side:
1. Copy of the mail.
2. Xerox copy of the tax invoice.
3. Copy of the guidelines for FDI.
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
-
