DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 28^th day of February, 2023                                                                                                

                          Filed on: 08/09/2020

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member

Smt.Sreevidhia.T.N                                                                 Member                                                                  

CC NO.245/2020

Between

COMPLAINANT

Rojas James, Naduvilapparambil House, Cheranelloor P.O., Edappally, Ernakulam682034.

VS

OPPOSITE PARTIES

1.      The CEO, Flipkart Internet Pvt. Ltd., Building Alyssa, Begonia & Clove Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village, Bengaluru 560103, Karnataka

2.      The Manager, Ekart Logestics, Brigade Manage Court, 1^st Floor, No. 111, Koramangala Industrial Layout, Bangalore 560095, Karnataka.

(Rep. by Adv. Ajay N.S., Prudence Attorney’s, Fathima Plaza, Providence Road, Ernakulam)

FINAL ORDER

Sreevidhia T.N., Member:

1.     A brief statement of facts of this complaint is as stated below:

The complainant had purchased a Realme 6i mobile phone from the opposite party on 10/08/2020 for an amount of Rs.12,999/-, the consignment was expected to be delivered on 21/08/2020. The payment for the above purchase was made through complainant’s credit card bearing No. ending with xxxx7720 of SBI through EMI option for 12 months at the time of purchase with 14% interest. The consignment was not delivered on 21/08/2020 as promised. On enquiring with the 1^st opposite party through their authorized customer care on 21/08/2020, it was informed that the consignment has reached the nearest depot and will be delivered to the complainant within 24 hours. It is submitted that, even after regular commitments from the 1^st opposite party on delivery, the same was not being fulfilled and complainant was being offered future dates. Thereafter a complaint was raised before the grievance officer of the 1^st opposite party. On 29/08/2020, the complainant has received a call from the grievance officer and be promised that the status of the consignment will be updated in 48 hours’ time and assured a successful delivery before. Even after 48 hours of waiting, there was no communication from the grievance officer on the said update and the complainant was forced to contact the customer care of the 1^st opposite party. The representative of the 1^st opposite party has assured a successful delivery within the next 24 hours. On 31/08/2020 at 8.30 pm, the complainant has received a call from one of the executives from the 1^st opposite party informed that the product delivery committed I impossible to fulfil and the only option left is to get a refund for the product. Complainant has expressed his interest in waiting for the delivery rather than requesting for a refund as the complainant has already paid the 1^st EMI of Rs.1335/- for the said purchase on 10/08/2020. Later the complainant was forced to cancel the order and sought for the refund. It is submitted that the complainant has paid his 1^st EMI for the above purchase without obtaining the product and he was forced to request for refund. The complainant has sustained severe hardship, inconvenience and loss due to the above default from the part of the opposite party. It is submitted that on checking the 2^nd opposite party webpage and while tracking the product, it is shown that the product is in the nearby hub. The opposite party has denied a valid explanation for the non-delivery of the product and kept the complainant waiting for 22 days. Due to the inaction from the part of the opposite party, the complainant has suffered loss for an amount of Rs.1335/- and 14% interest for 12 months. The complainant has ordered the same phone Realme 6i-6gb variant again on 4^th day of September, 2020 at a higher price Rs.13,999/-.Hence the complaint.

2.     Notice.

Upon notice from this Commission, 1^st and 2^nd opposite parties appeared and filed their version.

3.     Version of 1^st opposite party

The present complaint is not maintainable and liable to be dismissed against 1^st opposite party. The 1^st opposite party is not the seller of any product (including the product under the present complaint) and is only an intermediary providing a common platform to the buyer and the third party independent seller. It is submitted that these sellers are separate entity being controlled by different persons/stakeholders. The 1^st opposite party only acts as an intermediary through its web interface ‘www.flipkart.com’ and provides a medium to various sellers all over India to offer for sale and sell their product (s) to the users of the Flipkart platform. The whole grievance of the complainant pertains to non-delivery of the ordered product and its subsequent cancellation. It is submitted that the product was cancelled by the seller of the product as there was a technical error and the product could not be delivered. The delivery of the particular product is dependent on several external factors that may not always be in the control of the seller. 1^st opposite party is not involved in the entire transaction executed between the seller and the complainant. The 1^st opposite party is not involved in the entire transaction executed between the seller and the complainant. There is no provity of contract between the complainant and the 1^st opposite party and hence 1^st opposite party does not render any liability arising out of such contract.

4.     Version of 2^nd opposite party

The 2^nd opposite party acts as logistic partner only to facilitate transactions between independent third party sellers and independent end customers. The independent third party sellers use the online platform to list, advertise and offer to sell their products to the users/buyer who visit he online platform. Once a buyer accepts the offer of sale of the products made by the third party seller on the online platform, the seller is intimated electronically and is required to ensure that the products are made available and delivered. The role of the 2^nd opposite party is to provide a carrier to various sellers and over India to deliver their product(s) to the users of the online platform. It is submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders. Any kind of assurance, whether in terms of delivery, refund, replacement or otherwise are offered and provided by the sellers and the manufacturer of the particular product and the 2^nd opposite party does not associates itself with any kind of liability for delivery of any faulty product, wrong product, empty parcel or otherwise. The complaint has wrongly arrayed 2^nd opposite party in the present complaint and hence the complaint is bad for mis-joinder of party. There exist a service agreement between the seller and the 2^nd opposite party for delivery of the good and not between the buyers and the 2^nd opposite party. The services of 2^nd opposite party are similar to a postman of India Post Offices where the Postman collects consignments (letters/documents etc.) sent by the sender and delivers it to the receiver at the mentioned address on the letter. The 2^nd opposite party is not responsible for any alleged cancellation of goods by the seller. The 2^nd opposite party delivers the product when it is instructed by the seller of the product.

5.     Evidence

The evidence consists of the documentary evidence filed by the complainant which is marked as Exbt. A1 to A4. No oral evidence filed by the complainant. Opposite party has no oral or documentary evidence. Since the complainant is absent and there was no representation for the complainant. Heard the counsel for 1^st and 2^nd opposite parties.

We have gone through the complaint, version and documents filed by the complainant.

6.     Points for consideration in this case are

1.     Whether any deficiency in service or unfair trade practice is proved from the side of the opposite party towards the complainant?

2.     If so, reliefs and costs?

For the sake of convenience, we consider issue No. (1) and (2) together.

The case of the complainant is that he had ordered a mobile phone (Realme 6i) from the 1^st opposite party on 10/08/2020 for an amount of Rs.12,999/-. The payment for the above purchase was made through complainant’s credit card bearing No. *************20 of SBI through EMI option for 12 months at the time of purchase with 14% interest. The consignment was expected to be delivered on 21/08/2020. But the opposite party did not deliver the phone to the complainant after repeated enquiry made by the complainant to the opposite parties.

The 1^st opposite party and 2^nd opposite party had taken a contention that they had made any deficiency in service or negligence from their side.

From the available documents and evidence in this case it can be seen that the complainant had ordered a mobile phone from the opposite parties and they had not delivered the phone to the complainant even after repeated requests/enquiries made by the complainant to the opposite party.

The complainant has produced 4 documents before the Commission.

Exbt. A1:    Order No. and status of shipment from 1^st opposite party’s webpage

Exbt. A2:    Tracking details as shown in 2^nd opposite party’s webpage

Exbt. A3:    Bank statement showing the transaction details of 1^st EMI dated 23/08/2020

Exbt. A4:    Order No. and present status of the new order place on 04/09/2020

          In this case the opposite parties have not produced any documentary or oral evidence to prove that the consignment was delivered to the complainant by the opposite parties. Hence we can’t disbelieve the words of the complainant and Point No. (1) and (2) are proved in favour of the complainant. The complainant had produced Exbt. A4 document which clear that he had ordered the same phone Realme 6i 6gb variant again on 04/09/2020 at a higher price for Rs.13,999/- due to the deficient/negligent act of the opposite party in delivering the mobile phone to the complainant which is ordered and purchased by the complainant from the opposite party as evidenced by Exbt. A2.

In the result, the complaint is allowed as follows:

1.     We direct the opposite parties to refund the price of the mobile phone ie. Rs.12,999/- (Rupees twelve thousand nine hundred ninety nine only) to the complainant.

2.     The opposite parties shall pay an amount of Rs.5,000/- (Rupees five thousand only) as compensation to the complainant for the inconvenience and mental agony suffered by the complainant.

3.     The opposite parties shall pay an amount of Rs.3,000/- (Rupees three thousand only) as cost of proceedings.

4.     The liability of the opposite parties shall be jointly and severally.

The above order shall be complied with within 30 days from the date of the receipt of a copy of this order. If the above order is no complied within one month the amount ordered vide (1) and (2) will carry interest at the rate of 5% per annum from the date of order till realisation.

Pronounced in the Open Commission this 28^th day of February, 2023.

Sd/-

Sreevidhia.T.N, Member

Sd/-

D.B.Binu, President

                                                                        Sd/-                                                                           V.Ramachandran, Member                                                           Forwarded/by Order

Assistant Registrar

APPENDIX

Complainant’s evidence:

Exbt. A1:    Order No. and status of shipment from 1^st opposite party’s webpage

Exbt. A2:    Tracking details as shown in 2^nd opposite party’s webpage

Exbt. A3:    Bank statement showing the transaction details of 1^st EMI dated 23/08/2020

Exbt. A4:    Order No. and present status of the new order place on 04/09/2020

Opposite parties’ evidence

Nil.

Despatch date:

By hand:     By post                                                  

kp/

CC No.245/2020

Order Date: 28/02/2023