JUDGEMENT& ORDER

(24.02.2023)

1. This is a complaint petition filed under section 35 of the Consumer Protection Act 2019 alleging deficiency in service rendered by the opposite parties.
2. Brief facts of the case are thaton 17.05.2021 complainantplaced online orderfor mobile phone POCOX3-Shadow grey,128gb,6gb Ram for consideration of Rupees 16,999with the opposite party no.1 andpaid the price of said mobileusing her father’s debit card namely Tar Choya in fullamount to the account of Opposite party no.1.
3. On 27.05.2021 opposite party No.3 delivered the said mobile phone to the complainant.Thereafter,complainant opened the delivered parcel and to her surprise, instead of receiving purchased mobile phone bunch of soaps wrapped in plastic(vim bar & rin soap) and a stone was found in the delivered parcel packet. Thereafter, the Complainant immediately reported to the flipkart customer care about the incident, requested for returning the defect product and asked for therefund of the amount but her request was rejected by the opposite party no.1 resulting to deficiency in service on the part of opposite parties.
4. The complainant’s prayer to direct the opposite parties as follows:-
   1. To refund the amount of Rs 16,999/-
   2. For mental trauma and agony Rs 2,00,000/-
   3. And Rs 50,000/- towards legal expenses.
5. Upon the notice the Opposite parties no.1, 2 & 3appeared and contested the present consumer complaint by filingwritten statement in defence of their case.
6. That the oppositeparties no.1, 2 & 3 contended intheir reply by taking some preliminary objection thatthe opposite party no.1 is an intermediary between the service provider and customer, it does not have any interference in the working of merchant or service provider and the liability for any changes, deficiencies related to the service provided by the service providers. It is mere facilitator of services on behalf of third-party service providers and further submitted that as per the section 79 of Information technology Act which states the exemption of liability forintermediaries and lays down that an intermediary shall not be liable for any third-party information or data made available by it or hosted by it. Therefore,opposite parties are not responsible for any nonperformance between the seller and buyer
7. Both the counsel filed their written argument. We have heard their oral submission and have perused the records of the case.
8. Now thepointsfor considerationin this case are:
   1. Whether there was any deficiency in service on the part of the opposite parties?
   2. Whether thecomplainant is entitled for the claim as prayed for, if so to what relief?
9. Point No.1: We have perused the record and averments submitted by the parties to the complaint. Admittedly the complainant placed an order of mobile POCOX3 with opposite parties on 17.05.2021 by paying an amount of Rs 16999 to theopposite party o.1 but the opposite parties have delivered the bundles of bar, soaps & stone inside the parcel item as seen in the documents annexed as annexure-2 series of the complaint.In pursuant to this, the complainant emailed to the opposite party No.1 for the refund but still complainant failed to receive any response from the opposite party no.1.And it is also seen that proposal of complainantfor returning the defect product was rejected.Such act and conduct of the opposite parties show thatthey have harass the complainantunnecessarily just to avoid the refunding the mobile price paid by her through her father’s debit card. Opposite parties being engaged in ecommerce business which is online shopping/business prevalent everywhere in the country ensuring speedy transaction, enhancing profits and time savingtime for the business house. Under such circumstances, the responsibly of the opposite parties cannot be shaken off after selling the product as it is the duty bound of the opposite parties to satisfy their customer and it does not   give liberty to usurp the money of consumer either by sending wrong items or defective product.In this case it is well established that wrong items were sent by the opposite parties therefore such act and conduct of the opposite parties fall under unfair trade practice and deficiency of service as defined under consumer protection Act 2019. In view of the above observation, present complaint petition allowed.
10. In view of the above discussion and observation made in the foregoing judgment, the complainant is entitled for the claim and we direct the opposite parties No.1 to refund the amount of complainant’s mobile amounting to Rs 16,999/-. The Opposite parties are also jointly liable to pay compensationamount of Rs 15, 000/- for mental trauma and agony &rupees for litigation Rs. 10, 000/-. Therefore, the Opposite parties are liable to pay the compensation amount of Rs. 41, 999/- (Rupees Forty-One Thousand Nine Hundred Ninety-Nine only) under all heads.
11. This consumer case No. LMCA/PP-04/21 stands allowed and disposed on contest.
12. Judgment pronounced and signed on this 24^th day of February 2023 at Yupia.