IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the  25^th      Day of  January  2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

        Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                                                CC.106/2019

Kiran.P.Cheriyan                               :         Complainant

S/o Cheriyan

Kiran Nivas

Andathoor, Manalil P.O

Manalil, Kollam-691312.

V/s

Flipkart                                              :         Opposite party

Flipkart Internet Pvt.Ltd.

Vaishnavi Summit, No.6/B,7^th Main,

80 Feet Road, 3^rd Block, Koramangala

Bangalore-560034, India.

[By Adv.Dheeraj Ravi]

FINAL  ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          1. This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act 1986.

          2. The averments in the complaint in short are as follows:-

          The complainant purchased articles worth Rs.15000/- from the opposite party  Flipkart through online shopping.  The complainant has ordered one pair of each items but he has received only one product of each item and thereby the complainant sustained a loss of Rs.15000/-.  He made a complaint before the customer care but they have not taken any action for one and a half months.  Later he contacted opposite party over phone.  But the opposite party has not given any positive response and thereby the complainant has sustained loss of time and mental agony apart from financial loss.  Therefore the complainant prays to award Rs.2,00,000/- as compensation.

          3. Opposite party resisted the complaint by filing a detailed version raising the following contentions.  The opposite party is a private limited company duly registered under the provisions of the Companies Act  1956 and have its registered office at Bangalore.  The opposite party operated its trading facility platform over the internet under the domain name www.flipkart.com and is engaged in business of online market place and also dealing in various multiple category of goods including not limited to mobiles, cameras, computers, apparels, footwear, healthcare and personal products, home appliances and electronics etc.  The complainant is not a consumer of the opposite party and the opposite party has been wrongly arrayed as a party in the instant complaint.  There is no privity of contract between the complainant and opposite party and therefore the complaint is not maintainable either in law or on facts.  The opposite party falls within the definition of  an intermediary as defined under the Information Technology Act 2000.  The opposite party does not sell any products of its own but only provides online platform were different registered sellers sell their products and visitors/buyers purchases such products from the respective sellers on the aforesaid online market place website.  The service of opposite party is similar to a shopping mall were various shops are rented out to different sellers and in case any defect in the goods sold by such shop owners/sellers in the shopping mall were such shops are situated.  In the same way opposite party is not involved in the transaction except for providing the online platform for the transactions and the concerned contract of sale and purchase is between the seller and buyer only and hence the opposite party is not liable.  The complainant would not fall within the category of consumer as defined under the Consumer Protection Act.  The opposite party is neither a trader nor a service provider and no privity of contract between the complainant and the opposite party exist.  Therefore the complaint is bad for mis joinder of party.

          4. The complainant has purchased the product from one of the sellers listed on the online market place website flipkart.com.  The opposite party is not involved in the transaction except for providing the platform and the contract is only between the sellers and buyers and hence the opposite party cannot be held liable for any liability.  The opposite party being mere an intermediary and  not the manufacturer/seller or the authorized service centre for the product sold to the complainant.  Therefore the opposite party has no liability for the defects in the goods if any found.  There is no cause of action against the opposite party.  The opposite party is not owned/controlled/associated with the seller, manufacturer or the authorized service centre.  The product was purchased through the opposite party and not from the opposite party and the same is duly admitted by the complainant himself from the copy of the invoice attached along with the complaint.   On receipt of the complaint the same was duly forwarded to the concerned seller who informed that the correct product was duly delivered to the complainant.  The internal investigation conducted by the opposite party it was revealed that the complainant is a habitual offender of the seller refund/replacement policy and he is having a long history of having received refund on many similar grounds like missing product, empty parcel, incomplete product etc.  As a proactive measure his account got black listed as a preventive action.  Inspite of repeated request by the opposite party the complainant has omitted in sharing the other details of the said product.  He has approached the Commission with a false and fabricated story just to earn illegal profit at the expense of the opposite party.  As per the information received from the seller it was found that the correct product was duly delivered to the complainant.  The opposite party being intermediary has duly assisted the complainant each and every time by forwarding the relevant information to the complainant.  The complainant cannot be allowed to assume the goodwill gesture on the part of the opposite party as admission of guilt.  The complainant has omitted to share the order details of the said product and now has approached the Forum with a false case.  The complainant failed to allege any cause of action against the opposite party and hence the Forum does not have jurisdiction to entertain the present complaint.  The opposite party further prays to dismiss the complaint with its costs.

          5. The points that arise for consideration are:-

1. Whether there is any deficiency in service or any unfair trade practice on the part of the opposite party?
2. Whether the complainant is entitled to get compensation,  if so what would be the quantum of compensation to be awarded?
3. Reliefs and costs.

6. On 27.08.21 when the case was taken up for recording evidence the complainant was called absent and on previous several occasion also when the case was posted for trial in the list and relisted for trial the complainant had not turned up.  In the circumstances we are of the view that the complainant is not intending to adduce any oral evidence.  The document produced along with the complaint are marked as Ex.A1 to A7.  Opposite party has also not adduced any oral evidence.  Two documents produced along with written version is marked as Ext.D1 & D2.  Though the case was posted for hearing the complainant he has not turned up.  The  opposite party has filed notes of argument and advanced oral argument.

7. In view of the above pleadings the points that arise for consideration are:-

1. Whether the opposite party Flipkart has committed any deficiency in service or any unfair trade practice as alleged in the complaint?
2. Whether the complainant is entitled to get compensation to the tune of Rs.2,00,000/- as claimed in the complaint?
3. Reliefs and costs.

Point No.1&2

          8. For avoiding repletion of discussion of materials these 2 points are considered together.  The specific allegations in the complaint is that he has “purchased” the articles more than Rs.15000/- from the opposite party Flipkart.  He has ordered one pair of each items.  But he received only one of each item and not received the items in pair and thereby he sustained a loss of Rs.15000/-.  Ext.A2 is the copy of the e-mail communication which would not indicate that the complainant has placed the order to Flipkart.  The name of the item ordered is shirt men wear-RNHOP-Black Pocket.  The remaining writing is not readable as it is faded.  The complainant has produced Ext.A1 to A7 documents which are unclear photocopy of  certain documents.  What is written in those document is not visible and readable as the content of those documents are already faded.  There is nothing on record to indicate from the above 7 records that though he has ordered a pair of shirt(men wear)  two in numbers, he paid any amount for the same to the opposite party.  It is pertinent to pointed out that the complainant has not turned up and explained the content of the above 7 documents even though the relevant portion of those 7 documents are not readable.  The averments in the complaint would not indicate that he has paid the amount of Rs.15,000/-.  Even according to the complainant he received one item each of articles ordered out of a pair of that article ordered, then how  he has lost Rs.15000/- which even according to him is the value of the entire articles.  It is interesting to note that the complainant is reluctant to reveal what are the articles ordered and what are the items delivered.  He has also not produced any document to convince the Forum/Commission that he paid Rs.15000/-  as consideration to the opposite party.  In the circumstances the allegation of the complainant that he lost Rs.15000/- in the deal is not believable at all as there is no chance of sustaining that much loss since he received half of the items ordered even as per the averments in the complaint.

          9. In view of the contentions of the opposite party it is clear that the opposite party   Flipkart is not a seller or dealer of any articles.  Hence there is no chance the opposite party supplying any articles.  It is clear from the available materials that the opposite party Flipkart is an internet private limited company duly registered under the provisions of the Companies Act.  The company is engaged in providing trading/selling facility through its website www.flipkart.com and mobile application which are collectively known as “Flipkart Platform”.  The opposite party provides only online market place platform/technology to sellers and buyers of product to facilitate transactions, electronic commerce for various goods between the respective buyers and sellers which enable them to deal with various categories of goods such as  mobiles, camera, computers, watches, clothes, footwear, healthcare and personal products, home appliances and electronics etc.  In short it is clear from the available materials that Flipkart is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent and customers.  In short the business of the opposite party falls within the definition of an intermediary under Section 2(1)(w) of the Information Technology Act 2000 and hence protected under Section 79 of the Information Technology Act 2000.

          10. Even though the opposite party would specifically content in its written version that the complainant purchased the product from an independent 3^rd party seller and that the opposite is not involved in the entire transactions executed between the seller and the complainant, that the opposite party has not levied any charge from the complainant as consideration for using its online platform and that  there is no privity of contract between the complainant and opposite party and hence  not liable for the misfeasance, malfeasance or nonfeasance of the seller of the product to which the complainant has paid the amount if any if at all he paid. The complainant has not denied any of the above allegations nor produced any documentary evidence to indicate that he paid Rs.15000/- to the opposite party.  The complainant has not even cared to file proof affidavit denying all the above contentions of the opposite party.   

11. The opposite party in paragraph No.14 of the written version has stated that the complainant is cooking all crooked stories based on his whims and fancies.  The true facts of this case according to the opposite party is that on receipt of complainant grievance, the same was duly forwarded to the concerned seller and as per information received from the seller, it was found out that the correct product was duly delivered to the complainant.  Further, as per internal investigation conducted by the opposite party it was revealed that the complainant is a habitual offender of the seller refund/replacement policy and he is having a long history of having received refund on many similar grounds like missing product, empty parcel, incomplete product etc. and  as a proactive measure, his account got blacklisted as a preventive action.  Further it is contented that the complainant despite being asked by the opposite party, has omitted to share the order details of the said product and now has approached the Forum with a false case.  Thus the complainant under present case is cooking all the fabricated stories just to earn illegal profits from pocket of innocent opposite party.  Though the opposite party has filed the version containing the above allegations in paragraph No.14 and supporting affidavit containing the very same allegations the complainant has not cared to deny his illegal conduct relating to multiple refund and replacement request with different reasons which is a relevant fact which will go against case of the complainant.  The authorized signatory of the opposite party Flipkart has also filed affidavit in support  of the above contentions.  In paragraph 13 of the said affidavit the allegations against the complainant has been sworn.  However after filing the version(reply to the complaint) along with the said supporting affidavit the complainant has not turned up but seen abandoned his case.

          12. On evaluating the entire materials available on record we come to the conclusion that the complainant has miserably failed to establish the allegations in the complaint regarding the misfeasance, malfeasance and nonfeasance of the opposite party Flipkart alleged in the complaint.  The complainant has also failed to prove by adducing evidence that the opposite party has committed any deficiency in service or any unfair trade practice.  We find no merit in the complaint and the same is only to be dismissed.

Point No.3

          In the result complaint stands dismissed.

          No costs.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the   25^th  day of  January  2022.

E.M.Muhammed Ibrahim:Sd/-

            S.Sandhya Rani:Sd/-

           Forwarded/by Order

            Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext A1  :   Illegible unattested photocopy of invoice.

Ext.A2: Illegible unattested photocopy of invoice.

Ext.A3: Illegible unattested photocopy of invoice.

Ext.A4: Illegible unattested photocopy of invoice.

Ext.A5: Illegible unattested photocopy of invoice.

Ext.A6: Illegible unattested photocopy of invoice.

Ext.A7: Illegible unattested photocopy of invoice.

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-

Ext.D1:       A copy of press notice issued by DIPP,Page No.14-16 of the reply to the complaint.

Ext.D2:       Terms of use for using the online portal www.flipkart.com(Page No.17to 38).

                                                                        E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Forwarded/by Order

Senior Superintendent