Date of Filing:24/03/2016
Date of Order:02/02/2017
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed in person under Section 12 of the Consumer Protection Act, 1986 against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service and prays for direction to the O.P to pay a sum of Rs.2,00,000/- for defect of product and harassment and wasted time and also to pay interest at the rate of 9.5% per annum from the date of closure till date of realization on the aforesaid sum and also pay cost of the proceedings
2. The facts in brief is that, Complainant states that on 16.10.2015 he placed the order with flipkart to exchange the old laptop with the new one for discount of Rs.10,000/-. Thereafter complainant got obtained the new laptop on 27.10.2015 from Electronic Habba Flipkart. Complainant alleges that, after delivery of the product he noticed the defect in the laptop and made complaint to the Flipkart on 2.11.2015. Whereas the O.P did not turn to resolve the issues and hence complainant demanded to refund the amount of Rs.44,287/- to his bank account and thereafter O.P representatives assure to resolve the issues but failed to do so. The complainant also produced the bill Invoice, email updates from Flipkart and email conversation and when the O.P failed to resolve the issues, complainant alleging the deficiency in service filed this complaint.
3. Upon issuance of service O.P appeared through their counsel filed its version, in the version it is contended that complaint is false, frivolous and untenable. Further contended that O.P provides online market place/platform /technology/other mechanism/ services to the sellers and buyers of products to facilitate the transactions. Hence contended that, O.P is not engaging in selling of goods manufactured on its own at no point of time thus the O.P become owner of the products being sold by the sellers/platform. The complaint does not fall under the domain of the Consumer Protection Act and complaint is bad for mis-joinder of necessary party. On other grounds O.P prays to dismiss the complaint.
4. In order to substantiate the case of the parties and both parties filed their affidavit evidence and also heard the arguments.
5. On the basis of the pleadings of the parties, the following points will arise for our consideration are:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.P?
(B) Whether the complainant is entitled to
the relief prayed for in the complaint?
(C) What order?
6. Our answers to the above points are:-
POINT (A) & (B): In the Affirmative.
POINT (C): As per the final order
for the following:
REASONS
POINT No.(A) & (B):-
7. On perusing the pleading of the parties it is not in dispute that the complainant purchased the new laptop from the O.P by exchanging his old laptop by availing the discount of Rs.10,000/-. It is the grievance of the complainant that, subsequent to delivery of the product he noticed the defect in the product. Thereafter complainant brought to the notice of the O.P about the defect in the laptop but the O.P assured to resolve the problem. Further alleged that inspite of several email communications O.P failed to resolve the issues and hence alleged deficiency in service on the part of the O.P.
8. Per-contra O.P contended that they are not the manufacturer of the product or seller of the product and hence they are not liable to make good the loss. Further contended that, the subject matter will not come under the domain of the Consumer Protection Act. The O.P are only facilitator in providing platform for marketing of products / services to the sellers and buyers of products to facilitate the transactions.
9. It is worth to note that, O.P being the mighty company it is spread throughout the world and they are advertising their service to the customers through not only television but in all sorts of media. On account of colourful offers given by the O.P, a normal customer will attract the same and by believing the assurance and better services and promise given, they will transact with the flipkart in order to place their requirement of products through Flipkart only. The O.P himself admitted in the version they are the facilitators in otherwise they are the service provider also. Hence, the subject matter obviously comes within the domain of the Consumer Protection Act. It is also not in dispute after the delivery of the product when the complainant brought to the notice of the O.P regarding defect in the product, it is the duty of the facilitator to bring to the notice of the manufacturer or the seller of the product in order to resolve the issue. The law will not permit the O.P to simply pick any defective product from any company and dump to the consumers and it obviously attracts deficiency in service. On perusing the tax invoice dated 25.10.2015 it is evident that the complainant paid Rs.44,237/- including discount availed by giving the old laptop. On perusing the email correspondence from the side of O.P i.e. returns and cancellations wherein which the O.P himself stated to the customers it reads as “Conveniently place your return request online if you have received an item in a damaged or defective or not as described state. You may also conveniently do this on the Flipkart Mobile App.” If such being the case, how the O.P will turn around from his own responsibility and asked the customer to approach the seller of the product. Hence it clearly establishes that by selling the defective product the O.P intends to wash away its hands and shifting burden on others. On perusing the email correspondences also it discloses that the complainant clearly made several email communications on different dates but the O.P failed to resolve the issues. In the light of available evidence on record the complainant proved deficiency in service on the part of the O.P. Under the circumstances, we hereby direct the O.P to pay a sum of Rs.44,237/- along with Rs.2,000/- towards cost of the proceeding and it will meets the ends of justice. Accordingly we answered the point No.(A) and (B) in the affirmative.
POINT (C):
10. On the basis of findings given while answering the Points (A) & (B) and in the result, we proceed to pass the following:-
ORDER
1. The complaint is allowed in part with cost.
2. The O.P i.e. Flipkart Internet Private Limited represented by its Authorized Signatory is hereby directed to pay a sum of Rs.44,237/- to the complainant within 30 days from the date of receipt of this order, failing which O.P is directed to pay interest 12% per annum on the above said amount from the date of receipt of the order till realization.
3.Further O.P is also directed to pay Rs.2,000/- towards cost of the litigation expenses.
4. The O.P is hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this forum within 45 days from the date of receipt of this order.
5. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 2ND Day of February 2017)
MEMBER MEMBER PRESIDENT
*Rak
