IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

Friday,   the 4^th     day of March, 2017

Filed on .21.10.2016.

Present

    1)     Smt. Elizabeth George (President)

    2)     Sri. Antony Xavier (Member)

    3)     Smt. Jasmine D (Member)

in

CC/No.334/2016

 Between

Complainant:                                                                         Opposite party:

Sri. Abhilash .R.Ravi                                                              Flip Cart International Pvt. Ltd

Rajani Nivas                                                                            Vaishnavi Submmit

Mannanchery.P.O                                                                   No.6/B, 7^th main, 80 Feet Road

Alappuzha                                                                               3^rd Block, Koramangala

                                                                                                Banglore-560034

                                                                                                Karnataka, India

                                                            O R D E R

SMT. JASMINE D. (MEMBER)

            The case of the complainant is short as follows:-

            The complainant has ordered Le Eco Le Max2 (Rose Gold, 32GB) mobile phone through opposite party for an amount of Rs. 17,999/- on 5/10/2016. The said product was delivered on 08/10/2016. When the product was delivered the complainant noticed certain defects and intimated to the opposite party on 10/10/2016. As per the return policy of the opposite party if the product has any defects and same was intimated to the opposite party within 10 days after taking delivery, the product will be replaced.  But the opposite party refused to replace of the mobile phone instead asked the complainant to down load finger censoring application. But the defect persisted and the complainant sent several e-mails to the opposite party. But the opposite party has not made any earnest effort to redress the grievance of the complainant.  Hence this complaint filed.

            2. Notice was served to the opposite party they appeared before the Forum and filed Version.

            3. Version of the opposite party is as follows.

            Complaint is not maintainable.  The opposite party is engaged in providing trading and selling facility over internet.  1^st opposite party provide online marketing place to the sellers and buyers of product of facilities the transactions in electronic commerce for various goods by and between respective buyers and sellers.  Flip kart platform is an electronic platform which acts as intermediary to facilitate sale transactions between independent third party sellers and independent customers.  These sellers are separate entity being controlled and managed by different persons.  The opposite party does not sell any products on Flip kart platform by the product are sold by third party sellers.  Complainant is not a consumer of the 1^st opposite party the opposite party is neither a trader nor a service provider and does not exist any privity of contract between the complainant and 1^st opposite party. The 1^st opposite party has not charged any amount from the complainant for using the Flip kart platform that the 1^st opposite party submits that role/involvement of 1^st opposite party is as a intermediary only that it to provide online platform to facilitate the transaction.  The services of 1^st opposite party are similar to a shopping mall where various shops are rented out to different sellers who independently carry out sale proceedings with the customers/ visitor’s of the shopping mall and in case of any defect in the goods sold or deficiency arising out of delivery of the product by such shop owners/ sellers in the shopping mall.  It is shop owner/seller who is held liable for the consequences and not the owner of the shopping mall where such shops are situated. In the same way, the 1^st opposite party is not involved in the entire transaction except for providing the online platform for the transaction and the concerned contracts of sale and purchase is between the seller and the buyer (here complainant) only and hence this 1^st opposite party shall not be held liable for any liability owing to such contract.  There is no deficiency in service of 1^st opposite party. The complaint may be dismissed with cost of the opposite party.

4. Considering the allegation of the complainant the Forum has raised the following issues:-

1. Whether there is any deficiency in the service on the part of the Opposite Parties?
2. Whether the complainant is entitled to get the relief and cost?

5. Issues 1 and 2

            The case of the complaint is that the complainant had ordered a Le Eco Le Max 2 mobile phone through the opposite party for an amount of Rs. 17,999/- on 5/10/2016 and the product was delivered on 8/10/2016. When the product was delivered the complainant noticed that the said mobile phone was not working as per the specification and also the finger sensor was not working properly.  He immediately intimated the opposite party and asked to replace the mobile phone.  According to the complainant the opposite party has assured 10 days replacement opportunity to the customers if any defects noticed.  But the opposite party refused the replacement the complainant sustained much mental agony and hence filed this complaint.

            6. The complainant filed proof affidavit and document Ext.A1to Ext.A3 series were marked. Ext. A1 is the copy of invoice dated 5/10/2016/. From Ext. A1 it can be seen that the complainant had purchased a Le Eco Le Max 2 mobile phone through the opposite party for an amount or Rs. 17,999/-.   Ext. A2 is the copy of Return policy. Ext. A3 series are copies of e-mail.

            7. Admittedly the complainant has placed an order for the said mobile on 5/10/2016 and he received the product on 8/10/2016. When the product was delivered he noticed the same was not working properly and on 10/10/2016 he made a complainant to flip kart and requested them to replace the phone as the company mandates the replacement. But they refused to replace the phone despite they make a promise of 10 days replacement opportunity to customers.  Non compliance of earlier promise is nothing but as unfair trade practice and it amount to deficiency in service and the complaint is entitled to get the relief.

            In the result the complainant is allowed, the opposite party is directed to refund the price of the mobile phone Rs. 17,999/-(Rupees Seventeen Thousand Nine hundred and Ninety nine only) to complainant.  The opposite party as further directed to pay an amount of Rs. 1000/- (Rupees Thousand only) towards compensation and Rs.1000/- (Thousand only) towards cost. The order shall be complied within one month from the date of the receipt of this order, failing which the amount Rs.17, 999/- shall carry interest @ 9% per annum from the date of order till realization.  On compliance of the order the opposite party can collect Mobile phone from the office of the Forum. 

Pronounced in Open Forum on this the 4^th day of March, 2017.

                                                                Sd/- Smt. Jasmine D (Member) :

                                                                                    Sd/-Smt. Elizabeth George (President) :

                                                                                    Sd/-Sri. Antony Xavier (Member) :

Appendix

Evidence of the Complainants:

Mo1                 -           Mobile phone

Ext.A1                        -           Copy of Invoice Dtd. 5/10/2016

Ext.A2                        -           Copy of Return Policy

Ext.A3                        -           Copy of the Series of e-mail.

Evidence of the opposite parties:- Nil

//True copy//

       By Order

Senior Superintendent

To

            Complainant/Opposite parties/SF

Typed by: Br/-

Comped . by: