MRS. FIROZA KHATOON, PRESIDENT
The case of the complainant in a nutshell is that his minor son Sagnik Mallick Choudhury aged about 16 years purchased a treadmill bearing model no.RPM757MI manufactured by RPM Fitness being IMEI no.TRDFBZK6CF7QGFEK from Flipkart bearing order no.OD119631667529947000 on payment of Rs.39,899/- (Rupees thirty nine thousand eight hundred ninety nine) only. The aforesaid treadmill had specification of 5.5 HP peak power with free installation, auto inclination and massager. The treadmill came with one year warranty on motor and manufacture defect, and 3 years warranty on frame. The treadmill was delivered and received by the complainant on 09.09.2020. On the scheduled day of installation a person came to the complainant’s residence and introduced himself as authorized representative and technician. During the process of installation the said person found the treadmill having manufacturing defects as such he could not install the same. According to the complainant when the treadmill was bought it was clearly mentioned that it has a “10 DAYS REPLACEMENT POLICY”, if the delivered item has any manufacturing defects. The complainant when opened the Flipkart application, found that there was no option for applying for a replacement of the defective treadmill. There was only refund option mentioned in the Flipkart site. The complainant specifically stated that by that time the price of said treadmill had gone up to Rs.58,200/- (Rupees fifty eight thousand two hundred) only which was an approximate 45% increase over the previous price. The complainant contacted the customer care through his son. The executive of the opposite parties told that no replacement would be made for the product and the complainant can return the product and re-book the same product at the elevated price. The complainant categorically states that various communications made through e-mail but issues were not resolved by the opposite parties till date. That the complainant is not interested to accept the credit note issued by the opposite parties in his favour. He wants replacement of the product. The complainant sent notices through his advocate twice on 07.12.2020 and 24.12.2020 but to no effect. From the act of the opposite parties it is crystal clear that they have resorted to illegal trade practice to deceive the complainant for making unlawful gain. Hence this case.
Opposite party nos.1, 3 and 4/Flipkart Internet Pvt. Ltd. and its officers by filing written version state that Flipkart is a logistic service provider and never had the possession of the delivered product. The complainant purchased the treadmill from opposite party no.2 by availing the logistic service of opposite party nos.1, 3 and 4. Thus, the opposite party no.1 is not in a position to ascertain the authenticity of the grievance raised by the complainant. When the complainant raised his return request with the opposite party no.1, the same was communicated to the seller/opposite party no.2. The return request was duly approved by opposite party no.2 but the same product was not available as it was out of stock and opposite party no.2 has offered for full refund of the amount paid by the complainant but the complainant did not agree for the same and he wanted replacement of the product. The opposite party no.1 tried to solve the grievance of the complainant in its capacity of an intermediary by establishing a communication platform between the complainant and the seller. The opposite party no.2/seller requested the complainant to place a fresh order once the product is in stock and the opposite party no.2 will be providing the difference of price amount in complainant’s Flipkart account but the complainant blatantly deny to place fresh order of the same.
Therefore, the opposite party no.1 is not in any way is liable for any deficiency in service.
Opposite party no.2 by filing written version denied every allegation made against it by the complainant and submits that the complainant has not come before the Commission with clean hands as such his complaint application is liable to be dismissed. Opposite party no.2 submits that the grievance of the complainant is with regard to non replacement of product i.e. RPM Fitness bearing model no.RPM757MI of a treadmill. It is categorically stated that the return request raised by the complainant was duly approved by the opposite party no.2 but the same product was not available and it was out of stock. The opposite party no.2 offered refund of the amount paid by the complainant. The complainant did not agree to the proposal of opposite party no.2 and insisted on replacement of the said product. Thereafter the opposite party no.2 requested the complainant to place a fresh order once the product is in stock and assured the price difference amount will be provided in the complainant’s Flipkart account as a gift card. But the complainant denied to place a fresh order in spite of the offer given by the opposite party no.2 to provide the difference amount in the complainant’s Flipkart account as a gift card. The opposite party no.2 tried its best to resolve the matter in issue as such is not liable for any deficiency in service neither for any illegal trade practice. The opposite party no.2 is a registered seller on the website “flipkart.com” and sells products of other manufacturers, traders etc. under their respective trademarks through the website and acquired good market reputation in the business. The opposite party no.2 submits that he is not a manufacturer of the products sold by him and the said product carries manufacturer’s warranty. It is categorically stated that opposite party no.2 has no facility or knowledge to ascertain whether the product in issue is defective or has manufacturing defects. The opposite party no.2 tried its best to solve the grievance of the complainant but the complainant did not cooperate with the opposite party no.2. Moreover, the opposite party no.2 being seller of the product cannot be held liable for any defect in the product. There was no deficiency in service or illegal trade practise on the part of opposite party no.2. Therefore this case is liable to be dismissed.
Issues
Considering the rival pleadings of both sides following issues are framed :-
- Is the complainant a consumer in terms of the Consumer Protection Act, 2019 ?
- Are the opposite parties liable for unfair trade practice as alleged ?
- Is the complainant entitled to get relief as claimed for ?
Decision with reasons
Point nos. 1, 2 and 3
For the sake of brevity and convenience all the points are taken up together for consideration and discussion.
In order to prove the case, complainant submitted evidence and reply to questionnaire on oath and the photocopies of the documents are marked as follows :-
Payment invoice of tread mill – Document-1.
Complaint details – Document-2 series.
Opposite party nos.1, 3 & 4 submitted evidence on oath and reply to questionnaire.
Opposite party no.2 submitted evidence on oath and reply to questionnaire.
It is apparent from the evidence and document no.1 submitted by the complainant that son being minor purchased a treadmill on 07.09.2020 bearing Model No.RPM757MI manufactured by RPM Fitness being IMEI no.TRDFBZK6CF7QGFEK from Flipkart bearing order no.OD119631667529947000 through on line for a consideration of Rs.39,899/- (Rupees thirty nine thousand eight hundred ninety nine) only.
It has been stated by the complainant that he filed the case on behalf of his minor son.
It is alleged that due to manufacturing defect the authorized representative could not install the same. The son of the complainant submitted complaint through e-mails demanding replacement of the defective treadmill (document-2 series). The opposite parties issued a credit note but the complainant did not accept it and demanded replacement of the treadmill which was not addressed by the opposite parties. According to the complainant the act of the opposite parties amounts to illegal trade practice as they deceived the complainant by making misrepresentation for unlawful gain.
Now let us consider whether the opposite parties are liable for unfair trade practice as alleged by the complainant ?
From the evidence document 2(a) submitted by the complainant it appears that the opposite party nos.1, 3 & 4 informed the complainant on 21.09.2020 that the seller shall be able to process a return request of the product and once the product is picked up, the seller shall provide the refund of the product value. On the same day again through e-mail intimated that the seller is ready to refund the total amount of Rs. 39,899/- (Rupees thirty nine thousand eight hundred ninety nine) only to the complainant [document-2(b).
It appears from the evidence of the parties to the case that by that time the price of the said treadmill has elevated to Rs.42,080/- (Rupees forty two thousand eighty) only and on 25.09.2020 opposite party no.1 e-mailed to complainant stating that the seller is ready to process the return for a refund of the above order and requested to place a fresh order for the same product (as it was available by the time with higher price of Rs. 42,080/-) and once the fresh order is delivered to the complainant, the seller will provide the price difference of Rs.2,181/- (Rupees two thousand one hundred eighty one) only into the Complainant’s Gift Card Wallet [document-2(c)].
Again on 30.09.2020 similar e-mail was sent to the son of the complainant.
But we find the son of the complainant kept on refusing the proposal and repeatedly demanded replacement of the treadmill.
It is apparent on the face of the record that without being examined the treadmill, the opposite parties have agreed to refund the total paid amount to the complainant. That a part, subsequently the opposite parties agreed to pay off the difference amount of enhanced price of the treadmill by placing the same in Gift Card wallet of the complainant, if fresh order is placed for the same.
In our view the opposite parties offered the complainant or his son the best possible proposal but the complainant did not accept the same.
Document No.2 the e-mail sent by opposite party no.1 very clearly suggest that the opposite parties are to pick up the alleged defective treadmill from the house of the complainant.
The act on the part of the opposite parties by no stretch of imagination can be labelled as ‘unfair trade practice’ in terms of section 2(47) of the Consumer Protection Act, 2019.
Be it mentioned that the Consumer Protection Act, 2019 safe guards and encourage Consumer to speak against insufficie3ncy and flaws in goods and service.
It is admitted fact that the treadmill could not be installed due to some fault and the opposite parties were ready to pick up the treadmill and refund the amount paid by the complainant. Later on, the opposite parties also agreed to provide the difference amount which occurred due to raise of price of the treadmill in the complainant’s Gift Card Wallet.
Therefore, in our considered view as the complainant and his son did not accept the fair proposal of the opposite parties and as there is no unfair trade practice it would be fair enough if the complainant gets back the amount paid for the treadmill.
Having considered the discussion made above we are of the opinion that the complainant is not entitled to get any relief for compensation or litigation costs as prayed.
Therefore the issue nos.1 is decided in favour of the complainant.
Issue no.2 is decided against the complainant.
Issue no.3 is allowed in part in favour of the complainant.
Hence, it is
O R D E R E D
that the complaint case be and the same is allowed on contest against the opposite parties without cost.
Opposite party no.2 is directed to refund a sum of Rs.39,899/- (Rupees thirty nine thousand eight hundred ninety nine) only to the complainant through opposite party no.1 in the Flipkart wallet of complainant or his son Sagnik Mallick Choudhury within one month from the date hereof in default to pay simple interest @ 12% per annum till such payment.
Dictated and corrected by me
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President
