BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION KANGRA AT DHARAMSHALA, H.P.
Date of Institution: 11.04.2022
Date of final hearing: 25.04.2023
Date of Pronouncement: 04.05.2023
Consumer Complaint No.-213/2022
IN THE MATTER OF
Ashish Kumar S/o Shri Bir Singh R/o Village Gharlahar, Post Office Kathog, Tehsil Jwalamukhi, Distt. Kangra, Himachal Pradesh-177101.
(Through: Mr. H.R. Dhiman, Advocate)
….........Complainant
Versus
1. Flipkart Internet Private Limited Registered Address at: Building Alyssa, Begonia & Clover, Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village Bengaluru, Bangalore, Karnatak-560103.
2. Flipkart India Private Limited Registered Address at Building Alyssa, Begonia & Clover, Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village Bengaluru, Bangalore, Karnatak-560103.
3. Samsung Electronic Private Limited Registered Address at 20th to 24th floor, Two Horizon Centre, Golf Course Road, DLF Phase 5, Sector 43,Gurugram, Haryana-122202.
(Through: Mr. Arunjeet Singh, Advocate)
……....Opposite Parties
CORAM:
President: Mr. Hemanshu Mishra
Members: Ms. Arti Sood & Sh. Narayan Thakur
Present:- Mr. H.R. Dhiman, Advocate for complainant.
Mr. Arunjeet Singh, Advocate for opposite parties.
PER: Mr. Hemanshu Mishra, President:-
JUDGMENT
The complainant has filed instant complaint seeking direction to the opposite party(s) as under:-
a) An discount of Rs.44,750/- as per the Buy Back Guarantee instead of Rs.16,250/-.
b) Penalty up to Ten Lakh Rupees under section 21(4) of Consumer Protection Act, 2019.
c) An amount of Rs.1,00,000/- towards compensation for loss suffered by the Complainant on account of harassment and mental agony;
d) The cost and expenses of this litigation.
2. Facts giving rise to filing of this complaint are that on 17/05/2019 complainant ordered Samsung NU6100 125cm (50 inches) Ultra HD(4k)LED Smart TV vide order ID OD11549177-3207586000 from the opposite party company for the total consideration amount of Rs.49,007/-, upon bifurcation amount of Rs.43,642/- is the invoice amount and amount of Rs.5,365/- is the tax paid on payment of EMI installments. The opposite party company also selling one offer namely Buy Back Guarantee for the total consideration of Rs.291/-, in which it was offered that if the television is exchanged with new television on Flipkart within 13 to 24 months from the date of purchase, amount of Rs.21,750/- will be discounted from the purchase of new television, similarly if the television is exchanged with new television on Flipkart within 25 to 36 months from the date of purchase, amount of Rs.44,750/- will be discounted from the newly purchased television. The complainant after the completion of 24 months from the date of purchase of Samsung Television decided to avail the Buy back Guarantee offer, but to the utter shock the exchange discount was not the same which was assured at the time of availing the offer i.e. on 17/05/2019 which is unfair trade practice in the eyes of law.
3. Upon notice, opposite parties appeared through counsel and contested the complaint. Opposite party No.1 submitted that the Opposite Party No.1 only acts as an intermediary through its web interface www.flipkart.com and provides a medium to various sellers all over India to offer for sale and sell their product(s) to the users of the Flipkart Platform. The Answering Opposite Party does not directly or indirectly sells any products or provide buy back guarantee on Flipkart Platform. Rather, all the products on Flipkart Platform are sold by third party sellers, who avail of the online marketplace services provided by the Answering Opposite Party, on terms decided by the respective sellers only. Hence request for buy back of the said product made by the complainant cannot be fulfilled by the answering opposite party and that is only provided by the seller of the said product.
4. Opposite party No.2 filed separate reply and submitted that averments made by the complainant in the complaint are mere statements and grievances against the Opposite Party No.1 and not against the answering Opposite Party. The Complainant herein seems to have totally ignored the functioning of the Answering Opposite Party that it does not sell any products to end consumers as the Answering Opposite Party is a whole-seller and is involved in B2B sales only. There is no dispute as contemplated under the Consumer Protection Act between the complainant and answering Opposite Party.
5. Opposite party No.3 also filed separate reply taking preliminary objections of maintainability, suppression of material facts, cause of action, non-joinder of necessary party and locus standi. On merits, it is submitted that opposite parties No. 1 & 2 are not a dealer or agent of Samsung India and the answering opposite party is not responsible for any action/inaction/omission of Flipkart. It is submitted that the answering opposite party has not issued or provided any alleged exchange discount policy for the purchased LED of Samsung India sold by Flipkart. The complainant has purchased the LED from Flipkart and the exchange scheme policy alleged to be provided with the purchase of LED, is not issued by the Samsung India. The complainant has not registered any single complaint to the service center of opposite party No.3.
6. The complainant has filed rejoinder denying the contents of the reply filed by opposite parties and reiterating those of complaint.
7. The parties were called upon to produce their evidence in support of their contentions. Complainant in order to prove his case has filed affidavit Ext.CW-1 in evidence along with documents Annexures C-1 to C-11. On the other hand, opposite party has filed affidavit Ext.OPsW-1 along with annexure-R1.
8. We have heard learned counsel for the parties and also gone through the case file carefully.
9. Perusal of annexures C-3 & C-4 reveals that opposite parties No.1 & 2 Flipkart have congratulated the complainant for purchasing the buyback guarantee. The complainant was entitled for availing this buyback as discount on purchasing a new device during specified time and details are as below:-
Exchange within Buyback value
13 to 24 months Rs.21,750/-
25 to 36 months Rs.44,750/-
Vide Annexure-C-6 this buyback guarantee has been modified and details were as under:-
Exchange within Buyback value
23 May,20 to 23 May,21 Rs.21,750/-
24 May,21 to 24 May,22 Rs.16,250/-
10. The exchange discount was indeed different than the exchange discount reflected at the time of availing the offer on 17.05.2019. But after noticing such modification the complainant has not availed the offer of buy back scheme. Meaning thereby, the opposite parties No.1 & 2 would have given less discount to the tune of Rs.28,500/- if the complainant availed buy back scheme. Perusal of record shows that opposite party No.3 has only filed an affidavit and closed the evidence. The opposite parties No.1 & 2 have not filed any evidence in support of their contentions. As such affidavit of complainant remained unrebutted and unchallenged qua opposite parties No.1 & 2 and as opposite parties No.1 & 2 have given discount offer, so we are of the opinion that opposite party No.3 is to be absolved of its liability as there is no offer by opposite party No.3. Whereas opposite parties No.1 & 2 after giving the offer have modified the buyback guarantee without any notice to the complainant, which tantamount to unfair trade practice. Hence, complaint deserves to be allowed against Opposite parties No.1 & 2. The opposite party No.3 has not made any promise or has not given buyback offer so the opposite party No. 3 is absolved off any of their liability.
11. Now coming to question of compensation is concerned the complainant has once on the pretext of modified offer has not ordered the buyback product. In fact complainant despite of paying Rs.283/- for purchasing buyback guarantee was deprived of opportunity to purchase new LED smart TV. After selling the product, the opposite parties No.1 & 2 changed the offer on their own without any justifiable explanation. The complaint deserves to be allowed. But as the offer was time bound so, we at this stage opine that a lump sum compensation of Rs.30,000/- is just and sufficient to be paid by the opposite party No.1 & 2.
11. Accordingly, the complaint is allowed and opposite parties No.1 & 2 jointly and severally is directed to pay a sum of Rs.30,000/- to the complainant along with interest @ 9% per annum from the date of complaint i.e. 11.04.2022 till its realization. Litigation cost quantified as Rs.10,000/- to be paid by the opposite party No.1 &2.
12. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
13. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
14. File be consigned to record room along with a copy of this Judgment.
(Hemanshu Mishra)
President
(Narayan Thakur) (Arti Sood)
Member Member
Pronounced on: 04.05.2023
