Haryana

Ambala

CC/125/2015

Kamal Kumar - Complainant(s)

Versus

Flipcart.Com - Opp.Party(s)

Sarvjeet Singh

31 Oct 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, AMBALA.

Complaint no.125/2015.

Date of instt. 06.05.2015. 

                                                                        Date of Decision: 31.10.2017.

 

Kamal Kumar son of Shri Ram Kumar aged 21 years, resident of H.No.76, Saraswati Nagar, Near Hanuman Mandir, Singhawala Road, Ambala City, Haryana.

                                                                                                ..Complainant.

                                    Versus

 

1. Flipkart Internet Private Limited Vaishnavi Summit, Ground Floor, 7^th Main, 80 Feed Road, 3^rd Block, Koramangala Industrial Layout, Bangalore- 560034 Karnataka, India Ph: (0124) 6150000, CIN: U51109KA2012PTC066107, through its authorized Signatory.

 

2^nd Address:

Flipkart Internet Private Limited, Ozone Manay Tech Park, # 56/18 & 55/09, 7^th Floor Garvebhavipalya, House Road, Bangalore- 560068, Karnatka, India.

 

2. Royal Trading Company B-4, Ground Floor, Express Market, Ambedkar Road, Ghaziabad, through its authorized signatory.

 

2^nd Address:

 

Royal Trading Company Head Off: 2, Jassipura Morth Near Delhi Gate G.T.Road, Ghaziabad

..Opposite parties.

 

       Complaint under Section 12 of Consumer Protection Act.                               

 

Before                        SH. D.N.ARORA, PRESIDENT.

                                    SH. PUSHPENDER KUMAR, MEMBER.

                                    MS.ANAMIKA GUPTA, MEMBER.

                       

Present:              Sh.Sarvjeet Singh, Advocate for complainant.

 Sh. Naveen Chawla, Advocate for OP No.1.

      Opposite party no.2 exparte.

    

ORDER

 

                           Briefly stated the facts of the present complaint are that on 29.07.2014 complainant had purchased a Dell Laptop for a consideration of Rs.28990/- on easy monthly installments basis by placing online order through opposite party no.1 vide order No. OD40729153428. The actual payment of laptop was Rs.28,990/-  Since it was purchased through 24 monthly installments of Rs.1406/- each therefore, the cost thereof was Rs.33,744/-. The delivery of the product was made at the address of the complainant through the supplier of OP No.1 vide bill /cash memo invoice No.Fk/14-15/1073 dated 28.07.2014 issued by OP No.2. After receiving the safe, it was noticed by the complainant that the laptop was not having the same configuration for which the order was placed and regarding this claim was lodged to OP No.1 and request for replacement of the same was also made. It was assured to the complainant that the same would be replaced within one week but it has not been done so even after elapsing of 30 days.  On receiving of legal notice, sent by the Ops, the OP No.1 demanded screen shots of BIOS, which was duly sent through e-mail. Thereafter, the OP No.1 intimated the complainant that the screen shots were not of model 3521 rather the same were of Model 3537 and refused to do the needful. The complainant in order to get the matter resolved sent another email on 08.03.2015 and clarified that the order was placed for the product i.e.3G/3521/CDC/4GB/ 500GB/ WIN8 which was sent by OP No.1 having description of said product under order with tag No.958YD02 and this tag number is appearing on the screen shots sent to the OPs through email. Thereafter in reply to the legal notice the OP No.1 intimated to the complainant that the correct model was sent to him and further refused to do the same.  The act and conduct of the OPs clearly amounts to deficiency in service. In evidence, the complainant has tendered affidavit Annexure C1 and documents Annexure C2 to Annexure C13.

2.                     On notice, Op No.1 appeared and resisted the complaint by filing reply raising preliminary objections that complainant has suppressed the true and material facts from this Forum and that there is no deficiency in service on the part of opposite party no.1. It has been submitted that opposite party no.1 provides online marketplace/ platform and other mechanism/ services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods between respective buyers and sellers. The business of op no.1 falls within the definition of an “intermediary”. It has been further submitted that complainant does not fall under the category of consumer of op no.1 as there is no privity of contract between the complainant and op no.1. Moreover, the OP No.1 is not authorized seller/representative of the Dell insprion 3^rd generation Model 3521 Processor Celeron Dual Core 1.6 GHz, RAM 4 GB, HDD 500 GB and OS Window-8 Laptop and it does not sell any product on its own on the website.  The OP No.1 has never come in possession of the product and the specification of the product was mentioned by the OP No.2 and not by OP No.1, therefore, there was no involvement of OP No.1 in whole of the transaction apart from facilitating the sale. Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made. The OP No.1 in evidence has tendered Affidavit Annexure RX and document R1.

3.                     The opposite party no.2 did not appear before this Forum despite issuance of summons through registered cover and was proceeded against exparte.

4.                     We have heard learned counsel for the complainant and gone through the written arguments placed on behalf of complainant as well as learned counsel for the opposite party.1 and have perused the case file carefully.

5.                     There is no dispute that complainant had purchased Dell Laptop for a consideration of Rs.28990/- on easy monthly installments basis by placing online order through opposite party no.1 vide order No.OD40729153428 (Annexure C4). The grievance of the complainant is that laptop purchased by him through online was not having the same configuration for which the order was placed and regarding this claim was lodged with OP No.1 (Annexure C7) and he also sent the demanded screen shots of BIOS to the OP No.1 but despite that his grievance could not be redressed.

6.                     On the other hand the OP No.1 has come with the plea that it is only a facilitator and provides online marketplace/ platform and other mechanism/ services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods between respective buyers and sellers and its business falls within the definition of an “intermediary”. It has been further submitted that complainant does not fall under the category of consumer of op no.1 as there is no privity of contract between the complainant and op no.1.

7.                           Admittedly, the OP No. 1 operates its online market place platform under the brand-name /trademark “Flipkart” through the website i.e www.Flipkart.com  which is an online market place. The website is an electronic platform which acts as an intermediary to facilitate sales transactions between independent third party sellers and independent end customers. The Website enables independent third party sellers to list, advertise and offer to sell their products and services to be users of the Website. Once a user accepts the offer of sale of the products made by the third party seller on the Website, the seller is intimated electronically and is required to ensure that the products are made available and delivered in accordance to the delivery terms as set out by the seller as part of the terms for sale displayed on the Website.  Perusal of Annexure C4 reveals that the complainant had purchased laptop Dell 3G/3521/CDC/4GB/ 500 GB/WIN8 Tag No.958YDD2 but as per BIOS screen shot sent to the OP No.1 by the complainant it has been mentioned that the laptop was of model A07 Inspiron 3537 and regarding this correspondence had also taken place between the OP No.1 and complainant.  The Op No.1 in its reply has specifically mentioned that the product was offered for sale by OP No.2 but the OP No.2 did not bother to appear before this Forum and remained exparte.  

               From the facts and circumstances of the case, it is clear that the complainant received the laptop having model A07 Inspiron 3537 instead of Dell 3G/3521/CDC/4GB/ 500 GB/WIN8 Tag No.958YDD2 despite the fact that it was not purchased by the complainant by placing online order. It is also clear that the complainant has been using the received model without having any defect or complaint since the date of its receiving i.e. on 01.08.2014 as per Annexure C3. So far regarding the specification of the model received by the complainant is concerned, the complainant has neither placed on file the price of that model nor placed on file the specification of the same. The ground for replacing the laptop with new on is not justified; therefore, same is being rejected.

                        From the above it is clear that the OPs are deficient in providing service besides indulging in unfair trade practice as the Ops have not provided the laptop as order placed by the complainant online and sent another model of the same as per Section 2 (1) (r) (i) of Consumer Protection Act which is as under:  

(r) “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:—

(1) the practice of making any statement, whether orally or in writing or by visible representation which,—

(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;

(ii) falsely represents that the services are of a particular standard, quality or grade;

(iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;

(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;

(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;

(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;

(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof:

 

                    Keeping in view the above facts and circumstances of the case this Forum has in a firm view that the present complaint deserves partly acceptance because the Ops are indulged in the unfair trade practice as discussed above. Accordingly, we partly allow the present complaint with costs which is assessed at Rs.3,000/- and OPs are directed to comply with the following directions within thirty days from receipt of copy of the order:          

1. To pay Rs.7,000/- on account indulging of  unfair trade practice by the Ops failing which the amount of compensation would carry interest @ 9 % per annum for the default period.

 

 

Copy of this order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

 

Announced on: 31.10.2017                                                              (D.N.ARORA)

                                                                                                   PRESIDENT

                                                                                        District Consumer Disputes                                           +