Haryana

Kaithal

77/21

Bharti - Complainant(s)

Versus

Flipcart - Opp.Party(s)

Sh.Suresh Maan

21 Apr 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.77/2021.

                                                     Date of institution: 22.03.2021.

                                                     Date of decision:21.04.2023.

Bharti daughter of Sh. Vijay Kumar age 20 years, resident of House No.234, Patel Nagar, Kaithal, District Kaithal.

                                                                        …Complainant.

                        Versus

1. Flipkart Registered Office: Sane Retails Pvt. Ltd. First Floor, S.C.O. No.219, Sector-14, Panchkula, Haryana.
2. Sans Retails Pvt. Ltd. Rectangle No.06, Rectangle No.07, 08, 13 Village Khalipur, Tehsil Badli, District Jhajjar, GSTIN No.08AAXCS097AR127.
3. Ekart Logistics-EMPP0459963511, near Police Post Ambala Road, Kaithal.

….Respondents.

        Complaint under Section 12 of the Consumer Protection Act

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Sh. Suresh Maan, Advocate, for the complainant.   

                Sh. Vikram Tiwari, Advocate for the OPs.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Bharti-Complainant has filed this complaint under Section 12 of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the respondents.

                In nutshell, the facts of present case are that the complainant made an order ID No.0D121213869243761000 through online to purchase a mobile/handset Apple I-Phone 12 pro Max (Graphite 128 GB) to respondent No.1 on 09.03.2021 and made payment online of Rs.1,24,900/- in the account of respondent No.1 vide invoice No.#FADBI72100431735 dt. 09.03.2021.  It is alleged that the respondent No.3 delivered the mobile handset to the complainant on 11.03.2021.  It is further alleged that on opening the box, the said mobile set found make 5S bearing IMEI No.358843054779807 but on the invoice the IMEI number of said mobile is 354419332546690.  It is further alleged that the complainant approached the respondent No.1 with the above-said complaint of different mobile handset but the respondent No.1 did not redress the grievances of complainant.  So, it is a clear cut case of deficiency in service on the part of respondents and prayed for acceptance of complaint.     

2.            Upon notice, the respondents No.1 & 2 appeared before this Commission, whereas earlier respondent No.3 did not appear and opted to proceed against exparte vide order dt. 30.04.2021.  Lateron, on 17.04.2023, respondent No.3 filed an application for setting-aside the exparte order dt. 30.04.2021 and the said order was set-aside vide order dt. 17.04.2023 passed by this Commission.

3.             Respondents contested the complaint by filing their written version separately.  In the written version, respondent No.1 stated that the answering respondent provides online marketplace platform/technology; that the said ‘Flipkart Platform’ is an electronic platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent end customers.  The independent third party sellers use the Flipkart Platform to list, advertise and offer to sell their products to the users/buyer who visit the Flipkart Platform.  Once a buyer accepts the offer of sale of the products made by the third party seller on the Flipkart Platform, 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 per the terms for sale displayed by seller on the Flipkart Platform.  The answering respondent does not directly or indirectly sell any products on flipkart platform.  In the instant complaint also, it can be evidenced that the actual seller of the product is a third party seller (who is not impleaded as a party).  There is no deficiency in service on the part of respondent.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

4.             Respondent No.2 filed the written version raising preliminary objections with regard to maintainability; cause of action; locus-standi; that the answering respondent is engaged in sale of goods manufactured and produced by other manufacturers.  Thus, answering respondent has separate and distinct identity from that of the manufacturer of the product and there is no relation of Principal & agent between Brand and answering respondent.  There is no deficiency in service on the part of respondent.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.   

5.             Respondent No.3 filed the written statement on the same line as followed by OP No.2 and so, prayed for dismissal of complaint. 

6.             To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Anneuxre-C1 to Annexure-C5 and thereafter, closed the evidence.

7.             On the other hand, the respondents tendered into evidence affidavits Ex.RW1/A & Ex.RW2/A alongwith documents Annexure-R1 & Annexure-R2 and thereafter, closed the evidence.

8.             We have heard the learned Counsel for both the parties and perused the record carefully.

9.             Ld. counsel for the complainant has argued that the complainant made an order ID No.0D121213869243761000 through online to purchase a mobile/handset Apple I-Phone 12 pro Max (Graphite 128 GB) to respondent No.1 on 09.03.2021 and made payment online of Rs.1,24,900/- in the account of respondent No.1 vide invoice No.#FADBI72100431735 dt. 09.03.2021.  It is argued that the respondent No.3 delivered the mobile handset to the complainant on 11.03.2021.  It is further argued that on opening the box, the said mobile set found make 5S bearing IMEI No.358843054779807 but on the invoice the IMEI number of said mobile is 354419332546690.  It is further argued that the complainant approached the respondent No.1 with the above-said complaint of different mobile handset but the respondent No.1 did not redress the grievances of complainant.  So, it is a clear cut case of deficiency in service on the part of respondents.  To support his contentions, he placed reliance on case law titled Myntra Design Pvt. Ltd. Vs. Monika Thakur, Appeal No.279 of 2019, Date of Institution 18.11.2019, Date of Decision 29.11.2019 by the Hon’ble State Commission, U.T. Chandigarh.  

10.            On the other hand, ld. counsel for the Ops has argued that OP No.1 provides online marketplace platform/technology.  It is further argued that the said ‘Flipkart Platform’ is an electronic platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent end customers.  The independent third party sellers use the Flipkart Platform to list, advertise and offer to sell their products to the users/buyer who visit the Flipkart Platform.  Once a buyer accepts the offer of sale of the products made by the third party seller on the Flipkart Platform, 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 per the terms for sale displayed by seller on the Flipkart Platform.  The respondent No.1 does not directly or indirectly sell any products on flipkart platform.  There is no deficiency in service on the part of Ops.

11.            At the outset, learned counsel for the OP No.1 has taken plea that OP No.1 falls within the definition of an “intermediary” u/s 21 (1)(w) of the Information Technology Act, 2000 and also protected by the provisions of Section 79 of the Information Technology Act, 2000, as such, OP No.1 is exempted from liability for third party information, data or communication link made available or hosted by it at market place platform of OP No.1, therefore, OP No.1 is not liable for any discrepancy, if any, done by the seller i.e. the third party and display of price and subsequent supply of order is the sole responsibility of seller i.e. OP No.2 in the case in hand and prayed for dismissal the present complaint against it. But this Commission does not found this contention of OP No.1 plausible, in view of case law cited (supra) by learned counsel for the complainant titled Myntra Design Pvt. Ltd. Vs. Monika Thakur, wherein, it is held by the Hon’ble State Commission, U.T., Chandigarh that “The Opposite Party cannot escape from its liability stating that it is not the manufacturer of the product and only provides portal for sale, because the Opposite Party allows the companies to project their products for sale on their portal, so it is their legal obligation to keep a check for the rightful delivery of the products sold through their portal services”.  In the case titled Amazon Seller Services Private Limited Vs. Gopal Krishan, First Appeal No.27 of 2017, it is held that “In the said case, it was observed that it was bounden duty of the facilitator to ensure that goods purchased through any individual are manufactured as per quality standard. If the goods purchased through online are found not up to the mark, online portal through which goods were purchased, cannot escape its liability. Further, the contention raised that as per terms and conditions of sale, no liability can be fastened upon the appellant (Amazon), was rejected by this Commission by observing as under:-

                “8……An agent, who sells a product, is duty bound to ensure its quality, and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, along with the manufacturer of the product. It was so held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Emerging India Real Assets Pvt. Ltd. & Anr. Vs. Kamer Chand & Anr. Revision Petition No.765 of 2016 decided on 30.3.2016”.

12.            So, in the light of above case law laid down by the Hon’ble State Commission, U.T. Chandigarh in the case referred to above, this Commission has no hitch to say that OP No.1, being an intermediary, is also jointly and severally liable for any wrong done by seller i.e. OP No.2 in the case in hand as-well-as OP No.3.

13.            We have considered the rival contentions of both the parties.  The grievance of the complainant is that the complainant made order for iPhone 12 Pro Max but the OP No.1 delivered iPhone 5s to the complainant instead of iPhone 12 Pro Max.  During the course of arguments, we have seen the mobile set in question and opened the same wherein the IMEI No.358843054779807 is mentioned and the said IMEI Number belongs to Model: iPhone 5s, screen shot of the same Mark-A is placed on file, whereas on the invoice as per Annexure-C1, the IMEI number is mentioned as 354419332546690, which is of iPhone 12 Pro Max.  So, we are of the considered view that the Ops have given the wrong article to the complainant which amounts to deficiency in service and unfair trade practice on the part of Ops.  Ld. counsel for the complainant has requested that the cost of mobile set in question may be refunded to him instead of replacement of mobile set.

14.            Thus, as a sequel of aforesaid discussion, we direct the OPs jointly and severally to refund the amount of Rs.1,24,900/- to the complainant within 45 days from today and further to pay Rs.11,000/- as compensation on account of physical harassment and mental agony as-well-as Rs.5,000/- as litigation charges.  However, the complainant is also directed to submit the mobile set 5s bearing IMEI No.358843054779807 with the OPs within 30 days.  However, it is made clear that if the OPs are failed to pay the awarded amount of Rs.1,24,900/- to the complainant within stipulated period, then they shall also be liable to pay interest @ 7% p.a. from the date of this order till its realization.  Hence, the present complaint is accepted accordingly. 

15.            In default of compliance of this order, proceedings against respondents-OPs shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:21.04.2023.  

                                                                (Neelam Kashyap)

                                                                President.

 

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.

 

Typed by: Sanjay Kumar, S.G.