Haryana

Kurukshetra

CC/77/2021

Rashi D/o Naresh Kumar - Complainant(s)

Versus

Flipkart India Ltd - Opp.Party(s)

Harpal Chahhal

02 Aug 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KURUKSHETRA.

 

                                                                    Complaint No.:    77 of 2021.

                                                                   Date of institution:         12.03.2021.

                                                                   Date of decision: 02.08.2022

 

Rashi d/o Shri Naresh Kumar, r/o H.No.2276, Urban Estate, Sector-13, Kurukshetra.

                                                                                                …Complainant.

                                                     Versus

 

1. Flipkart India Ltd., through Sane Retail Pvt. Ltd. at Killa No.219/15-16 25/1 220/11 12/1 12/2 13/1 13/2 20 21/1 21/2 22/1 23/1/1 Bohra Kalan, Bilaspur Pataudi Road, Gurugram, Haryana-122001.
2. DigiCare c/o Iqor Global Services India Pvt. Ltd., At Shop No.3, IInd Floor, Super Mall, Sector-12, Karnal, through its Manager/Owner.
3. Apple India Pvt. Ltd. No.24, 19^th Floor, Concorde Tower UB City Vitthal Malya Road, Bangalore-560001, through its MD/Owner.

 

...Respondents.

CORAM:   NEELAM KASHYAP, PRESIDENT.    

                   NEELAM, MEMBER.

 

Present:       Shri Harpal Chahal, Advocate for the complainant.

                   Shri Shekhar Kapoor, Advocate for Opposite Parties No.1 & 3.

                   Opposite Party No.2 ex-parte, vide order dated 21.03.2022.

 

ORDER:

 

1.                This is a complaint under Section 35 of the Consumer Protection Act, 2019.

2.                It is alleged in the complaint that the complainant purchased an Apple watch series 3 GPS-42 MM Space Grey from OP No.1 vide order ID No.OD220375665380300000 dated 02.12.2020 for Rs.19,900/-, which was delivered to her on 06.12.2020. The OP No.2 is the authorized service centre and OP No.3 is the manufacturer of said watch. The OPs provided one year warranty for the said watch. The watch worked for sometime properly, but in the first week of February 2021, watch starting creating problem and she unable to receive notifications such as Whatsapp and calls on the watch and in this regard, she got registered the complaint on customer care at toll free number, who asked to do some modification and software pupation, but watched worked properly only for 4-5 days and started creating same problems again and again. She approached to service centre on 2^nd week of February 2021, who updated the software, but it worked for 3-4 days and thereafter, started creating the same problems. ON 16.02.2021, she again visited the service centre and this time it asked to deposit the unit, but till time, no solution was provided to her and OPs neither repaired the watch nor replaced the same, which is an act of deficiency in service on the part of OPs, due to which, she suffered great mental agony, hardship and financial loss, constraining her to file the present complaint against the OPs.

3.                Upon receipt of complaint, its notices were ordered to be sent to the OPs. On receipt of notice of complaint, OPs No.1 & 3 appeared before this Commission and filed their reply, whereas, OP No.2 failed to appear before this Commission, despite receipt of notice of this Commission and was ordered to be proceeded against ex-parte by this Commission, vide order dated 13.12.2021 and 21.03.2022.

4.                OP No.1, in its written statement stating therein that OP No.1 does not provide any warranty and guarantee to anyone, rather it is provided by manufacturer of the product. The OP No.1 neither seller nor the manufacturer/producer/service centre of the product in this case. The OP No.1 is an online platform where third party sellers directly sell their products and visitors/buyers purchase such products from the respective sellers on the website/app out of their own free will and choice. There is no deficiency in service on its part and prayed for dismissal the present complaint.

5.                The OP No.3 in its written statement admitted purchasing the watch in question by the complainant from it. The complainant approached OP No.2 on 16.02.2021 towards which the repair acceptance form was issued to her and after service, the said watch was collected back on 19.02.2021. Besides, the same there is no evidence of complainant having ever visited the OP No.2 or having submitted the Apple Watch for any sort of issue. Till date there is no issue detected by OP No.2 in the said watch.  There is no replacement of said watch as it is working fine. There is no deficiency in service on its part and prayed for dismissal the present complaint against it.

6.                In support to support her case, complainant tendered affidavit Ex.CW1/A along with documents Ex.C-1 & Ex.C-2 and closed the evidence.

7.                On the other hand, OPs No.1 & 3 tendered affidavits Ex.RW1/A, Ex.RW2/A along with documents Ex.R-1 to Ex.R-3 and closed their evidence.

8.                We have heard the learned counsel of the parties and carefully gone through the case file.

9.                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 manufacturer/seller i.e. the third party and display of price and subsequent supply of order is the sole responsibility of manufacturer i.e. OP No.3 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 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, 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”.

10.              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/manufacturer i.e. OP No.3 in the case in hand.

11.              Now coming on the merits of the case.

12.              Learned counsel for the complainant has argued that the complainant purchased an Apple watch on 02.12.2020 for Rs.19,900/-, which was delivered to her on 06.12.2020. The watch worked for sometime property, but in the first week of February 2021, watch starting creating problem and she unable to receive notifications such as Whatsapp and calls on the watch and in this regard, she got registered the complaint on customer care at toll free number, who asked to do some modification and software pupation, but watched worked properly only for 4-5 days and started creating same problems again and again. The complainant approached to service centre on 2^nd week of February 2021, who updated the software, but it worked for 3-4 days and thereafter, started creating the same problems. ON 16.02.2021, she again visited the service centre and this time it asked to deposit the unit, but till time, no solution was provided to her and OPs neither repaired the watch nor replaced the same, which is an act of deficiency in service on the part of OPs.

13.              The learned counsel for OP No.1 has argued that OP No.1 does not provide any warranty and guarantee to anyone, rather it is provided by manufacturer of the product. The OP No.1 neither seller nor the manufacturer/producer/service centre of the product in this case. The OP No.1 is an online platform where third party sellers directly sell their products and visitors/buyers purchase such products from the respective sellers on the website/app out of their own free will and choice. There is no deficiency in service on its part and prayed for dismissal the present complaint.

14.              The learned counsel for OP No.3 has argued that the complainant approached OP No.2 on 16.02.2021 towards which the repair acceptance form was issued to her and after service, the said watch was collected back on 19.02.2021. Besides, the same there is no evidence of complainant having ever visited the OP No.2 or having submitted the Apple Watch for any sort of issue. Till date there is no issue detected by OP No.2 in the said watch.  There is no replacement of said watch as it is working fine. There is no deficiency in service on its part and prayed for dismissal the present complaint against it.

15.              There is no dispute between the parties that the complainant purchased an Apple watch series 3 GPS-42 MM Space Grey from OP No.1 on 02.12.2020 for Rs.19,900/-, which was delivered to her on 06.12.2020 vide Tax Invoice Ex.C-1.  

16.              The grievance of the complainant is that the said watch worked for sometime properly, but in the first week of February 2021, it starting creating problem, as she unable to receive notifications of Whatsapp and calls on the watch and in this regard, she approached the OPs service center time and again, but every time, said service centre updated the software and then the watch worked for 3-4 days properly, but after that, it started again creating the same problems. In order to support her contention, the complainant produced Repair Acceptance Form as Ex.C-2 on the case file, in which, in column “Problem Reported BY Customer” it is mentioned “Apple Watch Notification Problem”. On the other hand, the OPs No.1 & 3 failed to produce any documentary evidence on the case file, vide which, it can be proved/gathered that they resolved the grievance of the complainant regarding the watch in question. The complainant purchased the watch in question on 02.12.2020 and from perusal of document Ex.C-2 dated 16.02.2021, it is found that the same became defective after only two months from its purchase, as such, definitely, there was having a manufacturing defect in it and despite repeated requests made by the complainant to OPs, they failed to redress the grievance of the complainant, either, to rectify the defect of the watch or replace the same with new one, which is an act of gross deficiency in service as well as unfair trade practice on the part of OPs No.1 & 3, due to which, the complainant suffered huge mental agony, physical harassment and financial loss without any fault on her part. As such, the complainant is entitled to refund the cost price of the watch in question, along with compensation and litigation expenses from OPs No.1 & 3. So far as, the complaint filed against OP No.2 service centre is concerned; it may be stated here that neither any specific allegations have been leveled by the complainant against it nor it has been proved, therefore, complaint filed against OP No.2, is liable to be dismissed.

17.              In view of our above discussion, we accept the present complaint against OPs No.1 & 3 and dismiss the same against OP No.2. We direct the OPs No.1 & 3 to refund the amount of Rs.19,900/- i.e. cost price of watch in question (as shown in Tax Invoice Ex.C-1) to the complainant, subject to return the old watch in question, to OPs No.1 & 3, by the complainant. OPs No.1 & 3 are also directed to pay Rs.3,000/- to the complainant, as compensation for mental agony and physical harassment, caused to the complainant, due to deficiency in services as well as unfair trade practise on their part along with Rs.5,000/- as litigation expenses. The OPs No.1 & 3 are further directed to make the compliance of this order within a period of 45 days from the date of preparation of certified copy of this order, failing which, the claim amount of Rs.19,900/- shall carry interest @6% simple per annum, from the date of this order, till its actual realization, and the complainant shall be at liberty to initiate proceedings u/s 71/72 of the Act, against OPs No.1 & 3. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost, as permissible under Rules. File be indexed and consigned to the records, after due compliance.

Announced in open Commission:

Dated:02.08.2022.

 

    

                                                                                        (Neelam Kashyap)               

          (Neelam)                                                                President,

          Member.                                                                DCDRC, Kurukshetra.           
 

 

 

Typed by: Sham Kalra, Stenographer.