BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Complaint Case no.223 of 2017
Date of Institution: 6.9.2017
Date of Decision: 01.02.2018
Ashish Sodhi son of Shri Dalbir Singh, resident of 2123, Sector 20-III, HUDA, Sirsa, District Sirsa.
………Complainant.
Versus
1. Flipkart Internet Private Limited, Ozone Manay Tech Park, # 56/18 & 55/09, 7th Floor, Garvebhavipalya, Hosur Road, Bangalore- 560 068, through its Manager/ authorized signatory.
2. Istakart Services Pvt. Ltd., H. No.11/241, Gali No.4, Grewal Basti, Begu Road, Sirsa, through its proprietor.
……… Opposite parties.
Complaint under Section 12 of the Consumer Protection Act, 1986.
Before: SH. R.L.AHUJA ………………. PRESIDENT
SH. MOHINDER PAUL RATHEE ……MEMBER.
Present: Sh. J.B.L. Garg, Advocate for complainant.
Sh. J.S. Sidhu, Advocate for opposite party No.1.
Opposite party no.2 exparte.
ORDER
In brief, the case of the complainant is that opposite party no.1 is an online shopping website and offers delivery of different type of electrical goods, mobiles, tabs, laptop etc. That on 16.5.2017, the op no.1 launched an online exchange offer of mobile phones i.e. to exchange the old mobile phones with new one. The said scheme was valid up to 19.5.2017. It is further averred that complainant being influenced with the said advertisement given by op no.1, placed an order for purchase of a Vivo Mobile phone V5s (Matte Blck 64 GB) under exchange offer and paid a sum of Rs.11,600/- to op no.1 through his credit card. That on 19.5.2017, the complainant received a telephonic message from the delivery boy of op no.2 for taking the delivery of the mobile phone but on that day the complainant and his family members were out of station and the complainant told the delivery boy of op no.2 to come on next day but due to this, the delivery boy of op no.2 felt annoyed with the complainant. However, on 20.5.2017, the delivery boy of op no.2 came to the premises of complainant for supplying the mobile phone but he did not take the delivery of old mobile phone from the complainant with the false excuse that the screen of the old mobile phone of complainant is tilting, whereas the screen of old mobile phone of the complainant was in perfect working condition. Thereafter, the complainant visited the no.2 and told the above facts happened with him on 20.5.2017 and also about the false excuse taken by delivery boy of op no.2 about tilting of screen of old phone of complainant. The complainant placed the same before op no.2 for inspecting the same and stated that delivery boy only felt annoyed due to the reason that on 19.5.2017 none of his family member was available at home, so the delivery could not be taken and that the screen of his mobile phone is in perfect working condition, but the op no.2 did not listen to the complainant, rather misbehaved with the complainant and refused to take delivery of old mobile phone of complainant and also stated that the phone received from op no.1 under exchange offer will be returned back to op no.1. It is further averred that old mobile of complainant is still in perfect condition and there is no defect in the same. It shows that op no.2 has taken a false excuse and has refused to deliver the ordered Vivo Mobile phone to the complainant under exchange offer. That complainant approached the ops and requested them to admit his claim but they did not pay any heed. Ultimately, the complainant got served a legal notice upon ops which was sent through registered post on 16.6.2017 but of no use. That in this manner, the ops have been indulged in unfair trade practice and have committed gross deficiency in service towards the complainant and thereby put the complainant to suffer unnecessary harassment and mental agony. Thus, the complainant is entitled to compensation of Rs.50,000/- from the ops and the ops be also directed to supply/ deliver the ordered Vivo Mobile phone to the complainant and take delivery of the old mobile from complainant and complainant is also entitled to litigation expenses. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed reply taking certain preliminary objections regarding suppression of material facts and that complainant has mistakenly considered the answering op no.1 as the seller of the product which is complete negligence on the part of complainant. The op no.1 is not the seller of any product but mere an online intermediary between the registered seller and the visitor/ buyer of the online web portal operated by op no.1. The op no.1 provides online marketplace platform/ technology and/or other mechanism/ services to the sellers and buyers of products to facilitate the transactions , electronic commerce for various goods. The said Flipkart Platform is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent customers. The business of op no.1 falls within the definition of an “intermediary” under Section 2 (1) (w) of the Information Technology Act, 2000. The op no.1 is protected by the provisions of Section 79 of the Information Technology Act, 2000. The answering op no.1 does not directly or indirectly sells any products on Flipkart Platform. In the instant complaint also, it is evident from the invoice copy attached by the complainant that the actual seller of the product is a third party seller and not the op no.1. The complainant has wrongly arrayed the op no.1 in the present complaint. The op no.1 had never launched any alleged exchange scheme for any product. It is only the manufacturers and the sellers who offer and provide different kind of promotional discounts and exchange schemes for their products. Remaining contents of complaint are also denied.
3. Initially opposite party no.2 also appeared through counsel but thereafter Sh. J.S. Sidhu, learned counsel for ops suffered a statement that he has no instructions to appear on behalf of op no.2 and since no other authorized agent appeared on behalf of op no.2, therefore, op no.2 was proceeded against exparte.
4. The complainant produced his affidavit Ex.C1, copies of e-mails Ex.C2 to Ex.C6, copy of legal notice Ex.C7, postal receipts Ex.C8 and Ex.C9. On the other hand, op no.1 produced affidavit of Mr. Satyajeet Bhattacharya Ex.R1/A and copy of Flipkart terms Ex.R2.
5. We have heard learned counsel for the complainant as well as learned counsel for op no.1 and have perused the case file carefully.
6. It is undisputed fact between the parties that opposite party no.1 launched an online exchange offer of mobile phones by which a person could get exchanged of his old mobile phone with a new one and scheme was valid up to 19.5.2017. The complainant had placed an order for purchase of Vivo Mobile phone (Matte Black 64 GB) under exchange offer and paid a sum of Rs.11,600/- to op no.1 through his credit card. On 19.5.2017, the complainant received a telephonic message from delivery boy of op no.2 for taking delivery of the mobile phone but complainant told that person of op no.2 to call on the next day and due to that the delivery man of op no.2 felt annoyed with the complainant. On 20.5.2017, delivery boy again came to the premises of complainant but he did not take delivery of the old mobile of the complainant with the excuse that the screen of the mobile of complainant is tilting.
7. Though, during the course of arguments, learned counsel for op no.1 has strongly contended and relied upon the affidavit of Sh. Satyajeet Bhattacharya of op no.1 who has deposed in terms of reply filed by op no.1 but however he has not denied that complainant did not pass any order to op no.1 in order to avail exchange offer of the mobile set and also not denied the payment of Rs.11,600/- which complainant has deposited with op no.1. He has also taken a plea that op no.1 is not seller of the product and actual seller of product is a third party and has also taken a plea that op no.1 is protected by provisions of the Technology Act. But however, it is proved fact on record that mobile set for which complainant has passed order to op no.1 has not been delivered to the complainant which is evident from the complaint and his affidavit in which he has specifically deposed that he paid a sum of Rs.11,600/- to op no.1 through his credit card and he has not received the delivery of new mobile phone as the delivery man of op no.2 has refused to accept the old mobile of the complainant. Since, it is proved fact on record that there was contract between complainant and op no.1 regarding the exchange of old mobile with new mobile and it was agreed by op no.1 to hand over a new mobile with exchange of old mobile to the complainant and complainant in furtherance of that contract has paid an amount of Rs.11,600/- to op no.1 as consideration, so it was legal obligation of op no.1 to hand over a new mobile to the complainant after receiving old mobile. Moreover, op no.2 who was to deliver the mobile to the complainant after taking delivery of old mobile from the complainant has not come forward to contest the complaint rather opted to be proceeded against exparte. So, evidence led by complainant goes unchallenged and unrebutted against op no.2 and further it is proved fact on record that complainant made payment of Rs.11,600/- to op no.1 but he did not receive new mobile phone. Nor ops have placed on record anything to show that mobile set of the complainant was defective which could not be exchanged with new one.
8. In view of the above, we allow the present complaint and direct the opposite parties to hand over a new mobile set which was offered and was agreed to be delivered to the complainant under the scheme in exchange of old mobile subject to the condition that mobile of the complainant is in working condition. In case, the ops fail to deliver the ordered mobile set in exchange to the old mobile set of complainant, then they will be liable to refund amount of Rs.11,600/- alongwith interest @9% per annum from the date of payment to the ops till actual realization to the complainant. We also direct the ops to pay a sum of Rs.2000/- as composite compensation and litigation expenses to the complainant. The opposite parties are jointly and severally liable to comply with this order within a period of 15 days from the date of receipt of copy of this order. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:1.2.2018. Member District Consumer Disputes
Redressal Forum, Sirsa.
