Haryana

Kurukshetra

CC/306/2019

Ajay Kumar - Complainant(s)

Versus

Flipkart India - Opp.Party(s)

Jasbir Singh

20 Dec 2021

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL  COMMISSION, KURUKSHETRA.

 

Complaint No.306 OF 2019

Date of Instt.:30.07.2019

Date of Decision: 20.12.2021.

 

Ajay Kumar son of Shri Nand Lal, resident of house No.510/12, Barra Khera, Kurukshetra , Teshil Thanesar District Kurukshetra.

                                                                        …….Complainant.                                              Versus

 

1.Flipkart India, Flipkart Internet Pvt.Limited, O Zone Manay Tech Park,  56/18 and 55/9,  7^th Floor, Garvedhavipalya, Hosur Road, Bangalore – 560068 Karnataka (India) through its Managing Director.

 

2. Health and Hapiness Pvt.Limited Khasra No.1/24, 25, 3//1/1 of village Hassanpur and 14/19/2/2 of village Darbaripur, Gurgaon (Haryana) also at Unit No.402, DLF City Court, M.G.Road, Gurgaon (Haryana) through its Managing Director.

                ….…Opposite parties.

 

                Complaint under Section  12 of Consumer Protection Act.

 

Before       Smt. Neelam Kashyap, President.    

                   Shri Issam Singh Sagwal, Member.

                   Ms.Neelam Member.

                 

Present:     Sh.Jasbir Singh Advocate for the complainant.

                 Ops ex parte.

                  

                 This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by Ajar Kumar.   against Flipkart India etc -the opposite parties.

 

2.             The brief facts of the complaint  are that the complainant purchased one mobile phone make Levono K8 Note, EMEI/ Serial No.866941035679370 from OP no.1 vide order No.OD114485189076182000 dated 20.01.2019 for a sum of Rs.6749/- which was supplied by OP No.2 vide invoice No.#FAB2SA1900234238 dated 21.1.2019.  One year warranty was provided by the Ops for the said mobile and six months for accessories and it was assured that in case of any defect in the mobile, the same will be returned within ten days of its purchase and the price of the mobile will be paid back.   It is further submitted that on the very next day, mobile developed defect and it was not working properly. There was problem of hanging and switched off of its own repeatedly. On the next day, the complainant sent return request on the website of the OP No.1 on 27.1.2019, one consultant namely Gaurav official of OPNo.1 contacted the complainant and through some technical person got re-set the said mobile phone and assured that now till work properly but on the next day same problem developed. The complainant again requested the OP No.1. on 28.1.2019 and on 2.23.2019 OP no.1 replied through mail that “We are writing in continuation to your  last contact on 2.2.2019 about the return request status of your Levono K8 Note (Venon black,  64 GB) with order ID OD No. OD114485189076182000. We sorry to know that the concern with your product has not been resolved as we have received the new return request. Please be assured that we a5re already working on sorting the issue and you would have received an E-mail up date with important details about your return request. So, it is clear that the return request was made within ten days as per the policy of the Ops.  Thereafter, the complainant again made request for return request of the mobile to the OP No.1 on 16.2.2019 nut in vain.  The complainant contacted service centre of Ops at Ambala on 19.7.2019 and they  tried to repair and then the service centre returned the mobile with the remarks that “ display damage and so cannot cover under warranty”. The said submissions clearly prove the unfair trade practice and deficiency in services on the part of the Ops. Thus, alleging deficiency in services on the part of the Ops, the complainant has filed the present complaint and prayed for return of full price of the mobile alongwith compensation for the mental agony and harassment caused  to him.

 

3.             Notice of the complaint was given to the Ops. OP no.1 filed its written statement disputing the claim of the complainant.  It is submitted that answering OP 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 by and between respective buyers and sellers and enables them to deal in various categories of goods including but not limited to mobiles, camera, computers, watches, clothes, footwear, healthcare and personal products, home appliances and electronics etc. It is further submitted that the said Flipkart Platform is an electronic platform which acts as an intermediary to facilitate the sale transactions between independent third party sellers and independent  third party sells and independent end customers. 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 and conditions for sale displayed by seller on the Flipkart Platform. In the instant complaint also, it is evident  from the invoice  copy attached by the complainant with his complaint that the actual seller of the products is a third party seller and not the answering OP herein. It is mentioned here that the complainant has  wrongly arrayed this answering OP in the present complaint. The OP No.1 has stated that the purchase was ordered through Flipkart and the answering OP is not involved in the entire  transaction executed between the seller and the complainant. There is no privity of contract between the complainant and the OP and hence, answering OP does not render any liability arising out of such contract. The complainant in his complaint admits  the fact that he visited the service centre for the removal of the alleged defect in the mobile, hence prima facie proved that the complainant knows that once there is some defect in the mobile, it is only the liability of the manufacturer or service centre to cure the same but unfortunately neither of them made as party in the present complaint. All other allegations made in the complaint have been denied by the OP specifically and preliminary objection regarding maintainability of the complaint has been raised.

 

4.             The OP No.2  filed its separate written statement disputing the claim of the complainant. It is submitted that the OP No.2 is not engaged in the sale of any goods manufactured or produced by its own. The answering OP is engaged in sale for goods manufactured and produced by other manufacturers. Thus, answering OP have a separate and distinct identity from that of manufacturer of the product i.e. Motorola,  and there is no relation of Principal and agent between Motorola and answering OP. The product sold  by the OP carries manufacturer’s warranty. As a reseller, involvement of answering OP in the entire transaction is limited only to selling the products of various manufacturers and in the present complaint the manufacturer is OP No.2. It is mentioned here that there has neither been any shortage of supply or any deficiency in services on the part of answering OP.   It is submitted that the Liability to provide after sale services does not lie upon the answering OP as   the answering OP is neither the manufacturer nor the service centre engaged by the manufacturer. Thus, it is submitted that there is no deficiency in services on the part of the OP and prayed for dismissal of the present complaint.

 

5.             The complainant in support of its case has filed his affidavit Ex.CW1/A and tendered documents Ex.C-2 to Ex.C-7 and closed his evidence.

 

6.             On the other hand, Ops failed to adduce any evidence despite sufficient opportunities and  ultimately failed to appear before this Commission and were produced against ex parte vide order dated 8.11.2021.

 

7.             We have heard the learned counsel for the complainant and gone through the material available on the case file very carefully.

 

8.             The learned counsel for the complainant while reasserting the averments made in the complaint has argued that purchased one mobile phone make Levono K8 Note, EMEI/ Serial No.866941035679370 from OP no.1 vide order No.OD114485189076182000 dated 20.01.2019 for a sum of Rs.6749/- which was supplied by OP No.2 vide invoice No.#FAB2SA1900234238 dated 21.1.2019.  One year warranty was provided by the Ops for the said mobile and six months for accessories and it was assured that in case of any defect in the mobile, the same will be returned within ten days of its purchase and the price of the mobile will be paid back.   It is further argued that on the very next day, mobile developed defect and it was not working properly.  It is also argued that there was problem of hanging and switched off of its own repeatedly. On the next day, the complainant sent return request on the website of the OP No.1 on 27.1.2019, one consultant namely Gaurav official of OPNo.1 contacted the complainant and through some technical person got re-set the said mobile phone and assured that now till work properly but on the next day same problem developed. The complainant again requested the OP No.1. on 28.1.2019 and on 2.23.2019 OP no.1 replied through mail that “We are writing in continuation to your  last contact on 2.2.2019 about the return request status of your Levono K8 Note (Venon black,  64 GB) with order ID OD No. OD114485189076182000. We sorry to know that  the concern with your product has not been resolved as we have received the new return request. Please be assured that we are already working on sorting the issue and you would have received an E-mail up date with important details about your return request. So, it is clear that the return request was made within ten days as per the policy of the Ops.  Thereafter, the complainant again made request for return request of the mobile to the OP No.1 on 16.2.2019 nut in vain.  The complainant contacted service centre of Ops at Ambala on 19.7.2019 and they tried to repair and then the service centre returned the mobile with the remarks that “display damage and so cannot cover under warranty”. The said submissions clearly prove the unfair trade practice and deficiency in services on the part of the Ops.

 

8.                  As per the complainant, he purchased mobile handset from OP No.1 for Rs.6749 vide invoice No. #FAB2SA19 dated 21.1.2019 Ex.C-1. Ex.C-4 and Ex.C-5  are replies of e-mails sent by the complainant. Vide Ex.C-3  the OP sent the reply  to the complainant regarding grievance and service experience of customer care. Vide Ex.C-4 the OP acknowledged the return request sent by the complainant  on 2.2.2019. The product was purchased by the complainant on 21.1.2019 and thus the complainant sent return request within fifteen days. Ex.C-5 is e-mail whereby the complainant demanded refund of the amount and asked to launch complaint against the company. Ex.C-6 is the job sheet  which shows the defect of “ display damage, and this job sheet shows that there is defect in the phone purchased by the complainant. This version of the complainant is duly supported by his affidavit Ex.CW1/A.

 

9.                     The  submissions of the Ops made in the written statement  that the OPs were only an intermediary between buyers and sellers and could not be held responsible are of no avail because the Ops have earned something during this transaction and the Ops have delivered defective product to the complainant, therefore, Ops cannot escape of their liability. Flipkart cannot be permitted to claim that it is providing purely gratuitous service to its customers without any consideration. It is certainly not the case that it is a charitable organization involved in e-commerce with no business returns for itself and the Ops are held liable for delivering the defective product to the complainant However, the Ops failed to remove defect of the mobile phone of the complainant same despite repeated requests and  were proceeded against ex- parte vide order dated 8.11.2021. The,  learned counsel for the complainant has also placed on file fee certificate mark A showing that he has charged counsel fee of Rs.15000/-. Therefore, deficiency in services on the part of the Ops is made out because the phone was purchased through the platform of the Ops, therefore, the complainant is entitled to relief.

 

10.            In view of our above findings, we accept the present complaint and direct the Ops to refund the sum of Rs.6000/- to the complainant alongwith interest @ 6%  per annum from the date of filing of the present complaint i.e. 30.07.2019 till its actual realization.  The complainant is also entitled to a sum of Rs.5000/- in lump sum  as compensation for the mental harassment caused to  him and the litigation expenses. The Ops are further directed to make the compliance of this order within a period of 30 days from the date of this order, failing which the complainant shall be entitled to initiate proceedings u/s 25/27 of the Consumer Protection Act. A certified copy of this order be supplied to the parties concerned and the file be consigned to the record  room after due compliance.

 

Announced in open Commission.                                                                         

Dated: 20.02.2021.

 

 

                                                                        President.

 

 

                        Member             Member.