Delhi

North

CC/183/2019

DEEPAK KUMAR - Complainant(s)

Versus

FLIPKART INDIA - Opp.Party(s)

10 Jul 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Phone: 011-23969372; 011-23912675 Email: confo-nt-dl@nic.in

Consumer Complaint No 183/2019

In the matter of:

Memo of Parties as per complaint

Sh.Deepak Kumar

H. No. B-204,

Gali No.11, Parasram Enclave,

Burari Delhi-110084.                                                                                  …Complainant

Versus

Flipkart India (Opp. Party: E-Commerce)

Corporate/ Registered office address

Flipkart Internet Private Limited Vaishnave Summit,

Ground Floor, 7th Main,

80 Feet Road, 3rd Block,

Koramangala, Bengaluru-560034

Karnataka, India

Also at:

Flipkart India Headquarter Mailing Address

Flipkart Internet Private Limited Ozone Manay Tech Park,

#56/18 & 55/09,

7th floor, Garvebhavipalya, Hosur Road,

Bangaluru-560068,

Karnataka, India                                                                               ... Opposite Party No.1

 

Omnitech Retail India Pvt. Limite (Opp. Party-Seller)

Consulting Rooms Pvt. Ltd.

202 DBS Business Center

FF World Trade Tower, Barakhamba Lane,

Connaught Place, New Delhi-110001.                                          ... Opposite Party No.2

 

Ekart Logistics

Brigade Manage Court,

First Floor, No.111,

Koramngala Industrial Layout,

Bangalore-560095,

Karnataka, India                                                                               ...Opposite Party No.3

ORDER
10/07/2024

Ms.Harpreet Kaur Charya, Member

 

1. The present complaint has been filed by Sh. Deepak Kumar, the complainant against Flipkart,e-commerce platform as OP-1; Omnitech Retail Pvt. Ltd., seller as OP-2 and InstaKart Services, Logistic as OP-3 with the allegations of delivery of an old non-working television.  
2. Facts as per the complaint are that on 29/09/2019, the complainant placed an order for IFFALCON by TCL AI powered K3, 43 inch Android television from Flipkart (OP-1).  The total cost of the new television was Rs.19,999/.The complainant paid Rs.17,599/- and exchanged an old CRT 21 inch television under exchange offer for Rs 2,400/.  
3. On 07/10/2019, the product was delivered by Flipkart and the installation by Jeeves Consumer Services was scheduled for 12/10/2019.  One technician, namely   Mr. Irshad Ahmed visited for installation and upon opening the sealed packed television box it was found that the product delivered was an old, totally damaged, non-functional television from another brand. 
4. Immediately the complainant contacted Flipkart customer support where it was agreed to provide a replacement. On 14/10/2019, the day scheduled for replacement, the delivery person refused to handover the replacement on account that the replacement cannot be done as the television is to be exchanged is not fit for replacement. Again, the complainant was assured that on 30/10/2019 the correct product shall be delivered but, the replacement was not delivered on the same pretext mentioned above.  
5. The complainant has alleged that OP-1 is not delivering the product for which he has paid money even after several complaints and finally informing that the complainant that his request cannot be fulfilled by the seller as the courier service provider has confirmed the delivery of the order with the product being intact. 
6. Feeling aggrieved by delivery of an old damaged totally non- functional television of other brand despite receiving the payment of Rs.19,999/-, hence, the present complaint with the prayer for resolution and compensation for mental tension and frustration. 
7. The complainant has annexed the copy of the Aadhar Card, order invoice, order information, emails from OP-1 for replacement, complaint made to National Consumer Helpline, LTC record, call history and photographs of the television with the complaint. 
8. Notice of the present complaint was issued to OP-1, OP-2 and OP-3. 
9. Thereafter, written statement was filed on behalf of OP-1. They have taken several preliminary objections such as: the complainant has not approached the commission with clean hand and has suppressed true and material facts. OP-1 operates as an online platform and all the products on the platform are sold and supplied by independent third party seller. 
10. OP-1 being an intermediary, duly intimated the seller. It was confirmed by the seller that the right product in intact condition has been delivered by him and the seller himself rejected the return request placed by the complainant. 
11. OP-1 is not responsible for delivery/return/replacement of the product since it never came into the possession of the product any time during the entire transaction.   Thus, the dispute pertains to the complainant and the seller (OP-2). 
12. They have further submitted that as per Section 2(1) (w),of the Information Technology Act, 2000, which is reproduced as here under :
“Intermediary” with respect to any particular electronic records, means any person who on behalf of another person receives, stores  or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;”
13. OP-1 has also referred to Section 79,of the Information Technology Act,2000 which is reproduced as here under :
“79....
1. Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary, shall not be liable for any third party information, data or communication link made available or hosted by him.
2. The provisions of sub-section (1) shall apply if-
a) The function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted ; or
b) The intermediary does not-
(i) Initiate the transmission
(ii) Select the receiver of the transmission and
(iii) Select or modify the information contained in the        transmission;
c) The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
14. Moreover, Section 5 (1) of the Consumer Protection (e-commerce) Rule, 2020 also provides for exemption to market place e-commerce entity under Section 79(1), who complies with sub section (2) and (3) of that Section. 
15. OP-1 does not directly or indirectly sell products on Flipkart platform.  They have further relied upon the press Note No.3 (2016 series) of the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Govt. Of India bearing clause 2.3 (viii).  It has been clarified that in marketplace model of e-commerce (such as Flipkart.com) any warranty/guarantee of goods and services sold is responsibility of the seller. 
16. It has been submitted that the sellers are separate entity being controlled and managed by different person and in the present case the actual seller of the product is the third party seller and not OP-1.Any kind of assurance, whether in terms of warranty of the products, price, discount, and promotion offers, after sale services or otherwise, are offered and provided by the manufacturer/seller of the product.  
17. The user(s) of Flipkart Platform are bound by terms of use enumerated on Flipkart platform which clearly states that all contracts of sale are bipartite contract between the buyers and sellers only. 
18. The product was sold by OP-2 and delivered through third party logistic service provider i.e OP-3. Rest of the contents of the complaint have been denied with the prayer for dismissing the complaint against OP-1 with exemplary cost.
19. OP-1 has annexed the Press Note issued by Government of India as Annexure-1, Flipkart terms of use as Annexure-2.
20. OP-3 has also filed their written statement.  It has been stated that the complainant has suppressed true and correct facts.  The grievance of the complaint pertains to the delivery of alleged wrong product. OP-3 acts as a logistic partner to facilitate logistic transaction between independent and third party seller and independent customer. As a logistic partner the sealed packed product from seller is picked and delivered to the buyer in intact condition and in the present case also the same was done. 
21. They have further submitted that the seller is separate entity controlled and managed by different persons/stakeholders.  OP-3 does not associate itself with any kind of liability for delivery of any faulty/wrong product or empty parcel.  OP-3 picks the sealed packed product from the seller and delivers it to the buyer without alteration/ opening/ damaging/tampering the packaging of the box.
22. There does not exist any privity of contract between complainant and OP-3, therefore, the complaint is bad for mis-joinder of party.  The services rendered by OP-3 are similar to a postman of Indian Post Office, where the postman collects consignment sent by the sender and delivers it to the receiver.  
23. They have also submitted that the complainant has nowhere alleged any kind of tampering with the parcel which means that the parcel was handed over to the complainant as it was received from the seller. Rest of the contents of the complaint have been denied with the prayer for dismissing the complaint qua OP-3 with exemplary cost.
24. Rejoinder to the written statement of OP-1 was filed by the complainant.  He has reiterated the contents of the complaint and denied those of the written statement.  He has annexed the order history, call detail record with the rejoinder. 
25. In rejoinder to the written statement of OP-3, the complainant has alleged that the Television box was taped with normal transparent white plastic tape at the time of delivery instead of blue colour plastic tape having Flipkart logo.  It has been alleged that delivery personnel quickly left the premises after delivering the television box.  The condition of the delivery box and behaviour of the delivery personnel suggest that it might have been tampered during delivery. 
26. It has been further stated that OP-3 be asked to show evidence and prove that the television box was delivered to the complainant without changing its contents from inside. 
27. Evidence by way of affidavit was filed by the complainant reiterating the contents of the complaint.  He has relied upon the documents annexed with the complaint and has also placed on record the photographs of the box and the old television delivered to him.
28. OP-1 has got examined Ms.Sanchi Chhabra, Authorised Signatory on their behalf.  She has also repeated the contents of their written statement and has got exhibited the copy of the Press Note as Ex.OPW-1/I and the copy of the extract of the terms of use as Ex.OPW-1/II.
29. Mr. Pradeep Reddy, Authorised Signatory has been examined on behalf of OP-3.  He has also reiterated the contents of their written statement. 
30. We have gone through the material on record and have heard the submission made by the Complainant appearing in person and Ld. Counsel for OP-1 and OP-3.  Since, none appeared on behalf of OP-2 despite service nor any reply was filed on their behalf, they were proceeded ex-parte vide order dated 10/05/2023.
31. The case of the complainant is that for an order placed by him with OP-1, an old, non working TV of a different brand was delivered. Placing of an order is undisputed fact.
32. OP-1 has stated that they are merely online platform, hence they can be held liable for deficiency in services. It is the seller who is responsible for warranty/ guarantee of the product sold.  
33. Hon’ble National Commission in Rediff.com India Ltd. Vs. Urmil Munjal, [II (2013) CPJ 522 (NC)] has observed as under:
7. In the background of the above contention, it needs to be noted that the District Forum did not hold the RP/OP liable for any defects in the goods supplied, but for failure to inform the Complainant about the manner in which defective goods were to be returned to their seller. The District Forum has observed:-
4. The main allegation of the complainant against the opposite party is that the opposite party failed to inform the complainant as to how the items received by the complainant are to be returned to the seller. Since the opposite party was facilitator between the seller and buyers as mentioned in the terms and conditions for Rediff Shopping Anneure-OP1 in the column online Shopping Platform Annexure-OP1-A, so it was the duty of the opposite party to inform the complainant as to how the goods are to be returned to the seller. A letter was issued through the opposite party to the complainant Annexure-C1 according to which the seller had undertaken to replace the produce at no cost to the buyer if the buyer inform the seller within 30 days of the delivery of the order, which shows that had the opposite party informed the complainant about the procedure and from the goods purchased by the complainant through the opposite party are to be returned, the complainant would have taken the benefit of the facility given by the seller under Annexure-C1. Although the opposite party did not charge any price from the complainant from mediating between the seller and the complainant yet it is implied that the opposite party which was giving service to the seller to invite buyers to purchase the goods is a service as contemplated under the provisions of Consumer Protection Act and the complainant has locus standi to file the complainant against the opposite party.
8.........
9. We find that the view taken by the fora below is completely in line with the admitted position of the RP/OP. In para 2 of its written response before the District Forum, it is clearly stated that the respondent company is engaged in business of providing services through its internet portal (www.rediff.com) to interested buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sale and purchase of movable goods. If this is the declared business interest of the RP/OP it cannot be permitted to claim that it is providing purely gratuitous service to its customers, without any consideration. It is certainly not the case of RP/OP that it is a charitable organisation involved in e-commerce, with no business returns for itself. We therefore, reject the contention of the revision petitioner that the respondent/Complainant is not a consumer of the revision petitioner within the meaning of Section 2(1) (d) of the Consumer Protection Act, 1986.
34. Nowhere has it been stated by the OP-1 that they are providing purely gratuitous services to its customers, without any consideration. It is not the case of OP-1 that it is a charitable organisation involved in e-commerce with no business return. In the light of above judgment, it is clear that the OP-1 services are clearly covered under Consumer Protection Act
35. OP-1 in para 2 of the preliminary objections and para 3 of the parawise reply of their written statement has stated 
 .....When the complainant raised his grievance with the answering Opposite party no.1, the Opposite party no.1 being an intermediary duly intimated the seller about the same. However the Seller has confirmed that the right product in intact condition has been delivered by him to the complainant and seller himself has rejected the return request raised by the complainant.  
 
36. This submission of OP-1 is not supported by any inquiry report /investigation report or as correspondence with the seller (OP-2) and is not filed on record. 
37. OP-1 has claimed immunity available under Section 79 of the Information Technology Act, 2000. They have further submitted that as per Section 2(1) (w), of the Information Technology Act, 2000, defines Intermediary as:
“Intermediary” with respect to any particular electronic records, means any person who on behalf of another person receives, stores  or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;”
38. OP-1  has also referred to Section 79 of the Information Technology Act,2000 which is reproduced as here under :
“79....
3. Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary, shall not be liable for any third party information, data or communication link made available or hosted by him.
 
2. The provisions of sub-section (1) shall apply if-
d) The function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted ; or
e) The intermediary does not-
(iv) Initiate the transmission
(v) Select the receiver of the transmission and
(vi) Select or modify the information contained in the transmission;
f) The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
39. The exemption from liability does not come to their aid as they have acted in contravention to the provisions of Section 79 (1) of the Information Technology Act, 2000 which is subject to the conditions stipulated in Section 79(2). As per Section 79(2)(c) of the Information Technology Act, 2000, the provisions of Sub Section 1 shall apply if - the intermediary observed due diligence while discharging its duties under this Act and also observed such other guidelines as the Central Government may prescribe in this behalf.
40. As far as objection with respect to liability for the warranty/ guarantee of the product is concerned, we are in agreement with OP-1 to the extent that they are not liable but the present complaint pertains to delivery of an old TV of a different brand instead of the new product ordered by the complainant. When the product which has been ordered has not been delivered, the question of warranty/guarantee does not come into question.
41. Complainant in his rejoinder to W.S. of OP-3 has stated that the box delivered by them was taped with transparent tape and not with tape bearing logo of Flipkart (OP-1), this is in contradiction to the contents of the complaint where Complainant has stated that sealed pack was opened by technicians, thus, this allegation seems to be an afterthought.
42. It is pertinent to note that parties have relied on Section 5(1) of the Consumer Protection (e-commerce) Rule, 2020, however, the said complaint was filed on 21.11.2019, when the CPA, 1986 was in force. There is no provision of retrospective application of these rules. Hence, they are not applicable in present case.
43. When OP-1 has alleged that the request for replacement was rejected by the seller (OP-2), then the onus was on the seller as well to show that the product ordered by the complainant was delivered and also the reasons/ grounds based on which the request of the complainant was rejected. But, OP-2 chose not to appear and defend despite service; hence, the allegation of complainant has remained un-rebutted. 
44. For the reasons discussed above we hold OP-1 and OP-2 have adopted unfair trade practices and are deficient in services by not delivering the product ordered and in non-redressal of the complaint. Hence, we direct OP-1:-
a) To pay Rs. 19,999/- (Nineteen Thousand Nine Hundred Ninty-Nine only) being the total cost of the television as per Tax Invoice dated 14.10.2019. 
b) To pay compensation of Rs.10,000/- (Rupees Ten Thousand Only) on account of mental agony and harassment, inclusive of litigation expenses.
c) Complainant is also directed to return the defective TV(Sony Brand as evident from the photographs annexed with the complaint which was delivered to him) to OP-1 upon receipt of the amount as directed in Clause (a) and ( b)
45. It is further clarified that if the OP-1 fails to comply as directed in Clause (a) and Clause (b) above within one month from the date of receipt of this order, OP-1 shall be liable to pay interest @ 7% p.a. from the date of order till realization. OP-1 shall also be at liberty to recover the amount as ordered above from OP-2 on pro-rata basis.
Office is directed to supply the copy of this order to the parties as per rules.  Order be also uploaded on the website.  Thereafter, file be consigned to the record room.
 
HARPREET KAUR CHARYA                            ASHWANI KUMAR MEHTA                      
               MEMBER                                                           MEMBER       
       DCDRC-1 (NORTH)                                          DCDRC-1 (NORTH)
 
 
                        DIVYA JYOTI JAIPURIAR
                               PRESIDENT  
                           DCDRC-1 (NORTH)   
 

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