Haryana

Panchkula

CC/332/2022

DR SUMATI JUND - Complainant(s)

Versus

FLIPKART INDIA PVT.LTD - Opp.Party(s)

IN PERSON

09 Aug 2023

ORDER

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	332 of 2022
Date of Institution	:	03.11.2022
Date of Decision	:	09.08.2023

 

 

Dr. Sumati Jund, D/o Sh. Guriqbal Singh, aged about 35 years, Resident of Flat No.60-B, Swastik Vihar, Phase-2, MDC, Sector-5, Panchkula Haryana.

                                                                           ..….Complainant

Versus                                                                  

Flipkart India Pvt. Ltd. Building Alyssa, Begonia & Clove Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village, Bengaluru- 560103, Karnataka.

                                                                          ……Opposite Party

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

                        Dr. Sushma Garg, Member.

                        Dr. Barhm Parkash Yadav, Member. 

 

 

For the Parties:   Complainant in person.

                         Sh.Deepak Jaglan, Advocate for OP.

 

                       

ORDER

(Satpal, President)

1.The brief facts, as alleged in the present complaint, are that the complainant had ordered an Apple iphone 13(Pink, 128GB) amounting to Rs.54,769/- vide ID No.OD126111064330424000 on the website of Opposite party(hereinafter referred to as OP)from OP on 27.09.2022(during Flipkart Big Billion Days Sale, 2022) by making advance payment through means of UPI, Google Pay and the same was debited from her account vide UPI transaction id no. 227010504714 dated 27.09.2022; however, due to some issue at the end of merchant/OP, the order was not placed. As the said amount was debited from her account no.040301513251, ICICI Bank, Infosys Branch, I.T. Park, Chandigarh and the order was not placed, so, the complainant immediately contacted her concerned bank, merchant/OP as well as UPI Forum, Google Pay on their respective customer care numbers so as to get the refund of her advance payment amounting to Rs.54,769/- and even raised a complaint with the concerned customer care executives of their respective offices. It is alleged that the said amount was not refunded by the OP but the OP had wrongly been showing on its portal that the issue of the complainant was resolved. It is averred that the bank of the complainant in response to her request no.SR858095849 has duly notified her that the above mentioned amount was credited in the account of the beneficiary, merchant/OP i.e. xxxxxxxxxx0007 on 27.9.2022 at 10:54:11 with RRN227010504714 and that the Merchant/ OP would be refunding the same to the complainant within 10 working days. It is alleged that the said fact was even admitted by the customer care executive of Merchant/OP with further assurance that the said amount would be refunded in the account of the complainant within 08 to 10 days whereas, when the complainant had not received the said amount even after passing of 10 days, then she again contacted the Customer Care Executive of the merchant/OP on 07.10.2022, who shockingly said that they haven’t received the above said amount. Being aggrieved because of the non-refund of her hard earned money amounting to Rs.54,769/- and after passing of around 02 weeks especially when its status was still not clarified by the Merchant/OP, the complainant once again contacted the concerned Executive at her bank and yet again raised a fresh complaint on 07.10.2022. It is further alleged that after processing the above said complaint dated 07.10.2022, even the bank of the complainant vide its email dated 21.10.2022 has notified the complainant that the beneficiary bank i.e. the bank of the OP has also confirmed that the beneficiary’s account i.e. the account of the OP has been credited with Rs.54,769/-. It is further averred that despite receiving the above said confirmation as well as assurance of refunding the amount; the OP has not refunded the above said amount. Due to the act and conduct of OP, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.

2.Upon notice, the OP appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable; concealed the true material facts. The OP, Flipkart Internet Private Limited is mistakenly mentioned as Flipkart India Private in the present complaint. It is submitted that both are separate and distinct entities and the complainant has ordered the alleged product through the OP. The OP’s company is engaged, among others, in providing trading/selling facilities over the internet through its website www.flipkart.com & mobile application(Mob App)(hereinafter collectively referred to as the (“Flipkart Platform”). The 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, electronics etc. It is stated that the said “Flipkart Plotform” is an electronic platform, which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers. It is submitted that the business of the OP falls within the definition of an “intermediary” under Section 2(1)(w) of the Information Technology Act, 2000. The OP is protected by the provisions of Section 79 of the Information Technology Act, 2000. It is further alleged that the OP only acts as an intermediary through its web interface www.flipkart.com and provides a medium to various sellers all over India to offer for sale and sell their product(S) to the users of the Flipkart Platform. It is submitted that these sellers are separate entities being controlled and managed by different persons/ stakeholders. The OP does not directly or indirectly sell any products on the Flipkart Platform. Rather, all the products on the Flipkart Platform are sold by third party sellers, who avail the online marketplace services provided by the OP on terms decided by the respective sellers only. It is further alleged that the services of OP are similar to a shopping mall where various shops are rented out to different sellers, who independently carryout sale proceedings with the customers/ visitors of the shopping mall and in case of any defect in the goods sold by owner/seller, he is held liable for the consequences and not the owner of the shopping mall where such shops are situated. The product purchased by the complainant has not been sold by the OP and the amount debited by ICICI Bank of the complainant was also not received by the OP. The OP has no role in providing refund/delivery of the product sold by an independent seller through the Flipkart Platform of the OP. It is further submitted that the user(s) of the Flipkart Platform are bound by the Terms of Use enumerated on the Flipkart Platform, which clearly state that the contract of sale is bipartite contract between the buyer and the seller only; the OP is not a party to it.  It is further stated that the order was not placed and later the amount was not refunded to the complainant by her bank(ICICI Bank). It is submitted that the grievance of the complainant should have been only against the ICICI Bank, which has not chargebacked the amount in the account of complainant. It is further submitted that the ICICI Bank and seller are not impleaded as necessary party in the present complaint; hence, the present complaint is liable to be dismissed. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP and as such, the complaint of the complainant is liable to be dismissed.

3.The complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-6 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for OP by making a separate statement stated that the written statement earlier filed on 22.12.2022 may be read into evidence on behalf of the OP and closed the evidence.

4. We have heard the complainant and the learned counsel for the OP and gone through the entire record available on file, minutely and carefully.

5. During arguments, the complainant has reiterated the averments as made in the complaint as also in her affidavit(Annexure C-A) and contended that she had placed an order vide ID No. OD126111064330424000 on 27.09.2022 during Flipkart Big Billion Days Sale, 2022 for the delivery of Apple iphone 13(Pink, 128 GB) amounting to Rs.54,769/-. It is contended that due some technical issue on the site of merchant/OP the order was not placed but a sum of Rs.54,769/- was debited from her account vide UPI transaction ID No.227010504714 dated 27.09.2022. The complainant vehemently contended that neither she had got the product as ordered by her nor she had received the refund of sum of Rs.54,769/- from OP despite lodging several requests on the customer care of OP and thus, has prayed for acceptance of the complaint  by granting the relief as claimed for in the complaint.

6.On the other hand, the OP has contested the complaint by raising several objections, which are summarized as under:-

1. That the OP neither sells nor offers to sell any product and merely provides an online marketplace where independent third party sellers can list their products for sale.
2. That the OP is neither responsible for the products that are listed on its Website by various third party sellers nor does it intervene or influence the customers in any manner, whatsoever. The sellers themselves are responsible for their respective listings on the Website including all representations and warranties for the products/merchandise sold by them without any liabilities on OP.
3. That the OP is not involved in the sale transaction between the complainant and OP and that the contract of sale of product on its website, namely, www.amazon.in is strictly a bipartite. It is submitted that the role of OP No.1 is merely of an facilitator between the consumer and the seller and as such it had acted as an intermediary through it web interface who is exempted from the liability in view of the provisions as contained in Section 79 of Information Technology Act, 2000.
4. That the ICICI Bank, from which the payment of Rs.54,769/- was allegedly debited from the account of the complainant, is a necessary party to sort out the controversy involved in the present complaint.
5. That the amount of Rs.54,769/- allegedly debited from the account of the complainant was not credited into the account of the OP and thus, there is no privity of contract between the complainant and OP.

The learned counsel in support of his contentions has placed reliance upon the following case laws:-

1. Moreshar Yadaorao Mahajan Vs. Vyankatesh Sitaram, Laws (SC)2022-9-119 decided on 27.09.2022.
2. Sanchayani Saving Investment (I) Limited & Ors. Vs. State of West Bengal & 7 others Civil Appeal No. 5168 OF 2000 decided on 21.01.2014(SC).

 

7.Pertinently, the OP as per averments made in its para no.1 of reply on merits has not disputed the fact that the complainant had placed an order on 27.09.2022(during Flipkart Big Billion DaysSale, 2022) for the delivery of an apple iphone 13(Pink, 128GB) vide order ID No. OD126111064330424000. The price of the said mobile phone is also not in dispute. However, the OP has raised serious objections to the receipt of an amount of Rs. 54,729/-, which allegedly was debited from the account of the complainant vide UPI transaction no.227010504714.

8.The objection raised by the OP qua the non-receipt of amount of Rs.54,769/- in its account from the complainant is not tenable. As per Annexure C-2(colly), an amount of Rs.54,679/- has been shown as paid to OP. As per account statement(Annexure C-3) of the complainant pertaining to her account no.040301513251 with ICICI bank, a sum of Rs.54,769/- has been found as debited vide UPI transaction no.227010504714. As per Annexure C-6, the ICICI Bank has informed the complainant that an amount of Rs.54,769/- was credited into the beneficiary’s account. The confirmation made by ICICI Bank, where from the amount of Rs.54,769/- was debited from the account of the complainant, qua crediting of Rs.54,769/- negates and falsifies the contentions of the OP qua non receipt of the said amount from the complainant. In view of the consistent, specific and categorical contention of the complainant qua making of Rs.54,769/- in the account of OP, it was imperative upon the OP to place on record its relevant account statement so as to rebut the contention of the complainant. The OP has preferred to withhold the relevant pages of its account statement for the reasons best known to it and thus, its contention qua non receipt of Rs. 54,769/- from the account of the complainant stands rejected. Since the OP’s website was used by the complainant, it was binding upon it to contact the alleged seller/merchant so as to redress the genuine grievances of the complainant but no communication was made by it with the seller/Merchant.

9.Further, the OP has not denied the specific and categorical averments of the complainant as made in para 2A of the complaint qua some issue at the end of merchant/OP, due to which, the order was not placed.So, no fault can be found with the complainant qua any issue on the website of OP or merchant/OP.

10.Admittedly, the complainant was neither provided the Apple phone as ordered by her nor received the refund of sum of Rs.54,769/-, which was debited from her account. Further, the OP has been found deficient in sending messages to the complainant on 27.11.2022, 29.11.2022, 01.10.2022, 07.10.2022 that her issue had been resolved. Even the OP has not responded to the legal notice dated 08.10.2022 (Annexure C-5). In view of these facts and circumstances, the objections raised by the OP qua non maintainability of the present complaint on the several grounds such as it works as an intermediary etc. are not tenable and thus, the same are hereby rejected. The case laws (supra) as relied upon by the learned counsel are of no help to the case of the OP being distinguishable on facts and laws

11.In view of the aforesaid discussion, we have rejected the irresistible conclusion that the OP was deficient, while rendering services to the complainant; hence the complainant is entitled to relief.

12.As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OP:-

1. To refund Rs.54,769/- to the complainant, along with interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization.
2. To pay a lump sum amount of Rs.10,000/- to complainant on account of mental agony, harassment and cost of litigations charges.

 

15.  The OP shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71 of CP Act, 2019 against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:09.08.2023

 

 

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                        Member                         President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President