Before the District Consumer Disputes Redressal Commission, Camp Court, Amritsar
Consumer Complaint No : RBT 287 of 2017
Date of Institution : 05.05.2017
Date of Decision : 27.04.2022
Sh. Simardeep Singh son of Sh. Rajinder Singh, resident of L-2/761, New Gurnam Nagar, Sultwanwind Road, Amritsar.
…Complainant
Versus
- Flipkart Internet Pvt. Ltd. Ozone Manay Tech Park, through its C.E.O. Mr. Kalyan Krishnamurthy, # 56/18 & 55/09, 7th Floor, Garvebhavipalya, Hosor Road, Banglore-560068, Karnatka, India,
- Delhivery Courier Pvt. Ltd. D-Block Ranjit Avenue Near Dainik Baskar through its Branch Manager Mr. Tilak Vaish, Amritsar.
…Opposite Parties
Complaint Under Section 11 and 12 of the Consumer Protection Act.
Quorum: Sh. Charanjit Singh, President
Ms. Nidhi Verma, Member
For Complainant Sh.Gaurav Bamba Advocate
For Opposite Party No. 1 Sh. Saurabh Sharma Advocate
For Opposite Party No. 2 Sh. Satbir Singh Gill Advocate
PER:
Charanjit Singh, President;
1 The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.
2 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 11 and 12 against the opposite parties on the allegations that earlier the complainant placed one order for the book rich dad poor dad with the opposite party No. 1 for value consideration and the opposite party No. 2 is pick up boy of opposite party No. 1 and as such, the complainant is consumer of the opposite parties as defined under Consumer Protection Act. Later on the complainant cancelled the order for the book rich dad poor dad with the opposite party No. 1 but due to the mistake of the pickup boy i.e. opposite party No. 2, he instead of picking up the book he picked Sony Home Theatre of the complainant and at that time the complainant was not at home so taking advantage of the absence of the complainant the said pick up body instead of taking the said book, picked up the Sony Home Theatre from the house of the complainant in his absence. Thereafter the complainant sent mail on 19.7.2016 and the opposite party No. 1 revert back and assured that they will resolve the problem of complainant and as such, the opposite party requested the complainant for giving some time for resolving the said matter and as such, the complainant again and again on various occasions sent mails to the opposite party No. 1 and on each and every occasion they gave reply to the complainant that they will resolve the matter as soon as possible and as such, the opposite party No. 2 had admitted this fact in writing that opposite party No. 2 pickup boy has picked up wrong article i.e. Sony Music System instead of book and as such, the opposite party No. 1 has also gave a writing in this respect which is duly attested by the opposite party No.2, but till date the opposite parties have neither returned the said Sony Home Theatre nor refunded such amount in the account of the complainant and even the employees of opposite parties of pick up services had admitted that by mistake they have took home theatre from the house of the complainant and they have already dispatched the said home theatre to the opposite party No. 1 and even they have requested to the opposite party No. 1 to refund the correct amount according to collected product and the opposite parties have not returned the said amount i.e. sale price of the said Sony Home Theatre till today inspite of repeated requests made by the complainant oral as well as in writing. Besides such requests the complainant has also served a legal notice upon the opposite parties thereby requested them to comply with the said legal notice within the period of 15 days, but the opposite parties have failed to comply with the said legal notice and even they did not bother to give any reply to the said legal notice which itself reflects malafide and dishonest intentions of the opposite parties. The opposite parties No. 1 and 2 have harassed and humiliated the complainant and have caused unnecessary inconvenience to the complainant and thus the opposite parties are liable to return the sale price of the said amount to the complainant alongwith compensation as provided under law. Keeping in view the above said facts and circumstances of the case, it becomes quite evident that there is deficiency in service, unfair trade practice, carelessness and negligence on the part of the oppose parties. The complainant prayed that the opposite parties may kindly be directed to return/ refund the sale price of the above said Sony Home Theatre i.e. Rs. 11,990/- to the complainant. The opposite parties be further directed to pay Rs. 25,000/- as compensation to the complainant. Costs of litigation be also awarded to the complainant.
3 After formal admission of the complaint, notice was issued to Opposite Parties and opposite party No. 1 appeared through counsel and filed written version and contested the complaint by taking preliminary objections that the complainant has approached this commission with unclean hands and is guilty of suppressing material facts and as such is abuse of process of law and deserves to be dismissed with exemplary cost. The complainant has suppressed the material, facts and has only approached this commission in order to gain unlawful money from the opposite party No.1. The opposite party No. 1 is duly incorporated under the companies Act, 1956 with its registered office at 6/B, Vaishnavi Summit, Ground Floor, 7th Main, 80 Feet Road, 3rd Block, Koramangala Industrial Layout, Koramangala, Banglore-560 034 Karnataka, India. The opposite party No. 1 owns and operates an online web portal namely Flipkart Com and is engaged in business of online marketplace etc. Said Flipkart Platform is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customer, wherein third party vendors/ sellers who wish to use the platform, register themselves as vendors/ sellers and list their products and offer the said products for sale. There are several third party vendors/ sellers who list a variety of products on said portal, including but not limited to books, electronic gadgets, apparels for men, women and kids, home and kitchen appliances, perfumes and related products. The buyers hit the portal and search for their desired product and purchase the same from the desired seller listed on the Portal for that particular product. Thus, the opposite party No. 1 is merely a marketplace, which offers a platform to third party vendors/ sellers and third party buyers to transact inter se. The opposite party No. 1 does not in any manner engage in any offer for sale or sale of any products, either through any online portal or otherwise or at all. The portal acts solely as an intermediary, as defined under Section 2(1)(w) of the Information Technology Act, 2000. Being an intermediary, as defined under Section 2(1)(w) of Information Technology Act, 2000, the opposite party No. 1 is protected under Section 79 of the said Act. Under Section 79 of the said Act, an intermediary shall not be liable for any third party information, data or communication link made available or hosted by it. The opposite party No. 1 is an intermediary under Section 79 and as such, cannot be held liable for the acts of the third parties on the website. Therefore, it must be noted that the opposite party No. 1 can, in no circumstances, be held liable for any Acts/ omission of the sellers/ vendors registered on the Portal. The sole grievance of the complainant was that he ordered one book and thereafter he cancelled the order and made a request for return, the request of the complainant was accepted and the product was picked up from his home but instead of picking up the book some other product i.e. Sony Home Theatre was picked up by the employee of the opposite party No. 2. Though opposite party No. 2 will be in a better position to comment on this but generally for return, the packet is handed over by family members of the complainant, therefore, there is no fault of any of the opposite party and particularly the answering opposite party in any case. Further even, if there has been a mistake, the same can only be answered by the opposite party No. 2 or by the seller (who has not been impleaded) who might have received the returned product and in any case, the opposite party No. 1 cannot be made responsible for the same. Therefore, no illegal trade practice can be made responsible for the same. Therefore, no illegal trade practice has been conducted by the opposite party No.1. Therefore, the complaint filed by the complainant is false, frivolous and vexatious qua the opposite party No 1 and has been only filed with malafide intention in order to harass and extort money from the opposite party No.1. Under the terms of use which are available on the portal and which every person transacting through the portal is subjected to categorically specifies through the opposite party No. 1 is not involved in any transaction being done through the portal. The opposite party No. 1 is not involved in the transaction in any way, there is no contractual obligation of the opposite party No. 1 towards the complainant on issues of guarantee/ warrantee or post sales services. For convenience of the customer visiting its website, a central customer support for all its customers are provided and based on the issues raised by the customers, the sellers are contracted for best resolution like replacement, service centre address (if not available readily) etc. The liability to prove any kind of after sales issue whether generated due to any miscommunication or otherwise rests with the seller and not with the opposite party No. 1. The complainant has not impleaded the seller in the array of parties despite been a necessary party to the complaint and therefore, the complaint is bad for non joinder of necessary parties. The opposite party No. 1 is neither seller/trader nor a service provider and there does not exist any privity of contract between the complainant and opposite party No1. The complainant has wrongly arrayed the opposite party No. 1 in the present complaint. On merits, it was pleaded that opposite party No. 1 has provided each and every information required by the complainant. The opposite party No. 1 has submitted the request and it is duty of the opposite party No. 2 to act upon it. The opposite party No. 2 is an independent identity and opposite party No. 1 is not having any control on it. Therefore, necessary steps are liable to be taken only by the opposite party No.2. Therefore, no liability can fasten on the opposite party No. 1. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.
4 The opposite party No. 2 appeared through counsel and filed written version by inter alia pleadings that the present complaint filed by the complainant qua the opposite party No. 2 is baseless, misconceived and devoid of merits and is liable to be dismissed. The complainant has concealed material and essential facts from this commission. The present complaint is not maintainable in its present from against opposite party No. 2. There is no privity of contract between the complainant and opposite party No.2. Admittedly, complainant has placed the order for purchase of product in question i.e. the book titled Rich Dad Poor Dad to opposite party No. 1 and the consideration of the same was paid by the complainant to the opposite party No.1. The opposite party No. 2 has not received any consideration from complainant. The complainant has not directly availed any services from the opposite party No. 2. The opposite party No. 2 has been appointed by opposite party No. 1 for the purposes of providing logistics services to its customers. The opposite party No. 2 is acts on the basis of directions/ orders from opposite party no. 1 and provides logistics services accordingly to its customers. While doing so, opposite party No. 2 acts on behalf of opposite party No. 1 and not as an independent service provider. The complainant has neither given any consideration to the opposite party No. 2 nor has availed any services from it independently. In these circumstances, complainant could not be termed as consumer viz a viz opposite party No. 2 in terms of Section 2(1)(c) of Consumer Protection Act, 1986. There is no deficiency in service on part of the opposite party No. 2. As a usual practice, the opposite party No. 2 receives orders/ requests from opposite party No. 1 for the purposes of either delivery of product or pick up of returned articles and a unique transaction number is generated for the purposes of tracking the transaction, etc. After the pickup of returned articles by the opposite party No. 2 the same are immediately forwarded to the opposite party No. 1 on ‘as is where is’ basis. In the present case vide transaction No. 593125708980; opposite party No. 2 received request from opposite party No. 1 for pickup from the residence of complainant. The representative of opposite party No. 2 visited residence of the complainant and the family members of the complainant handed over a product for return and the same was thereafter forwarded to opposite party No. 1 in due course for further action. A perusal of the complaint would rather show that the complainant has admitted that the opposite party No. 2 has dispatched the product to opposite party No. 1 immediately after collusion. Thus there is no deficiency on part of the opposite party No.1. The pickup personnel was handed over the product by the family members of the complainant who were present at the house at the relevant point of time. The complainant has not placed on record any document to show that there was infact any Sony Home Theatre at his residence at relevant point in time in a packet condition, as alleged by him. In the absence of any such document, the story projected by the complainant cannot be accepted as a gospel truth. The complainant has not annexed the original copy of the writing with the complaint and in the absence of the same, the said writing could neither be admitted. The complainant himself admitted in the paragraph under reply that opposite party No. 2 has already forwarded/ dispatched the product ‘Sony Home Theatre’ to opposite party No.1. It is also admission of the complainant that the opposite party No. 2 has duly requested the opposite party No. 1 to return the amount to the complainant. The same clearly reflects that opposite party No. 2 has fully cooperated with the complainant and as such, no deficiency in service can be foisted on opposite party No.2. The opposite party No. 2 did not receive any legal notice as alleged in the complaint. A perusal of the legal notice would show that it does not contain address of opposite party No.2. The complainant has not annexed receipts of post, tracking report etc. to substantiate that the legal notice was sent and served on the opposite party No.2. The opposite party No. 2 has denied the other contents of the complaint and prayed for dismissal of the complaint.
5 To prove his case, the complainant has placed on record affidavit of complainant Ex. C-1 alongwith documents i.e. copy of the package details Ex. C-1, Copy of legal notice Ex. C-3, Postal receipts Ex. C-4 and closed the evidence. On the other hands, Ld. counsel for the opposite party has tendered in evidence affidavit of Satyajit Bhattacharya Ex. OP1/1, copy of resolution Ex. OP1/2, The opposite party No. 2 has placed on record affidavit of Tilak Vaish Ex. OP2/1 and closed the evidence.
6 We have heard the Ld. counsel for the parties and have gone through the record on the file.
7 From the combined and harmonious reading of the parties is going to prove that the complainant got placed on order for the book namely ‘Rich Dad Poor Dad’ from the opposite party No. 1 and the opposite party No. 2 delivered the same to the complainant. Later on the complainant cancelled the order for the said Book namely ‘Rich Dad Poor Dad’ but due to mistake of opposite party No. 2 he instead of picking up the book, picked ‘Sony Home Theatre’ of the complainant. The complainant sent mail on 19.7.2016 and the opposite party No. 1 revert back and assured that they will solve the problem of the complainant and as such the opposite party requested the complainant for giving some time for resolving the said matter. The opposite party has admitted this fact in writing that the opposite party No. 2 has picked up wrong articles i.e. Sony Music System instead of Book. The opposite party no. 1 has also given a writing in this respect which is duly attested by the opposite party No.2. But the opposite parties have neither returned the said Sony Home Theatre nor refunded such amount in the account of the complainant. The stand of the opposite party No. 1 is that the opposite party No. 1 owns and operates an online web portal namely Flipkart Com and is engaged in business of online marketplace etc. Said Flipkart Platform is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customer, wherein third party vendors/ sellers who wish to use the platform, register themselves as vendors/ sellers and list their products and offer the said products for sale. There are several third party vendors/ sellers who list a variety of products on said portal, including but not limited to books, electronic gadgets, apparels for men, women and kids, home and kitchen appliances, perfumes and related products. The buyers hit the portal and search for their desired product and purchase the same from the desired seller listed on the Portal for that particular product. Thus, the opposite party No. 1 is merely a marketplace, which offers a platform to third party vendors/ sellers and third party buyers to transact inter se. The opposite party No. 1 does not in any manner engage in any offer for sale or sale of any products, either through any online portal or otherwise or at all. Instead of picking up the book some other product i.e. Sony Home Theatre was picked up by the employee of the opposite party No. 2. Though opposite party No. 2 will be in a better position to comment on this but generally for return, the packet is handed over by family members of the complainant, therefore, there is no fault of any of the opposite party and particularly the answering opposite party in any case. Further even, if there has been a mistake, the same can only be answered by the opposite party No. 2 or by the seller (who has not been impleaded) who might have received the returned product and in any case, the opposite party No. 1 cannot be made responsible for the same. The stand of the opposite party No. 2 is that complainant has placed the order for purchase of product in question i.e. the book titled Rich Dad Poor Dad to opposite party No. 1 and the consideration of the same was paid by the complainant to the opposite party No.1. The opposite party No. 2 has not received any consideration from complainant. The complainant has not directly availed any services from the opposite party No. 2. The opposite party No. 2 has been appointed by opposite party No. 1 for the purposes of providing logistics services to its customers. The opposite party No. 2 is acts on the basis of directions/ orders from opposite party no. 1 and provides logistics services accordingly to its customers. While doing so, opposite party No. 2 acts on behalf of opposite party No. 1 and not as an independent service provider. The complainant has neither given any consideration to the opposite party No. 2 nor has availed any services from it independently. Vide transaction No. 593125708980; opposite party No. 2 received request from opposite party No. 1 for pick up from the residence of complainant. The representative of opposite party No. 2 visited residence of the complainant and the family members of the complainant handed over a product for return and the same was thereafter forwarded to opposite party No. 1 in due course for further action. The pickup personnel was handed over the product by the family members of the complainant who were present at the house at the relevant point of time. The complainant has not placed on record any document to show that there was infact any Sony Home Theatre at his residence at relevant point in time in a packet condition, as alleged by him. In the absence of any such document, the story projected by the complainant cannot be accepted as a gospel truth. The complainant has not annexed the original copy of the writing with the complaint and in the absence of the same, the said writing could neither be admitted.
8 In the present case the opposite party No.1 is escaping from the liability and on the other hands, the opposite party No. 2 is also escaping from the liability. The complainant has placed on record one Ex. C-2 in which the Branch Manager Sh. Tilak Raj has given note with seal that delivery Home theater was received from customer but product description was not mentioned on our pick up slip. The customer handed over the product i.e. Home Theater and we have dispatched the same to flipkart. So please refund correct amount to customer according to collected product. This shows that the opposite party No. 2 has received the Home Theater and dispatched to the opposite party No.1 and requested to refund the correct amount to the complainant. Though the opposite party No. 1 is mere mark-place, which offers a platform to third party vendors/ sellers and third party buyers to transact ineter se. The transaction in question has been done through the opposite party No.1. But the opposite party No. 1 has not taken any step to resolve the matter and has not mentioned the name of vendor/ seller who sold the product to the complainant and who received the Sony Home Theater but in its reply the opposite party No. 1 on the one hand is shifting the liability upon the opposite party No. 2. The opposite party No. 2 is acting on behalf of opposite party No.1 and the product of the complainant has been lost either by the opposite party No. 1 or opposite party No.2. The product of the complainant i.e. Sony Home Theater has been dispatched which is admitted by the opposite party No. 2 in its reply that the same has been dispatched by opposite party No. 2 to the opposite party No. 1. But neither the same has not been returned to the complainant nor amount of the same has been refunded to the complainant by both the parties. The complainant is being harassed in the hands of the opposite parties since the year 2016 as such this act of the opposite parties constitutes deficiency in service and unfair trade practice on the part of the opposite parties.
9 In view of above discussion we partly allowed the present complaint and directed the opposite party No. 1 to refund the amount of Sony Home Theater i.e. Rs. 11,990/- to the complainant. The complainant has been harassed by the opposite parties for a long time, the complainant is also entitled to Rs. 4,000/- (Rs. Four Thousand only) as compensation on account of harassment and Rs. 3,500/- (Rs. Three Thousand Five Hundred only) as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Copy of order will be supplied by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.
Announced in Open Commission
27.04.2022
