THE PRESIDENT

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA : AGARTALA

 

CASE No. CC- 09 of 2021

 

Sri Sukumar Ch. Saha

S/O- Late Anukul Chandra Saha,

Ramthakur Road(Near Udiyaman Sangah), 

Agartala. .................Complainant.

 

-VERSUS-

 

Flipkart Internet(P) Ltd.,

Building Alyssa, 

Begonia & Clove Embassy Tech Village, 

Outer Ring Road,

Debarabusanhalli village, 

Bengaluru- 560103.

 

Carrier Media India (P) Ltd.,

1st Floor, Pearl tower, 

Plot No.51, Sector 32,

Gurgaon, Harayana-120001. ................Opposite Parties.

 

 

    __________PRESENT__________

 

 SRI RUHIDAS PAL

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION

      WEST TRIPURA, AGARTALA. 

 

Dr (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.

 

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.

 

 

C O U N S E L

 

For the Complainant : 

  Learned Advocate.  

  

For the O.P.  : 

  Learned Advocate.

 

 

 

JUDGMENT  DELIVERED  ON : 23.08.2022

 

J U D G M E N T

Sri Sukaumar Ch. Saha, complainant filed this case U/S 25 of the consumer Protection Act, 2019. Mr. Saha is a pensioner and he purchased one 1.5 ton Air conditioner machine on 24.02.2020 for consideration of Rs.38,999/- through Flipkart internet(P) Ltd. M/s Rafco, Akhaura Road, Agartala, local Service provider, Agartala had installed  the A/C machine on 16.03.2020 and for that Rafco charged Rs.499/- as installation charges vide receipt No- 1661 dated 16.03.2020. After installation as the AC machine was not working properly for that complainant Mr. Saha lodged a complaint through the app of the flipkart for restoring the AC machine. On 21.03.2020 the person of Rafco inspected the AC machine but they failed to reset it. The complainant thereafter on 13.05.2020 sent mail to the Flipkart Internet (P) Ltd. and intimated the condition of the AC machine. The local person of Rafco again visited and inspected the AC machine on 22.05.2020 and on 05.06.2020 but again failed to rest the AC machine in its prescribed mode. 

            So, due to dissatisfaction with the activities of the O.Ps, the complainant alleging deficiency of service has filed the instant complaint before this Commission claiming Rs.2,58,999/- ( Rs. 38,999/- + Rs. 2,00,000/- + 20,000/-) as cost of A/C, compensation for harassment etc. and cost of legal advice etc. from the OPs.

2.       After admission of the complaint notices were issued upon the O.Ps but the OP No. 2 didn't turnup inspite of receiving notice. Hence the case was proceeded ex-parte against OP No.2. On 26.04.20210 the O.P. No.1 appeared through their engaged counsel and contested the proceedings and they filed their reply along with few document comprising 25 sheets as Annexure 1 and Annexure.

  Through their reply they denied all the allegations and contentions submission and statement of the complainant. As per O.P. No.1 all the contention made by the complainant are inconsistence and O.P. also stated that complainant had suppressed the truth and material fact to the Learned Commission and hereby complainant tried to mislead the Commission. Hence, the present complaint is not maintainable and liable to be dismissed against the O.P. No.1 as they are not the actual seller as well as manufacturer of the goods. The O.P. No.1 also stated that Flipkart is mere an online intermediary to facilitate sale transactions between independent third party sellers and independent end customers. For that they are not liable to pay any compensation to the complainant. OP No.1 submitted parawise reply to the complaint in seriatim. It is further, stated that the complainant has not bought any goods from the OPno.1 rather they act as an facilitator. It is further stated that the Information Technology Act, 2000 exempts intermediaries from liability regarding any third-party information, data or communication link made available or hosted by them.

  However, it is submitted that the complaint is not maintainable in its present form and liable to be dismissed.

EVIDENCE ADDUCED BY THE COMPLAINANT:-

3. Complainant has examined himself as PW-1 and he has submitted his examination-in-chief by way of affidavit on 28.07.2021 and the complainant repeated the same what he has stated in his complaint petition. In this case the complainant relied upon 11 nos. of documents comprising 22 nos. of sheets but these documents were not EXHIBITED.

The OP No 1 submitted their evidence by way of affidavit on 22.11.2021 and through their evidence, O.P. No.1, Flipkart Internet (P) Ltd. again narrated the same story what they stated in their w.s. and stated that as the O.P. No.1 is protected by the provision of the Section 79 of the IT Act. More to that Section 5(1) of Consumer Protection (E Commerce) Rules, 2020 also provides that exemption to marketplace e-commerce entity under sub section 1 of Section 79, who complies with sub section (2) and (3) of that section. So, complainant is not entitled to get any sort of compensation from the O.P. No.1. O.P. again stated in their evidence that they never assured any kind of assurance, in terms of specification, warranty on the products, delivery, price, discounts, promotional offers, after sale services, return and refund or otherwise are offered and provided by the manufacturer or the seller of the products sold by Flipkart platform.   

4. POINTS TO BE DETERMINED: - 

(i) Whether the complaint petition is maintainable?   (ii) Whether there is deficiency of service on the part of the O.Ps?

  (iii) Whether the complainant is entitled to get compensation/ relief as prayed for?

5. ARGUMENTS OF BOTH SIDES: - 

Both sides orally argued their case.

          Ld. Counsel of the complainant argued that the complainant on 24.02.2020 bought one A/C machine through Flipcart Internet (P) Ltd. for an amount of Rs. 38,999/-(Rupees Thirty Eight Thousand Nine Hundred and Ninety Nine Only). M/S Rafco , Akhaura Road, Agartala the local service provider had installed the air conditioner on 16.03.2020 for a consideration of Rs. 499/- ( Rupees Four Hundred Ninety Nine) Only and after installation of the A/C the complainant noticed that the A/C was not working properly and for that the complainant intimated the matter to the OPs and the Local service provider also visited the house of the complainant and tried to mitigate the issues but failed. Having no other alternative the complainant filed the present complainant for deficiency of services and claimed for an amount of compensation of Rs. 2,58,999/-.

                On the other hand the OP. No. 1 submitted that the OP No.1 denied all the allegations and contentions submission and statement made by the complainant. As per O.P. complaint are inconsistence and O.P. also stated that complainant had suppressed the truth and material fact to the Learned Commission and hereby complainant tried to mislead the Commission. Hence, the present complaint is not maintainable and liable to be dismissed against the O.P. No.1 as they are not the actual seller as well as manufacturer of the goods. The O.P. No.1 also stated that Flipkart is mere an online intermediary to facilitate sale transactions between independent third party sellers and independent end customers and for that the OP are not liable to pay any compensation to the complainant. It is further, stated that the complainant has not bought any goods from the OPno.1 rather they act as an facilitator. It is further stated that as the Information Technology Act, 2000 exempts intermediaries from liability regarding any third-party information, data or communication link made available or hosted by them. Hence the may be dismissed with an examplary cost.

6. DECISION AND REASONS THEREOF:-

Point No.1:- Whether the complaint is maintainable in law?

         We have meticulously gone through the pleadings as well evidence and documents of both the parties.

        On perusal of the complaint as well as documents we find the name of the seller is Consulting Rooms ( P) Ltd., Instakart Services Pvt. Ltd, Bagnun, NH-6, Kolkata, West Bengal, P.O.- P.S. Bagnun, Howrah. in a documents but in the complaint petion nowhere the name of the seller was not mentioned. It is crystal clear that the complainant purchased the A/C machine from Consulting Rooms(P) Ltd. from the invoice we find the billing address, shipping address and invoice no. Complainant as is a general public and an aged person he is not aware about all the legal formalities and more to that the complainant placed  an order to Flipkart Pvt. Ltd. for purchasing his AC machine and the payments also made to the Flipkart. So, we can easily say that the Flipkart here in referred as O.P. No.1 as the Co-seller of the AC Machine. For that although the complainantdid not make party to the seller consulting Rule Pvt. Ltd. who is the acutal seller.   we can not say that the complaint is not maintainable. so the issue No.1 goes in favour of the complainant as issue No.1 in faovur of the complaiannt so the issue No. (ii) and (iii) also goes in favour of the complainant. Hence, O.P. No.1 is liable to pay compensation for their deficiency of service. 

7. After considering all the facts and circumstances of the case we find there is no dispute that the complainant purchased AC machine by using the website of Flipkart herein referred O.P. No.1. through online payment on 24.02.2022 for an amount of Rs.38,999/-.  The allegation of the complainant is that the AC purchased by him was no working properly which form a grievance in the mind of the complainant against the O.P. No.1. Accordingly the complainant prayed for replacement and refund of his money for the said AC machine along with compensation and litigation cost. It is our considered opinion that complainant is entitled to get Rs.38,999/- as a price of AC machine + Rs.10,000/- for compensation, for harassment etc. + Rs.5,000/- as litigation cost. accordingly, the complainant in total to get Rs. 53,999/-. Accordingly, all the issues decied in favour of the complainant. hencde it is ordered that O.P. shall pay Rs.53,999/- to the complaiannt within 2 months from the date of judgment. If fails it will carry interest @ Rs.9% P.A. until realization of the amount in full. O.P. No.1 is liable to pay the compensation. Supply copy of this both the parties free of cost. 

 

Announced.

 

 

SRI R. PAL

PRESIDENT, 

DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

WEST TRIPURA, AGARTALA. 

 

 

 

 

Dr (SMT) B. PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION, 

  WEST TRIPURA,  AGARTALA.

 

 

 

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.