Haryana

Karnal

CC/573/2023

Chetanya - Complainant(s)

Versus

Flipkart Internet Private Limited - Opp.Party(s)

S.K. Patlan

05 Dec 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.573 of 2023

                                                        Date of instt 11.10.2023

                                                        Date of Decision: 05.12.2024

 

Chetanya alias Chetan son of Shri Raj Kumar, resident of house no.790, ward no.5, Laxmi Colony, Taraori, Tehsil Nilokheri, District Karnal. Aadhaar No.7179 61873177.

 

                                                                        …….Complainant.

                                              Versus

 

1.  Flipkart Internet Pvt. Ltd. Vaishnavi Summit, Ground floor no.7, main 80 feet road 3^rd Block, Koramangala Industrial Layout, Bangore-560039, Karnataka through its Managing Director.
2. Sane Retails Pvt. Ltd. Rectangle No.06, Rectangle No.07, Rectangle No.08, Rectangle No.13, village Khalikpur Tehsil Badli District Jhajjar, FC-Farukhnagar, Jhajjar through its Managing Director.
3. E. Kart Pvt. Ltd. 15 A, Cross road, Yelahanka Satelite Town, Yelahanka, Banguru-560039 through its Managing Director.
4. E.Kart Pvt. Ltd. 15-A, Cross road, Yelahanka Satelite Town, Yelahanka, Banguru-560039 having its Branch office at Anjanthali Road, Taraori, District Karnal.

…..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

              Ms. Neeru Agarwal……Member

      Ms. Sarvjeet Kaur…..Member

 

Argued by: Shri S.K. Patlan, counsel for the complainant.           

                   Shri Pawandeep Kalyana, counsel for the OPs.

                   

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that on 15.09.2023, complainant placed an online order for purchasing of a Apple I-phone 13 (starlight, 128GB) at the site of OP No.1, vide order ID No.OD429161351829552100. Complainant paid an amount of Rs.51660/- to the OP No.1 through his credit card. On 17.09.2023, complainant received a message from the OP No.4 for getting the delivery of the said product from the OP No.4 as today the delivery boy is not available. The office of OP no.4 is situated just ½ KM away from the house of complainant, hence he alongwith his friend namely Paras went to the office of OP no.4. There the OP no.4 handed over the box after getting the OTP from the complainant. Said box was duly packed but when he opened the same, he was surprised and shocked to see that there was a wrist watch instead of aforesaid ordered phone. The complainant made complaint to the OP no.4, who advised the complainant to make the complaint on customer care, accordingly complainant made the complaint to the customer care number of OP no.1. The call attendant assured that the problem will be resolved within 48 hours but his problem will not resolved. After that complainant sent several mails and reminders to OP no.1 for sorting out his problem either by delivery the I-phone or refund of the sum of Rs.51660/- but OPs did not pay any heed. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint seeking direction to the OPs to refund the amount of Rs.51660/- alongwith 18% per annum interest, to pay compensation of Rs.50000/- for mental pain, agony and harassment and to pay Rs.22000/- as litigation expenses.

2.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that OP provides an online market place platform/technology and /or other mechanism/service 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 further pleaded that the said flipkart platform is an electronic platform, which acts as an intermediary to facilitate sale transaction between independent third-party sellers and independent end customers. The independent third-party sellers use the flipkart platform to list, advertise and offer to sell their products to the users/buyer who visit the Flipkart platform. 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 as per the terms for sale displayed by seller on the flipkart platform. It is further pleaded that  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 of the online marketplace services provided by the OP, on terms decided by the respective sellers only. In the present case, it can be evident that the actual seller of the product is a third-party seller i.e. OP no.2 and not the OP herein. Hence, the request for replacement/refund made by the complainant cannot be fulfilled by OP.  The liability of refund/replacement of the product is with the seller and not with the OP. The complainant has wrongly arrayed the OP as a party in the present complaint. It is further pleaded that complainant has alleged that a wrong product was delivered to the complainant. The grievance of the complainant should have been only against the seller of the product. The product is delivered  by a third-party seller and the OP has no knowledge and idea, that the product has been sent intact or a wrong product is delivered to the complainant because it is sold by a third party seller. It is seller duty and responsibility to send original and intact product to its customers. Moreover, the alleged issue related to the return/replacement cancellation/rejection is the responsibility of the seller and not the OP. The complainant approached the OP on 22.09.2023, he was requested to share the images of the product and brand box from all four sides for further validation by the seller. On 02.10.2023, after various follow ups/reminder by the OP, the photographs were shared by the complainant. Further, on 08.10.2023, the complainant shared his aadhar card and he was requested to share alternative ID proof other than the aadhar card and PAN card. On 02.11.2023 after various follow ups/reminder by the OP, the ID proof was shared by the complainant. On 06.11.2023, according to the update received by the seller, the complainant was informed that the return is rejected by the seller citing return fraud, as the courier service provider confirmed that the product was delivered intact. The complainant was duly informed about the same. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP No.2 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that OP is a seller carrying on the business of sale of goods manufactured/produced by others. The OP is a registered seller on the website “Flipkart.com” and sells products of other manufacturers, traders, etc. under their respective trademarks through the website. OP categorically denied the allegation of complainant because the product was delivered in the sealed pack box in original and intact condition as it was received by the manufacturing/Distributor. The complainant has never approached the OP regarding the alleged issue and only contacted the OP no.1. On 22.09.2023, complainant raised the return request. However, he delayed in sending pictures and ID proof. On 06.11.2023, when everything was received from the complainant. After detailed investigation, return got rejected citing return fraud, as the courier service provider confirmed that the product was delivered intact. The averments made by the complainant are completely wrong, bearing not an iota of truth whatsoever and merely made to mislead this Commission. Even otherwise not admitting to it but for the sake of arguments, it the statement of clicking the alleged pictures is to be believed, then also these pictures cannot determine the authenticity of the situation as such pictures can easily be clicked by taking out the product and then rebuilding the situation all over again or by editing the pictures. Hence, the statement made by the complainant cannot be relied on the simpliciter and needs cogent evidentiary proof thereof. Subsequently, it clarifies that the product was duly delivered by the OP to the complainant in a sealed box through an independent courier service provider (as it was received from the manufacturer/distributor) within the time specified in the order. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OPs No.3 and 4 filed its joint written version, raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that the product was sold and prepared for delivery by an independent seller (OPs No.3 and 4) and the OPs have only provided delivery when it got the order confirmation through the seller. OPs delivered the product in a sealed box (as provided by the seller/manufacturer/ distributor) and it is the seller’s responsibility to provide complete and original product to the complainant because order is sold by the seller and the OP only provides door to door delivery facilities at the address provided by the complainant. Thereafter, if the product is missing or different, the seller is one who is responsible for it and not the OP. In the present case, complainant allegedly found counterfeit and different product from the box. It is clarified the product was sold by a third party seller and return/replacement comes under the purview of the seller only. The complainant has raised the return request with the seller only and the same was rejected by the seller citing fraud as the product was sent intact. The seller/manufacturer is the one which is responsible for the alleged issue and not the OP. OPs have a separate and distinct entity from that of the other OPs and the seller of the product. There are no specific allegations against the OP. The averments made by the complainant are completely wrong, bearing not an iota of truth. Even otherwise not admitting to it but for the sake of arguments, it the statement of clicking the alleged pictures is to be believed, then also these pictures cannot determine the authenticity of the situation as such pictures can easily be clicked by taking out the product and then rebuilding the situation all over again or by editing the pictures. Hence, the statement made by the complainant cannot be relied on the simpliciter and needs cogent evidentiary proof thereof. Therefore, the averments made in the complaint are baseless and are made only with the intentions to defame the OPs and extort money in an illegal manner.  There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Parties then led their respective evidence.

6.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of tax invoice Ex.C1, copy of detail of payment Ex.C2, copy of serial number of watch Ex.C3, copy of whatsapp messages Ex.C4, copy of order details and whatsapp chart with OPs Ex.C5, copy of terms and conditions of OBD Ex.C6 and closed the evidence on 09.07.2024 by suffering separate statement.

7.             On 27.09.2024, learned counsel for the OPs suffered a statement to the effect that written statements filed by the OPs be read as evidence on behalf of OPs.

8.             We have heard the complainant and learned counsel for the parties and perused the case file carefully and also gone through the evidence led by the parties.

9.             Learned counsel for the complainant, while reiterating the contents of complaint has vehemently argued that on 15.09.2023, complainant  placed an order (online) for purchasing of the Apple I-phone from the site of OP no.1, for the consideration of Rs.51660/-. The complainant received the order on 17.09.2023 but when complainant opened the package, there was a wrist watch in the packet whereas he had ordered the Apple I-phone so that complainant applied for return of product and refund of amount, under return policy of the OPs but the return request of complainant has been declined by the OPs without any cogent reason and lastly prayed for allowing the complaint.

10.           Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that 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 of the online marketplace services provided by the OP no.1. The actual seller of the product is a third-party seller and not the OP no.1. The liability of refund/replacement of the product is with the seller and not with the OP no.1. The product was delivered in the sealed pack box in original and intact condition as it was received by the manufacturer/Distributor. The complainant has never approached the OPs No.2 to 4 regarding the alleged issue and only contacted the OP no.1. On 22.09.2023, complainant raised the return request to the OP no.1. On 06.11.2023, when pictures and ID proof was received, matter was investigated and after thorough investigation, return request was rejected citing return fraud, as the courier service provider confirmed that the product was delivered intact. If for the sake of  arguments, it the statement of clicking the alleged pictures is to be believed, then also these pictures cannot determine the authenticity of the situation as such pictures can easily be clicked by taking out the product and then rebuilding the situation all over again or by editing the pictures. Hence, it clarifies that the product was duly delivered by the OPs in a sealed box through an independent courier service provider and lastly prayed for dismissal of the complaint.

11.           We have duly considered the rival contentions of the parties.

12.           Admittedly, on 15.09.2023, complainant placed an order for purchasing of an Apple I-phone from the OPs, for the consideration of Rs.51660/-. It is also admitted that complainant placed the return request to the OPs.

13.           OPs have alleged that complainant has returned the wrong product instead of correct product. The onus to prove its case was relied upon the OPs but OPs have miserably failed to prove the same by leading any cogent and convincing evidence. Rather, complainant has alleged that he received a wrist watch instead of Apple I-phone. To prove his case, complainant relied upon the copy of tax invoice Ex.C1, copy of detail of payment Ex.C2, copy of serial number of watch Ex.C3, copy of whatsapp messages Ex.C4, copy of order details and whatsapp chart with OPs Ex.C5, copy of terms and conditions of OBD Ex.C6. It is evident from the abovesaid documents and conversation through whatsapp between the parties that OPs have delivered the wrong product i.e. wrist watch to the complainant instead of Apple I-phone. Complainant made the return request to the OPs but OPs cancelled the return request of the complainant without any cogent reason. OPs also failed to rebut the evidence produced by the complainant by leading any evidence. It was the duty of the OPs to replace the wrong product or to refund the cost of the same but OPs have neither replaced the product nor refunded the cost of the product. Thus, the act of OPs for not replacing or not refunding the price of the product amounts to deficiency in service and unfair trade practice

14.           The complainant purchased the I-phone and made the payment of Rs.51660/- to the OPs and this fact is proved from the tax invoice Ex.C1, hence, the complainant is entitled for refund of the said amount alongwith compensation for mental pain, agony and harassment and litigation expenses, etc.

15.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to refund the amount of Rs.51660/- (Rs. fifty one thousand six hundred sixty only) to the complainant.  We further direct the OPs to pay Rs.10,000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses.  All the OPs are jointly and severally liable to pay the abovesaid amount. Complainant is also directed to handover the wrist watch to the OPs. It is made clear if the abovesaid amount is not paid by the OPs within stipulated period then this amount will carry interest @ 9% per annum from the date of announcement of order till its realization. This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated: 05.12.2024

                                                               

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

 

(Neeru Agarwal)         (Sarvjeet Kaur)

                   Member                          Member