BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.36 of 2019
Date of Instt. 05.02.2019
Date of Decision:19.07.2022
Manveer Kaur aged about 20 years daughter of Baljit Singh, C/o Lovely Professional University Phagwara Road, Jalandhar-144111, resident of Model Town, Ishwar Singh Nagar, Sahneywal, District Ludhiana.
..........Complainant
Versus
1. Flipkart Internet Private Limited, Vaishnavi Summit, Ground Floor, 7th Main, 80 Feet Road, 3rd Block, Koramangala Industrial Layout, Bengaluru KA-560034 (India), through its directors/authorized person.
2. Binny Bansal Director of Flipkart Internet Private Limited, Vaishnavi Summit, Ground Floor, 7th Main, 80 Feet Road, 3rd Block, Koramangala Industrial Layout, Bengaluru KA-560034 (India).
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Karan Kumar, Adv. Counsel for the Complainant.
Sh. Karan Kalia, Adv. Counsel for OPs No.1 and 2.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant saw an offer on the online internet portal of the Flipkart i.e. OP for the sale of mobile handset make Xiaomi POCO F1 (Graphite Black, 64 GB) availed for sale for Rs.20,999/-. The complainant fell under the inducement/offer given by the OP on his internet portal and placed an order of said mobile handset vide order ID OD113699296096046000 on 21.10.2018 on the online internet portal of the Flipkart. The order of the complainant was approved by the OP on 22.10.2018. On 25.10.2018, the OP delivered a parcel in the shape of cardboard box and its representative/delivery boy told that the mobile handset is properly packed in the said cardboard box parcel and asked for payment for the said parcel before its delivery, as he further stated that he was issued such instructions from their master i.e. opposite party to take payment before the delivery of the parcel, otherwise parcel shall not be given to the complainant. Thereafter the complainant came under the talks of the said delivery boy and made the entire payment i.e. Rs.20,999/- in a purchase price of the said mobile set as cash as ordered by her to the opposite party. After taking the payment, the said delivery boy handed over the said parcel to the complainant and after immediate delivery of the parcel the said delivery boy went away. Thereafter the complainant opened the said parcel in the presence of her other friends who are also the student of the same university and stunned to see that in the parcel there is no mobile phone rather the said parcel contained only one book instead of mobile phone. Thereafter the complainant contacted the OP through its complaint in this regard that no mobile phone was delivered by the OP, rather the OP cheated and defrauded the complainant. After receiving the complaint from the complainant, the OP further assured the regretted for the same complainant that they will solve the problem of the complainant and stated that they will send the mobile phone soon to the complainant. The complainant also fulfilled all the queries made by the opposite party for the replacement of the parcel. The OP send a message on 17 November, 2018 to the complainant “Dear customer, we have escalated your issue to the concerned team. We assure you that we will resolve your problem by 20 November , 6:30 PM ." But it is sorry to say that no heed was paid by the OP with regard to complainant. The complainant again and again requested the OP to solve her problem and to send a mobile phone to her by replacing the earlier parcel containing book by sending mobile phone as ordered by her. Thereafter the OP again sent a message to the complainant on 24.11.2018 that "Dear Customer, We have escalated your issue to the concerned team. We assure you that we will resolve your problem by 28 November, 3:30 PM." But nothing was done by the opposite party and again a message was sent by the opposite party to the complainant on 3 December, 2018 that "Dear Customer, We have escalated your issue to the concerned team. We assure you that we will resolve your problem by 15 December, 3:00 PM.". Not only this, the complainant number of time made correspondence with the OP for getting her mobile phone as ordered by her for which she has already made the payment to the delivery boy of the opposite party at the time of delivery of the parcel, but not found any mobile phone inside the parcel and found only one book instead of the mobile phone, as fully detailed in supra. But finally on 03 December, 2018 the opposite party flatly refused to hand over the mobile set to the complainant and rejected the request of the complainant. Again on 10.12.2018, the complaint served a registered post letter to the opposite party for her claim as detailed above, but no heed was paid by the opposite party, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to handover the mobile phone free of cost or to refund the sale price of the above said mobile. Further, OPs be directed to pay Rs.1,00,000/- as damages due to deficient and negligent service on the part of the OPs alongwith litigation expenses.
2. Notice of the complaint was given to the OPs, who filed joint written reply 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. It is further averred that the complainant has suppressed the material facts and has only approached this Commission in order to gain unlawful monies from the answering OP and hence is liable to be dismissed. It is further averred that the answering OP, owns and operates an online web portal namely Flipkart.com and is engaged in the business of online market place, providing platform/technology and/or other mechanism/services to facilitate transactions, electronic commerce, mobile commerce, by and between respective buyers and sellers and enables dealing in various categories of goods. It is further averred that the portal is a market place, 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 etc. The answering OP 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. On merits, the factum with regard to book an order of mobile handset by the complainant is admitted, but the other allegations as made in the complaint by the complainant are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
3. Rejoinder not filed by the complainant.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
6. The complainant has placed on order of mobile handset make Xiaomi POCO F1 (Graphite Black, 64 GB), vide order ID OD113699296096046000 on 21.10.2018 through the OPs. The order detail has been proved from Ex.C-1 to Ex.C-4. Perusal of these documents show that on 22.10.2018, the order was placed and on the same day, the same was processed. The item was packed on 22.10.2018 and the same was shipped on the same day, which was delivered on 25.10.2018. As per Ex.C-3, the total amount to be paid by the complainant was Rs.20,999/-. The invoice of the same has been proved as Ex.C-5. The grouse of the complainant is that when she received the packet/box, she found that there was a book in the box and there was no mobile handset as was ordered. She emailed to replace the order and as per Ex.C-6, the Flipkart customer support replied to the mail sent by the complainant that the problem of the complainant shall be resolved by 20, November by 06:30 PM and again the reply was filed that the problem shall be resolved by 28th November and the sender of the email was Flipkart.com. Vide Ex.C-8, she was informed that her problem shall be resolved by 15, December at 03:00 PM, but as per Ex.C-1, Ex.C-2 and Ex.C-4, the replacement was returned and replacement was rejected and they expressed their inability to process the replace request. Then a letter was issued to the Head Office Flipkart by the complainant expressing her grievance.
7. The OPs have submitted that they are not liable to make any payment nor they are at fault. It has been submitted by the counsel for the OPs that the seller and manufacturer has not been made a party, therefore the complaint cannot be proceeded being bad for non-joinder of necessary parties, but this contention is not tenable as the entire correspondence from the date of placement of the order till the reply expressing inability to replace the request was made between the Flipkart and the complainant through Flipkart Website i.e. www.flipkart.com. Thus, there is a relationship of consumer and the service provider between the complainant and the OPs. The name of the seller or manufacturer was never brought to the knowledge of the complainant nor any correspondence between the seller and the buyer was ever made. The entire transaction was through Flipkart only, therefore there is no privity of contract between the complainant and the seller. The privity of contract was between the OP and the complainant, therefore Flipkart cannot escape from its liability on the ground that there was no privity of contract.
8. The OPs have relied upon the terms and conditions of Flipkart guidelines for foreign direct investment on ecommerce and Section 79 of Information Technology Act and sought exemption under the same. Under Consumer Protection Act, 2019 there are rules regarding the liabilities of marketplace e-commerce entities. These rules have been notified on 23 July 2020 by the Department of Consumer Affairs. It has been mentioned that as per rule 5(1) of the liabilities of marketplace e-commerce entities, a marketplace e-commerce entity which seeks to avail the exemption from the liability under sub-section (1) of Section 79 of the Information Technology Act, 2000 shall comply with sub-sections (2) and (3) of that section, including the provisions of the Information Technology (Intermediary Guidelines) Rules, 2011. It has specifically been mentioned that a marketplace e-commerce entity shall require sellers, through an undertaking, to ensure that descriptions, images and other content pertaining to goods or services on their platform is accurate and corresponds directly with the appearance, nature, quality, purpose and other general features of such good or service. Every marketplace e-commerce entity shall provide the following information in a clear and accessible manner, displayed prominently to its users at the appropriate place on its platform:
(a) details about the sellers offering goods and services, including the name of their business, whether registered or not, their geographic address, customer care number, any rating or other aggregated feedback about such seller, and any other information necessary for enabling consumers to make informed decisions at the pre-purchase stage: Provided that a marketplace e-commerce entity shall, on a request in writing made by a consumer after the purchase of any goods or services on its platform by such consumer, provide him with information regarding the seller from which such consumer has made such purchase, including the principal geographic address of its headquarters and all branches, name and details of its website, its email address and any other information necessary for communication with the seller for effective dispute resolution.
9. There is no document on the record to show that the OP has ever informed the complainant to contact the seller to resolve her issue. The order was placed on the online portal of Flipkart being intermediary of the platform provided for both the seller and the buyer. The box was also packed, shipped and delivered by the OP as per the document Ex.C-1, which is the track record of the item and this record is of OP only. The product was to be given on cash on delivery and the payment was made by the complainant when the box was delivered to her. There is no denial of receipt of payment of the mobile handset. It is proved on the record that the box was not containing the mobile handset of Xiomi as was ordered. Despite the emails and correspondence and the letters written to the OPs, the problem of the complainant was not resolved rather the request of return and replacement was rejected by the OP. This amounts to deficiency in service and unfair trade practice on the part of the OPs, therefore, the complainant is entitled for the relief.
10. In the light of above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to refund the sale price of the mobile handset to the complainant i.e. Rs.20,999/- with interest @ 6% per annum from the date of receipt of payment by OP till realization. Further, the OPs are directed to pay a compensation of Rs.7000/- to the complainant for causing mental tension and harassment and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
19.07.2022 Member Member President
