DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB. 

 

Complaint Case No : CC/295/2021

Date of Institution : 29.11.2021

Date of Decision : 06.03.2024

Sikander Singh alias Navdeep son of Sh. Bhajan Singh resident of VPO Bhaini Mehraj, Tehsil and District Barnala-148106, Punjab.

                   …Complainant

Versus

Flipkart Internet Private Limited, Ozone Manay Tech Park, # 56/18 and 55/09, 7th Floor, Garvebhavipalya, Hosur Road, Bangalore-560068, Karnataka, India. 

                …Opposite Party

Complaint under The Consumer Protection Act, 2019.

Present: None for the complainant.

  Sh. Anuj Mohan Adv counsel for opposite party.

 

Quorum:-

1. Sh. Jot Naranjan Singh Gill : President

2. Smt Urmila Kumari : Member

(ORDER BY URMILA KUMARI MEMBER):

    The complainant namely Sikander Singh has filed the present complaint under the Consumer Protection Act 2019 against Flipkart Internet Private Limited, Bangalore. (hereinafter referred as opposite party).  

2. The facts leading to the present complaint are that the complainant purchased a smart apple watch with health features like sleep monitoring, ECG, heart rate, stress management, oxygen rate, spo2 etc. keeping in view his physical and mental health. The order was placed on 26.7.2021 through Flipkart with order ID OD222416301725927000. The order was delivered on 30.7.2021 near Sand Rose Palace at National highway as delivery was not available in the village of the complainant namely Bahadarpur. After opening the box it was found that the watch did not get started even after charging and the colour of watch was different from the one which was ordered by the complainant. The complainant applied for return request and the product was picked up through E-cart on 2.8.2021 as per return ID-12202244979839893616.  In the evening at about 5 PM the return request was cancelled and the complainant was asked to take back the product. The complainant called the customer care cell and they asked the complainant not to take back the product and wait till 3.8.2021 to resolve the matter. After that the complainant was given many dates and asked to wait so that the matter could be resolved but the concern of the complainant was not resolved for three months.  

3. Upon notice of this complaint the opposite parties appeared and filed written version by taking preliminary objections interalia on the grounds that the complainant has suppressed material facts from this Commission and trying to mislead this Commission. The whole grievance of the complainant pertains to receiving of alleged different/ wrong product instead of ordered product. The fact needs to be recorded here is that the product was purchased from the third party seller who had sold the product to the complainant through the third party Logistic service provider. The opposite party never came in possession of the actually ordered product or the alleged different/wrong product at any point of time. As per information received from the seller of the product the correct product in a sealed packed box had been delivered to the complainant as also confirmed by the courier service provider. Further, as per information provided by the seller the courier service agent returned and denied pick up of the product as the complainant was trying to return a fake product for which he was giving a fake address. Further, the complainant has not alleged any tampering with the package delivered to the complainant. The return request of the complainant was rejected by the seller and not by the opposite party. It is submitted that the replacement policy provided by the sellers are subject to terms and conditions and the same cannot be expected to be provided when the buyer is trying to take advantage and return a fake product. Even otherwise if any averment made by the complainant to be true still the dispute if any is only between the complainant and the independent third party seller and the role of opposite party is as an intermediary only that is to provide online platform facilitate the whole transaction of sale and purchase of goods by the respective seller and buyer on its Flipkart platform and in no way is responsible to provide any refund to the complainant in any case. There is no provity of contract between the complainant and the opposite party and opposite party does not render any liability arising out of such contract. It is further submitted that no dispute under the Consumer Protection Act is caused to have arisen between the complainant and the opposite party and thus the present complaint against the opposite party is liable to be dismissed. The Flipkart Internet Private Limited is a company engaged, among others in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application hereinafter referred as Flipkart Platform. The opposite party is an online market place e-commerce entity as definded under Consumer Protection Act, 2019 and Consumer Protection (E-commerce) Rules, 2020.  The said Flipkart Platform is electronic marketplace mode E-commerce platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers. It is submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders. Consumer Protection (E-commerce) Rules, 2020 has clearly distinguished marketplace E-commerce platform from the seller of the goods. Thus, for any act of the seller the marketplace e-commerce platform or its operating entity cannot be held liable. The answering opposite party does not directly or indirectly sells any products on Flipkart Platform. Rather, all the products on Flipkart Platform are sold by third party sellers, who avail of the online marketplace services provided by the answering opposite party on terms decided by the respective sellers only. Further, any kind of assurance whether in terms of specifications, warranty on the products, delivery, price, discounts, promotional offers, after sale services, return and refund or otherwise, are offered and provided by the seller of the products sold on Flipkart Platform. The opposite party neither offers nor provides any assurance and/or offers pickup or refund facility to the end buyers of the product. The product purchased by the complainant had not been sold by the opposite party but by an independent third party seller. The services of the opposite party are similar to a shopping mall where various shops are rented out to different sellers who independently carryout sale proceedings with the customer of the shopping mall and in case of any deficiency in service related to the goods sold by such shop owners in the shopping mall it is the shop owner who is held liable for the consequences and not the owner of the shopping mall where such shops are situated. In the same way, the opposite party is not involved in the entire transaction except for providing the online platform for the transaction and the concerned contract of sale and purchase is between the independent seller and the buyer only and hence the opposite party shall not be held liable for any liability owing to such contract. It is further mentioned on the Flipkart Platform that all contractual/ commercial terms are offered by and agreed to between the buyer and the seller alone. The contractual/commercial terms include without limitation price, shipping cost, payment method, payment terms, date, period and mode of delivery, warranties related to products and services and after sale services related to products and services. Flipkart does not have any control or does not determine or advise or in any way involve itself in the offering or acceptance of such contractual/commercial terms between the buyer and the seller. These terms of use clearly shows that the opposite party has not been involved in any unfair trade practice. Further, the opposite party has clearly provided disclaimer on its website that Flipkart is not responsible for any non performance or breach of any contract entered into between buyers and sellers. Flipkart cannot and does not guarantee that the concerned buyers and/or sellers will perform any transaction concluded on the website. Flipkart shall not and is not required to mediate or resolve any dispute or disagreement between buyers and sellers. 

4. On merits, it is submitted that the opposite party merely operates an online platform and all the products on the platform are sold and supplied by the independent third party seller. In the instant matter the product has been sold and supplied by the independent third party seller who is also the ultimate beneficiary of any consideration paid. The opposite party never came in possession of the product delivered to customers, so the opposite party is not in a position to ascertain the authenticity of the grievance raised by the complainant. Further, when the complainant raised his grievance with the opposite party the same was duly intimated to the seller. It is further submitted that as per information received from the seller pickup was denied by the courier service provider as the complainant was trying to return a fake product from a fake address. Further, as per information received from the seller of the product the correct product in a sealed packed box had been delivered to the complainant as also confirmed by the courier service provider. The complainant has not alleged any tampering with the package delivered to the complainant. The complainant was provided all possible assistance by giving due intimation of information received from the seller. The return request of the complainant was rejected by the seller and not by the opposite party. The dispute if any is only between the complainant and the independent third party seller. There is no privity of contract between the complainant and the opposite party so opposite party does not render any liability arising out of such contract. Lastly, the opposite party prayed for the dismissal of the present complaint with costs. 

5. In support of his complaint, the complainant tendered into evidence copies of text messages Ex.C-1 to Ex.C-3, copy of Flipkart App order screenshot Ex.C-4, copy of photograph of E-car office Ex.C-5 to Ex.C-8, copies of financial lose in share market Ex.C-9 to Ex.C-11, affidavit of complainant Ex.C-12, copy of bill Ex.C-13 and closed the evidence. Rejoinder also filed by the complainant. 

6. To rebut the case of the complainant, the opposite party tendered into evidence affidavit of Sheetal Tiwari Ex.OP-1, copy of press note Ex.OP-2, copy of terms of use for using online portal Ex.OP-3 and closed the evidence.    

7. We have heard the learned counsel for the opposite party and gone through the record on the file. None appeared on behalf of complainant. Written arguments also filed by both the parties.

8. As per the complaint the complainant purchased a smart Apple watch with health features like sleep monitoring, ECG, heart rate, stress management, oxygen rate, spo2 etc. keeping in view his physical and mental health. The order was placed on 26.7.2021 through Flipkart with order ID OD222416301725927000. The order was delivered on 30.7.2021 near Sand Rose Palace at National highway as delivery was not available in the village of the complainant namely Bahadarpur. After opening the box it was found that the watch did not get started even after charging and the colour of watch was different from the one which was ordered by the complainant. The complainant applied for return request through customer care and the product was picked up through E-cart on 2.8.2021 as per return ID-12202244979839893616.  In the evening at about 5 PM the return request was cancelled and the complainant was asked to take back the product. The complainant called the customer care cell and they asked the complainant not to take back the product and wait till 3.8.2021 to resolve the matter. After that the complainant was given many dates and asked to wait so that the matter could be resolved but the concern of the complainant was not resolved for three months Ex.C-1 to Ex.C-3.

9. On the other hand, the opposite party argued that 'Flipkart Platform' is electronic marketplace which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers. The opposite party contended that the product was purchased from the third party seller who had sold and supplied the product to the complainant. The opposite party never came in possession of the product/packet delivered to the customer. The opposite party is not in a position to ascertain the authenticity of the grievance raised by the complainant. When the complainant raised his grievance with the opposite party the same was duly intimated to the seller. As per information received from the seller of the product, the correct product in a sealed packed box was delivered to the complainant as is confirmed by the courier service provider. As per information provided by the seller to the opposite party the courier service agent denied pick up of the product as the complainant was trying to return a fake product for which he was giving a fake address. Further, the complainant has not alleged any tampering with the package delivered to the complainant. The return request of the complainant was rejected by the seller and not by the opposite party. 

10. The complainant has not produced any legal evidence in support of his averments. The complainant has not put in his evidence any job card from which it could be ascertained that the said watch has some defect. The complainant has not alleged any tampering with the package delivered by the courier service provider. No evidence of address proof has been put on record by the complainant. The complainant did not appear before this Commission continuously for the last six dates i.e. 8.12.2023, 3.1.2024, 24.1.2024, 14.2.2024, 16.2.2024, 21.2.2024 and even today to conclude the arguments.

11. From the above discussion it is clear that the complainant has approached this Commission without any evidence of deficiency in service on the part of the opposite party. Mere statements without supporting evidence cannot be taken into account for deciding the case against the opposite party. So, there is no merit in the present complaint and same is accordingly dismissed. However, no order as to costs or compensation. Copy of this order be supplied to the parties free of costs as per rules. File be consigned to the records after its due compliance. 

ANNOUNCED IN THE OPEN COMMISSION:

       6th Day of March 2024

 

 

 

        (Jot Naranjan Singh Gill)

            President

 

(Urmila Kumari)

Member