Haryana

Kaithal

CC/254/2022

PARVEEN NAIN - Complainant(s)

Versus

FLIPKART INTERNET PRIVATE LIMITED - Opp.Party(s)

In Person

14 Jun 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.254/2022.

                                                     Date of institution: 13.10.2022.

                                                     Date of decision:14.06.2023.

Parveen Nain S/o Sh. Punjab Singh, Ward No.12, Janakpuri Colony, Gali No.9, Distt. Kaithal, PIN-136027, Mobile No.9253756580, Aadhar No.2820-4745-9917.

                                                                        …Complainant.

                        Versus

Flipkart Internet Private Limited, Building Alyssa, Begonia & Lover, Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village, District Bangalore, PIN-560103, e-mail-CS-Head@Flipkart.Com.

1.  

        Complaint under Section 35 of the Consumer Protection Act

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Complainant in person.   

                Sh. Vikram Tiwari, Advocate for the OP.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Parveen Nain-Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the OP.

                In nutshell, the facts of present case are that the complainant made an order No.OD124919946507155000 for online purchase of Samsung AC and Microtek Voltage Stabilizer on 12.05.2022 alongwith extended warranty for the sum of Rs.33,999/- through credit card on EMI basis.  The complainant cancelled the said order on the next day i.e. 13.05.2022 and the OP refunded the amount of extended warranty and Microtek Voltage Stabilizer only on 19.05.2022 and they did not refund the amount of Rs.29,834/- of Samsung AC to the complainant.  The complainant requested the OP several times to refund the amount but the respondent No.1 did not redress the grievances of complainant.  So, it is a clear cut case of deficiency in service on the part of OP and prayed for acceptance of complaint.     

2.            Upon notice, the OP appeared before this Commission and  contested the complaint by filing their written version.  In the written version, respondent stated that the answering respondent provides online marketplace platform/technology; 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.  The answering respondent does not directly or indirectly sell any products on flipkart platform.  In the instant complaint also, it can be evidenced that the actual seller of the product is a third party seller (who is not impleaded as a party).  There is no deficiency in service on the part of respondent.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

3.             To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Anneuxre-C1 to Annexure-C6 and thereafter, closed the evidence.

4.             On the other hand, the OP tendered into evidence affidavit Ex.RW1/A alongwith document Annexure-R1 and thereafter, closed the evidence.

5.             We have heard both the parties and perused the record carefully.

6.             The complainant has argued that he made an order No.OD124919946507155000 for online purchase of Samsung AC and Microtek Voltage Stabilizer on 12.05.2022 alongwith extended warranty for the sum of Rs.33,999/- through credit card on EMI basis.  The complainant cancelled the said order on the next day i.e. 13.05.2022 and the OP refunded the amount of extended warranty and Microtek Voltage Stabilizer only on 19.05.2022 and they did not refund the amount of Rs.29,834/- of Samsung AC to the complainant.  The complainant requested the OP several times to refund the amount but the OP did not redress the grievances of complainant.  So, it is a clear cut case of deficiency in service on the part of OP.  To support his contentions, he placed reliance on case law titled Myntra Design Pvt. Ltd. Vs. Monika Thakur, Appeal No.279 of 2019, Date of Institution 18.11.2019, Date of Decision 29.11.2019 by the Hon’ble State Commission, U.T. Chandigarh.  

7.             On the other hand, ld. counsel for the Op has argued that OP provides online marketplace platform/technology.  It is further argued 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 argued that the OP does not directly or indirectly sell any products on flipkart platform.  There is no deficiency in service on the part of Op.

8.             At the outset, learned counsel for the OP has taken plea that OP falls within the definition of an “intermediary” u/s 21 (1)(w) of the Information Technology Act, 2000 and also protected by the provisions of Section 79 of the Information Technology Act, 2000, as such, OP is exempted from liability for third party information, data or communication link made available or hosted by it at market place platform of OP, therefore, OP is not liable for any discrepancy, if any, done by the seller i.e. the third party and display of price and subsequent supply of order is the sole responsibility of seller and prayed for dismissal the present complaint against it. But this Commission does not found this contention of OP plausible, in view of case law cited (supra) by the complainant titled Myntra Design Pvt. Ltd. Vs. Monika Thakur (supra), wherein, it is held by the Hon’ble State Commission, U.T., Chandigarh that “The Opposite Party cannot escape from its liability stating that it is not the manufacturer of the product and only provides portal for sale, because the Opposite Party allows the companies to project their products for sale on their portal, so it is their legal obligation to keep a check for the rightful delivery of the products sold through their portal services”.  In the case titled Amazon Seller Services Private Limited Vs. Gopal Krishan, First Appeal No.27 of 2017, it is held that “In the said case, it was observed that it was bounden duty of the facilitator to ensure that goods purchased through any individual are manufactured as per quality standard. If the goods purchased through online are found not up to the mark, online portal through which goods were purchased, cannot escape its liability. Further, the contention raised that as per terms and conditions of sale, no liability can be fastened upon the appellant (Amazon), was rejected by this Commission by observing as under:-

                “8……An agent, who sells a product, is duty bound to ensure its quality, and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, along with the manufacturer of the product. It was so held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Emerging India Real Assets Pvt. Ltd. & Anr. Vs. Kamer Chand & Anr. Revision Petition No.765 of 2016 decided on 30.3.2016”.

9.             So, in the light of above case law laid down by the Hon’ble State Commission, U.T. Chandigarh in the case referred to above, this Commission has no hitch to say that OP, being an intermediary, is liable for any wrong done by seller.

10.            We have considered the rival contentions of both the parties.  The grievance of the complainant is that the complainant made an order No.OD124919946507155000 for online purchase of Samsung AC and Microtek Voltage Stabilizer on 12.05.2022 alongwith extended warranty for the total sum of Rs.33,339/- as per Annexure-C2 through credit card on EMI basis.  The complainant cancelled the said order on the next day i.e. 13.05.2022 as is clear from Annexure-C1 and the OP refunded the amount of extended warranty and Microtek Voltage Stabilizer only to the tune of Rs.1906/- + Rs.1599/- total sum of Rs.3505/- on 19.05.2022 and they did not refund the amount of Rs.29,834/- of Samsung AC to the complainant.  The complainant has drawn our attention towards the mails and messages of OP as per Annexure-C3 and Annexure-C5 dt. 26.07.2022 mentioning that “As per our telephonic conversation, the seller will process the refund of Rs.29,834/- towards your bank account within 72 hours excluding Saturday and Sunday and the same will be credited within 5 business days from the date of initiation as per standard banking procedure”.  In the grievance details as per Mark-A, the OP has given their remarks on 11.07.2022 at 10:34:55 as under:

        “Order ID:OD124919946507155000

 We are sorry for the trouble caused and we totally understand your concern. 

As discussed over the call with our tam refund has been reversed by bank.  Request you to shat alternate bank details so that will do the needful.” 

                So, from the aforesaid grievance details as per Mark-A, it is clear that the amount of Rs.29,834/- was reversed by the bank.  The complainant had given the account detail to the OP but they did not redress the grievances of complainant.  During the course of arguments, the complainant has placed on file bank loan details of CITI Bank which is Mark-B on the file, from which it is clear that the loan amount of Rs.33,339/- obtained by the complainant from the bank and disbursed to the OP.  So, we find that there is deficiency in service on the part of OP. 

11.            Thus, as a sequel of aforesaid discussion, we direct the OP to refund the amount of Rs.29,834/- to the complainant within 45 days from today, failing which, they shall also be liable to pay interest @ 7% p.a. from the date of this order till its realization and further to pay Rs.5,000/- as lump sum compensation on account of physical harassment and mental agony.  Hence, the present complaint is accepted accordingly. 

12.            In default of compliance of this order, proceedings against OP shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:14.06.2023.  

                                                                (Neelam Kashyap)

                                                                President.

 

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.

 

Typed by: Sanjay Kumar, S.G.