BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 22^nd DAY OF FEBRUARY 2023

ORDER

SMT.JYOTHI N., MEMBER

1. The complaint has been filed under Section 35 of C.P. Act (hereinafter referred as an “Act”) against the OP for the following reliefs against the OP:-

1. Direct the OP to provide a refund equivalent to buyback guaranty value of Rs.41,750/- to the complainant
2. Direct the respondents to provide Rs.50,000/- as a compensation to the complainant for the mental harassment, agony and stress and litigation cost of Rs.5,500/- and such other relief

2. The case set up by the complainant in brief is as under:-

That on 15.04.2019, the complainant purchased one “Vu premium android 126 cm 50 inches ultra HG 4K LED Smart TV” bearing EMEI/SL. No.3TE50G18383001E1J431859, along with buyback guarantee and extended warrantee against consideration of total Rs.40,097/- (Rs. Forty Thousand and Ninety Seven only) from Flipkart internet pvt. Ltd., through their website.

3. That at the time of purchase of LCD TV, the complainant was promised the buyback guarantee of Rs.41,750/- on exchange of the TV within the period of 19.04.2021 to 19.04.2022 and in this regard respondent also issued the voucher in through the mail stating that mentioned buyback value.

4.   When the complainant try to redeem the buyback guarantee on 02.03.2022, the complainant was provided only Rs.11,000/- as buyback amount instead of promised buyback value of Rs.41,750/- upon which the complainant approached the respondent and asked to provide the full buyback amount as mentioned in the buyback guaranty, but the respondent badly failed to do the needful. The repeated requests made by the complainant to buyback the amount has committed during the purchase the respondent refused to provide the committed buyback value of Rs.41,750/-.

5.  That the cause of action for the instant complaint arose on  the date 03.05.2022 upon non performance of respondents of their obligations despite of notice dt.22.04.2022.

6. The complainant states that their was negligence on the respondent company is running an unfair trade practice in order to dupe the hard earned money of the complainant. The said conduct and false commitment on the part of respondent caused immense emotional stress and mental agony and financial loss to complainant. Hence, the complainant filed this complaint.

7.  After service of notice, OP appeared through their counsel and filed their version.

The OP contends that the present complaint is not maintainable against OP and liable to be dismissed. The whole grievance of the complainant pertains to non receipt of buyback  value for the product (Vu premium android 126 cm 50 inches ultra HG 4K LED Smart TV) as agreed for at the time of purchase of the buyback guarantee. It is the OP states that complainant has purchased buyback guarantee and extended warranty for the said TV from a 3^rd party seller . i.e. Jeeves consumer service pvt. Ltd. THROUGH the platform of the OP. It is relevant to note that the OP is electronic market place model e-commerce platform which acts as an intermediatory to facilitate sale transaction between independent 3^rd party sellers and independent end customers.  Therefore the OP has no role or liability towards the complainant for any alleged non-payment to the complainant.

8. The OP provided with the correct value of the buyback guarantee, which the complainant was entitle to, as informed by the seller and the complainant has also agreed for such value at the time of respective communication. The OP is also an online market place platform and intermediatory, its role had already come to an end with the conveyance of details/ decisions of the seller to the complainant. The buyback guarantee  which gross error and negligence on the part of the complainant. However,  it is crucial fact to know that OP is not the seller of the said buyback guarantee, but only online intermediatory which facilitates the transactions of sale purchase by providing a common platform to independent seller and buyer. Since, a necessary party i.e. the seller of the product has not been arrayed. The complaint is bad for non-joinder of the parties. Hence, there is no cause of action against the OP and the OP is wrongly arrayed in the present matte. Hence, the complaint is bad for mis-joinder of the parties. The OP is an online market place                    e-commerce entity and define under consumer protection Act 2019 and Consumer Protection                   e-commerce Rules 2020.  

9. The OP act as an intermediatory through Web interface www.flipkart.com and provides a medium to various sellers all over India to offer for sale and sell their product(s) to the users of the flipkart platform. OP states that these sellers are separate entity being controlled and managed by different persons/stockholders. The OP does not directly or indirectly sell any products on flipkart platform. All the products on flipkart platform are sold by 3^rd party sellers, who avail of the online market place services provided by the OP on terms decided by the respective sellers and manufacturers only.
10. The contract of sale is a bipartite contract between the buyer and the seller only and the answering OP is not a party to it. On the flipkart platform i.e. All contractual/ commercial terms are offered by and agreed to between the buyer and the seller alone. The contractual/commercial terms includes without limitation price, shipping costs, payment method, payment terms, date, period and mode of delivery, warranties related to products and services and after sale services relates to products and services. Flipkart does not have any control or does not determine or advise in any way involved itself in the offering or accepting of such contractual/ commercial terms between the buyer and the seller.” These terms of use clearly shows that the answering parties had not being involving in any unfair trade practices. OP does not render any liability arising out of such contract. OP further states that any kind of assurance, whether in terms of amount, value, after sale service or otherwise, are offered and provided by the respective seller of the product or service providers listed on flipkart platform upon their own terms and conditions and OP have no role in same. The OP being an intermediatory carries no responsibility as to the assurance made and term of sale fixed by the seller of the product and hence OP does not associate itself with alleged grievance. The OP has performed its role in its intermediatory capacity as it has duly escalated the grievances of the complainant to the seller. The OP being intermediatory has no responsibility to redress the grievance alleged and dispute entirely lies between complainant and the seller. There is no unfair practice or deficiency at the end of the OP.  The OP has not caused any financial loss or mental agony to the complainant.

11.     The complainant has filed his affidavit evidence and relies on Ex.P1 to P6. The authorized signatory of OP Sri Sanchi Chhabra files his affidavit evidence and relies on Annexure-I & II.

12.       Complainant filed written arguments, but OP has not filed written arguments. perused documents.

13.     The following points arise for our consideration as are:-

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

14.   Our answers to the above points are as under:

       Point No.1:  Affirmative.

       Point No.2: Affirmative in part.

      Point No.2: As per final orders

REASONS

15.   Point No.1&2:  These two points are interrelated and hence they have  taken up for common discussion.

16.      On perusal of the pleading of the complainant and version of OP, the complainant has purchased LCD TV from OP on dt.15.04.2019 by paying sum of Rs.41,750/-. The OP offered to complainant that he is going to provide buyback offer on said LCD TV an offer warranty for 02 years on said LCD TV i.e. Ex.P1 with buyback guarantee of Ex.P2 for Rs.299/-. On complainant also paid to extend warranty as per Ex.P1 of sum of Rs.2,799/-.

17.      The complainant have availed the buyback offer will be within 19.04.2021 to 19.04.2022 from the date of purchase as per Ex.P5 & Ex.P6. When the complainant availed the buyback offer well within the buyback offer time, the OP refused to give buyback offer. But refunded only Rs.11,000/- instead of paying Rs.41,750/-. Now OP contends that it is only platform to assist. The complainant purchase the LCD TV but the complainant cannot ascertain who is intermediatory while purchasing LCD TV. The complainant by seeing the present OP i.e. flipkark availed the services of OP to get the LCD TV by having good faith, the complainant has purchased the said LCD TV. But now the OP cannot take U-turn stating that he is just a platform and intermediatory in purchase of said LCD TV. When OP himself submits that he is a platform and intermediatory between the complainant and 3^rd party (Intermediatory) when any one become a platform is not going to provide any service until and unless he is going to get some commission/benefit out of the said purchase. But in the instant case the OP has not taken any contention in the version that he is not getting any commission/beneefit while in providing the platform to the intermediatory. More over no one can assess who is the intermediatory that flipkart is going to provide platform and OP is not provide a single piece of evidence to elucidate that he is not getting  any commission/benefit by providing platform for intermediatory.

18.      When such being the case, flipkart should hold the responsibility  of the intermediatory as the complainant believing the flipkart have placed the order and now OP cannot insist the complainant to catch the intermediatory to get the buyback offer. As such OP is solely responsible to the complainant to see that the complainant to get the buyback offer i.e. Rs.41,750/-, but instead of complainant has only paid Rs.11,000/- to the buyback offer without providing the buyback offer. OP has rendered the deficiency of service and also adopted unfair trade practice by showing the intermediatory is responsible to get buyback offer that OP is shifting the liability on the intermediatory whout OP taking responsibility of the same.

19. All these facts reveals that OP is making the complainant run from pillar to post as such the complainant suffers mental agony and such complainant is entitled for Rs.5,000/-. The OP has already paid Rs.11,000/-. Remaining balance of Rs.30,750/- has to be refund to the complainant, but without doing so the OP shifting liability to the 3^rd party which  is not fair, as such OP is liable to pay Rs.41,750/- to the complainant along with interest at the rate of  9% as held by Hon’ble National Consumer Redressal commission which could suffice in this case also from the return of LCD TV to the date of 2^nd march 2022 till realization.

20.     The OP is directed to return of LCD TV on  dt.02.03.2022 till realization.  OP is also directed to pay a sum of Rs.10,000/- towards misery and suffering caused by the complainant and  litigation cost of Rs.5,000/-. Accordingly we answer point No.1 in affirmative and point No.2 partly in affirmative.

21.   Point No.3:- In view the discussion referred above we proceed to pass the following;

 O R D E R

1. The complaint is allowed in part.
2. OP is directed to return the LCD TV to the complainant and pay sum of  Rs.10,000/- towards misery and suffering caused by the complainant.
3. OP is further directed to pay  Rs.5,000/- towards litigation expenses.
4.  We also direct the OP to return the LCD TV within 30 days from the date receipt o this order, failing which the complainant is at liberty to have the redress as per law.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 22^nd day of February 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1:  Nil

SKA