DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

Rajiv Sharma aged 50 years son of Sh.Om Parkash Sharma r/o H.No.1530, Sector 7-C, Chandigarh.

                                ...  Complainant.

Versus

1.     Flipkart Internet Private Limited, Vaishnavi Summit, No.6/B, 7^th Main, 80’ Road, 3 Block, Kaurmangla, Bangalore-560034 through its Authorized Representative.

2.     Flipkart Internet Private Limited,  SCO No.160, basement, Sector 9, Chandigarh through its Authorized Representative.

         (…. Opposite Parties

PER RAJAN DEWAN, PRESIDENT

1.         Briefly stated, the facts of case as alleged by the complainant are that he online booked JBL Pulse 3 Portable IPx7 Waterproof Bluetooth Speaker with the OPs and allotted tracking ID and the same was to be delivered by 03.03.2008.  On 03.03.2018, the delivery boy of the OPs delivered the packet alleged to have contained the booked material and the complainant paid Rs.14,500/-  through the ATM Card.  On opening the packet, he was shocked to see that it contained a broken mobile phone instead of JBL Pulse 3 Portable IPx7 Waterproof Bluetooth Speaker and when he tried to approach the delivery boy, he ran away from the spot.  He lodged a complaint (Annexure C-1), in this regard, against the OPs with the Chandigarh Police and also sent a copy thereof to the OPs through email also. The Chandigarh Police issued notice under Section 21 of Cr.P.C. to the OPs to provide all the details about the product sent to the complainant as well as the details of the courier boy and address so that a legal action be taken, followed by reminders dated 26.03.2018 and 30.03.2018.  When the OPs failed to deliver JBL Pulse 3 Portable IPx7 Waterproof Bluetooth Speaker, he got registered FIR No.154 dated 07.05.2018 against them under Section 420 IPC in P.S. Sector 26, Chandigarh.  Though the Chandigarh Police, Cyber Crime Investigation Cell issued notice under Section 160 Cr.P.C. dated 01.08.2018 requiring the OPs to appear  on 10.08.2018 but they have neither refunded the amount nor redressed the grievance of the complainant despite his repeated requests.  Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint.    
2.         In their written statement, the OPs have pleaded that  the role/involvement of OPs-Company is an intermediary only who provides a marketplace to the sellers and buyers of product to facilitate the transactions electronic commerce for various goods by and between the respective buyers and sellers and enables them to deal in various categories of goods.  They do not directly or indirectly sells any product on flipkart platform and rather all the products on flipkart platform are sold by third party sellers who avail of the online market place services provided by them, on terms decided by the respective sellers only.   It is stated that they escalated the grievance of the complainant to the seller; however the delivery of the correct product to the recipient of the order with the product being intact was confirmed by the seller of the product. Even if it is assumed that the grievance of the complainant is true by any stretch of imagination even then any grievance that the complainant has is only against the seller as it is the seller who has the responsibility to ensure supply and delivery of correct product. It is further stated that the OPs are not involved in entire transaction except for providing the online platform for the transactions. Denying all other allegations, it is prayed that the complaint be dismissed qua OP. 
3.         We have heard the Counsel for the parties  and have gone through the documents on record as well as written submissions.
4.         Admittedly, the complainant booked the JBL Pulse 3 Portable IPx7 Waterproof Bluetooth Speaker  with the OPs  through online transaction. It is also an admitted fact that he paid Rs.14,500/- to the delivery boy through ATM Card on account of the purchase of the goods.  From the documentary evidence on record, it is evident that the complainant received a broken mobile handset instead of Waterproof Bluetooth Speakers and in this regard, he made a complaint to the SSP, UT, Chandigarh and sent a copy thereof to the OPs through email also. He also lodged the FIR dated 07.05.2018, in this regard, with the Police Station, Sector 26, Chandigarh.  The complainant also requested the OPs many times to redress his grievance but they failed to do so. 
5.         The Learned Counsel for the OPs raised a plea that it only provides online market place/platform/ technology and other mechanism/services to the sellers and buyers of products to facilitate the transactions etc. This plea itself is sufficient to prove that the OPs are engaged in the business of providing services through its internet portal to interested buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sale and purchase of moveable goods. If this is the declared business interest of the OPs, it cannot be permitted to claim that it is providing purely gratuitous service to its customers, without any consideration. It is certainly not  the case of the OPs that it is a charitable organization involved in ecommerce with no business returns for itself, therefore, the plea raised by the OPs is distinguished being devoid of any merit. On this point reliance can be taken from case law titled as Rediff.com India Limited 1st Floor, Mahalaxmi Engineering Estate L.J.Road No.1 Mahim (W) Vs. Ms.Urmil Munjal c/o Gurgaon Gramin Bank decided on 10.07.2015 by the Hon’ble National Commission in Revision Petition No.4656 of 2012.  It is worthwhile to mention here that now-a-days online shopping is spreading everywhere because it is time and money saving but the responsibilities of the companies cannot be over after selling of the product as it is the bounded duty of the companies to satisfy their customers because it does not give any liberty to usurp the money of the consumers either by sending wrong items or defective product.

                In the present case, the complainant was delivered a broken mobile handset instead of booked items i.e. JBL Pulse 3 Portable IPx7 Waterproof Bluetooth Speaker, therefore, the complainant has got a right to seek refund of the price. Such like behavior and practice is not expected from a Company which is selling its product through online. In other words, we can say that this act and conduct of the company falls under unfair trade practice and deficiency in service because it sells or sends the wrong item than the purchased item product even after charging full amount of the product.

6.         Our view is further bolstered from the judgment of our own Hon’ble State Commission in the case reported in IV (2017)  CPJ 112 (UT, Chd.) titled as Amazon Seller Services Pvt. Ltd. Vs. Gopal Krishan, in which it was held as under:-

Consumer Protection Act, 1986 — Sections 2(1)(f), 2(1)(g), 14(1)(d), 15 — Mobile Set — Defect — Handset not given after repair — Deficiency in service — Mental and physical harassment — District Forum allowed complaint and directed refund of cost of mobile handset and awarded compensation — Hence appeal — Complainant, after repair of mobile handset, was intimated to collect it on/around 20.8.2016 — However, before that date, he had already filed a consumer complaint when he failed to get any reply from OPs — Mobile handset, after purchase, was received on 4.7.2016 — When it was found defective, it was handed over for repair — Despite intimation given here and there and handing over mobile handset for repair, when complainant failed to get any positive response, he lost faith in OPs and filed consumer complaint — Service rendered was absolutely poor and pathetic — Standby handset for use was not given — Agent who sells a product, is duty bound to ensure its quality, and if product is found defective, agent shall be vicariously liable for loss caused to purchaser, along with manufacturer of product — Impugned order upheld.

7.         In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. The opposite parties are directed as under ;-

[a]    To refund Rs.14,500/- to the complainant along with interest @ 9% p.a. from the date of its payment i.e. 03.03.2018 till its actual realization. 

[b]    To pay compensation of Rs.5,000/- on account of mental agony and physical harassment and deficiency in service; 

[c]    To pay Rs.5,500/- as cost of litigation;

                This order be complied with by the OP(s), within 45 days from the date of receipt of its certified copy, failing which the amount at Sr.No.(ii) shall also carry interest @9% per annum from the date of this order till actual payment besides compliance of other directions.

8.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.