Chandigarh

StateCommission

A/205/2023

RAVNEET BANSAL - Complainant(s)

Versus

FLIPKART INTERNET PRIVATE LIMITED - Opp.Party(s)

SHUBHAM BHARDWAJ ADV.

01 Feb 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Additional Bench]

 

Appeal No.	:	A/205/2023
Date  of  Institution	:	29/08/2023
Date   of   Decision	:	01/02/2024

 

 

 

 

Ravneet Bansal, Resident of H.No. 2283, Sector 44-C, Chandigarh – 160047).

….Appellant

Vs.

 

1.     M/s Flipkart Internet Pvt. Ltd. (through Auth. Officer) Building Alyssa, Begonia & Clover, Embassy Tech. Village, Outer Ring Road, Devarabeesanahalli Village Bengaluru, Karnataka - 560103.

 

2.     Sh. Vivek Subramanian (Director), Building Alyssa, Begonia & Clover, Embassy Tech. Village, Outer Ring Road, Devarabeesanahalli Village Bengaluru, Karnataka - 560103.

 

3.     M/s Crystal Furniture Industries, through its Prop., Shop No.3, Umiya Chambers, Central Avenue, Darodkar Square, Nagpur, Maharashtra - 440032.

 

…. Respondents

 

 

BEFORE: MRS. PADMA PANDEY   PRESIDING MEMBER

                PREETINDER SINGH      MEMBER

 

PRESENT	:	Sh. Shubham Bhardwaj, Advocate for the Appellant.
		Sh. Atul Sharma, Advocate for Respondents No.1 & 2.
		Respondent No.3 ex-parte vide order dated 20.10.2023.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

1.         This appeal is directed against the order dated 07.08.2023, rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. Lower Commission”), vide which, it partly allowed the Consumer Complaint bearing no.CC/481/2020, in the following manner:-

“10.   In view of the above discussion the present Consumer Complaint partly succeeds and the same is accordingly partly allowed in the following manner: -

i)        OP No.3 shall replace the required parts of the product in question.

ii)       OP No.3 shall pay composite amount of Rs.5000/- to the Complainant as compensation for causing mental agony and harassment to him.

11.    This order be complied with by the OP No.3 within thirty days from the date of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr. No. (ii) above, with interest @12% per annum from the date of this order, till realization, apart from compliance of direction at Sr. No. (i) above.”

2.         For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. Lower Commission.

 

3.         Before the Ld. Lower Commission, it was the case of the Complainant that he placed an order for Crystal Furnitech Engineered Wood Free Standing Cabinet  from Opposite Party No.1 on 18.02.2020 after paying an amount of ₹13,750/-. On 23.02.2020, the complainant requested for cancellation of the product as the product was on further discount, but the request of the Complainant was not entertained and the product was delivered to him on 09.03.2020. On the same day, at the time of assembling, noticing that the colour of two side doors did not match with the picture shown on the website, the Complainant wanted to return the product but as there was no option on the app of OPs to return therefore, he placed a replacement request. Later on after much persuasion the complainant placed return request and on 23.03.2020, the complainant got confirmation that un-installation has been scheduled and would be done by 25.03.2020, but the courier partner of Opposite Parties messaged him that due to lockdown installation cannot be executed. On 12.05.2020, the complainant got a message that the return has been cancelled on the ground that the service engineer called but since complainant did not attend his call the return request was rejected. Eventually, the complainant filed complaint on the consumer helpline and made continuous follow up with the Opposite Parties, but nothing fruitful came out. Hence, the aforesaid Consumer Complaint was filed before the Ld. Lower Commission, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties.

 

4.         In the reply filed before the Ld. Lower Commission, while admitting the factual matrix of the case, Opposite Party No.1 pleaded that it is only an intermediary through its web interface www.flipcart.com and provides a medium to various sellers all over India to offer for sale and sell their  products to the users of the flipkart platform. It was asserted that these sellers are separate entity being controlled and managed by different persons/stakeholders and Opposite Party No.1 does not directly or indirectly sell any products on its platform. Rather all the products on flipkart platform are sold by third party sellers, who avail the online marketplace services, provided by the respective sellers and any kind of 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 No.1 neither offers nor provides any assurances and/or offers pickup or refund facility to the buyers of the product. Thus, there is no deficiency on its part. Denying all other allegations and pleading no deficiency in service, the Opposite Parties prayed for dismissal of the Complaint.

 

5.         Opposite Party No.2 did not file separate reply and adopted the reply filed on behalf of Opposite Party No.1.

 

6.         Opposite Party No. 3 was duly, but did not appear, as such, it was proceeded against exparte vide order dated 02.03.2023.

 

7.         On appraisal of the pleadings of the parties and the evidence adduced on the record, Ld. Lower Commission partly allowed the Consumer Complaint of the Complainant as noticed in the opening para of this order.  

 

8.         Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellant/Complainant.

 

9.         Pertinently, in the present proceedings nobody appeared on behalf of Opposite Party No.3 despite service, therefore, it was proceeded ex-parte on 20.10.2023.

 

10.         We have heard the Learned Counsel for the Appellant/Complainant and Respondent/OPs No.1 & 2 and have gone through the evidence and record of the case with utmost care, along with the written arguments advanced.

 

11.         It is the case of the Appellant/Complainant that the Ld. Lower Commission while passing the impugned order has failed to appreciate the documentary evidence available on record, which resulted into perverse finding.

 

12.         Learned Counsel for the Appellant/ Complainant has argued that the Ld. Lower Commission primarily granted the relief beyond the pleadings and relief prayed for in the Complaint. We have gone through the relief clause and observed that the Ld. Lower Commission granted the relief contrary to the prayer made in the Complaint. To put in other words, notwithstanding appreciating the fundamental issues with regard to difference of colour of the product and the conduct of the Respondents/Opposite Parties, the Ld. Lower Commission granted the relief of replacement of the required parts of the product in question ignoring the fact that there was no such prayer in the prayer clause. Needless to mention here that the question of any defect, much less functional defect in the product was not before the Ld. Lower Commission.  There is no dispute about the fact that the Court has wide discretion in granting relief, but cannot keep aside the norms & principles governing grant of relief not even prayed by the Complainant. It is settled law that relief not found on pleadings should not be granted and if a court considers or grants a relief for which no prayer or pleading was made, it would lead to miscarriage of justice.

 

13.         Learned Counsel for the Appellant further argued that the Ld. Lower Commission in para 9 of the impugned order wrongly observed that “it was duty of Complainant to send return request immediately without any delay. It is out of our mind for what purpose various accessories of the product opened and thereafter installed by the complainant at her place. Any how after various reminders and continuous follow up with the OPs the OP No.3 has come forward with letter dated 19.12.2022 vide which it is ready to change the parts even now although the furniture is in continuous use by the complainant since installation and there is no functional defect and the dispute is only with regard to the difference of colour, which cause harassment to the complainant”, which are contrary to the facts/material available on record. We find sufficient merit in this limb of argument. Record shows that the product was delivered to the Appellant on 09.03.2020 and per pleadings in Para 3 of the Complaint, return request was made on the same day when the item was purchased. Even the Complainant instructed the Engineer not to install the product as the same did not match with the description on the website, but he continued with the installation and asked the Complainant to make return request on the plea that if installation was not made, he would not get his fees.  The Ld. Lower Commission failed to appreciate the fact that the Consumer Complaint was filed on 10.05.2022 and Respondent No.3 (Seller) during the proceedings of the Complaint vide letter dated 19.12.2022 offered to resolve the Complaint by changing the required parts, but subsequently chose to abandon the proceedings and was proceeded ex-parte for which adverse inference was required to be taken against it. It is thus clear that the impugned order is absolutely contrary to record, in as much as, if the description and goods sold do not correspond with description, a right has accrued to the Appellant to sought return of the product and refund of the amount paid.

 

14.         Learned Counsel for Respondents No.1 & 2 argued that Ld. Lower Commission thus rightly reached at the conclusion that Respondents No.1 & 2 have no liability being a platform to facilitate transaction of sale & purchase and it is the Seller of the product who provides warranty/guarantee on a particular product and no defect/ deficiency in the product can be imputed to the Respondents No.1 & 2 for deficiency in service. However, we are not inclined to toe in line with the argument raised for the reason that when Respondents No.1 & 2, which is a reputed online shopping website, made an offer and the complainant placed the order accepting that offer, the agreement stood completed between the parties. It would have been a different case had there been a cancellation before the order was confirmed. However, when Respondents No.1 & 2 allowed the third party seller to operate on its platform, their responsibility cannot be lost sight of.  This fact has however altogether been ignored by the Ld. Lower Commission while absolving the Respondents No.1 & 2. Respondents No.1 & 2 and the seller (Respondent No.3) are within the purview of Act with regard to deficiency in service and unfair trade practice committed by them and also the consequences of the same.

 

15.         It is well settled that the word ‘Compensation’ is of very vide connotation and once the Court is satisfied that the complainant has suffered harassment or mental agony and is entitled to compensation, it is obliged to adequately compensate him for the actual loss or expected loss, which would extend to compensation for the physical, mental or emotional sufferings. On the question of determination of compensation for the loss or injury suffered by a consumer on account of deficiency in service, the following observations by a three Judge Bench of the Hon’ble Supreme Court in Charan Singh v. Healing Touch Hospital & Ors., - (2000) 7 SCC 668 are also apposite:-

 

“While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.”

 

16.         In Lucknow Development Authority v. M K Gupta, (1994) 1 SCC 243 also, the Hon’ble Supreme Court held that the jurisdiction of the consumer forum extends to the award of compensation to alleviate the harassment and agony to a consumer. In Ghaziabad Development Authority v. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court, while explaining the ambit of the jurisdiction of the adjudicatory fora under the Consumer Protection Act observed that  “…The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done”. Under these circumstances, the complainant is entitled to get, special, exemplary and aggravated damages.  In this view of the matter, the orders passed by the Ld. Lower Commission, granting meagre compensation to the complainant needs modification. Besides, on account of inconvenience and expenditure incurred by the complainant, ₹10,000/- would be just and reasonable to be awarded as costs of litigation. 

 

17.         In view of above, the present appeal stands partly accepted.  The orders of the Ld. Lower Commission are modified and Respondents/Opposite Parties are, jointly & severally, directed as under:-

 

(i)     To take back the defective product and to refund the invoice price of ₹13,750/- to the Appellant/Complainant along with interest @9% p.a. from the date of purchase, till realization.

 

        (ii)    To pay ₹10,000/- as compensation for mental agony and physical harassment to the Appellant/complainant.

 

        (iii)   To pay ₹10,000/- as costs of litigation.

 

12.         The above order shall be complied with by the Respondents/Opposite Parties, within thirty days from today, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% p.a. from the date of filing of the Complaint, till realization, apart from compliance of direction at Sr.No.(iii) above. 

 

13.         All the pending application(s), if any, also stands disposed off accordingly.

 

14.         Certified Copies of this order be sent to the parties, free of charge.

 

15.         The file be consigned to Record Room, after completion.

Pronounced

01^st February, 2024                                                                    

                                         Sd/-                         

                                                                (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”