Haryana

Karnal

CC/317/2018

Sachin Kumar - Complainant(s)

Versus

Flipkart Internet Private Limited - Opp.Party(s)

Parhlad Chawla

16 Jan 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No. 317 of 2018

                                                          Date of instt.19.11.2018

                                                          Date of Decision 16.01.2020

 

Sachin Kumar son of Shri Sushil Kumar resident of village Mohiudinpur, District Karnal.

                                                 …….Complainant.

                                              Versus

 

1. Flipkart Internet Pvt. Ltd. Vaishnavi Summit, Ground floor, 7^th main, 80’ Feet Road, 3^rd Block, Koramangala Industrial Layout, Bangolore-560034, Karnatka, India Office Phone no.0124-613000, Karnatka, India, Office Phone no.0124-6130000 through its authorized signatory.

2. Blue Dart Xpress Ltd. 4^th floor, Elegance Tower, Non Hierarchical Commercial Centre, plot 8, Jasola, District Centre, Delhi through its authorized signatory.

3. Tech Connect Retail Pvt. Ltd., Sr. 696GUNDLAPOCHAMPALLY Village Medchal, Mandal, Ranga Ready, District Sikandrabad, Telangana-501401 through its authorized signatory.

4. The Care Manager, Dell Intel Service India Pvt. Divya Shree Kora Mangala, Inner Ring Road, Domlur Post, Bangalore-560071, Karnatka, India through its authorized signatory.

                                                                         …..Opposite Parties.

 

           Complaint u/s 12 of the Consumer Protection Act. 

 

Before    Sh. Jaswant Singh……President. 

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary…….Member

 

 Present:  Shri Parhlad Chauhan Advocate for complainant.

                   Shri Dheeraj Sachdeva Advocate for OPs no.1 and 3.

                   Shri Anuj Gupa Advocate for OP no.2.

                   Shri R.D. Gautam Advocate for OP no.4.

                 

                   (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant purchased a Laptop S/96970/Dell/HSN: 84713010, 9GPX142, Dell Inspiration 15 5000 Core i5 7^th Gen. 8GB, 1 TB HDD-Linux 5567 Laptop 15.6 Inch Fog Grey, 2.36 Kgs/A563510UIN9FG for a sum of Rs.37740/- from OP no.1 on 28.09.2018 by placing an order online upon the website of OP no.1 in his name through credit card. The complainant received the parcel of that product at his billing address i.e. Sachin Kumar Amritdhara Hospital, near ITI Chowk, Karnal, Haryana on 03.10.2018. After receiving the parcel, the complainant unboxed the parcel but he was stunned to see that there was no laptop in the box and complainant found in that box a Dummy of Laptop which is un-useful and only show piece product. The complainant complained to the OP no.1 through email on the same day i.e. on 03.10.2018 from his brother Pardeep Rana’s email ID and OP no.1 gave assurance that they will resolve the problem of complainant. But on 4.10.2018 again the complainant had received an email from OP no.1 that “We have escalated you issue to the concerned team, we assure you that we will resolve your problem by 16^th October, 2018 till 6.00 PM.” The complainant received another email from OP no.1 with assertion that “We are writing to you about your return request for REQ00000652071 for Dell Inspiron 15 5000 Core i5 7^th Gen.-8GB, 1 TB HDD-Linux 5567 Laptop.

  We would like to let you know that we are working closely with the seller to resolve your issue. A specialist from our team will be contacting you on your registered mobile number in the next 12 days between 9 a.m. to 9 p.m. to get additional information. Please note that the seller will not be able to fulfill your request in case these details are not available.

        If you would like to get in touch with you at a specific time, please let us know by reply to this mail” from Akshya Verma, Flipkart Customer Support.

Thereafter, complainant received various emails dated 18.10.2018, 21.10.2018 and on 22.10.2018 from OPs regarding redressal of the grievance of the complainant but no till date OPs failed to resolve the problem of the complainant and lastly refused to refund the amount of the abovesaid laptop. In this way there was deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OPs, OP no.1 appeared and filed written version stating therein that OP no.1 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 OP, on terms decided by the respective sellers only. In the instant complaint also, it can be evidenced that the actual seller of the product is a third party seller and not the OP no.1. It is further stated that OP no.1 is an intermediary only that is  to provide online platform to facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers on its Flipkart platform.  It is further stated that OP no.1 is not involved in the entire transaction except for providing the online platform for the transaction except for providing the online platform for the transaction(s) and the concerned contract(s) of sale and purchase is between the seller and the buyer, hence the OP no.1 shall not be held liable for any liability owing to such contract. It is further stated that that product was allegedly found dummy of laptop from the box when it was delivered to the complainant by the delivery man of the logistics company. It is further stated that the grievance of the complainant should have been only against the Logistics i.e. OP no.2 manufacturer of the product i.e. OP no.4 or the seller of the product i.e. OP no.3. OP no.1 being mere an intermediary and not the seller/manufacturer/authorized service centre of the product sold to the complainant. Hence there is no deficiency in service on the part of the OP no.1 and prayed for dismissal of the complaint.

3.             OP no.2 in his reply stated that OP no.2 has entered into an agreement with Flipkart to carry shipments of flipkart/its vendor from the point or origin to the destination as specified. All the shipments are picked up in intact/sealed condition and delivered to the consignee in intact condition. As per the agreement executed with the Flipkart, the liability of the OP no.2 qua the flipkart is limited to Rs.5000/- per shipment or the invoice value declared or the cost of reconstruction whichever is lower. It is further stated that complaint is not maintainable qua the OP no.2 as the OP no.1 booked one consignment and the same was delivered in the packed condition as received by the OP no.2. No complaint was lodged by the complainant with regard to any deficiency in delivering the consignment. All other allegations made in the complaint have been denied by the OP no.2 and prayed for dismissal of the complaint.

4.             OP no.3 filed his separate written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that OP no.3 is a company incorporated under the Companies Act 1956. OP no.3 carrying on the business of sale of goods manufactured/produced by others. OP no.3 is registered seller on the website “Flipkart.com” and sells products of other manufacturers, traders, etc. under their respective trademarks through the website. It is further pleaded that OP no.3 has a separate and distinct identity from that of the manufacturer of the product i.e. Dell International Services India Pvt. Ltd. and there is no relation of Principle and agent between Dell International Service India Pvt. Ltd. and OP no.3. It is further pleaded that liability to provide after servicer does not lie upon the OP no.3 as the OP no.3 is neither the manufacturer nor the service centre engaged by the manufacturer. It is further pleaded that any grievance which the complainant has, is only against the manufacturer and its online service provider for not providing after sale services and OP no.3 has no role to play in offering or providing after sale services to the customers. It is further pleaded that the present complaint should have been only against the manufacturer and the service provider appointed by the manufacturer and the complainant has been wrong in arrayed the OP no.3 in the present complaint. There is no deficiency in service on the part of the OP no.3. All other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.4 in his reply submitted that a laptop bearing service Tag 9GPX142 which was manufactured by OP no.4 was shipped for retail sale on 27.03.2018 through the distributors of OP no.4, OPs no.1 and 3 are not the authorized dealers of OP no.4. It is abundantly clear that the original laptop having the service tag no.9GPX142 which was manufacturer by OP no.4 has been replaced with a dummy laptop by an unauthorized third party and the OP no.4 cannot be held responsible for the same in any manner whatsoever. OPs no.1 and 3 being unauthorized dealers having no principal-agent relationship or contractual relationship with OP no.4 and cannot bind the OP no.4 by any of their actions/omissions etc.  Therefore, OP no.4 has no relation whatsoever to the alleged transaction between the complainant and the OPs no.1 and 3 and the present complaint is liable to be dismissed qua OP no.4.

5.             Complainant tendered into evidence his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C25 and closed the evidence on 10.07.2019.

6.             OP no.1 and 3 tendered into evidence document Ex.OP1 and made a statement that reply of OPs no.1 and 3 be read as their evidence closed the evidence on 09.09.2019.

7.             OP no.2 tendered into evidence affidavit Ex.OP1/A and closed the evidence on 20.11.2019.

8.             OP no.4 tendered into evidence affidavit of Abraham Koshy Ex.OPW1/A.

9.                We have heard the learned counsel of both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

10.     Admittedly, the complainant purchased a laptop S/96970/Dell/HSN: 84713010, 9GPX142, Dell Inspiration 15 5000 Core i5 7^th Gen. 8GB, 1 TB HDD-Linux 5567 Laptop 15.6 Inch Fog Grey, 2.36 Kgs/A563510UIN9FG for a sum of Rs.37740/- from OP no.1 on 28.09.2018 by placing an order online upon the website of OP no.1, vide bill Ex.C1. The payment was made through online mode i.e. through credit card to OP no.1 at the time of placing of order. After receiving the parcel, the complainant found that there was a dummy laptop in the box. In this regard, complainant made complaint through email Ex.C3 to the OP no.1 and OP no.1 replied vide email Ex.C2 “that we have escalated your issue to the concerned team. We assured you that will resolve your problem by 15^th October 9.00 p.m.” Thereafter, complainant sent many emails to OP no.1 but no action has been taken by OP no.1 till date.

11.           Learned counsel for OPs no.1 and 3 admitted that OP no.1 has sold the laptop to the complainant. All the emails which were sent to the OP no.1 are also admitted by OP no.1 with regard to receiving of alleged dummy laptop. He further submitted that there is no fault on the part of the OP no.1. If there is any manufacturing defect in the laptop then OP no.4 is only liable for the same being manufacturer of the same.

12.            Learned counsel for OP no.2 submitted that it is a courier company who has delivered the product to the complainant as received by it from the OP no.1. There is no deficiency on the part of the OP no.2. 13.              Learned counsel for OP no.4 submitted that the OP no.1 and 3 are neither the dealer nor the agent of OP no.4 and there is no privity of contract between them. OP no.4 has not sold the product/laptop to the OPs no.1 and 3 as there is no payment directly received by OP no.4 and if there is any deficiency in service, that is on the part of the OPs no.1 and 3 not on the part of the OP no.4.

14.                 During the course of arguments, the complainant produced the dummy laptop before this Forum and the same was checked. On appearance of the body it seems to be an original laptop but when it has been checked thoroughly it was found that it is a dummy one. Moreover, from the photographs and the evidence produced on record by the complainant it has become crystal clear that the product/laptop is a dummy one and said product was purchased by the complainant from OP no.1. As per OP no.1 he has purchased the same from OP no.4 but this fact has been denied by OP no.4. In these circumstances, we are of the considered view that OP no.1 has handed over the dummy laptop to the complainant. Thus, the act of OP no.1 amounts to deficiency in service and unfair trade practice.

15.               Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP no.1 to refund the cost of the laptop i.e. Rs.37,740/- to the complainant alongwith interest @ 9% per annum from the date of purchase till its realization. We further direct the OP no.1 to pay Rs.15,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.5500/- for the litigation expenses.  This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:16.01.2020                                                                       

                                                                  President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

 

 

                (Vineet Kaushik)          (Dr. Rekha Chaudhary)

                    Member                         Member