BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.16 of 2018
Date of Instt. 08.01.2018
Date of Decision:10.02.2022
Sanjeev Kumar Son of Sh. Parkash Kapil resident of H. No.B-54, New Beant Nagar, P. O. PAP Lines, Jalandhar.
..........Complainant
Versus
1. Flipkart Internet Private Limited, Vaishnavi Summit, Ground Floor, 7th Main, 80 Feet Road, 3rd Block, Koramangala, Bengaluru 560034, Karnataka, India.
2. BooksnClicks, F-147, First Floor, Street No.3, Vishnu Gardenm, New Delhi-110018.
….….. Opposite Party
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Present: Sh. Rohit Gambhir, Adv. Counsel for the Complainant.
Sh. Karan Kalia, Adv. Counsel for OP No.1.
Sh. Atul Malhotra, Adv. Counsel for OP No.2.
Order
Dr. Harveen Bhardwaj(President)
1. The instant complaint has been filed by the complainant, wherein he has alleged that he is a student and is preparing for the ban, SSC, UGC and other competitive exams time to time and is the consumer of the OPs. That the OP No.1 is the online shopping store and the OP No.2 is registered with the OP No.1 and selling the product through the online shopping store/official website of OP No.1 i.e. www.flipkart.com. That the complainant booked an order for a book of UGC,NET/JRF/SLET General Paper-I Teaching & Research Aptitude of Arihant Experts English, Arihant Publication addition 2017, on the online shopping store/official website of OP No.1. on 30.10.2017 and payment of the said book was to be paid at the time of delivery as agreed between the OPs and complainant and OP No.1 assured complainant that the above said book to be delivered by 02.11.2017. That on 02.11.2017 the above said product/book has been received by complainant through courier service E-Kart Logistics and the amount of Rs.303/- for the same was paid to the delivery boy at the time of receiving the delivery of the book. That after receiving the book, the complainant opened the sealed parcel and was stun to see the book that the book which was delivered to him was not the same which was ordered by him as the book which was delivered to him by the OPs is CBSE UGC, NET/SET/JRF Paper-I Teaching and Research Aptitude Second Edition by Author KVS Madaan, whereas complainant has booked the order of the book of UGC,NET/JRF/SLET General Paper-I Teaching & Research Aptitude of Arihant Experts English, Arihant Publication addition 2017, whereas OPs instead of delivering the said book, delivered a book of some other author/publisher. But OPs put up the matter to one pretext or the other and failed to deliver the book as ordered by the complainant till today. That the OPs are guilty of rendering deficiency and negligent service and adopted unfair trade practice and thus, the present complaint filed with the prayer that the complaint of the complainant may kindly be accepted and OPs be directed to pay a compensation of Rs.50,000/- for causing mental tension, pain and agony and harassment to the complainant and further be directed to return the price of the book i.e. Rs.303/- with interest and Rs.15,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed its written reply and contested the complaint by taking preliminary objections that the complainant has approached this Commission with unclean hands and is guilty of suppressing material facts and as such, is abuse of process of law and deserves to be dismissed with exemplary cost. It is further averred that the complainant has suppressed the material facts and has only approached this Commission in order to gain unlawful monies from the answering OP and hence is liable to be dismissed. It is further averred that the answering OP, owns and operates an online web portal namely Flipkart.com and is engaged in the business of online market place, providing platform/technology and/or other mechanism/services to facilitate transactions, electronic commerce, mobile commerce, by and between respective buyers and sellers and enables dealing in various categories of goods. It is further averred that the portal is a market place, wherein third party vendors/sellers who wish to use the platform, register themselves as vendors/sellers and list their products and offer the said products for sale. There are several third party vendors/sellers who list a variety of products on said portal, including but not limited to books, electronic gadgets, apparels for men, women and kids, home and kitchen appliances etc. The answering OP does not in any manner engage in any offer for sale or sale of any products, either through any online portal or otherwise or at all. On merits, the factum in regard to purchase of books by the complainant from the OP No.2 is admitted, but the other allegations as made in the complaint by the complainant are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
3. OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that this Forum (now Commission) has got no jurisdiction to try or decide the present case. It is further averred that the deficiency in service on the part of the OP No.2 is without any documentary evidence by the complainant. It is further averred that the complaint is headless complaint. OP No.2 has been impleaded as an abstract person. No legal or juristic or natural person has been impleaded by complainant. As such, the complaint of the complainant is non executable against the OP No.2. It is further averred that the present complaint is not maintainable against the OP No.2. Moreover, the complainant has concealed terms and conditions of booking replacement and return. It is further averred that the complaint involves complex questions of facts and law. The present complaint requires elaborate evidence, expert evidence, examination and cross examination of witnesses etc. due to which the present complaint cannot be decided in a summary manner by this Commission. The remedy, if any, lies before the Civil Courts. As such, the present complaint is liable to be dismissed. On merits, the factum in regard to purchase of the books by the complainant is admitted, but the other allegations as made in the complaint by the complainant are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
4. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-7 and closed the evidence.
5. In order to rebut the evidence of the complainant, the counsel for the OP No.1 tendered into evidence affidavit Ex.OP1/A alongwith document Ex.OP/1 and closed the evidence.
6. Despite availing numerous opportunities alongwith cost for leading the evidence by the OP No.2, the OP No.2 failed to do so and ultimately, the evidence of the OP No.2 was closed by order on 09.04.2019.
7. We have heard the learned counsel for the respective parties and also gone through the case file as well as written arguments submitted by counsel for the complainant very minutely.
8. The present complaint has been filed by the complainant for seeking the payment of Rs.303/- with interest, Rs.50,000/- as a compensation for mental tension, harassment and Rs.15,000/- as litigation expenses.
9. The case of the complainant is that he had booked order for books of UGC, NET/JRF/SLET General Paper-I Teaching & Research Aptitude of Arihant Experts English, Arihant Publication addition 2017, through online net system i.e. www.flipkart.com and the payment was to be made at the time of delivery. The books were delivered through courier service Ekart Logistics and payment of Rs.303/- was made. The book delivered was of some other author/publisher. Despite requests, the OP put up the matter to the one pretext or the other and failed to deliver the book as ordered by the complainant till today. Thus, the OPs are guilty of deficiency and negligence in service and have adopted unfair trade practice. Request has been made to compensate him as requested.
10. The contention of the OP No.1 is that the OP No.1 is not liable to pay any amount as the OP is just an intermediary i.e. to provide online platform to facilitate the transaction in the whole transaction of sale and purchase of goods by the respective sellers and buyers of its website. The OP is not engaged in selling the goods manufactured on its own. In case of any defect in the goods sold by sellers, it is the seller who is liable for the consequences. The OP is not involved in entire transaction except for providing the online platform for transaction. There is no privity of contract between the complainant and the OP No.1. The OP No.1 falls within the definition of intermediary as defined under Information Technology Act, 2000 and OP No.1 is protected by the provisions of Section 79 of the IT Act.
11. The OP No.2 has admitted that the complainant booked an order for books of UGC, NET/JRF/SLET General Paper-I Teaching & Research Aptitude of Arihant Experts English, Arihant Publication addition 2017. It has also been admitted that the complainant received the courier containing the book after making the payment. Other facts have been denied by the OP No.2. The contention of the OP No.2 is that there is no chance of mistake or wrong packing of books since the packaging passes through three stages and after satisfying themselves the parcel is sent to the consumer. The entire procedure was adopted while sending the book and no discrepancy was found. If any discrepancy is found, the same is rectified then and there. More so, the complainant has never informed the OPs about the wrong delivery of books nor moved any complaint nor returned the book by immediately contacting the portal. Therefore, the complainant is not entitled to any relief.
12. The complainant has proved on record the documents Ex.C-1 the placement of order, Ex.C-2 the Invoice, Ex.C-3 is the title Page/Cover Page of the book received by the complainant, Ex.C-4 the notice and Ex.C-5 & Ex.C-6 are the postal receipts and Ex.C-7 reply to notice by OP No.1.
13. On the other hand, the OP No.1 has produced on record the copy of resolution passed in a meeting authorizing the signatory to sign legal documents. Except this no document was produced by any of the party.
14. Ex.C-1 through OP No.1, the complainant placed order of book being intermediary of the platform. The name of the seller has been mentioned in Ex.C4 as BooksnClicks. The book was never returned to OP No.1 for replacing or returning the same to the OP No.2. OP No.1 acted just as an intermediary only and there is no correspondence with OP No.1. It is admitted that the OP No.1 provided a platform to the complainant to purchase the book from the OP No.2, which was to be delivered on making payment. All the facts regarding the placement of order of book, delivery of book and payment of book to the OP No.2 is admitted. Now the question is as to whether there is deficiency in service on the part of OP No.2 as they have allegedly delivered wrong book. Perusal of Ex.C1 and Ex.C2 show that the complainant has placed the order of the Book of different author, the name of the author is not legible from Ex.C-1, but as per complaint and admission of OP No.2, it was of Arihant Publication, but the cover of the book ordered is different from the book delivered to the complainant. Though the book delivered was for UGC, NET and it was Paper –I by KVS Madaan – Pearson and not of Arihant Publications as demanded by the complainant, which is mentioned in Ex.C-3 also. These documents clearly show that the OP No.2 has sent wrong book and there is deficiency in service and negligence on the part of the OP No.2. So, there is clear cut deficiency in service on the part of the OP No.2 and complainant is entitled for the relief against OP No.2. OPs No.1 is not liable for any deficiency in service, so, complaint against OP1 is dismissed.
15. In the light of above detailed discussion, the complaint of the complainant is partly allowed qua OP No.2 and OP No.2 is directed to refund the amount of Rs.303/- alongwith interest @ 6% per annum from the date of purchase, till realization and further OP No.2 is directed to pay compensation to the complainant, to the tune of Rs.2000/- for causing mental tension and harassment to the complainant and Rs.2000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
16. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Dr. Harveen Bhardwaj
10.02.2022 Member President
