Delhi

North East

CC/7/2016

Shri Deepansh Aggarwal - Complainant(s)

Versus

Flipkart Internet Private Limited - Opp.Party(s)

24 Feb 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 07/16

 

In the matter of:

	Shri Deepansh Aggarwal S/o Vijay Kumar Aggarwal R/o:- 63-C, DDA Flats, Mansoravar Park, Shahdara Delhi-110032   Through his POA Shir Mahendra Kumar Gupta S/o Late Shri J. R. Gupta R/o:- I/9201-A,Street No.-5 West Rohtash Nagar, Shahdara Delhi-110032	Complainant
	Versus
	Flipkart Internet Pvt. Ltd. Regd. Off:- Vaishnavi Summit no. 6/B, Ground Floor 7th Main, 80 Feet Road, 3rd Block Koramangala Industrial Layout, Bengaluru-560034 Karnataka	Opposite Party

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:                DATE OF DECISION      :

06.01.2016 24.02.2020 24.02.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Facts germane for disposal of the present complaint on merits are that the complainant had placed an order for mobile Phone      Lenovo A700 with OP, online portal on 22.06.2015 vide order No. OD303182777387308100 to gift the same to his uncle, (complainant’s power of attorney in the present case) for a sum of Rs. 8,181/-. The said mobile was delivered by OP on complainant’s address on 23.06.2015. However, complainant’s uncle to whom the said mobile was gifted by the complainant discovered that there were major basic defects in the subject handset in terms of incoming and outgoing calls and therefore as per OP’s ‘return policy’ which allow return of the purchase articles order online within 30 days of their delivery for replacement / exchanged / refund, complainant raised a ‘Return Request’ on 17.07.2015 with OP vide return ID 24438824. The complainant also informed OP that since he will be out of India, his cousin, who was son of his uncle whom the mobile gifted to would pursue and follow of the ‘Return Request’ and shared his mobile number as well vide e-mail dated 18.07.2015 to OP. However when no action was taken by OP till 26.07.2015, the complainant followed up with the staff of OP telephonically but the OP vide email dated 21.07.2015 informed the complainant that his returned request for the mobile in question has been disapproved for inability of OP to reach the complainant despite attempts and therefore had closed his returned request and lastly complainant was asked telephonically by OP on 02.08.2015 to visit the nearest Lenovo Service Centre to get the mobile repair. Therefore alleging deficiency of service on the part of OP due to negligent and irresponsible behavior and failure to discharge its obligation in violation of its own online selling the delivery policy and ‘Return/Refund’ guarantee causing immense mental agony and lost to the complainant, the complainant was constrained to file the present complaint before this Forum praying for issuance of directions against OPs to refund  Rs. 8,180/- towards cost of the mobile inclusive of shipping charges with interest @ 24% thereon, Rs. 25,000/- as costs / damages and Rs. 50,000/- towards mental agony.

Complainant has attached copy of power of attorney in favour of his uncle, copy of invoice generated by OP in favour of complainant dated 22.06.2015 towards sale of mobile, copy of e-mail exchanged between parties from June to July 2015 pertaining to placement of online order, delivery, returns and cancellation policy of OP, return request generated with alternate number given to pursue the same and rejection by OP for return request. Complainant also filed certificate under Section 65B of Indian Evidence Act, 1872 in support of e-mails placed on record as per the mandatory legal compliance.

2. Notice was issued to the OP. OP entered appearance and filed its written statement in which OP took the preliminary objection that it provides online market place / platform / technology and / or other mechanism / services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods, by and between respective buyers and sellers and enables them to deal in various categories of goods and it falls within the deficiencies of ‘intermediary’ u/s 2(1)(w) of the Information Technology Act, 2000 (IT Act) and is protected under section 79 of  IT Act. OP submitted that the complainant was not its consumer and there was no privity of contract between complainant and OP has been wrongly arrayed in present complaint since its role was only to provide online platform to facilitate the entire transactions of sell and purchase of goods by respective sellers and buyers on its website registered with it and itself was not engaged in selling of any goods on / of its own similar to a shopping mall which rents out various shops to different sellers who in terms are liable for the consequences towards their respective customers. OP further took the defence that all the transactions done over its website are governed by ‘Terms of Use’ as mentioned on its website (as detailed in para 4 of preliminary submission of written statement of OP and not being reproduced here). OP objected to the complainant having failed to implead the seller and/or manufacturer as necessary party since it was their liability for any after sale service issue pertaining to guarantee / warrantee and therefore the complaint is defective for non-joinder / mis-joinder of party and therefore bad in law. OP, while admitting the factum of purchase of the subject mobile phone in question by complainant, denied having provided any guarantee / warrantee which was provided by its manufacturer Lenovo to be honoured by it. OP stated in its defence that its concerned team tried reaching the complainant on the alternate number given by OP vide e-mail dated 18.07.2015 but no response was received from the said number and despite several attempts made by OP to locate / reach the alternate number so that the return request could be initiated, the same would not be reached due to lack of response and therefore the return request was closed by OP after four attempts as per its own policy. Lastly, the OP tried its best to resolve the issue of the complainant but for his carelessness, negligent and unprofessional attitude, the return request could not be initiated and therefore closed and despite OP’s advice to the complainant to visit the service centre, complainant has not taken any action for resolving his own problem. Therefore, OP urged that the present complaint has been filed to extort money in an illegal manner aimed at achieving undue benefits against OP and therefore, prayed for dismissal of present complaint at the threshold against OP for want of any cause of action.
3. Rejoinder to the written statement was filed by complainant in rebuttal to the defence taken by OP alleging that since the OP was advertising for entertaining the Return Request of sold product through website as per written policy of time limit of 30 days, neither can it be spread under the guise of intermediary nor can shirk its prime responsibility to tie-up with the manufactures of the products for return / refund to the purchaser in case of supply of defective goods. Complainant submitted that he was always available on the alternate number and e-mail and was constantly in touch with OP since 17.07.2015 but OP did not pay heed on the return request and disapproved the same.
4. Evidence by way of affidavit was filed by complainant exhibiting the documents relied upon as EX-PW1/1 to PW1/7.
5. Evidence by way of affidavit was filed by OP through its AR.
6. Written arguments were filed by the complainant in reemphasis / reinforcement of his grievance raised in pleadings filed before us. OP failed to appear after February 2018 and failed to appear despite court notice issue to its attorney on 12.10.2018 and was therefore proceeded against ex-parte vide order dated 16.08.2019. However, in view of the settled law passed by Hon’ble National Commission in I.S. Bhatia Vs Anil Kumar Mehta (1994) 2 CPJ 92 (NC) holding that procedure of “striking of defence followed in the civil court is not provided for under the Consumer Protection Act or rules” in the absence of opposite parties and even otherwise as per the settled law by Hon'ble National Commission in Bank of India Vs N V Deoras 1997 (3) CPR 63 (NC), even if OP is absent, Commission / Forum must consider averments in version before passing orders, the pleadings placed on record by OP shall be considered on passing order on merit.
7. We have heard the arguments addressed by complainant’s power of attorney and have perused the documents placed on record by both sides.

The factum of sale of the subject mobile by OP to the complainant through its online portal is not in dispute. The dispute arose when the OP failed to reverse pickup the subject mobile from complainant despite the request having been generated for the same by the complainant within the 30 days returned/replacement window as per OP policy. OP has also admitted to having been provided alternate mobile number and e-mail ID of the complainant. The OP has also accepted to having 30 days return policy with replacement guarantee from its sellers which was in operation when the complainant raised return request of the subject mobile (date of receipt 26.06.2015 and return request generated on 17.07.2015).However OP has failed to place any cogent evidence on record by way of any e-mail correspondence or otherwise of alleged four attempts made by it for having the subject mobile picked up since there is no such e-mail to this effect between the period when the request was raised on 17.07.205 till the same was rejected vide e-mail dated 21.07.2015.

We therefore find OP guilty of deficiency of service in having failed to pickup and complete the return request initiated by it on 17.07.2015 and abruptly rejecting the same on 21.7.2015 without any cogent reason. The Hon'ble National Commission in the judgment of Rediff. Com India Ltd Vs Urmil Munjal in RP No. 4646/2012 decided on 11.04.2013 held that responsibility of online shopping company cannot be over after sale of product as it is the bounden duty of the company to satisfy of its customer and it does not give any liberty to it to usurp the money of the consumer by either sending wrong or defective item or not accepting the same vide return request despite its exchange policy. We hold OP also guilty of deficiency of service as it has failed to establish beyond reasonable doubt that it had indeed taken any concrete steps for reverse pickup of the subject mobile phone from the complainant or took any measures or resolutions / step to redress the grievance of the complainant except filing a cryptic written statement to wriggle out of liability.

We therefore direct OP to refund Rs. 8,181/- the cost of the mobile with directions to complainant to return the subject mobile phone to the OP. We further direct OP to pay compensation of Rs. 3,000/- to the complainant for mental agony inclusive of damages.Let the order be complied with by OP within 30 days from the date of receipt of copy of this order.

8.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on  24.02.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member